Politics News | New West Network

In 1986, the US Supreme Court gave parties the right to invite independents to vote in their primaries. This is up to each party; the state has no say-so in the matter. Tashjian v. Republican Party of Connecticut

In 1995, a federal appeals court ruled that, when the state requires parties to hold primaries, the state must pay the costs of those primaries. (Republican Party v. Faulkner County) If left to their own devices, the parties would be very unlikely to hold primaries, due to the expense. Since the voters are accustomed to primaries, the state will continue to mandate primaries.

If (1) an independent voter wishes to vote in a party's primary, and (2) that party does not invite independents into its primaries, then that voter should simply re-register with that party. The voter can always switch back to independent status after the primary.

The role of the courts is merely to decide the constitutionality of Idaho's open primary law. If the law is struck down, each party will then be free to decide who votes in its primaries. Unless state law forbids it, a party will even be able to invite members of opposing parties to vote in its primaries.

My take on all of this is HERE.

~~ Steve Rankin
Jackson, Mississippi
oldsouthwestATaol.com

It was the California Democratic Party who filed (and won) the lawsuit that caused the US Supreme Court to recognize the rights of the political parties to decide whether to allow independents to participate in their primaries or not.

The chair of the Idaho Democratic Party is, of course, free to disagree with his colleagues in California (and many other states), but he might have more credibility if he were to do it a bit more respectfully and avoid the easy, and IMHO very CHEAP arguments.

If we look at what happened in CA after the 2001 Court ruling, we can see that the ruling had less of a real world impact than either the proponents or opponents of a closed primary are willing to admit. In CA, the parties must inform the Secretary of State well in advance of the primary whether they will allow independents to vote in their primary. In this way, the self-governance of the party is not abridged by the state. As a practical matter, both major parties have allowed indies to vote in all of their primaries held since that date, except the GOP does not allow indies to vote in their presidential primary.

If Idaho were to follow the CA model, a not unreasonable assumption, Mr. Roark and the Dems are free to welcome the indies to vote in their primary and the Idaho Republicans are free to exclude them. I suspect such a situation would mean the Idaho Dems would gain some members and the GOP would lose some. I also suspect that a GOP closed primary would result in the election of "true Republicans" with ideas less acceptable to the mainstream--that IS the intent, is it not? Which might mean that the Dems would pick up a few more seats and, possibly, become more competitive.

OTOH, it is possible that more pragmatic forces with the GOP, while wanting the right to exclude non-members, would recognize good, practical reasons for not exercising that option in practice. In any event, I believe they should be free to make that choice.

In Tashjian, The US Supreme Court ruled that a political party could invite voters who were not formally affiliated with any party prior to a primary to participate in that election. In effect, these voters would form a short term affiliation with the political party. They could of course renew this affiliation at subsequent primaries.

Some non-affiliated voters may have a stronger allegiance to the beliefs of a party than those who have officially registered with the party. They might not have wanted to be harassed by party solicitors, publically identified as a member of a political party, regarded their political faith as a private matter, or perhaps hadn't realized they might be excluded from voting in many elections.

Meanwhile, other persons may have registered with a party for entirely non-ideological reasons. In many areas, elections are decided at one party's primary, and the general election is just a formality. If you don't vote in that primary, you have little or no influence over the final choice. Or a voter may want to be seen as belonging to a particular party for social reasons, and then voted differently in the general election. Or maybe they simply hadn't bothered with the administrative hassle of updating their party affiliation.

Of course, any of these voters are free to vote for whoever they wish in a general election.

For 99% of persons whose political activity consists only of voting, there isn't really that much difference.

In a State like Idaho, where there is no party registration, it is the equivalent to all voters having no party affiliation, but forming an affiliation at each primary election. Some may choose a primary for entirely pragmatic reasons. Of course, there is no pressure to choose a party for appearance sake, so those who actually vote in a party's primary may be more politically aligned than in those States where there is formal party registration.

I am aware of no case where a party has been able to close their primary to non-affiliated voters, if this were contrary to State law. In Tashjian, Connecticut law required closed primaries, and the GOP wanted a semi-open primary. Even in States where primaries are closed as a matter of law, and no party has not sought to permit participation of non-affiliated voters, it is generally trivial to change party affiliation, particularly for non-affiliated or first-time voters.

