Michigan Primary Law: What The Ruling Does Not Do

Judge Nancy Edmonds's ruling DOES NOT order a new primary. She writes that the "the court agrees the issue of severability is beyond the scope of the claims." In other words: the parties themselves ought to figure out whether they need new primaries or not.

Here's the ruling.

I see this is as a small political victory for Clinton and a larger one for Obama; the ruling today means nothing more than a chance for her to make the case again for a re-vote, as campaign manager Maggie Williams does in an e-mail to reporters:

"In the wake of today's court ruling regarding Michigan’s January 15th primary, we urge Senator Obama to join our call for a party-run primary and demonstrate his commitment to counting Michigan's votes."

An Obama aide said the ruling speaks for itself. They avoided the worst: where the Clinton campaign had hoped that the judge would order a revote as the remedy, she simply ordered the state party to share its lists. Since the legislature is no longer in session, the notion of a re-vote is moot at this point, anyway.

Comments

Quick Fact-check:
The Michigan Legislature returns to session on April 8th and it lasts through June 26th.

Posted by dry_fish | March 26, 2008 4:26 PM

A question from a legal nitwit. If the law that set up the primary was unconstitutional, does that mean that the entire primary should be considered invalid, and any claims Clinton has made are irrelevant?

Posted by john m | March 26, 2008 4:55 PM

Marc, you say that the judge ordered:

she simply ordered the state party to share its lists.

That's not the way I read the ruling. The judge enjoined the defendant from carrying out the statute. The only defendant is MI Sec. State Terry Lynn Land. That means that SOS Land may not share the partisan ID of January Presidential Primary voters with either the GOP or the Dems. It's pretty clear, though, that although the judge did indeed state that it was beyond her scope to rule on the validity of the entire primary law, the law itself had a non-severability clause, which means that since the judge invalidated one part of the law, THE LAW ITSELF REQUIRES that the rest of the law be considered invalid, regardless of whether the judge explicitly struck down the whole thing or directly ordered a new primary vote.

Bottom line, the effect of this ruling is that the January 15th primary was just invalidated. The legislature, by law, MUST act to legislate a new primary date, unless the state parties choose some other method for selecting their delegates.

Posted by dry_fish | March 26, 2008 4:56 PM

I think dry_fish has the right, with two important upsides for the Obama people.

1) Since the January 15 primary was invalidated and the SOS has been enjoined from providing the lists of who participated in each party's primary, those who voted in the GOP primary will not be barred from participating in the new primary.

2) This ruling also makes it extremely difficult for Clinton to get delegates seated on the basis of the January 15 primary, which has essentially been held void.

I do not know enough about the Michigan legislative calendar to know whether a revote can be accomplished before the June deadline. Gov. Granholm and Sen. Levin have not covered themselves in glory on this one.

Posted by Ephus | March 26, 2008 5:24 PM

The legislature, by law, MUST act to legislate a new primary date.

You need to show all the steps in your work. What law, specifically, are you referring to that requires the legislature to set a new date?

Posted by lifelong democrat | March 26, 2008 5:32 PM

Lifelong Democrat,

Good question. The issue is more complex than I portrayed it earlier. Starting from the beginning: Last year, Michigan rewrote the law governing presidential primaries. Not only did the law change the date, but it also made the primary a state-run election -- a change from 2004. Today's federal court decision just invalidated that law effectively making the old law operable once again. The old law said that delegate selection was up to the state central committees of each political party, but that once selected delegates had to vote for the candidate to whom they were pledged at each step of the process up through the first ballot of the national convention. So, one basic problem is that unless legislators intend to keep all of the old law (basically guaranteeing party-run primaries or caucuses) they will have to legislate a new state-run primary law at some point. A second issue is that even if they are fine with not having a state-run primary in the future, neither the GOP or the Dems is able to actually meet the requirements of their own delegate selection plans for this year. Third, the effect of the judicial decision was to make the delegate allocation scheme (which candidates get how many delegates) unusable under any circumstance precisely because the scheme was decided through an illegal process. So, even if the DNC hadn't already sanctioned the Michigan delegates, the Michigan Democratic Party would still be facing a big problem because they don't have a legal guide for allocating delegates between the various candidates and "uncommitted."

The core question now is whether or not there will be a new state-run election or if it will be party-run. If the Michigan Dems say they don't have the ability to run a new primary, then the state would have to do the heavy lifting. Therefore, the state would have to decide on a new date.

