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How Do Primary Elections Work? An Overview and Legal Analysis

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The following is a breakdown of the general types of primary elections with an explanation of the Constitutional principles that apply to each system’s components.

Primary Systems – General Background

Prior to legal analysis of primary election laws, it is imperative that we have a strong understanding of definitions used to refer to each type and component of a primary election. Often times, public discussion has misused or misplaced terminology that can lead to confusion even among those well versed in primary election law. It is essential that we clearly define these particular terms in light of the Constitutional considerations that arise from each.

For example, the term “open” refers to the access, herein defined, that a voter has to vote for the candidate(s) of his or her choice. But “open” is not a complete term. An “open primary” can be conducted for a partisan purpose, or a nonpartisan purpose. A “partisan open primary” can be conducted using a single ballot (AKA “blanket open primary”), or a separate ballot for each party, whereas a “non-partisan primary” may only be conducted on a single ballot.

Therefore, to provide a complete term, a primary’s description should include at least the following components:

Primary Elections Chart2

Purpose

The purpose of a primary is the most important, yet often overlooked factor in the construct of a primary election. The purpose of a primary election is defined by one of two fundamental characteristics: (1) Partisan, or (2) Non-partisan.

“When we interpret the meaning of statutes, our fundamental task is to ascertain the aim and goal of the lawmakers so as to effectuate the purpose of the statute.” (McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912, 928, 87 Cal.Rptr.3d 365.)

The following illustrates the difference between California’s old partisan primary and new “Top-Two” non-partisan primary systems.

(1) Partisan

Partisan primaries come in many forms, depending on the access and ballot options (discussed below) a voter is afforded. A partisan primary election is best conceived as individual elections conducted at the same time for each qualified political party. Partisan primaries are practiced in 47 of 50 states. However, regardless of these peculiarities, partisan primaries always serve the same private purpose:

The purpose of a partisan primary is for members of political parties to nominate candidates for the general election and elect party officers. see e.g. California Democratic Party, 530 U.S. at 572-73.

Because partisan elections are conducted for a private purpose, a party’s private right of association always attaches.

Unsurprisingly, our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party “select[s] a standard bearer who best represents the party’s ideologies and preferences.” Eu, supra, at 224, 109 S.Ct. 1013 California Democratic Party v. Jones, 530 U.S. 567, 575, 120 S. Ct. 2402, 2408, 147 L. Ed. 2d 502 (2000)

It is a state-granted right and must be balanced with an individual voter’s fundamental right to vote.

The rights of party members may to some extent offset the importance of claimed conflicting rights asserted by persons challenging some aspect of the candidate selection process. Nader v. Schaffer, 417 F. Supp. 837, 845 (D. Conn. 1976) aff’d, 429 U.S. 989, 97 S. Ct. 516, 50 L. Ed. 2d 602 (1976).

(2) Non-partisan

Non-partisan primaries serve a public purpose. Non-partisan primaries have a singular form with respect to the access and options an individual voter is afforded. A non-partisan primary is conducted as one election, where all voters and candidates participate in a single primary election using a single ballot. While non-partisan primaries can vary in form based on other particularities (such as “Top-Two” or “Top-Four”), for purposes of the legal considerations in this case, our inquiry will be limited to the general purpose.

The purpose of a primary election under California law, for example, “is to provide the machinery for the selection of candidates to be voted for in the ensuing general election.” Field v. Bowen, CA Sup. Ct. decided Sept. 20, 2013 citing Cummings v. Stanley, 177 Cal. App. 4th 493, 510, 99 Cal. Rptr. 3d 284, 297 (2009)

Non-partisan primaries do not need to be qualified by the defining characteristics of access and options, because the access to all nonpartisan primaries is open and the ballots are necessarily a blanket style. In other words, voters must have the option to vote for any candidate, regardless of office or partisan considerations. Therefore, nonpartisan primaries are always Open, Blanket, and conducted for a nonpartisan public purpose:

The [Washington nonpartisan primary] law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary “does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 453, 128 S. Ct. 1184, 1192, 170 L. Ed. 2d 151 (2008).

Access

Access refers to the ability of an individual voter to participate in the primary election process based on his or her party affiliation. There are three main definitions that comprise the access category: (1) Open, (2) Closed, and (3) Semi-Closed.

(1a) Open­ [Partisan]

The term open refers to the ability of a voter to choose a ballot of his or her choice. An “open partisan primary” can, itself, have a number of variations. However, for purposes of Constitutional analysis, we should consider the term “open,” to refer to any primary where a political party cannot prevent non-members from voting for their candidates.

The Courts have held that open partisan primaries violate a political party’s first amendment right of association.

In sum, [an open primary] forces petitioners to adulterate their candidate-selection process—the “basic function of a political party,” ibid.—by opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome—indeed, in this case the intended outcome— of changing the parties’ message. We can think of no heavier burden on a political party’s associational freedom. California Democratic Party v. Jones, 530 U.S. 567, 581-82, 120 S. Ct. 2402, 2412, 147 L. Ed. 2d 502 (2000).