No court is going to sanction any party affiliation (for purposes of participation in State-mandated primaries) based on race, religion, sex, age, dues-payment, loyalty oaths, etc. This leaves one practical criteria - a voter's self identification. A Democrat is someone who says that they are a Democrat, even if they wear an elephant flag pin, have a GOP yard sign, and make contributions to the Republican Party and send a copy of the check to the Democratic HQ (or vice versa).

At best, they might place a time restriction on changing party registration. But they probably won't be able to do so for newly registered voters because this would have the effect of imposing a residency period and infringe on the right of 18-year-olds to vote. So at best you are going to be able to impose some administrative hassle for existing voters - leaving you with the absurdity that if John Kerry were to make Idaho his permanent residence, he could declare himself a Republican when he registers to vote, and it would be harder to switch for a 95-year-old who has been voting in Idaho since 1934.

If the federal court can be convinced to require party registration - that is, to make a public record of a person's political faith - they will not require voters to register with a party. And it is quite unlikely that a court would be willing to impose a closed primary. So perhaps you might get a semi-open primary, where non-affiliated voters can publically choose which primary they vote in. But if that is the case, why have party registration at all, since the only practical effect of having a Republican registration is that you can't vote in the Democratic, Green, Libertarian, or other party primaries?

In the quite unlikely event that a closed primary were imposed by the federal court, the legislature could make it absurdly easy to change affiliation. They could make it so that a voter could change their registration on election day and stipulate that the affilation expires the day after the election. A party certainly can't require someone to forever be a party member, or even require it for year. And there is simply no State interest in imposing bureaucratic burdens in order to facilitate some misguided sense of preserving party purity.

The issue in California Democratic Party v. Jones was not whether non-affiliated voters could vote in partisan primaries, but whether registered members could vote in the primary of other parties. Under the blanket primary system used in California, a Democratic registered voter could vote in the Libertarian primary for Governor; Peace & Freedom primary for US Senator; Green Party primary for US Representative; American Independent primary for State Senator; and Republican primary for State Representative.

The only impact on non-affiliated voters was that they could switch between parties on each race down the ballot, which is quite different from a non-affiliated voter being restricted to only one party at an election.

When the blanket primary was used in California, there was one legislative race where the Democrats and Republicans had uncontested primaries, while two Libertarians had filed. A rather large number of voters decided to vote in the Libertarian primary for that office. It would be like if school children were given the option to vote for one food item on the menu and had the options:

Entree:
[] Hamburger
Fruit:
[] Apple
Vegetable:
[] Brussel Sprouts
[] Raw Beets

many would vote for the vegetable, and then when they got their meal, dump it in the trash.

While California law now lets political parties choose whether to let unaffiliated voters participate in their respective primaries, California is not required to give them that option. Before 1996, California required closed primaries. A State may no longer require closed primaries; but they may require semi-open primaries. California has simply decided to let the party make the decision.

And in California, it is trivial to change party registration. It only need be done 15 days before the election, and can be done by mail. It is simply make-work for the vote registrars, and a bit of hassle for the voter.

A state law prohibiting parties from inviting independents into their primaries would be unconstitutional, as it would violate the US Supreme Court's (SCOTUS's) Tashjian ruling.

What Mr. Riley calls a "semi-open" primary is actually a semi-closed primary: a party invites independents to vote in its primary.

Under the SCOTUS's ruling in Clingman v. Beaver (2005), state law MAY prohibit parties from inviting members of opposing parties to vote in their primaries. When a state enacts such a law, each party then has the option of having a semi-closed primary or a closed primary. In the latter, of course, only party members may vote.

In at least 42 states, each primary voter's choice of party is publicly recorded.

The primary setups in two states are worth mentioning. In Utah, which registers voters by party, the Republicans invite independents into their primaries. But the Democrats invite ALL voters-- even registered Republicans-- to vote in Democratic primaries.

New Hampshire also registers voters by party. On primary day, an independent may vote in either the Democratic or the Republican primary by changing his registration at the polling place. On emerging from the voting booth, such a voter may either stick with his new party or switch back to independent status.

There is a court case which says that parties may refuse to let independents vote in its primaries. Arizona state law requires parties to let independents vote in their non-presidential primaries. But the Arizona Libertarian Party didn't want independents voting in the Arizona Libertarian primary (because the 18,000 registered Libertarians were vastly outnumbered by the several hundred thousand independents, and it made it too difficult for the party's candidates to reach all of the independents in contested Libertarian primaries). The case was won by the Libertarian Party on Sep. 25, 2007, and is not reported. It is Arizona Libt Party v Brewer, US Dist Ct no. 02-144-TUC-RCC.