Also, the Michigan Dems need to submit a new delegate selection plan. It's impossible to follow through with their current one because it makes reference to state laws which are now invalid and unconstitutional. Does the DNC Rules & Bylaws committee continue to feel that it has grounds to suspend all of Michigan's delegates now that the original "allocation election" been rule invalid? I don't fully know especially since the DNC RBC is riven with Clinton vs. Obama politics.

I'm still trying to get a hold of the options which lay in front of the Michigan Dems and the DNC so if I've erred in my reasoning anywhere (quite possible), seriously or otherwise, please point it out.

Posted by dry_fish | March 26, 2008 9:48 PM

We the people of Florida and Michigan have cast our votes. The Clinton campaign agrees that our votes should count. The Obama campaign wants to disregard how we voted and start over. He was on the ballot in Florida and told his supporters in Michigan to vote "Uncomitted". It's clear to me and most of the people I know. We voted, we chose Hillary Clinton overwhelmingly 50% to 33% in Florida. In Michigan, Hillary Clinton received 55% and "Uncomitted" received 40%. The "Uncommitted" 40% should be split between Obama and Edwards since they both told their supporters to vote "Uncommitted". It seems to me Obama will play fair only when he wins!!

Posted by Joe | March 26, 2008 9:57 PM

Looks pretty good--I just have one question. You say "If the Michigan Dems say they don't have the ability to run a new primary, then the state would have to do the heavy lifting. Therefore, the state would have to decide on a new date." But I don't see why the state would have to do anything. There's nothing (as far as I can see) in the Michigan Constitution or federal law that would require the state to provide for a primary or caucus if the state party fails to do so. The Michigan legislature could do it, but they're not bound to do it.

Posted by lifelong democrat | March 26, 2008 10:05 PM

Let me see if I interpreted all of the above correctly:

1) Any possibility of seating the current delegates is now officially dead (ignoring for the moment any appeals), as the election to determine these delegates has been declared illegal.

2) Nobody really knows what can/will/could happen as far as any new process to determine delegates is concerned, or if the DNC would/could accept the new slate of delegates.

Do I have this right?

Posted by Mark T | March 26, 2008 11:01 PM

Lifelong,

You're right there's no language explicitly requiring the state to "provide for" a primary if the party fails to do so. Basically, state law defers to the DNC in that case. The pre-2007 Michigan Presidential primary laws did regulate the conduct of party-run caucuses /primaries, district conventions, and the other subsequent steps leading up to the selection of the final group of people who will actually be delegates at the national conventions. So, it may not even be possible for Michigan Dems to implement even a revised and approved delegate selection plan in a completely legal way given some of the requirements the old law put in place. So there's a lot of gray and fog. But were certainly in the territory where even if the legislature is not required to act, it certainly could be forced to act either by political forces or judicial ones.

Posted by dry_fish | March 26, 2008 11:24 PM

The MI and FL voters have spoken, they just didn't speak the way the Obama camp wanted them to. Now the election is a dead heat, nobody can win without the votes in those two states. So Obama wants a mandate from the 'super' delegates to put him over the top.

He has tried to make himself out to be the one with a new idea in politics, putting the voter ahead of everything else. He wants to unite the party and the nation to hear him tell it. The division that will result by him not aiding in an EQUITABLE solution for the voters in these two states will take a long time to heal. Unless he comes across and allows the votes to either be counted or the elections to be done over, he is a fraud and a liar when he makes his 'unity' proclaimations all over the country.

Florida should count outright, as the legislature made the decision, not the democratic state orginization. MI should be a do over. The DNC is wrong to continue this mess.

Posted by Heneri | March 26, 2008 11:42 PM

The votes in Michigan should stand and be counted. If not how can we call this a legit election? We can not! Voting is a god given democratic right to all Americans and I just don't feel one man (Howard Dean) has the right to take away anyones right to vote and have it counted. Regardless of when the vote was cast.
How can they say this is a open and fair process when over five million votes are not going to be reconized? They can't and be truthful!
If the Democratic Party breaks that lies on the shoulders of its leader Howard Dean who has shown a lack of action in this election you might say he is MIA! Maybe this party needs to break so it can be rebuilt for the twentith century I just don't know.
They should count Michigan's votes and give Hillary Clinton her delegates and give Barack Obama the undecided and call it even. Obama chose to remove his name from the Michigan ballot, even though he claims to have good judgment. Even dennis Kucinich who lacks a card from a full deck made sure his name was on the ballot which the media fails to tell you! So no Hillary Clinton was not alone on the ballot as they say!
In closing all I can say is if Michigan and Florida delegates are not seated I see a landslide victory for John Mccain! There is over five million votes that are not being counted and you don't think this will cause anger and their will be a lot of revenge voting going on!

