****************************************
Cross-over voting is legal in Indiana, but the laws governing Indiana's primaries are a farce.
Richard Lugar last lost an election in 1974 as candidate for United States Senate against Birch Bayh, in those heady post-Watergate days. Lugar beat Vance Hartke two years later, and began the longest occupation of an Indiana Senate seat in history. His lock on the seat was so certain in 2006, the Democrats did not field a candidate; a serious challenge to Richard Lugar was unthinkable. In 2012, Lugar will run for his seventh six-year term. Richard Mourdock, two-term Indiana Treasurer, has announced he will challenge Lugar for the nomination in the 2012 Republican primary. Some people might question whether a qualitative difference exists between two Dicks offered up for the Republican nomination.
Will people who usually have voted in the Democratic Party's primary cross-over in the May, 2012, primary to vote only for the office of United States Senator?
The office of President of the United States also will be on the ballot. I will address that race and implications of cross-over voting at a later time.
This essay addresses the legality of cross-over voting, the constitutionality of the laws governing primary elections, the reasons someone would cross-over, and the prudence of crossing over in the context of the Indiana U.S. Senate race..
For any hypothetical situations in this work, "Voter" will have no gender, but because multiple pronouns are cumbersome, I arbitrarily have chosen feminine pronouns when such are necessary.
What are primary elections?
What is cross-over primary voting?
A person "crosses over" in a primary election when she votes a ballot for the "other" party, compared to her past votes. Indiana is considered an "open" primary state. Citizens do not register as members of any political party. Under the statute, Voter's prior voting record in primary elections is not an important factor in the ballot for which she asks in the 2012 primary election. I have voted a Democratic ballot in every primary election in which I have voted. If I were to vote a Republican ballot, I would "cross over." (In some contexts, one "crosses over" when one dies. One may ponder the divergent, and existential/mystical implications of the term as one wishes. In this essay, the term "cross over" will be used in its electoral context.)
Voting has long been recognized as a fundamental right in our republic. Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Indiana Gaming Commission v. Mosely, 643 N.E.2d 296, 304 (Ind. 1994). It is protected by the First Amendment to the Federal Constitution. Murphy v. State, 837 N.E.2d 591, 595 (Ind.Ct.App. 2005). Art. II, sec. 2 of the Indiana Constitution also protects the right to vote and protects Voter from being disenfranchised. The right to vote, considered one of the most important rights of citizens, cannot be abridged or denied except as expressly authorized by the Indiana Constitution:
The right [to vote] is a political privilege of the highest dignity which can emanate only from the people, and is reverently and emphatically enshrined in the sovereign statement of the organic law of the people. The privilege cannot be abridged or denied by any board or agency created by the legislature, or through direct legislative enactment, except as such limitation upon the privilege is authorized by other provisions within the organic laws of the state.State ex rel. McGonigle v. Madison Circuit Court, 193 N.E.2d 242, 249 (Ind. 1963).
 |
| 1851 Woman's Rights Convention held in Wayne County, Indiana addressed slavery, prohibition and a woman's right to vote. |
A basic principle of American government is that elections be free, open, and fair.
This statement should be self-evident. Perhaps it should be "THE basic principle..." The statement employs two phrases and several words that, as I was taught in college communications courses, are considered "god" terms. The three relevant for focus here qualify the word "elections."
The most obvious aspect of a "free" election is one in which Voter does not pay to cast a vote. Poll taxes were used post-Civil War to discourage African-American voters. However, "free" in the context of elections includes Voter's right to cast her vote as she chooses. No one can compel her to cast her vote for any office in any way. Other aspects of free elections do not readily come to mind to people in this country today. In our past, and in other countries' present, individuals with firearms patrol voting sites as a means of intimidation. Opposition candidates disappear and their supporters harassed, beaten, or killed. A final aspect is Voter is not punished for a particular vote. The overarching principle of free elections is Voter can vote for the candidates of her choice without fear of retribution.
"Open" is defined as "Visible; exposed to public view; not clandestine. ... Not closed, settled, fixed, or terminated." Black's Law Dictionary, Pocket edition, 1996, p. 456. Public oversight of the process is important, although did little to remedy the fiasco of the 2000 presidential election. Elections must be "open" also in the sense that all people eligible to vote are given reasonable opportunity to do so. Openness applies as well to the ability of candidates to gain access to and be listed on the ballot. If the field of candidates is winnowed out before the ballot is printed and available to Voter, a de facto election of sorts has occurred without Voter having a chance to pull a lever or fill in a little dot.
