The Complications of Tennessee's Primary Voting System

Let's say you're at a polling place this Thursday. Up drives a young woman in an old blue Volvo sedan, with bumper stickers on the back that say "Health care for all" and "Homophobia is not a moral value." When she gets out of the car and starts walking toward the voting location, you see she has a pierced lip and an Obama T-shirt. But then, when she approaches the check-in table and is asked in which primary she plans to vote, she nonchalantly says, "Republican."

That scenario, or some less cartoonish version of it, has no doubt played itself out many times already over the past three weeks. By the end of early voting last Saturday, of 36,339 early and mail-in ballots cast in Knox County, 33,382 were in the Republican primary. It's no secret that the county leans Republican, but it doesn't lean 92 percent Republican. (It went 61-38 for John McCain over Barack Obama in 2008.) What's going on is, of course, a familiar feature of the primary election landscape in Tennessee: crossover voting.

"Here in Knox County, I don't think there's any question we're seeing a huge crossover when you've got people voting 13 to 1 in a Republican primary," says Ray H. Jenkins, chairman of the Knox County Republican Party. "As party chairman I'd be happy to claim all those people as proud Republicans, but I'm not naive."

The effect is especially visible in this week's election, for a number of reasons: With Mike McWherter the only serious Democratic contender left in the governor's race, there is no high-profile contested primary on that side of the aisle; a popular Knoxville mayor is in the running on the Republican side; and, maybe almost as important, there are a lot of Democrats and independents who really don't like the other Republicans in that race, Rep. Zach Wamp and Lt. Gov. Ron Ramsey. The result is, a lot of people who would never describe themselves as Republican at any other time decided to vote in the Republican primary.

This is not unusual—something similar probably happened in the Knox County mayor's primary in May, where the Republican contest between state Rep. Tim Burchett and former Sheriff Tim Hutchison drew nearly 35,000 voters, compared to just 2,300 in the Democratic race between two little-known candidates. And it is perfectly legal. More or less.

Tennessee is commonly referred to as an "open primary" state, meaning voters can choose to vote in any primary they want (though only one per election—you can't vote in both Democratic and Republican contests on the same day). In fact, the law is a bit murkier than that. Under Tennessee Code Annotated 2-7-115, section b:

A registered voter is entitled to vote in a primary election for offices for which the voter is qualified to vote at the polling place where the voter is registered if:

(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or

(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.

A separate section of the code allows for a challenge to any voter's right to participate in a primary, "on grounds of party membership." In other words, if you want to vote in the Republican primary, but somebody thinks you are not really a Republican, you could theoretically be blocked from casting a ballot. That's what happened last month to Mickey Eldridge, a would-be balloter in Crossville. Her vote was eventually reinstated, after some legal maneuvers too complex to detail here, but the challenge raised interesting questions: In a state with no party registration, how can anyone prove they are a "bona fide" member of a party? How can anyone else prove they are not?

Greg Mackay, Knox County's election administrator, says it's not something he's ever had to deal with. Asked what would happen if there were suddenly a rash of ballot challenges, he says, "We don't really get into hypothetical stuff."

According to the website, as of 2008 Tennessee was one of 17 states with fully open primaries, although there are numerous other arrangements. Many states require you to choose a party affiliation when you register to vote, and you can vote only in that party's primaries unless you re-register to change. But in some states, one party or the other allows either open voting in primaries, or primary balloting by independent voters. (California just changed to a run-off system currently used only in Washington state, in which all voters can vote for candidates of any party in the primary, and the top two finishers move on to the general election. Theoretically, that means the general election could be between two Republicans or two Democrats.)

Rhodes Cook, a veteran political analyst and publisher of The Rhodes Cook Letter in Virginia, says he thinks open primaries give a small advantage to candidates who can reach voters outside their party's base. "This is just a guess," he says, "but a candidate with independent appeal can maybe pick up 5 points or so." On the other hand, he says, "You're still going to get the bulk of votes from party members," so it doesn't make sense to spend much time looking for those crossover ballots.

Gloria Johnson, chair of the Knox County Democratic Party, says she would prefer voters to stick with the party that best represents their views. "I'd like every Democrat to vote in Democratic primaries," she says.

But Jenkins—no doubt aware that in Knox County, crossover voting tends to inflate Republican numbers at the polls—says, "Quite frankly, the message I preach to candidates and their supporters is, we'll take all the votes we can get. Certainly in the general, but in the primary, too."

Ramsey, maybe frustrated by his struggles to gain traction in the governor's race, recently floated the idea of moving Tennessee to a closed primary system. But both Bill Haslam and Wamp said they favored the open primary, which Cook says is a politically popular stance. Voters tend to like the idea of having options.

"It's kind of difficult culturally to move from an open primary to close it," Cook says. "There's been more movement in the other direction."