Posted by Steven poland | March 26, 2008 11:49 PM

The votes in Michigan should stand and be counted. If not how can we call this a legit election? We can not! Voting is a god given democratic right to all Americans and I just don't feel one man (Howard Dean) has the right to take away anyones right to vote and have it counted. Regardless of when the vote was cast.
How can they say this is a open and fair process when over five million votes are not going to be reconized? They can't and be truthful!
If the Democratic Party breaks that lies on the shoulders of its leader Howard Dean who has shown a lack of action in this election you might say he is MIA! Maybe this party needs to break so it can be rebuilt for the twentith century I just don't know.
They should count Michigan's votes and give Hillary Clinton her delegates and give Barack Obama the undecided and call it even. Obama chose to remove his name from the Michigan ballot, even though he claims to have good judgment. Even dennis Kucinich who lacks a card from a full deck made sure his name was on the ballot which the media fails to tell you! So no Hillary Clinton was not alone on the ballot as they say!
In closing all I can say is if Michigan and Florida delegates are not seated I see a landslide victory for John Mccain! There is over five million votes that are not being counted and you don't think this will cause anger and their will be a lot of revenge voting going on!

Posted by Steven poland | March 26, 2008 11:49 PM

I agree that political forces could cause the legislature to act. But without a state constitutional provision or federal law implicated, no court has the power to force a state legislature to act. Jurisdiction and justiciability aside, even when such a situation occurs it's unusual for a court to take steps beyond striking down the offending legislation.

Posted by lifelong democrat | March 26, 2008 11:50 PM

Ok, but, in part you're just arguing the basic point that no legislature ever has to do anything. My point about judicial forces was simply that if a court decides to enjoin or strike down key parts of of the pre-2007 Michigan election law, while an election is going on, then a simple element of practicality takes over. But, of course, this being politics and all, being impractical may fit the legislature's prerogatives. We'll see.

Posted by dry_fish | March 27, 2008 12:17 AM

methinx J McCain's prayer life as a POW was something special, because there hasn't been such confusion among the Dem's ranks since Eris threw the golden apple.

Posted by Pashley | March 27, 2008 12:18 AM

I get what you're saying. The future is somewhat murky, isn't it?

Posted by lifelong democrat | March 27, 2008 12:30 AM

Marc

This is not a larger victory for Obama. Do you really believe that if the votes of MI and FL are not counted, this would help the Democratic nominee in November? It will alienate these voters from the Democratic Party.

Posted by EWard | March 27, 2008 2:01 AM

To those of you above who are still insisting on the earlier primary results from the Michigan primary... which part of the words invalid and unconstitutional do you not understand?

Posted by cari | March 27, 2008 2:26 AM

Michigan should do all it can when legislators return on April 8 to have a revote set for June, since the other one has been voided. Then Obama would not be able to block it. The judicial system said it was null and void so now let's have a new one. Go Michigan!!! Go Hillary and God Bless America!!!

Posted by Jackie | March 27, 2008 3:15 AM

Michigan should do all it can when legislators return on April 8 to have a revote set for June, since the other one has been voided. Then Obama would not be able to block it. The judicial system said it was null and void so now let's have a new one. Go Michigan!!! Go Hillary and God Bless America!!!

Posted by Jackie | March 27, 2008 3:15 AM

For many of us, the numbers that we presently see are not accepted as legitimate since the voices of 9% of the electorate (Florida and Michigan) are being excluded. Beyond the legitimacy issue, the reality that Florida and Michigan (collectively) account for 9% of Americans and more than 8% of Democratic delegates will seriously damage Democratic chances of victory. Unless the 9% of our citizens in Florida and Michigan are allowed to have their votes counted, there’s no way that the party’s nominee can win in the fall. The nominee would certainly loose Florida and Michigan. An even greater problem, however, is that it will be impossible to rally a large part of the electorate around the nominee. Presently this issue is tearing the party apart, and if it isn’t resolved, the party will pay in the general election.

