Even if the MSDP had enacted party policies in favor of a closed primary system, and thereby proved its standing to sue, a serious question of ripeness would remain. The party asserts that because it is required unconstitutionally to associate with non-Democrats who vote in its primary, its purely legal challenge to
§ 23–15–575 is neither premature nor hypothetical. A pre-enforcement challenge to the law is generally ripe “if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.”
Monk, 340 F.3d at 282. The difficulty with this argument is the assumption that only legal issues remain in dispute between the parties. Mississippi's AG notes that MSDP has never attempted to challenge voters pursuant to the process outlined in the
Cole Opinion. Exercising its rights by means of that process could have yielded data proving or disproving (a) the existence of party raiding; (b) the practicability of the process; and (c) whether the party's associational rights were actually infringed by a semi-closed primary. It is certainly conceivable, for instance, that the party's mere public announcement of its intent to challenge suspected non-Democrat voters would discourage raiding attempts. Further, the party admitted in discovery that it was unaware of any primary voters who did not support Democrat party principles or intend to support the party's nominees. In sum, while it might be true that
§ 23–15–575 permits party raiding, the existence and extent of such raiding are factual questions that cannot be assessed until MSDP has made some effort to enforce the existing law. Only after
§ 23–15–575 has been enforced can the novel legal issue of its effect on the MSDP's associational rights be compared with the blanket primary at issue in
Jones.