(1b) Open­ [NonPartisan]

All nonpartisan primaries are necessarily open, see supra. While partisan open primaries have met ill fate in the Courtroom, open nonpartisan primaries have withstood Constitutional scrutiny. This is because nonpartisan schemes avoid the parties’ 1st Amendment concerns.

The Supreme Court stated that under such a system, ‘a State may ensure more choice, greater participation, increased privacy and sense of fairness – all without severely burdening a political party’s First Amendment right of association.” (dicta in Democratic Party v. Jones).

(2) Closed

The term closed refers to the inability of a voter to participate in the nomination of party candidates unless they are registered members of that party. The closed primary has been challenged in a few states based on the theory that a voter’s fundamental right to vote under the 14th amendment should not be conditioned on that voter giving up their 1st amendment right not to affiliate with a political party.

“Given the state’s interest in protecting the associational rights of party members and in preserving the integrity of the electoral process, the state may legitimately allow political parties to close their primaries to nonmembers.” Ziskis v. Symington, 47 F.3d 1004 (9th Cir. 1995)

NJ Election Process

Courts have held that closed primaries are Constitutional, despite the fact that a voter’s participation in the primary is conditional. The fatal flaw in each case is the remedy requested: to open the primaries. This wouldn’t be such a fatal flaw if the Courts (and the Plaintiffs) didn’t assume that the primary system had to be a partisan one.

The comparative merits of various forms of primary election systems have been widely debated in this presidential election year. In particular, the “open” and “crossover” primaries, which permit independents and/or members of other parties to participate in a given party’s primary, have been the subject of controversy. Nader v. Schaffer, 417 F. Supp. 837, 849 (D. Conn. 1976) aff’d, 429 U.S. 989, 97 S. Ct. 516, 50 L. Ed. 2d 602 (1976)

Note, in the opinion above, the court compares the “merits of various forms of primary election systems,” without considering the merits of a nonpartisan system. All references refer to systems designed for the purpose of selecting party nominees.

The rights of party members may to some extent offset the importance of claimed conflicting rights asserted by persons challenging some aspect of the candidate selection process. 525 F.2d at 588; see also Cousins v. Wigoda, supra, 419 U.S. at 487, 95 S.Ct. 541. More importantly, party members are entitled to affirmative protection of their associational rights, see Note, 27 Rutgers L.Rev. 298 (1974). Nader v. Schaffer, 417 F. Supp. 837, 845 (D. Conn. 1976) aff’d, 429 U.S. 989, 97 S. Ct. 516, 50 L. Ed. 2d 602 (1976)

Because open partisan primaries are themselves unconstitutional (see supra), a challenge to closed primaries would have a greater likelihood if the remedy requested was an open nonpartisan primary.

In evaluating the State’s interests, the Supreme Court noted that the First Amendment infringement [that results from the conflicting interests in a partisan primary] could be avoided by “resorting to a nonpartisan blanket primary… (dicta in Democratic Party v. Jones).

(3) Semi-Closed

Semi-closed refers to a partisan primary system in which a political party has the option, but not obligation, to allow or disallow non-members to participate. In California, for example, the election for all offices are conducted as nonpartisan “top-two” primaries, except for the office of President, which is held as a semi-closed primary.

Semi-closed primaries have withstood Constitutional muster, despite the fact that an individual voter’s rights are conditioned on a party allowing him or her to participate.

The First Amendment reserves a special place, and accords a special protection, for that process, Eu, supra, at 224, 109 S.Ct. 1013, because the moment of choosing the party’s nominee is the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power, Tashjian, supra, at 216, 107 S.Ct. 544. California Democratic Party v. Jones, 530 U.S. 567, 568, 120 S. Ct. 2402, 2404, 147 L. Ed. 2d 502 (2000)

Ballot Options

One Ballot per Party

Because partisan primaries are conducted for the purpose of selecting individual party nominees, most partisan primaries are administered with separate ballots for each party. A voter’s ability to select a party’s ballot is determined by their party affiliation and/or a particular party’s willingness to allow non-members to participate.

Blanket (Open Partisan) Primaries

Blanket primaries are necessarily open, because all candidates are listed on the same ballot and that same ballot is given to every voter, regardless of party. Therefore, parties have no way to limit access to their own members.

In 1996, California voters approved Proposition 198, which changed California’s closed primary, where only political party members can vote in a given party’s primary, to an open blanket primary.

Proposition 198 changed the State’s partisan primary from a closed primary, in which only a political party’s members can vote on its nominees, to a blanket primary, in which each voter’s ballot lists every candidate regardless of party affiliation and allows the voter to choose freely among them. The candidate of each party who wins the most votes is that party’s nominee for the general election.

The Supreme Court held this type of primary system unconstitutional because “California’s blanket primary violates a political party’s First Amendment right of association.” Democratic Party v. Jones.

The First Amendment protects the freedom to join together to further common political beliefs, id., at 214–215, 107 S.Ct. 544, which presupposes the freedom to identify those who constitute the association, and to limit the association to those people. citing Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122, 101 S.Ct. 1010, 67 L.Ed.2d 82. California Democratic Party v. Jones, 530 U.S. 567, 120 S. Ct. 2402, 2404, 147 L. Ed. 2d 502 (2000)

Blanket (Open Non-partisan) Primaries

Because nonpartisan primaries avoid party 1st Amendment concerns, the Supreme Court has upheld the Constitutionality of nonpartisan blanket primaries.

