Primary Process Is More Than Picking Winner

Friday, 03 Feb 2012 05:07 PM

By Susan Estrich

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If the goal of the primary process is simply to nominate a candidate, essentially to nominate the man or woman most likely to win in the end, then this primary season should be declared over.

Clear the stage, and give it to Mitt Romney. Newt Gingrich's promise to go the next 46 notwithstanding, you couldn't find anyone in Vegas to give you ballpark odds on his winning. And forget about Ron Paul or Rick Santorum.

They never had a chance.

But that's not the only thing this process is about. If elections were only about picking winners, there would never be more than two people on a ballot — and sometimes, in "safe" districts, not even that.

Independents would be limited to Vermont. Third parties would be told to take their message somewhere else.

Now, I can certainly make the argument that in general-election contests voters shouldn't "waste" their votes on candidates with no chance of winning.

I still remember the fights I had with Ralph Nader supporters back in 2000, trying to convince them that the message they wanted to send would elect George Bush.

And I can certainly make the case that the two-party system, whatever the flaws of the two particular parties, ensures that a candidate will not be elected based on the support of an ideologically extreme minority (as everyone's favorite example Hitler was), and that a fractured result would effectively give such power to a small minority (as everyone's other favorite example the ultra-orthodox have sometimes wielded in Israel).

But the Constitution protects the rights of losers to run and voters to support them. Ballot access must be afforded to every candidate who can show enough support not to win but to be counted.

Elections are about electing people, but that's not all they are about. And nowhere is this clearer than in the selection of party nominees for president.

Political parties are nowhere mentioned in the Constitution, but in a series of landmark decisions, the Supreme Court has upheld their power to control the nominating process, even against a majority will expressed by state legislatures.

The party can limit participants to registered party members, even where the state demands that it be open to all. The party can deem that delegates be bound to vote for the candidate whose slate they ran on, even when state law provides that they should be free to cast their vote to nominate whomever they please.

The purpose of these contests, the court has recognized, is not simply to nominate delegates or choose a candidate, but to build the party and shape its platform.

That, win or lose, is exactly what Gingrich is likely to accomplish in these next few months if he stays the course. Under the rules of the Democratic Party, much debated, states are prohibited from holding winner-take-all contests, making it more difficult for the winner to win and far easier for a loser to hold sway.

While the Republican Party does not enforce that rule across the board, most of the states that will be holding caucuses and primaries do. So even if he loses, Gingrich will pick up significant representation.

And even putting aside the numbers, if he does stay in the race, it all but assures that his more conservative ideology will influence where both Romney and the party end up.

Maybe that will help the Democratic president in the end. Selfishly, I hope so. But there certainly have been cycles in which the Republicans benefited from long races.

It doesn't matter. I may not agree with Gingrich about much, but he is absolutely right in saying the media have no business declaring this process over.

And it's not just Gingrich and me saying it. Blame the Founding Fathers.

© Creators Syndicate Inc.

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