Look Who’s Disenfranchising Whom

Winning nominee Kevin Sullivan -- suspiciously white looking.

Winning nominee Kevin Sullivan — suspiciously white looking.

by James A. Bacon

Most would agree that the caucus method chosen by the Democratic Party of Virginia (DPVA) to pick a nominee to run in a snap election Jan. 13 for the 74th House of Delegates seat was less than, ahem, democratic. In the caucus, also known as a “firehouse primary,” only 50 or so local party committee officials were allowed to participate. They selected Kevin Sullivan, who wound up losing the general election to Joseph D. Morrissey, the former Democratic Party delegate who resigned his seat after being convicted of contributing to the delinquency of a minor and then running as an independent.

Did the nomination, a classic case of machine politics, discriminate against the predominantly African-American electorate of House District 74?

A lawsuit filed on behalf of David Lambert, son of long-time state Senator Benjamin Lambert, contends that the firehouse primary effectively disenfranchised African-American voters who comprise approximately 60% of the roughly 53,500 registered voters of the district, which encompasses 26 precincts in Henrico County, three in Charles City County and one in the City of Richmond. The candidate selected by the process, Kevin Sullivan, was white. For that matter, so is Morrissey.

I’m not sure I buy the argument in the brief filed by attorney J. Paul Gregorio in Federal District Court, but I think the case deserves an airing. At the very least, it should serve as a cautionary tale to Democrats who have charged Republicans with disenfranchising African-Americans — or, to paraphrase Vice President Joe Biden when speaking in Virginia during the recent presidential election, “putting y’all back in chains” — for the offense of enacting Voter ID laws.

Lambert, one of three plaintiffs in the lawsuit, wanted to be a candidate in the nominating process. But, according to the suit, “the required $1500 mandatory, nonfundable filing fee, and the lack of any alternative means for a candidate to get on the nomination ballot without paying this fee, worked to deny him ballot access.”

That fee, while not specifically prohibited, was against the spirit of Democratic Party rules, which states that no fee be charged for the right to vote at a caucus. Voting isn’t the same as running for nomination, but that might strike some as a fine distinction. Democratic Party rules declare that “full participation by all Democrats in all phases of … nominating procedures” is to be granted whenever possible.

The firehouse primary rules took away the right to vote and disenfranchised all these Democrats – overwhelmingly African American – except for those considered to be ‘members in good standing'” of local Democratic committees, the lawsuit alleges. And even those committee members had to pay mandatory fees for the privilege of serving on the committees. The fee of the Charles City County committee was mandatory. Henrico committee members also were expected to pay a fee, although they could apply for a waiver.

The lawsuit also took issue with the disproportionate representation of Charles City County committee officials among those allowed to vote in the caucus. Democrats in Charles City County accounted for only 9% of the votes cast in the 2013 House of Delegates election, yet they had nearly as many participants in the firehouse primary as Henrico County, which accounted for 88% of the vote. Not one committee member from the City of Richmond participated, the suit alleges, effectively disenfranchising the 1,441 registered voters there.

Continues the lawsuit:

The DPVA, operating through the Nominating Committee, wanted to prevent a sizeable, identifiable group of African America Democrats from exercising their right to vote, their right of political speech, their right of association, and such other rights enabling them to act individually and together in order to choose the individual they wanted as the nominee of their party. …

The DPVA, operating through the Nominating Committee, feared this group of African Americans, who were not members of a local democratic party, might use their First Amendment rights to support a candidate the DPVA and other local party officials didn’t want to win the Democratic nomination. Therefore the firehouse primary rules were intentionally designed to disenfranchise them all.

The lawsuit asks the court to declare the Democratic Party firehouse primary rule to be in violation of the the U.S. Constitution and to prohibit its use in the future. The suit also asks for a judgment against the mandatory imposition of the $1,500 filing fee.

Bacon’s bottom line. To my mind, the logic of the lawsuit essentially boils down to this: The firehouse primary had a disparate impact on African-Americans, therefore it amounted to unconstitutional discrimination. Yet consider: Dwight Jones, mayor of Richmond and state chair of the DPVA, is African-American. Many of the party committee members who participated in the primary undoubtedly are African-American. (I don’t know this for a fact, but it stands to reason if 60% of the voters are African-American, most of the committee members are as well.) If anything, this is a case of the political elite, which happens to be African-American, manipulating the political process to do an end run around the electorate, which also happens to be African-American. It isn’t racial discrimination — it’s brass knuckle politics.

