Does Michigan’s decision to move up its presidential primary violate the state’s new constitutional right to vote?

The Democratic National Committee recently approved changes to the presidential primary calendar. One of those changes permits Michigan to move into February for its presidential primary. Michigan just changed its primary to February. But the Republican National Committee rules forbid a February primary for Michigan. RNC rules would dramatically reduce the number of delegates Michigan receives, from its present total of (I think) 55 to “to nine (9) plus the members of the Republican National Committee from that state.”

The same thing happened in 2008, when Michigan (among other states) went early. But the penalty at the time was a 50% reduction in delegates. The penalty has since been increased to induce compliance. It’s a significant cost for Republicans to go early.

Josh Putnam points out potential alternatives: maybe Michigan funds a second, later primary for Republicans. Or maybe Michigan Republicans “opt out,” leave a “beauty contest” in place in February, then hold a private primary or caucus in March.

But I wonder if the new law now violates a new state constitutional right to vote enacted last year, Proposition 2. That includes the following language:

The fundamental right to vote, including but not limited to the right, once registered, to vote a secret ballot in all elections. No person shall: (1) enact or use any law, rule, regulation, qualification, prerequisite, standard, practice, or procedure; (2) engage in any harassing, threatening, or intimidating conduct; or (3) use any means whatsoever, any of which has the intent or effect of denying, abridging, interfering with, or unreasonably burdening the fundamental right to vote.

Any Michigan citizen or citizens shall have standing to bring an action for declaratory, injunctive, and/or monetary relief to enforce the rights created by this part (a) of subsection (4)(1) on behalf of themselves. . . .

Presidential primary elections are tricky things to pin down as a legal matter, something I’ve noted briefly here. But, at first blush, the decision to move the Republican presidential primary from March to February might have the “effect” of “abridging” or “interfering with” the “fundamental right to vote.” If your vote in March had the power to choose 55 delegates to the national presidential nominating convention, but your vote now in February has the power to choose 12 delegates to the national presidential nominating convention, that would seem to dilute your political power.

Now, again, it’s not exactly clear to me how this works for a presidential primary election. Voters are formally choosing delegates to a convention. But I imagine that this still falls within what the constitution would define the “fundamental right to vote.” That is, if the legislature abolished absentee voting or drop boxes in a presidential preference primary (elsewhere now required in the constitution), one could challenge that.

Then again, it’s also contingent on the behavior of a third party, the RNC’s rules and recognition of what states can or cannot do, and the RNC could, of course, change its rules. It becomes much more challenging to think about how this new state constitutional right operates against that backdrop.

I don’t have any answers, but I do wonder about how a initiative of language with this breadth affects what’s happening in the presidential primary shakeup right now.

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