Independent Kentucky would like to Thank Sarah Firebaugh for her dedicated research into Kentucky's independent movement and for allowing us to showcase her work here at independentkentucky.org

 

Sarah Firebaugh

April 27, 2010

Independent Voting in Kentucky Primaries:
Senate Bill 53

During the past three decades, the issue of allowing independent voters to cast votes in party primaries has been introduced in several sessions of the Kentucky General Assembly.

In Kentucky, the General Assembly has the power to decide whether independent voters may participate in primaries. The Kentucky Constitution is silent regarding the primary nomination process of the general election.  Section 153 of the Kentucky Constitution gives the General Assembly power to provide the manner of voting by rule of general law.

Senate Bill 53, a bill that would have allowed independents to vote in party primaries, was passed by the Kentucky Senate in 2010.  This was the first time such a measure passed a chamber of the Kentucky General Assembly.

Independent Voters in Kentucky

Senate Bill 53 would have created semi-open primaries in Kentucky and allowed an independent voter to select candidates from one of the two major parties.  The Congressional Quarterly Guide to US Elections (2005), vol. I, describes open primaries as contests in which any registered voter can participate.  About half of the states have open primaries or caucuses.  Some states hold semi-open primaries, during which independents are allowed to cast votes for either party.  Closed primaries are contests open only to a party’s registered voters (Congressional Quarterly Press, 316).    Currently, Kentucky has closed primaries in which only voters registered with a specific party can vote in partisan elections.  According to the National Association of Secretaries of State, every state bordering Kentucky with the exception of West Virginia has open primaries.

Independent voters in Kentucky are not completely excluded from the voting process.  As stated in the LRC Kentucky Government Informational Bulletin #137, independents are allowed to participate in the primary of nonpartisan judicial races, school board races, and some municipal elections (Legislative Research Commission, 39).   In Kentucky Politics and Government: Do We Stand United?, Penny Miller explains that about two-thirds of voters in Kentucky are registered Democrat, and one-third are registered Republican.  Of those voters, one-half identify as Democrats, one-fourth as Republicans, and one-fourth as independents.  She states that this is a common occurrence in states with closed primaries, due to the voters’ inability to participate without party affiliation (Miller, 187).  According to the Kentucky State Board of Elections Voter Registration Statistics Report, as of March 16, 2010, there are currently 187,899 voters in Kentucky that are registered as “other,” and therefore do not vote in the Republican or Democratic primaries (elect.ky.gov).  This number represents just 6.6% of the over 2.8 million registered voters in Kentucky.

Despite the relatively small numbers of registered independents in Kentucky, the Kentucky independent movement has gained attention in the national media.  On February 3, 2010, CNN aired a special on Senate Bill 53. CNN reporter David Mattingly followed Michael Lewis, the chairman of Independent Kentucky, an organization formed “to provide an organizing center to support and assist the growth and development of the Independent movement” as he testified before the Senate State and Local Government Committee in favor of Senate Bill 53 (Mattingly).

The Legislative Path

In order for a piece of legislation to come before the entire body of either chamber, it must first be filed and introduced by a legislator, and then referred to a committee.  The committee chair then calls the bill to be heard before the committee.  Experts and concerned citizens may testify before the committee regarding the bill. After listening to testimony, the committee votes on whether to bring the bill before the entire chamber.  Since 1976, ten bills allowing registered independents to vote in party primaries have been introduced in the General Assembly.  Each bill introduced thus far has proposed to amend Section 116.055 of the Kentucky Revised Statute.  KRS 116.055 states that “No person shall be allowed to vote for any party candidates or slates of candidates other than that of the party of which he is a registered member” (Kentucky Revised Statutes).

In 1976, Representative DeFalaise introduced legislation stating that “A voter may vote in the primary election for candidates of all parties participating in the primary election” (House Bill 195, 1976).  In 1980, House Bill 76 and House Bill 314 deleted the original registration requirement to allow the voter to state party preference on Election Day, and House Bill 133 followed the same format in 1994.  In 2002, 2004, and 2009 the proposed legislation would have amended KRS 116.055 to require that a voter participating in the primary must be registered as a member of a party or an independent.  In 2010, Senator Higdon changed the proposal to provide that a registered independent must be registered by December 31 of the preceding year, just as a Republican or Democrat must be.

The history of legislation allowing independents to vote in the primary since 1976 in the Kentucky General Assembly appears in the following table.

Of all of these measures, legislation allowing independent voters to vote in partisan primary races made the most progress in 2010.  According to the Senate State and Local Government Committee meeting minutes of January 20, 2010, the measure passed with 10 yes votes, 1 nay, and 1 member passing (Senate State and Local Government Committee).  After passing the Kentucky Senate, Senate Bill 53 went on to the Kentucky House of Representatives.  On March 16, 2010, the House Elections and Constitutional Amendments and Intergovernmental Affairs Committee heard testimony on Senate Bill 53.   James Lewis, the president of the Kentucky County Clerks Association, testified that his organization did not support the bill.  He cited fiscal concerns and confusion with paper ballots.  As many as 70 counties in Kentucky still use paper ballots, and by not knowing which party the independent would vote in, the clerk would not know how many ballots to have printed.