Posted by Wilson | March 27, 2008 8:13 AM

I believe in fair play. I remember people who do not play fair. Remember, we learned how to play fair in kindergarten. Hillary has played fair in this race. She is by far the best candidate of the three. If Obama blocks Michigan and Florida in accepting the current votes, or by revoting, then in November, I will cast my vote to block him from becoming President. And, I know a lot of Democrats in Georgia who will do the same thing. We consider John McCain half Democrat anyway!
Nancy in Georgia

Posted by Nancy Seagraves | March 27, 2008 8:35 AM

I believe in fair play. I remember people who do not play fair. Remember, we learned how to play fair in kindergarten. Hillary has played fair in this race. She is by far the best candidate of the three. If Obama blocks Michigan and Florida in accepting the current votes, or by revoting, then in November, I will cast my vote to block him from becoming President. And, I know a lot of Democrats in Georgia who will do the same thing. We consider John McCain half Democrat anyway!
Nancy in Georgia

Posted by Nancy Seagraves | March 27, 2008 8:35 AM

Michigan has a primary election scheduled for early August for all other offices. Maybe they could add a Presdential Primary line there?

Posted by Charlie Hall | March 27, 2008 8:53 AM

Hillary and Obama agreed that the Michigan and Florida votes will not count. The two parties signed the document given by the DNC.In new Hampshire, she said and I quote "I know the vote in Michigan an Florida will not count for anything". I want to know if both parties signed a new agreement to have these votes count. Who is failing to adhere to the party rules and agreed terms of the election. Please forget about these bickering. Michigan delegates will be seated but by the rules set by the party(DNC).

Posted by chi chi | March 27, 2008 9:13 AM

why is Obama and his camp afraid to hear MI and FL people's voices?

Every citizen needs to be heard. It is not their fault that the DNC and their state representatives scrwed up the process.

People need to vote. This is their sacred right!

I am an Obama supporter in PA, but if MI and Fl are not counted, I will vote for Clinton in PA.

Posted by Jeff | March 27, 2008 9:49 AM

Ok,

You Obama supporters really want a fight? Well, you'll have it.

I'm sick and tired of this nonsense. Clinton does not decide whether I can vote or not. As a Floridian, I make that decision. If my vote is not counted, I will do everything I can to re-expose Obama for the facist that he is.

So, do you still want a fight. How about if we continue talking about the lunetic racist Rev. Wright and the fact that Obma sat in the pews for 20 years exposing his children to hate speeches?

How about Obama's involvement with William C. Ayers, the self-proclaimed Pentagon Terrorist?

How about the disgraced Tony Rezko who gave $140,000 to Obama?

So, if you want a fight, bring it on. Otherwise, keep your mouth shut and let us in Florida and Michigan exercise our constitutional rights.

Iraq Vet living in Florida!

Posted by FL_Vet | March 27, 2008 9:58 AM

I am an Obama supporter in PA, but if MI and Fl are not counted, I will vote for Clinton in PA.

And I'm a Clinton supporter in PA, but if she keeps trying to game the system, I will vote for Obama in PA.

Posted by yeah right | March 27, 2008 11:58 AM

Obama is a dope who has not been tested. He's a newbie on the job and already we have lots of dirt on him. At least, we all know Hillary's issues since she has gone throught the meat grinder for 30 years.

We do not yet know much about Obama such as:

1. His mother was married 3 times
2. Has 8 brothers and sisters
3. Is proud to call the lunetic racist Rev. Wright "Uncle" and whose church rec'd $27,000
4. Is budy-budy with the disgraced Tony Rezko who gave him $147,000
5. Is friendly with William C. Ayers, the sefl-proclaimed Pentagon terrorist
6. Whose wife, Michelle calls Americans "Ignorants" (Source: ABCNews)
7. Should I go on?

You dopes who are supporting Obama need to wake up and smell the coffee. If you want a BLACK man for president, vote someone else ... anybody except racists like Obama and Rev. Wright. Read:

http://www.wmal.com/Article.asp?id=629269&spid=

Vietnam Vet
Where 58,000 Americans gave up their lives for your liberty and freedom!

Posted by Jamie | March 27, 2008 3:12 PM

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In a January speech at the University of South Carolina, First Lady aspirant Michelle Obama made remarks making the rounds on the internet today.

Talking about her experience at Princeton where she hung with a largely African-American crowd, she said, "We don’t like being pushed outside of our comfort zones. You know it right here on this campus. You know people sitting at different tables- you all living in different dorms. I was there. You’re not talking to each other, taking advantage that you’re in this diverse community. Because sometimes it’s easier to hold on to your own stereotypes and misconceptions. It makes you feel justified in your own ignorance. That’s America. So the challenge for us is are we ready for change?"