"Fair" is defined as "free from bias, dishonesty, or injustice." The American College Dictionary, 1962 ed., p. 433. In the early days of our republic, voters regularly bribed with liquor and cash. A more contemporary example of an unfair election would have been one of the Chicago mayoral races in which Richard J. Daley was elected. He served as mayor from 1955 to his death in 1976. When a precinct captain (or whatever the pertinent title was) bragged to Daley about having brought in his precinct for Daley on a vote of 303-to-0, Daley supposedly snapped that you never blank the other side; always give them two or three votes. Otherwise, people will think the election is rigged. Daley was famous for many things, amongst them always arranging to have his name at the top of the ballot - an advantage in the eyes of some because uninformed voters sometimes opt for the first name they see. The essence of fairness is that, before the flag drops and the political race is "go", everyone starts from the same line on the track.
Generally the Framers of the Constitution and other of the Founders frowned on political parties.
Most notably, James Madison, in Federalist Paper #10, argued against what we understand as political parties. Jefferson also opposed them. A biographer of Alexander Hamilton's wrote:
"Today we cherish the two-party system as a cornerstone of American democracy. The founders, however, viewed parties, or 'factions' as they termed them, as monarchical vestiges that had no legitimate place in a true republic. Hamilton dreaded parties as 'the most fatal disease' of popular governments and hoped America could dispense with such groups."Ron Chernow, "Alexander Hamilton," 2004, p. 390. Although Hamilton collaborated with Madison on The Federalist Papers, the two were at opposite ends of the spectrum of mainstream political thought in the young country. Thomas Jefferson was viewed by many as Madison's guide or mentor. He also is placed at Madison's end of the spectrum. As one of Jefferson's biographers has noted:
"A 'party,' as the term was commonly understood, was nothing more than a 'faction, meaning an organized minority whose very purpose was to undercut the public will, usually by devious and corrupt means. To call someone a member of a political party was to accuse him of systematic selfishness and perhaps even outright treason. The modern notion of a legitimate organized opposition to the elected government did not exist. Indeed it would have struck most members of the revolutionary generation as a contradiction in terms."Joseph J. Ellis, American Sphinx, 1998, p. 144.
The Framers generally viewed political parties as means for corruption and tyranny. Richard Hofstadter wrote that the revolutionary viewed political parties as "evil." The Idea of a Party System, 1970, p. 9.
An irony is Hamilton and Jefferson were responsible for the rise of the first two political parties, the Federalist and the (then) Republican (now Democrat). Political parties have not disappointed the Framers' dire expectations.
The Framers intended the United States Senate to have specific qualities.
As David Stewart has written, "Modeled on the British House of Lords and the upper house of the Maryland legislature, this second house was intended to stabilize the government against swings in public passions. Noting that the [Constitutional Convention] was a response to the 'turbulence and follies of democracy [Edmund] Randolph explained that 'a good Senate' would check that 'tendency.'" Stewart, The Summer of 1787, 2007, p. 64. As another historian has written: "The House and Senate would operate under different rules, and it did not take long for the Senate to act like the 'aristocratic='branch many had assumed it would be." Richard Labunski, James Madison and the Struggle for the Bill of Rights, 2006, pp. 184-85.
Members of the Senate were not directly elected, as they are today. Rather, the legislatures of the individual states elected Senators. One significant difference between a member of the House and a member of the Senate today is length of term. The former is two years, the latter six. Another significant difference is impact of vote. There are 435 voting members of the United States House of Representatives. There are 100 Senators.
Why would a person cross-over?
 |
| Operation Chaos was a strategy, employed in Indiana and other open primary states, that encouraged Republcians to vote in the Democratic Primary for Candidate Barack Obama. |
1) Because Voter genuinely prefers a specific candidate and wants to support her/him with the vote: a laudatory and, I would think, universally acceptable reason. We are supposed to vote for the person whom we want to hold an office.
2) Because Voter, whose allegiance is to one party, wants to screw up the other party's chances for victory in the contest for a specific office.
