Former DOJ Attorney Wrong To Suggest Poll Workers Should Block Dems From Mississippi Primary

Via Josh Marshall, comes a story at Breitbart, Former DOJ Attorney: Illegal for Democrats to Vote in MS GOP Primary Runoff. Here’s the relevant part of the article:

J. Christian Adams, a former Civil Rights Division attorney at the Department of Justice with experience litigating election law cases in Mississippi, said a law there prevents people from voting in the primary for candidates they don’t plan to support in the general election….

The Mississippi law Adams cites, MS Code 23-15-575, states: “No person shall be eligible to participate in any primary election unless he intends to support the nominations made in which he participates.”

“Mississippi law prohibits Democrats from voting in a Republican primary,” Adams said in an emailed statement. “Obviously poll workers aren’t mind readers. But if someone doesn’t intend to support the nominee in November, then that person isn’t allowed to vote in the Republican primary.”

In addition, the state Democratic Party sued Gov. Haley Barbour and others in the mid-2000s regarding just that matter—prompting United States District Judge W. Allen Pepper to write in a June 8, 2007, opinion that it is the responsibility and right of the political party holding a primary election to ensure that the elections are fair and legal. In the case of a Republican primary and runoff, only Republicans vote, and in the case of a Democrat primary and runoff, only Democrats vote—and it is the role of the political parties to ensure that process is handled correctly.

The Supreme Court determined in a 2005 case that the First Amendment “protects the right of political parties to associate with fellow members and disassociate with non-members,” Judge Pepper wrote in his opinion. So technically it’s the party’s responsibility—i.e., in this case, state GOP chairman Joe Nosef’s responsibility—to protect GOP voters’ First Amendment rights by working to keep Democrats from voting in the GOP primary runoff.

Here’s what Adams does not tell you in the piece: Judge Pepper’s opinion in Mississippi State Democratic Party v. Barbour, 491 F.Supp.2d 641 (N.D. Miss. 2007) was reversed and remanded in an opinion by Judge Edith Jones for a unanimous 5th Circuit, 529 F.3d 538 (5th Cir. 2008). In the course of holding that the state Democratic Party lacked standing and that the case was not appropriate for federal court review, Judge Jones rejected the analysis of Judge Pepper, and explained how MS Code 23-15-575 had been interpreted by the Mississippi Attorney General:

In June 2003, the Mississippi State Democratic Party and Mississippi State Democratic Party Executive Committee (collectively “MSDP”) asked the state attorney general (“AG”) how the party could enforce § 23–15–575, which it had not done before. The MSDP wanted to curtail alleged “party raiding” and crossover voting “whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary.”2This practice is forbidden by the plain language of § 23–15–575. The AG responded with an opinion (“Cole Opinion”) stating that a party may challenge a voter in a primary only in accordance with Miss.Code Ann. § 23–15–579, which outlines strict procedures for challenging a voter. The AG stated further that a voter may be challenged only for the reasons listed in Miss.Code Ann. § 23–15–571.3 See 2003 WL 21962318 (Miss. A.G. Op. No. 2003–0316 July 21, 2003). According to the AG:

[W]e find nothing that would allow a poll worker, poll watcher or another voter to ask a voter if he or she intends to support the nominees of the party once the voter presents himself or herself to vote. Challenges may be made … for the reason that the voter does not intend to support the nominees of the party per Section 23–15–575 …

If a challenge of a voter is properly initiated in strict accordance with Section 23–15–579 and the voter then openly declares that he or she does not intend to support the nominees of the party, the poll workers could find the challenge to be well taken and mark the ballot “challenged” or “rejected” consistent with the provisions of said statute. On the other hand, if the voter openly declares his or her intent to support the nominees, then a challenge is not proper under Section 23–15–575.

….

[W]e have previously opined that absent an obvious factual situation such as an independent candidate attempting to vote in a party’s primary, the stated intent of the voter is controlling…. No past action by a voter can form the basis of a valid challenge under Section 23–15–571(3)(g) and Section 23–15–575.

Id.

(FN 3 reads: 3

Section 23–15–571 states that “[a] person offering to vote may be challenged upon the following grounds”:

(a) That he is not a registered voter in the precinct;

(b) That he is not the registered voter under whose name he has applied to vote;

(c) That he has already voted in the election;

(d) That he is not a resident in the precinct where he is registered;

(e) That he has illegally registered to vote;

(f) That he has removed his ballot from the polling place; or

(g) That he is otherwise disqualified by law.)

In other words, the state law has been interpreted by the state attorney general so that poll workers may not challenge a voter, despite that voter’s past history of voting for Democrats unless the voter comes in and “openly declares that he or she does not intend to support the nominees of the party.”

It sure seems that the Breitbart story should have mentioned the appeal, and vacating of Judge Pepper’s opinion, as well as the AG opinion.

This post originally appeared on Election Law Blog.

Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law.