Michigan primary law threatens press and association freedoms

Published on January 16, 2008
by Michael Darner

File Under: Disclosure, Political Parties, Press

As citizens of the state of Michigan made their way to the polls yesterday, Democrats, Republicans, Greens, Libertarians, and non-affiliated independents were all eligible to cast their votes in the state's Republican and Democratic presidential primaries.  State rules allowed anyone to vote in the primaries and it was widely speculated that the infusion of independents voters, coupled with the futility of voting in the Democratic primary, would have a dramatic impact on the GOP outcome.  Once inside a polling station, voters declared their party preference in writing, filled out the primary ballot of their choice, and returned home - content that they had fulfilled their democratic duty.  The state's administration of the election should have ended there.  However, thanks to a new law passed by the state legislature, city and township employees will now be tasked with cataloguing each voter's partisan voting preferences for the sole benefit of the Democratic and Republican parties. 

The law, passed in August of 2007, provides that voter preference records are to be kept secret from all private entities except for "participating political parties" in the primaries - i.e., the national Democratic and Republican political machines.  All other interests, be they media, third-party, or academic, are denied similar access to this information. 

On Monday, several minor parties, a media organization, and a political consulting firm filed a lawsuit in federal court in an attempt to strike down the law.  It cannot be denied that the interests of the parties challenging the law are just and reasonable.  The Michigan Green, Reform, and Libertarian parties see the law as yet another barrier to their attempts to challenge the political oligopoly dominated by the two major parties.  Similarly, media organizations rightly see this law as an affront to their constitutional right to report all the news that's fit to print - including the political preferences of their readers and viewers.  The desire of Winning Strategies, a political consulting firm, to turn a profit is self-explanatory.

But what of the constitutional right of anonymous expressive association?  An unfortunate side-effect of a successful challenge to the law is that, in vindicating press freedom, Michigan voters' ideological and partisan preferences would be completely exposed.  All of a sudden, citizens' private personal political leanings could be open to scrutiny from their employers, co-workers, and neighbors.  While such disclosure may be good for the media and the pollsters, it would certainly chill future political association and perhaps even suppress the vote in future primaries.

So how can the citizens of Michigan have the totality of their First Amendment rights vindicated?  Must the press and assembly clauses be at war, with only one victor?  Unfortunately, the answer is not clear, and at this late date, it may be too much to hope for an outcome that respects each faction's constitutional rights.  The real question is why the Michigan legislature created this Catch-22 in the first place. 

Primaries are private affairs.  They are a mechanism that allows private political associations - parties - to select their representatives in major elections.  The only interests the state has in administering a primary are the interests that it has in every election - that the voters who show up at polling places are who they claim to be and that each voter casts his or her ballot once.  Once these interests have been satisfied, the state no longer has an interest in what goes on in the voting booth.  It certainly doesn't have an interest in keeping track of a voter's choice of political party.

Therein lies the problem, but also the solution.  Michigan has ensnared itself in this constitutional mess because the people's representatives couldn't resist hoarding information that the state has no business possessing.  Had the legislature simply left the process of organizing and tracking political preferences to the political parties - entities with ample financial resources and extensive organizing experience - the constitutional issues would never have surfaced.  The state would never have had access to personal political information and thus, there could be neither a withholding of information from the Fourth Estate nor a damaging state-sanctioned publication.

The next time the state legislature tries to usher a blatantly incumbent protective measure through the People's Chambers, it should consider not only whether its actions comply with the demands of the Constitution, but also whether the people would be served best by no legislation at all.