The latter is where politics take on aspects of Mad magazine's immortal "Spy versus Spy." (In this instance, as Senator Lugar speaks to a small town audience from a wooden stage in its high school, Treasurer Mourdock, hunched beneath the stage, saws a hole around the Senator's feet while, behind Mourdock, Lugar, a mechanical extension on his arm, has reached back and under the stage to place a bomb under Mourdock's butt. You get the idea.)
Voter, who might typically might vote a Democrat primary ballot, could cross over to vote for Mourdock with the goal of victory for a lunatic tea bagger whom she believes has far less of a chance of victory in the general election than the venerable Senator Lugar. If Mourdock wins, from this perspective, Donnelly's chances in the fall general election are enhanced.
(Footnote) Some people are offended by use of the term "teabagger" to describe those who have reached back in history to identify themselves with participants in the Boston Tea Party. The offense is taken because "teabag," as a noun or a verb, also means a specific sexual act or engaging in that sexual act. However, teabaggers themselves used the term, early on (March 14, 2009, Fox news report) when they encouraged people to "Teabag the Fools in D.C. on tax day." If ignorance of the law is no excuse, then neither is ignorance of a term by which one refers to oneself.
There is a third reason, a hybrid of the two principal reasons already noted, for Voter to cross over. If Voter genuinely fears the prospects of a teabagger in the United States Senate, she could cross over to vote for Senator Lugar in the primary. In this scenario, Voter votes from her genuine beliefs, but only to ensure the usual lesser-of-two-evils she has at the polls in November involves a person in Lugar - for whom she will not vote in the general - whom she perceives as far less evil than Mourdock.
Indiana law requires a person disclose her or his past or future votes.
Indiana's primary election laws make no mention of either major party by name. That is a superficial indication of the fairness of statutes written by legislators - politicians - who were members of only two parties when the statutes were promulgated in 1986.
I.C. 3-10-1-6 allows a person to vote in a primary election for a specific party - Voter only can vote in one party's primary or the other - if the person is listed in the poll books for that precinct. There is a record of the party for which the person voted in the previous primary. But Voted can ask for a ballot in the other party's primary. It has been my experience that the poll workers ask a person "What ballot do you want?" I never have been asked a variation of "You have voted Democrat in the past. Is that the ballot you want?" I.C. 3-10-1-9 allows for Voter to be challenged at the primary. "A voter in a precinct may challenge a voter or person who offers to vote at a primary election. The challenged person may not vote unless the person (1) is registered; (2) makes: (A) an oral or written affirmation under IC 3-10-12; or (B) an affidavit ... (3) at the last general election voted for a majority of the regular nominees of the political parties for whose candidates the challenged person proposes to vote in the primary election and intends to vote for the regular nominees of the political party at the next general election; or (B) if the challenged voter did not vote at the last general election, intends to vote at the next general election for a majority of the regular nominees of the political party holding the primary election."
Any voter of the precinct may issue such a challenge. Also, in one sense, the statute does not discriminate. If I voted in the past general election, have voted a Democratic ballot in the last ten primary elections, and request a Democratic Party primary ballot, I may be challenged - even by a Republican.
A primary (no pun intended) reason for I.C. 3-10-1-9's challenge provision is a notion that Voter must demonstrate her loyalty to the party in whose primary she seeks to vote.
Secret ballots are an important aspect of our electoral process.
 |
| The infamous "Ballot Box 13" that gave future President Lyndon Johnson the edge in the extremely close 1948 Texas U.S. Senate contest. |
The system of political parties has codified itself in Indiana.
There only is one issue, if it can be called that, on which both "major" parties agree: make matters as difficult as possible for another party to obtain equal status, especially access to placement on the ballots.
The individual parties are not named in Indiana statutes that regulate primaries. The parties do not have to be named. There have been other parties, always - as long as I can remember, and from what I have read - called "third" parties. Occasionally a candidate for (what usually is not a major) office from such a party will draw a respectable number of votes. Rarely, a third-party candidate will win. The reality is that the two major parties hold the lock and all sets of keys to the system. Even in the early days of parties, two were pre-eminent. Federalist-Republican was the first pair. Federalists faded away, the Republican Party of Jefferson changed its name to the Democratic Party of Jackson and was opposed by the Whigs. Whigs elected two presidents, one of whom was William Henry Harrison (arguably the only president never to make a policy mistake while in office. He died 30 days after delivery, hatless, of a five-hour inaugural address in a chilly rain, and for most of the time lay in a coma). The Whigs split on the issue of slavery and the Republican Party of Lincoln (who had been a Whig) arose. There have been Populists, Bull Mooses, and varieties of socialists in there, but since the Civil War, the keys to the system have been held by the same two parties. In Indiana, our statutes safeguard the two parties' grasp of the ring on which those keys reside.