Mr. Rankin is correct. A primary that is open to non-affiliated voters in addition to registered members of the party is referred to as a semi-closed primary.

Clingman v. Beaver concerned an Oklahoma law that permitted a party to choose between having a closed primary and a semi-closed primary. The Libertarian Party instead wanted to also open their primary to voters registered with any party in addition to non-affiliated voters.

An issue raised before the Supreme Court, though not in the lower courts, was that the two other recognized parties in Oklahoma, the Democrats and Republicans had opted for closed primaries. Further, the Libertarian Party would lose its ballot access after every election, and any registered Libertarian would have his party registration purged. So a would-be Libertarian primary voter would have to continually re-register as a Libertarian. And if there were no Libertarian primary, he would have to be a registered Republican or Democrat if we wished to participate in the election.

So rather than preventing dilution of the Libertarian Party message, Oklahoma law was making it difficult for voters to support them, and causing voters to make a disingenuous declaration of political party.

The majority opinion in Clingman v. Beaver was written by Justice Clarence Thomas, and, in my view, it was a bad decision. After criticizing the Tashjian ruling (which gave parties the right to invite independents into their primaries), Thomas allowed it to stand.

In California Democratic Party v. Jones, Justice Scalia quoted from a previous ruling: parties have "the freedom to identify the people who constitute the association, and to limit the association to those people only." He did NOT say "... unless the State decides that the parties cannot invite members of opposing parties to vote in their primaries."

A political party, as I see it, should have total autonomy to decide who votes in its primaries. That matter should be none of the State's business.

Strictly speaking, Arizona Libertarian Party v Brewer only applies to the particular situation in Arizona and the Libertarian Party. In Arizona, partisan primaries are open to registered members of the party holding the primary, non-affiliated voters, and registered members of the party not-recognized by the State. At the time of the case, there were only 3 recognized parties; though previously the Green, Reform, and Natural Law parties had ballot status, and just recently the Green Party regained ballot status.

In Arizona, petition requirements to be placed on the primary ballot are based on a percentage of the number of voters registered with a party. The Libertarian Party with about 17,000 registrants thus has very modest requirements (85 for a statewide candidate, between 8 and 14 for Congress, depending on the district). But the signatures could be obtained from any voter qualified to vote in the Libertarian primary (17,000 Libertarians and 725,000 non-affiliated voters).

In 2002 there was a primary where a candidate for the Libertarian nomination for Congress campaigning on a platform of nationalized health-care, and only just before the filing deadline did a "true" Libertarian file, and subsequently became the Libertarian nominee by only a 286:243 margin.

When the case was originally tried, the district judge found another part of the initiative, that all voters in a primary could vote for party officers, even if they were not-affiliated with the party, was unconstitutional. The 9th Circuit overturned that part of the ruling with respect to the Democratic and Republican parties and remanded the case to the district court to consider the effect on the Libertarian party's nominees.

The district court then found that by permitting non-affiliated voters to vote for the Libertarian nominees it was a severe burden on the associational rights of the Libertarian Party. Arizona is enjoined from permitting non-Libertarians to vote in the Libertartian primary. It is not cleared whether non-Libertarians will be permitted to sign petitions for Libertarian candidates.

And strictly speaking, the primaries in Arizona are not semi-closed since registrants of non-recognized parties are permitted to vote in any primary. The judge suggested that Green Party members could vote for the "Libertarian" nominees (this was before the Green Party itselft became a recognized party).

Justice Scalia was quoting from Democratic Party of US v. Wisconsin, a case involving the election of delegates to the national party convention. Wisconsin held an open presidential preference primary, and while the Wisconsin party would choose the actual delegates, state law attempted to dictate who they would vote for at the convention based on the primary result.

Because Howard Dean and the national party are not willing to associate with ordinary voters who choose the Democratic ballot in an open primary, the Idaho Democratic party was forced to hold presidential caucuses earlier this year which drew only 20,000 participants.

It is more than a little disingenuous for Keith Roark to write that, "the Idaho Democratic Party believes that all voters should be able to participate in any election financed by the taxpayers of this state", when the votes of those who participate in the May 27 primary and cast a vote for Barack Obama or Hillary Clinton will have that vote disregarded.