I'm sure we all know what she's talking about when she reflects on the comfort many of us feel with those of our specific cultural or ethnic groups.

But her comments are under fire by many conservative commentators because of her construct that seems to imply that feeling justified in one's own ignorance in somehow quintessentially "America."

The Obama campaign says that's a mis-interpretation of her comments, that it was the proclivity for "comfort zones" that she thought was so "America."

Source: ABC News

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Posted by MajorC | March 27, 2008 3:14 PM

It seems like people can only see the short-term issue here; that is, what will happen to my candidate if the votes are/are not counted and the delegates are/are not seated? But what's the long term goal? Does the Democratic party want to win the general? If so, it shouldn't disenfranchise/sacrifice voters to support any one candidate or its choice for a candidate. It also shouldn't put a candidate's success above the voters. Whatever happened to the government "of the people, by the people"? Hundreds of thousands, probably over a million voters in FL and MI are not being heard. What country is this? And has Howard Dean and those who support him somehow become dictators? It seems so. The Republicans only stripped half of the delegates. So where's the democracy in the Democratic party? As a life-long democrat I'm truly disappointed and dismayed over this and might just find that I'm apathetic in Nov. unless someone takes action. I'm sure there are many others out there who feel the same way.

Posted by GPL | March 28, 2008 12:41 AM

Anyone interested in picketing or protesting FOR a re-vote on April 8th in Lansing with me? I am livid that my votes are not going to count due to no fault of mine.

Email if interested!

Posted by Chandra Poley | March 29, 2008 1:24 PM

I watched the interview on CNN 360 with senators Buzz Thompson & Tupac Hunter (both african -americans who support O-bama) O-bama just needs to keep running out the clock as he has these two leading the charge to disenfranchise Mich. voters. I could not believe thier response (they did not need for the legislators to vote as they all agreed with them - I think 0-Bama has been in this from the beginning, that is why he did not put his name on the ballot, but told what few supporters to vote uncommited ( Well guess what Hillary won) now that he knows he cant win PA he just wants to forget about eveyones vote, and this is what we want for a president - and Howard Deans answer is he wants a nominee before the convention and then he will see about seating Fla & Mich - how fair is this since O-Bama will be the nominee and all the votes for Hillary in Fl & Mich will count for nothing.

I only hope the super-delagates see thru this Dean scheme- I get so tired of hearing that they wouldnt dare go against what thier states voted for, well guess what Kennedy,Kerry,Richardson & Casey all endorsed O-Bama- so much for that theory!!

Popular vote - well guess what Gore had it in 2000 and did he get elected- We all know the supreme court picked the pres and thats how we got Bush.

I hope Hillary goes all the way to the convention floor (maybe she will get a fair shake, anything would be better than the Dean-Obama plan - Let the super-delagates do thier job - which is to pick the one that is the most electible and can beat John McBush in the GE - and if this fractures the Democratic party the DNc has no one to thank but thierselves because of thier stupid rules. Over time we have had lots of nominations decided at the convention just to name a few - Regan on his first run- Harry Truman - Too bad some of these O-bama supporters never study past politics - of course most of the young crowd were not even born and were in grade school when Bill Clinton was pres.

I am so disgusted with this mess I think I will stay home this year

,

Posted by KAREE - Wyoming | March 29, 2008 6:00 PM

This is not right. All Democrats deserve to vote. MI and FL need to be respected as Americans. I do not understand why Obama has not fought harder for the people of America if he is such a uniter.

Millions of Americans came out to vote! It's the people that matter!

Also, I think it is highly disrespectful for Obama's superdelegate supporters to try to call the race over now, and it shows that they do NOT care about the remaining states that are as much a part of this country as the ones that already had their primaries. Shame on Obama and the DNC.

Posted by Katherine | March 31, 2008 7:09 AM

Are you kidding me? Hillary has played fair? She (and her husband) are proven liars yet you forget to mention her and Bill's lies.

My pastor says dumb stuff all the time. I thought they all did that.

We need a diplomat in the Oval Office to attempt to restore our stature in the world's eyes. I believe Senator Obama would be the classy answer to the last eight years of Bush and the previous Clinton administration where underhanded deals and "I did not have sexual relations with that woman" were the norm.

Think.

Geesh.

Posted by Tired of Hillbilly | April 25, 2008 6:53 PM