Primary fight shifts to court

Emergency appeal to save Jan. 15 vote expected as Legislature scraps session today.

Gordon Trowbridge and Charlie Cain / The Detroit News

LANSING -- The focus of attempts to save Michigan's endangered Jan. 15 presidential primary is expected to move to the courts today.

The Legislature canceled today's tentatively scheduled session and won't be back until Nov. 20. There had been some hope that the House would take up the primary legislation today.

Attorney General Mike Cox's office is expected to file an emergency appeal today with the state Court of Appeals asking it to step into the dispute by issuing a stay of last week's Ingham County judge's ruling that canceled the primary because a portion of the law was unconstitutional.

The Democratic and Republican state parties technically are supposed to notify Secretary of State Terri Lynn Land by Wednesday if they plan to hold primaries, whose results would determine how the state's national convention delegations will vote next summer.

But some lawmakers, such as House Republican Leader Craig DeRoche of Novi, say the Legislature can simply vote to put off that deadline by changing the law that established it.

It looks increasingly like the best hopes for reviving the presidential primary, and giving Michigan voters an early voice in the process, now rest with the courts. Bill Nowling, a spokesman for the Michigan Republican Party, said the GOP will file a brief in support of the attorney general's effort.

"We want the decision set aside because there is no reason to scuttle the primary just because a judge had an issue with a small part of the law," Nowling said.

Judge William Collette ruled Wednesday that the law was unconstitutional because it did not receive two-thirds support from the Legislature. That was needed, the judge ruled, because it's the only way the state can legally spend public money for private purposes.

Under the law, the lists of voters in the primary would go to the two political parties and no one else. And since the parties are private, the state would be spending tax dollars to compile the voter lists for them.

The Senate passed legislation Thursday in hopes of getting around the judge's concerns. But Senate Democrats refused to put up enough votes to give the measure "immediate effect." As a result, the bill could not become law until six weeks after the primary was to be held.

The House has not voted on the new primary bill. Some question Democrats' commitment to a primary because it would violate national party rules and would work against the candidacy of John Edwards. Union leaders who support Edwards for the nomination believe they could better control the outcome of a caucus, which would have much lower turnout.

Michigan has been a key player in the national dispute over the presidential primary calendar. Iowa, with caucuses, and New Hampshire, which holds a primary, are supposed to come at the head of the line under national party rules. But Michigan wants to jump in early, in the belief that it could have a greater influence over party nominees.

New Hampshire is waiting to set a date until Michigan does so.

In a related development, the top strategists for Republican hopeful Rudy Giuliani acknowledged Monday that the former New York mayor's hopes here are greatly diminished if Michigan's Jan. 15 primary falls through.

"If the decision goes to the voters and we can put this thing to the ballot box, we can be very strong in Michigan," said Brent Seaborn, a Michigan native and Giuliani's strategy director. Giuliani's strategy is focusing more attention on Florida and the score of states voting on Feb. 5 while downplaying traditional kickoff contests in less-populated Iowa and New Hampshire.

If the primary isn't revived by the courts or the Legislature, Republicans likely would select delegates at a statewide convention of party activists Jan. 25 and 26. Democrats likely would call a state caucus in early February.

Campaign manager Michael DuHaime and Seaborn each acknowledged Monday that Michigan native Mitt Romney and 2000 Michigan primary winner John McCain would hold an edge at such a convention. Both Romney and Giuliani have made more than two dozen campaign stops in Michigan this year, and each has a network of the political insiders and activists whose support would be crucial in a convention.

"A closed convention is entirely different," said Seaborn.

While Giuliani has campaigned extensively in Iowa and New Hampshire, his competitors, particularly Romney, have run hard there; Romney generally is considered the leader in the kickoff states despite standing third or fourth in most national polls. The strategy Giuliani's aides described Monday depends on remaining viable through Iowa and New Hampshire and depending on Giuliani's strength in Florida, which votes Jan. 29, and the states voting on Feb. 5.

The Feb. 5 contests include several northeastern states, including New York and New Jersey, plus California and Illinois; more than 1,000 Republican delegates will be awarded that day out of roughly 2,400 total.

"We are the only campaign, when you look at Feb. 5, who can count on a large number of delegates," DuHaime said. Asked if Giuliani's lead in Florida and elsewhere would hold up if another candidate gains momentum by winning Iowa and New Hampshire, DuHaime called Giuliani's leads in several states "momentum-proof."

That drew a tart response from Romney spokesman Kevin Madden, who sent an e-mail to reporters comparing Giuliani's "momentum-proof" leads to Santa Claus and the Easter Bunny.