The two "major" political parties have used (or some would say "abused") the mechanisms of government to preserve their forms and dominance, and advance their interests, by statute.
"Major party" is defined by I.C. 3-5-2-30 as either of the two parties that received the highest number of votes for Secretary of State, statewide in the political subdivision in question, in the last general election. The statute describes the parties without using a form of either the word "Democrat" or "Republican."
 |
| Every four years the Indiana Libertarian Party works hard to ensure they receive at least 5% of the Secretary of State vote in order to keep automatic ballot access. |
These statutes were enacted by the General Assembly and signed into law by the Governor. The majorities in both houses and the governor were Democrats and Republicans. It is reasonable to infer the legislation in which they take the keenest interest and upon which their political lives depend - that encompassing election laws - was drawn in such a way as to give their parties control.
Everyone should have a right to vote in whichever party the person chooses.
A voter otherwise eligible should be able to vote in the primary election of either party for several reasons.
First, the two parties have locked up the system to their advantage. The statutes have been written so as to preserve the two "major" parties' dominance. Still, the government belongs to the people of the State of Indiana. Primary ballots of the two major parties are not proprietary to the parties. The two "major" parties created primaries to function by statute. The two parties' primaries use public revenues to administer and regulate the process of voting. The parties themselves benefit from the process because the primaries are the chief means by which candidates are selected for the November ballot. There is no ethical basis for the parties to use the resources of the State of Indiana to such a degree and concomitantly claim a status by which Voter can be rejected before she has opportunity to cast her ballot.
Second, in many ways there is no difference between the two "major" political parties. I say this as someone who is genuinely and unabashedly left-wing. I voted for Barack Obama in both the primary and general elections in 2008. (Oops! I disclosed how I voted, in part, in a past general election.) Given the circumstances of that general election, my vote, were the same election held today, would be the same. President Obama has disappointed many (count me as amongst that number) who hold views similar to mine. He catered to big business on health care and taxes. He continued the (disastrous) Bush tax cuts, as well as our participation in the Iraq and Afghanistan military actions. I know people have died there and the costs have been enormous, but Congress made no formal declaration, therefore those military operations cannot be called wars. The two "major" parties - nationally - are backed by many of the same financial interests. Statewide, on financial issues, there only are superficial differences between the Republican and the Democratic parties.
The two parties have rigged the game to guarantee control remains with the two parties. They have manipulated the structure to their own benefit. Their allegiance seems, first, to be with perpetuation of their own power. Consideration of constituents, particularly the right of the people to control their government, at whatever level, obviously is secondary. That inheres in the legislation that governs elections. Given the parties' manipulation of the system to shut out or make effective participation by "third parties" far more difficult, there should be no ethical opprobrium for a voter who seeks to vote for the "other" party, for whatever reason the voter in question chooses. If someone cheats (a la the Republican and Democratic parties in league), a would-be competitor is entitled to take advantage of the vehicle by which the cheater unfairly gained an edge.
There is no enforcement mechanism for I.C. 3-10-1-1, et seq.
 |
| The Hillary Clinton presidential campain in 2008 faced a concerted effort by Barack Obama to encourage Republicans to vote for him in Indiana's open primary. |
Challenges are rare.
The affidavit requirement of I.C. 3-10-1-9 renders the process illegal and absurd.
Statutes should not be absurd or meaningless. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). I.C. 3-10-1-9 is absurd, as well as wrong, for several reasons.
1) Voter cannot reasonably be expected to promise to vote for at least half of the party=s candidates in the November general election when, at the time she votes in the May primary, she does not know who those candidates will be. The purpose of the primary is to select the candidates who will appear on the November ballot. The statute requires Voter to vest trust in the officials of a political party.
