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Stephen Gottlieb: To Heal The Politics, Change The Primaries

Over the next few weeks, I’d like to address aspects of how we can heal from the damage of the Trump years. We’ll have to change the politics to communicate with each other, the economics to take care of the whole country, policies to protect the climate, gun rights to define where and when they belong, and we have to get to know each other better.

To start with the politics, Lowell Weicker was a moderate Republican senator from Connecticut who wanted independents to vote in the Republican primary so he could fend off extremists. My clients, Democratic political scientists, thought parties should be able to shape their own primary systems for the good of all of us. Some of my clients supported closed primaries, restricted to party members. Some supported open primaries in which people can choose which primary to vote in. There are arguments for each. But my clients came together for parties’ rights to shape their primaries to encourage what Barry Goldwater called a choice, not an echo, or to encourage a moderate position, claiming each could better realize common goals. The more open the primary, the less candidates would be talking only to their party’s extreme wings.

We took part as amicus curia, supporting the Republicans’ choice, focused on the implications for the way the country does politics. When the suit went to the U.S. Supreme Court, David Golub, lawyer for the plaintiff, the Republican Party of Connecticut, called me to try out his analysis. David expected Justice Thurgood Marshall would be concerned that allowing parties to shape their primaries could result in racial exclusion. Neither of us had the stomach for that to happen, but we had different ways of explaining why our position wouldn’t allow it. Convincing Marshall was crucial. David built his entire argument around it. He reasoned that Marshall could bring along his close friend, Justice William Brennan, and Brennan could bring along several of their colleagues.

As it happened, the most memorable moment in the argument was when Justice Marshall leaned his large frame over the bench saying you wouldn’t ask me, emphasizing “me,” to overrule the cases which had held that African-Americans could not be excluded from party primaries. The courtroom broke out in laughter. Chief Justice Rehnquist, then in his first term as Chief, didn’t bother to gavel the courtroom into silence. Everyone understood that those cases were part of Marshall’s legacy as the Civil Rights Movement’s top lawyer. When the decision came out, the majority opinion was by Marshall for a closely divided court. He didn’t mention my argument, though it played a major role in the opinions of the Court of Appeals below. But the Court gave the parties the latitude we wanted.

There are many ways to push candidates to take account of the whole electorate, not just the extremes of their own party. Open primaries and ranked choice voting are two such methods. There are times when those approaches are helpful.

Our most important goals now – handling climate change, workers’ rights, and racial equality, among others – will require getting the public behind the movement. Open primaries could bring the parties and the country together.

There’s a risk that candidates would water down what needs to be done. But, somehow, we have to get the nation behind what we’re trying to accomplish. Trump and McConnell forced us into battles just to avoid backsliding. Maybe we need to talk to each other.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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