A Resounding No to Open Primaries

After Tuesday’s New York State presidential primary, a number of Bernie Sanders supporters cried foul when they realized that they could not vote in the Democratic primary, either because they had not registered as a Democrat or an irregularity seemingly kicked them off the rolls. Also to their disadvantage was the fact that New York State required voters to change party status by October 2015, well before many people first Felt the Bern, in order to vote in Tuesday’s primary.

Disaffected voters quickly took to the Internet to express their dismay that the closed primary deprived them of the ability to vote for Sanders. Multiple petitions sprung up on Change.org demanding New York institute an open primary, and a number of posts on my own Facebook feed insisted that this shows the need for open primaries.

However, I strongly disagree with calls for open primaries. The fact of the matter is that a political party, like other organizations, is an independent association, and its ability to determine its own membership for selecting nominees is fundamental to the First Amendment right to organize.

Before anyone starts demanding independent primaries, he or she should consider any private organization in which they participate. Imagine if the day the organization elects its leadership that people who had never been there before showed up and elected their candidate.

Obviously there are some limitations on how a party can determine its membership: there should not be things like an all-white primary. Nevertheless, as one open primary opponent put it, “You cannot force a political party to accept people it doesn’t want any more than you can force people having a cocktail party on their porch to accept people who aren’t invited.”

And the courts have agreed that parties are entitled to decide who votes in their own primaries. In the Supreme Court case California Democratic Party v. Jones, the Democratic Party joined with the Republican, Libertarian, and Peace and Freedom Parties to successfully overturn California’s attempt to create a “blanket primary” – an open primary in which voters could pick any given party’s nominee for any given office.

In a 7-2 decision, the court ruled that the blanket primary impinged on the parties’ First Amendment right to association:

Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself…Consistent with this tradition, the Court has recognized that the First Amendment protects “the freedom to join together in furtherance of common political beliefs,” Tashjian, supra, at 214-215, which “necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only,” La Follette, 450 U. S., at 122. That is to say, a corollary of the right to associate is the right not to associate. “`Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being.’ ” Id., at 122, 575* n. 22 (quoting L. Tribe, American Constitutional Law 791 (1978)). See also Roberts v. United States Jaycees, 468 U. S. 609, 623 (1984).

In fact it works both ways, whether a party wants its primaries open or closed. In 1984, the Connecticut Republican Party thought they could attract more supporters if independents could vote in GOP primaries, although the state required primary voters to be registered in the respective party. The dispute over the rules made its way to the Supreme Court, and in Tashjian v. Republican Party of Connecticut, the Court ruled (albeit 5-4) that it was unconstitutional for the state to decide who could vote in the GOP’s nomination process. (As you can see from the citations above, the Tashjian case and its reasoning was cited in deciding California Democratic Party v. Jones.)

In the majority opinion, Justice Thurgood Marshall – a far cry from a rightwing or reactionary judge – wrote,

Section 9-431 [Connecticut’s primary law] impermissibly burdens the rights of the Party and its members protected by the First and Fourteenth Amendments. The freedom of association protected by those Amendments includes partisan political organization…The State thus limits the Party’s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community. The fact that the State has the power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote or, as here, the freedom of political association…The interest in preventing voter confusion does not make it necessary to burden the Party’s associational rights…the State may not constitutionally substitute its judgment for that of the Party, whose determination of the boundaries of its own association and of the structure that best allows it to pursue its political goals is protected by the Constitution.

Yes, it is true that some states have open primaries, which may lead one to believe that it is perfectly constitutional. However, that is in large part because parties in those states have consented and not challenged it: when parties take the matter to court, as in California, they have a fair amount of success in ending open primaries. That is what happened in Idaho Republican Party v. Ysura, when the Idaho district court ruled it was unconstitutional for the state to require an open primary.

There is also another nuance for how some states have managed to survive court challenges to open primaries: states can mandate only open primaries, because they can put conditions on how to spend taxpayer dollars, but parties are free not to use taxpayer-funded processes. That was the reasoning in Miller v. Brown, where a 4th U.S. Circuit Court of Appeals ruled that Virginia open primaries were constitutional because the party can nominate by internal means. However, it did strike down as unconstitutional the Virginia law that incumbents could choose to require an open primary for re-election to office.

And in Democratic Party of the United States v. Wisconsin, the Supreme Court ruled 6-3 that Wisconsin could mandate open presidential primaries, but the Democratic Party was under no obligation to consider the results binding – in particular, not be forced to seat delegates selected by an open primary.

So there are indeed open primaries in some states, but enough litigation, or a Supreme Court that chose not to rule narrowly, could largely nullify them. Or the open primaries could be rendered the non-binding “beauty contest” primaries of yore.

That is not to say that there should be overly-restrictive rules on party registration. The first time I voted in a New York Democratic presidential primary, I registered to vote for the first time in December 2003 and voted in March 2004, so I see no reason why others should have to change party status many months in advance just because they were already registered. And anyone who believes they were truly a registered Democrat only for the voter rolls to say otherwise on Tuesday should fight tooth and nail in court for their provisional ballot to count.

However, a political party, like any other private organization, is entitled to decide its membership. And because some people have become recently awakened to the electoral process does not justify compromising a party’s right to determine its own nominees.

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