2) The statute requires Voter to cast half of her votes for half of the other party's candidates. This inherently violates the concept of a "free" election. In order to vote in the primary, she must barter her votes in the general election. Under I.C. 3-14-2-1, offering to pay someone for their vote constitutes voter fraud. "Pay" is defined as "to give compensation for. The American College Dictionary, supra. Voter is given compensation - a primary ballot - "as compensation for her vote for at least half of the candidates in the general election. " Therefore under I.C. 3-10-1-9 that is illegal.
 |
| Indiana recently began requiring photo identification for voters to cast a ballot. |
One could assert Voter does not have to vote in the primary.
This statement is true. Usually stated in a snotty tone, a person says, "Nobody makes her vote. She doesn't have to vote in the primary." Neither does she HAVE to vote in the general election come November. The reality is that primary elections have an effect, sometimes significant, on the general elections.
Usually the race for any office boils down to a choice of the good old lesser of two evils. Primary elections are one means by which the worst evils can be eliminated. The NCAA tournament does not jump straight to the championship game. There are all those preliminary rounds with Wafford and Lamar and Stetson. Rarely a Butler advances to the Final Four. Usually the last game features two teams from large state schools with huge (taxpayer-funded) budgets.
If Voter is deprived of the ability to vote in the primary, she is effectively disenfranchised. She is denied the ability to have a say, however minor, in the choices (damn few if the teabaggers prevail) she has in the November general elections.
Voter is not wrong to cross-over to vote for Mourdock if she seeks only to hurt Republican chances.
The two parties wrote the rules and put in the fix on something that is more than a game. Elections are the means by which we are governed. If the parties have manipulated the system, people are on valid ethical ground to manipulate it, too. Ah! Someone may ask how can Voter be called "ethical" if Voter is willing to lie in an affidavit about her past vote or how she intends to vote in the upcoming general elections? To which I would say: (1) politicians, the players in the elections, live on lies and (2) because the Voter has no choice if she wishes to exercise her franchise.
My personal view is that Mourdock is a scary candidate.
This statement might seem extreme to some, but not to a lot of people.
Emblematic of my concerns is the content on Mourdock's official website. He is proud of his participation in Glenn Beck's March, 2009, march on Washington.
Mourdock is anti-choice. He believes Roe v. Wade should be reversed because it does not reflect the original intent of the Framers of the Constitution. Apparently he embraces the jurisprudential philosophy called "originalism." I have written on that matter before. The original intent of the Framers cannot be ascertained for specific cases and, even if it could, 224 years of constitutional amendments, court decisions, societal evolution, and statutes have developed a body of law far removed from the document written by white, sweaty, wealthy men in Philadelphia in 1787, at least 20 of whom claimed ownership over other human being (i.e., were slaveholders). The Framers acted outside their charter when they created an entirely new government. They only were to meet to make amendments to the Articles of Confederations. So a person who relies upon original intent of the Framers relies upon persons who were initially devious in setting about their task.
Mourdock is against regulations promulgated by the EPA. He is pro-gun. He is anti-national healthcare. A really scary aspect of his views is that he is pro-nuke - not as in nuclear energy, but as in nuclear weapons, and that is even worse than the nuke energy thing. In short, he is a teabagger.
As for his political record, he is proud of the way in which the Indiana Republican Party has been able to sell off capital assets for which the taxpayers paid a lot of money to build and develop in the first place - e.g., the Indiana Toll Road.
Senator Lugar might not be a lesser evil.
 |
| Senator Richard Lugar |
In the past he has pushed for nuclear disarmament. That is a good thing, unless one embraces a view of Armageddon and the destruction of the human race as a "plus" ordained by a supreme deity in Revelations. Inherently, rational discussion with persons who like Armageddon is difficult - if not impossible - because they believe in something (the bible) as a matter of faith (belief which is not based on proof" American College Dictionary). If one blindly accepts immolation of the Earth as a "plus," there is not much one with a divergent view can do to dissuade. If the person has accepted the matter without proof, what means does one employ to dislodge the belief? Proof would seem to be off the table, to use a current cliche.
Perhaps my impression of Lugar as a wise person of great intelligence has been engendered by his media contacts. I have met the man twice. At IU School of Law (I think I was in second year), he impressed me with his knowledge m- as in thorough, could answer questions about the dynamics of domestic policies in Costa Rica - and his sense of humor.
