What Do We Want in a Presidential Primary? An Election Law Perspective

Although the 2008 presidential primaries were in many ways a resounding success in terms of turnout, attention, and sheer excitement, many noted the pressing need for reform. States were rushing to hold their primaries sooner than ever, giving rise to “Super-Duper Tuesday,” where twenty-four states had their primaries on the same day. The Democratic nominee at one point looked like it might be decided by the votes of so-called “Superdelegates” - party regulars beholden to no one. As the Democratic nomination contest wore on, Rush Limbaugh, in “Operation Chaos,” encouraged his “dittoheads” to raid the party primaries of the Democrats, tilting the vote against Obama, the presumptive nominee. And there were continued grumblings about the disproportionate influence Iowa and New Hampshire had on the whole process. Fortunately, reform is in the air. The Democratic National Committee’s “Commission for Change” has released its proposals for altering how the Democrats run their primaries. It is unclear how, if at all, the Republicans will follow suit. But how are we to evaluate such proposals? What do we want in a presidential primary? My Article, borrowing from the vital field of election law, proposes a set of values by which we should evaluate the presidential primaries. By investigating the various players in the nomination process - voters, parties, and the state - I isolate three major sets of “constitutional values” that are implicated in the presidential primary system: (1) the right of voters to an effective and meaningful vote, (2) the interests of the political parties in their autonomy and ideological purity (as well as in electoral victory), and (3) the concern of state and federal governments that the nomination process be legitimate, competitive, and produce a candidate who is capable of governing. Finally, I propose a master value - that of “deliberation” - that both explains and unifies the various competing values at play in the primaries. And I analyze the two major proposals for reforming the primaries, a national primary and a series of regional primaries, as well as the recommendations of the Democratic National Committee, in light of the goal of achieving “deliberative primaries.