Is Jungle Primary Constitutional?

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

In California's Primary system the way it works is that the parties don't get to send their best candidate to the general election to battle it out.  In California the top two vote-receivers go to the general election in November.  As a result of the Jungle Primary, as they like to call it, we have a number of races where it is Democrat versus Democrat, and a few where it is Republican versus Republican.  With the Jungle Primary in place, minority parties never see the light of day beyond the June Primary, and sometimes, neither does one of the majority parties.  

Thanks to the Jungle Primary, for example, for U.S. Senate our choice is between Dianne Feinstein, a long-time liberal who has definitely overstayed her welcome in the Senate, and Kevin De Leon, a hard left radical that is even to the left of Bernie Sanders.  To avoid giving De Leon the Senate seat so that it may serve as a stepping stone to bigger things, we are forced to vote for Feinstein as a strategic vote.  Same thing happened with Lieutenant Governor and Superintendent of Public Instruction.  Two Democrats.  In Riverside County, however, one of our County Supervisor seats, and the fight for County Sheriff, are both between two Republicans.

Well, Sheriff Stan Sniff says he's a Republican, but his campaign acts like he's a Democrat.

Across the country you see different electoral mutations during the primary season, be it closed primaries, open primaries, jungle primaries, or caucuses.  In the case of open primaries and jungle primaries the argument is that they are trying to be more democratic about the whole thing ... which brings us around to the U.S. Constitution.

According to Article I., Section 4 of the Constitution, election procedures belong to the States.  In other words, it is up to each State regarding how they hold their elections.  The manner of holding elections is specifically the duty of the state legislature.  However, there is a caveat in the clause granting to the States this power.  Congress, if they deem it necessary, may make law establishing or altering a State's regulations regarding election rules.

The clause goes on to indicate that Congress may not make laws regarding the "places of choosing Senators," meaning that the rule tasking the State legislature with appointing the U.S. Senators for their State could not be changed by federal legislation.

Unfortunately, the manner of choosing Senators was changed by the 17th Amendment in 1913.

On the surface, it would seem, the State may (as long as Congress doesn't intervene) put something as ridiculous as the jungle primary in place. However, if we dig deeper, we realize the jungle primary is actually very unconstitutional.

The constitutionality of the jungle primary rests upon what it is trying to achieve.  While we erroneously believe that there is no difference between a republic and a democracy in our country, the reality is that there is a very big difference.

The Framers of the Constitution feared the concept of democracy.  John Adams said that there was never a democracy that did not commit suicide.  James Madison said that democracies are short in their lives, and violent in their deaths.  Thomas Jefferson called pure democracy the tyranny of the majority where 51% could vote away the rights of the other 49%.  The word democracy is not mentioned once in either the Declaration of Independence, or the U.S. Constitution.  We were never intended to be a democracy, and to head in that direction is not only dangerous, but against the original intent of the Constitution.

In Article IV., Section 4 of the Constitution it reads, "The United States shall guarantee to every State in this Union a Republican Form of Government."

A Republic is not a democracy.  In a democracy, it's all about the vote.  The will of the people rule over everything.  In history, systems of democracy are unstable, and collapse when the voters realize they can vote themselves gifts out of the treasury.  In a republic, mechanisms exist to protect society against the excesses of democracy.  Checks and balances exist not only among the branches, but at every turn in our political system.  The Electoral College and closed primaries serve as a couple of those mechanisms.

If the jungle primary, then, is a move away from a republican form of government, and towards democracy, then the federal government has the obligation (as per Article IV., Section 4) to stop the spiral away from our originally intended system of a republic.  

So, based on the fact that a jungle primary is designed to make a system more democratic, the primary system in use in California is unconstitutional, and needs to be changed back to a closed primary as soon as possible.  For the State to refuse to do so is to invite the federal government, through Congress, to pass legislation forcing the State into compliance with the U.S. Constitution.

Normally, I am not a fan of the federal government mandating anything, but in this case, the mandate is constitutional.

-- Political Pistachio Conservative News and Commentary