Next Michael Lewis, chairman of Independent Kentucky, testified before the committee.  He began his testimony by stating that “Independents are taxpaying citizens like everyone else that pays for these primaries.”  He went on to state that in many local elections, only two Democrats are running for office, and therefore the election is decided in the primary.  Also testifying in favor was Jodi George, the vice chair of the Young Republican club in Mercer County.  She stated that both parties would benefit from the independent vote in the primary races.  Questions were raised by Representatives regarding whether or not independents would be allowed to switch party preference every election, and what exactly defined an independent voter.

When the bill was brought before that committee for a vote, five members voted nay, two members voted yes, and one member passed.  Representative Clark explained that he didn’t “like the flip flopping back and forth… it makes a mockery of our system.”  Representative Marzian stated that she had concerns over the fiscal impact and “people coming in and gaming the system.”  Two other Representatives agreed with the prevailing sentiment, including the committee chair (House Committee on Elections, Constitutional Amendments, and Intergovernmental Affairs).  Although the measure failed, the overall consensus was that more investigation into the fiscal impact, clarification of the definition of an independent voter, and extended study through the interim are needed regarding the issue of independents voting in party primaries.

National Trends and Ideas About Open Primaries

On the national level, the independent voter movement has gained a lot of momentum, and independent voters comprise a larger percentage of the electorate than ever before.  According to a recent Gallup Poll gathered between January and March of 2010, approximately 32% of Americans consider themselves to be Democrats, 29% are Republicans, and 39% identify themselves as independent voters.  The poll had a 2% margin of error (Jones, 2010).  With independent voters comprising nearly 40% of the electorate, it is clear that their participation is a vital part of national elections.  Many independent voters in favor of open primaries believe:

• • The current two-party system does not allow their voices to be heard.
  • Although they may not agree whole-heartedly with either party, having the opportunity to cast their vote is a fundamental right guaranteed to all citizens of the nation.
  • Their tax dollars are used to administer primaries and therefore they should be able to vote in them as well.

Opponents to open primaries believe that:

• • Non-party members should not have the opportunity to select their party’s nominees.
  • “Malicious votes” may be cast in open primaries.  Under this scenario, voters purposely select the weakest candidate of a party in order to allow their preferred candidate from another party to be more easily elected.
  • Independent voters may elect a candidate with moderate beliefs, instead of someone who truly represents the ideology of the party.

There have been U.S. Supreme Court cases both in favor and against closed primary laws.  In a book entitled The U.S. Supreme Court and the Electoral Process, David Ryden explains several court cases involving state primary laws.  In 1981, the national Democratic Party brought suit against Wisconsin’s open primary law.  In Democratic Party of the United States v. Wisconsin ex rel. Lafollette, 450 U.S. 107 (1981), the Democratic Party stated that allowing those not affiliated with the party to choose delegates infringed upon their free right of association.  The Supreme Court agreed, “holding that the state cannot restrict the national party’s freedom of association in the absence of a compelling state interest” (Ryden, 114).  In 1984, the Supreme Court ruled that requiring closed primaries in Connecticut imposed on the party’s right of association (Tashijan v. Republican Party of Connecticut, 479 U.S. 208 (1986)).  In a 6-3 ruling, the courts stated that the closed primary law “impermissibly burdens the right of the Party and its members protected by the First and Fourteenth Amendments” (Ryden, 115).

Conclusion

Ultimately, it is a state’s decision whether or not to allow independent voters to participate in the primary nomination process.  This issue will likely be addressed in the future, especially as independent voters become more and more prominent in Kentucky politics.    Chairman Michael Lewis of Independent Kentucky stated that Senator Higdon has agreed to sponsor the legislation once again in 2011.  Independents believe that it is their fundamental right to vote in all primary elections.  Opponents worry that malicious voting could occur if independents are allowed to cast votes.  The U.S. Supreme Court has ruled that both closed and open primaries present Constitutional difficulties.  It will be interesting to watch the progression of this issue through future sessions of the Kentucky General Assembly.    

Works Cited

CQ Press.  Guide to US Elections, vol I. Washington D.C.: Congressional Quarterly Inc., 2005.

House Elections, Constitutional Amendments, and Intergovernmental Affairs Committee.

Audiotape: March 16, 2010.

Jones, Jeffrey.  “Party Affiliation Gap Narrowest Since 2005.”  April 24, 2010.  April 23, 2010.

http://www.gallup.com/poll/127499/party-affiliation-gap-u.s.-narrowest-2005.aspx

Legislative Research Commission.  Kentucky Government Informational Bulletin No. 137.

Frankfort, KY: 2003.

Mattingly, David.  “Independents Fight to be Heard.”  CNN.  April 15, 2010.  Feb. 3, 2010.

http://www.cnn.com/video/#/video/us/2010/02/03/mattingly.independent.vote.cnn?iref=allsearch

Miller, Penny M.  Kentucky Politics and Government: Do We Stand United?  University of

Nebraska Press, 1994.

National Association of Secretaries of State. “Can I Vote?” 2007.  April 21, 2010.

http://www.nass.org

Ryden, David K.  The U.S. Supreme Court and the Electoral Process. Washington D.C.:

Georgetown University Press, 2000.

Senate State and Local Government Committee Minutes.  Jan. 20, 2010.

State Board of Elections. “Voter Registration Statistics Report,”  April 21, 2010.  March 16,

2010.  http://elect.ky.gov/NR/rdonlyres/9B962D0A-E25D-43DE-8DE6-8603346E3433/223141/statcong1.txt