However, the charges couldn’t be delivered against a nicer group of people. The plaintiffs are subjecting the DPVA to the same kind of logic — equating disparate impact with discrimination — that the DPVA and DPVA office holders apply to the Republicans (Voter ID laws) and businesses (discrimination in hiring) every day. Live by the sword, die by the sword.

Should the Democratic Party open up the process to everyone? Of course it should. So should Republicans. Does its failure to do so violate the Constitution? I’m no constitutional scholar, but I’m not buying it.

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5 responses to “Look Who’s Disenfranchising Whom

  1. I’ve always viewed it this way:

    The D’s and R’s get enormous advantages by virtue of their automatic ballot lines.

    So long as both parties get an automatic ballot line, we should have one primary day every year for both parties for any contested nomination. No conventions, no caucuses, no “firehouse primaries”, etc.

    And a full primary should be held for any special election nomination as well. Not the crap the D’s pulled in Morrissey’s seat of the idiocy of the “firehouse” primaries that R’s hold.

    I really don’t care about “fiscal impact” when it comes to this. I think that’s a silly argument in a democracy. Oh gee, we can’t have democracy due to the cost?????? Please, that’s ridiculous. If either party really cares about “cost”, then I’m sure they could donate money to the state to run the primary.

    If the Democrats and Republicans want to act like a “private” organization, then make them do what the Libertarians, etc. do every year in terms of signature gathering for every single elected office. So long as they get automatic ballot lines….every nomination should be subject to a full primary.

  2. this is getting scary.

    As soon as I read Virginia Virtucon and other right wing blogs – comes a post on the issue in Bacon’s Rebellion!

    and yes the Dems got caught… but if you look at the way the GOP operates in Virginia with regard to manipulating the primary process – the Dems are ninnies….

    I’ll say one thing for the GOP – they don’t care who they discriminate against in the primary process – black, white, purple or Christian, Gay, you name it. Once they got your number – you are a smoking pile of doo doo…

    The Dems? they’re mostly incompetent and stumble into hornets nests – not like they have a “plan” like the GOP does.

  3. Bacon – I am disappointed in your articles on politics, the unfunny tone, the straight Republican party line that seems to have come right from the Karl Rove (or whoever) playbook. Where does this come from? Is there a mass fax that goes out over the weekend to all the Republican operatives? A service you subscribe to – “Republican Talking Points For Fun and Profit”?

    First, I don’t know what went on with the selection process – like the Republicans, Democrats are somewhat political (duh?), but in any case the procedures of the Democratic party are not discriminatory. Like any other political party it decides how it will pick its candidates – it’s the First Amendment. So far as the party that is discriminatory, you’re saying the Democrats are just as bad as the Republicans – really?

    Now you’re carrying the water for the attack on disparate impact – a concept used to attack “separate but equal” and any number of Jim Crow laws and government actions intended to maintain the racist status quo? I’ll note that a disparate impact analysis isn’t needed with the Virginia gerrymandering cases that are coming up, because the Republicans who manipulated the maps were explicit that they had discriminatory intent – it doesn’t require a disparate impact analysis when the guy who draws up the map actually says what everybody already knew – the intent was to dilute black voting.

    • “The procedures of the Democratic party are not discriminatory.”

      At least three African-American Democrats, the plaintiffs, disagree with you.

      And, by the way, if you read carefully, you’ll see that I disagree with the plaintiffs and defend the DPV against the charge of discrimination. Perhaps you object to my suggestion that the Dems are getting their justice deserts by having their own standards applied to them! No fair!!!

    • Not a Republican, but – what Jim brought up is a legitimate criticism. The process used here looks bad, is inherently unfair, and probably did disenfranchise people.

      Why defend a mistake? This was ill-advised. I would guess it was done so the incumbent would lose the nomination, but the end result was that you had both an undemocratic (small d) process and the incumbent still won.

      “The other guy does it too” is an argument that generally suggests that perhaps one shouldn’t have done “fill in the blank.”

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