In the quest for the lesser of two evils, there are several possible ways in which cross-over voting may or may not affect the outcome.
Here are the ones of which I can think, in no particular order:
1) There are few cross-over voters and Lugar wins the primary. It turns out the numbers and influence of teabaggers were overblown (especially after people had a chance, after the 2010 elections, to see what the teabaggers do once in office).
 |
| State Treasurer Richard Mourdock |
3) There are a lot of cross-overs and Mourdock wins the Republican primary. I do not see the cross-over effect as favorable to Lugar. Democrats, hungry for a United States Senate seat in Indiana for the first time since December 30, 1980 (I mean really, Evan Bayh was a Democrat only because he saw opportunity; his views were safely right-of-center), who want to throw the election to Lugar are the persons who have the most feasible motive to cross-over.
In the six months between primary and general, many things can change. The economy could improve (helps the Democrats). The economy could get worse (helps the Republicans and is the development for which many people think the Republicans yearn). Sarah Palin could publish a political work of deep insight and clarity that gives people a vision for where the country should devote its resources to give a sound foundation for the future. (Sorry, I had to interject a moment of absurdity there. Because very serious things could happen.) A lot of people have guns. Someone could get shot.
Campaigns across the country, no doubt, will be rough. Karl Rove will flex his muscles, stretch his reptilian wings, and send forth his minions with checkbooks. The Koch brothers will fund every right-wing person who makes the Unbreakable Vow. Citizens United will be given full effect. Enough mud will be slung as to be reminiscent of the old Snake Pit at the Indianapolis Motor Speedway.
Be careful, you might get that for which you wish.
For any person who traditionally has voted in the Democratic Party but who considers voting for Mourdock simply to upset the Republican apple cart, I would say: be very careful. The tactic could work in the primary. Lugar could lose and Mourdock be the Republican candidate in November. That does not mean Congressman Donnelly has a walk in the park.
The teabagger movement has been known for dirty tricks. Last-minute efforts could be launched, funded, say, by the Koch brothers, to discourage some groups of people from going to the polls. Election officials could do wat they did in Florida in 2000. Mourdock could be declared winner of the election. A rational voice - that of Richard Lugar -would be replaced by the voice of an idiot - that of Mourdock - in the United States Senate.
I may cross over.
Come May, 2012, I might ask for a Republican ballot in the primary election. If I do so, and I am challenged, I cannot sign an affidavit to disclose my past votes or my future votes. I do not intend to litigate over the matter, although one always can change one's mind. In good conscience, though, I cannot swear to the affidavit.
Because I will refuse to disclose my past or future votes, by affidavit and under compulsion of statute, does not mean I am a hypocrite if I discuss here, in other writings, or in conversation with friends or others, how I intend to vote or the individual candidates whom I support. I believe there is a qualitative distinction between voluntary expression of my opinion and compulsory disclosure of my votes as a prerequisite to exercise of my right to vote. By opposite reasoning, one cannot simultaneously espouse opinions about specific candidates and vote by secret ballot.
As I sit here today, I would vote for Lugar because I believe he is the better candidate, when compared to Mourdock. I can guarantee I will not vote for Mourdock. Mine would not be a cross-over vote cast to screw up the Republican chances in the general election. I would seek to cast a vote because I believe the better candidate should win. There is at least one other candidate whom I believe will run for an office in that Republican primary who also will receive my vote if the person declares candidacy. But let us get back to Lugar.
I would vote for Lugar because I believe Mourdock would be disastrous in office. We have enough teabaggers in office. I hope the teabagger fad passes soon, like the leisure suit before it. If Lugar wins, again as I sit here today, I would vote for Donnelly in the general election. I would do so not because I am enamored of Donnelly. He voted against Planned Parenthood. But he voted for NPR. At least his views are more consonant with mine. I also believe he has intelligence such that I would trust his decision-making in a crunch.
So mine would be a vote cast for the person whom I believe to be the better of the two and (hopefully) to block the other from the November ballot. I would not do so to enhance the chances of the Democratic candidate. I cannot discern whether a Mourdock primary victory would be good for the Democratic candidate.
As for the Republican presidential candidates n the primary, the only reason I would vote for any of them would be because Ron Paul favors legalization of all drugs, a belief I first expressed on television in 1976.