Bob Bauer and my colleague, Mike Schrimpf, each recently opined about the dire financial and institutional state of the political parties. While I share their concerns, I think it is instructive to remember that problems can also arise when the pendulum balancing party associational rights and individual freedom swings in the opposite direction. Recent events in Cleveland provide a troubling example.
The Cleveland Plain dealer reports that the Cuyahoga County Board of Elections has launched an investigation into whether some Cleveland-area Republicans voted in the Ohio Democratic Primary in the hopes of furthering GOP political goals. For GOP voters, the temptation to act in this manner must have been tremendous. With John McCain having already sewed up the GOP nomination, Republicans who cast ballots in the Democratic primary could vote for the most beatable Democratic presidential candidate (Hillary Clinton, according to conservative conventional wisdom) while also voting against ultra-liberal Congressman Dennis Kucinich in the Ohio 10th primary. Records show that nearly 16,000 Cuyahoga County Republicans may have given into their partisan desires.
At first blush, investigating these Republicans seems like a completely justified action. Here is a text book case of the in-person vote fraud – albeit "ideological" vote fraud – that conservatives fear. Some "Democrat for a day" voters have already admitted that their partisan conversion was less than serious in the mainstream press.
Further, from a First Amendment perspective, this primary vote fraud is all the more insidious because it directly infringes on the right of individual Democrats to associate with those who share their partisan values. Every time a "malicious" cross-over faux Democrat cast a vote, it was diluting and distorting the ideological group decision making of party members. To play on the Chief Justice’s recent words, if party tastes are akin to preference for a particular brand of soup, then the soup Cuyahoga Democrats consumed on primary night likely bore little resemblance to what they thought they had ordered.
The problem with this situation is that the medicine available to fix this electoral illness would probably kill the patient. The statute sought for enforcement demands that cross-over voters sign a "statement, made under penalty of election falsification, that the person desires to be affiliated with and supports the principles of the political party whose primary ballot the person desires to vote." Thus, any prosecution under the statute will quickly take the form of a perjury investigation, with prosecutors digging through a person’s personal expressive history, attempting to discover the breadth and scope of their ideological affinity. This is treacherous business and this is why the Cuyahoga County prosecutor and the Ohio Secretary of State should stay their hands.
While the partisans in Ohio may scream for retribution, they would be wise to remember that Senator Clinton and, particularly, Senator Obama have premised their campaigns on the ability to reach out to Republicans. In a state like Ohio, which has been hit particularly hard by ethically and financially questionable state and federal Republican rule, many of those cross-over voters may have been legitimately fed up with the status quo. It is rare enough that a voter is able to grapple with the difficult cognitive dissonance associated with changing and evolving ideologically. Do Ohioans really want to instill the fear of criminal prosecution in persons who have already taken this brave step?
Sandy McNair, a Democrat on the county board of elections says, "I’m not interested in a witch hunt. But I am interested in holding people accountable, whether they’re Democrat or Republican." If only this were possible. The only way to achieve "accountability" in the manner McNair desires is to engage in a wide-ranging search for, often ambiguous, evidence of belief – the very definition of a witch hunt.
Political parties do matter. What has been done by certain conservative members of the Ohio electorate is most certainly an odious affront to the party system and to the First Amendment itself. Yet, to remedy this affront to party sovereignty, Ohioans would give up more than what has been lost.