For example, in California, the top-two nonpartisan primary election law never refers to candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary “does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.” App. 606, Wash. Admin. Code § 434–262–012.

The top two candidates from the primary election proceed to the general election regardless of their party preferences. Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose. Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 453, 128 S. Ct. 1184, 1192, 170 L. Ed. 2d 151 (2008)

Most Recently, the California Superior Court validated the Constitutionality of its new Top-Two system.

Here, in contrast to Perry v. Brown (9th Cir. 2012) 671 F.3d 1052, the challenged law does not on its face or in its application “target” one group or another for disparate treatment. Instead, it allows broad access to candidates identifying with any party (or no party) to participate in the primary election and then permits the top-two. Field v. Bowen, CA Sup. Ct. decided Sept. 20, 2013.

Summary

Historically, states have established election systems designed around the partisan purpose of selecting party nominees. Because political parties are private organizations, such systems also confer parties a state-granted right of private association.

This private right of association has come in conflict with an individual’s fundamental right to participate in the electoral process, requiring the state to balance the relative interests.

Recently, states like Washington and California have enacted electoral systems that are conducted for a nonpartisan purpose. Party 1st Amendment concerns do not arise under these systems, and as a result, avoid the need for a balancing test altogether.

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388 comments
Edgardo Rivera Sr.
Edgardo Rivera Sr.

We are in the 21st century, these systems ad well as Electrol College should be abolished.

David M Hodges
David M Hodges

Re http://fyre.it/AVQjNZ.4 To phrase part my dissatisfaction with the top-two system another way: I judge it unfair to supporters of non-Republican non-Democrats for their candidates to only be able to run in a primary with multiple Republican and Democrat office seekers. The inevitable result of the top-two primary system seems to be main elections where the only choices left are Republicans and Democrats.

William Foster
William Foster

I have read several posts and the article attached to this post, so here goes. Do not mistake your right to vote as the right to vote as an open ability to vote wherever or however you want. Think about this way, as a citizen of New York State I am only allowed to vote in my district. As much as I would like I cannot vote in other districts. Those elections are for those citizens. I used to be a district representative for The Independence Party, I had to step down, and as much as I would like to vote in other primaries even if I could I would not since the purpose of primaries are for party purposes. Much the same each district's elections are for that district's purpose. Nobody's rights are being violated, just as you can't cross state lines to vote you can't cross party lines to vote for who you like or against whom you dislike. We need to get big money out of politics not help it to get even more control of our elections. This debate only obfuscates the debate from the real problem "BIG MONEY IN POLITICS" If I had my way the whole process from primary to election (especially ads) would be paid for by the government. We should be paying for our own Democratic Republic instead of trying to foist on the world, lead by example not F16's or Apache helicopters.

Mark Ray
Mark Ray

One voter, one vote! The current system of superdeligates makes a mockery of the concept of democracy. We no longer are either a Democracy nor a Republic, America has been reduced to an Oligarchy.

Sharon Mathews
Sharon Mathews

Can independants voters Stop paying taxes? The powers that be have essentially suppressed their vote. No taxation without representation. Do they have to use this tactic like they did for women's sufferage 1920?

Bob Klemow
Bob Klemow

Democracy is for people not private organizations.

Susan Homan
Susan Homan

Is our party structure really constitutional?

JF Nowinski
JF Nowinski

Seems the problem lies more in PRIVATE organization than it does anywhere else. Do you know why socialism is so big?

Dennis Bertaud
Dennis Bertaud

Voter rights! Voters are taxpayers and unless the party's will pay the total cost of these beauty contests, all voters should get to participate.

Joe Day
Joe Day

The whole thing is a scam to stack the cards in favor of senators,congress and other government leeches to ultimately give them leverage over the other 250+million Americans by forcing people to be divided from one side or the other...forced to vote along party lines,not based on the individual issues.

Janette Smith
Janette Smith

If I had my way, we'd have publically funded nonpartisan elections where we vote based on character & the issues, not partyline. As long as they are able to divide us by party, they can keep us from being unified against them.

Charles Foster
Charles Foster

I am on the voters side .I am done with the parties .It really will not matter both if running will destroy .I do not feel our chances with climate change and the group in now care ..I will write Bernie in and walk away .If we replace all maybe the chance to save might happen .But not sure if it can be stopped what we have done to the planet and people .

Angel Tibbs
Angel Tibbs

Then excluded taxpayers should not have to pay the parties anything.

Jesse Janes
Jesse Janes

i am beginning to think the Independent website herein is a Koch enterprise trying to further divide us Lefties

Michael Bloemer
Michael Bloemer

The party primaries should be abolished or the parties required to pay for them. BTW there are no voting rights. The founding fathers did NOT want everyone to vote. That's why voting is not in the Bill of Rights or anywhere else in the Constitution. I tend to agree with them. I find that most people are "sheep" who don't pay attention to what's really happening and just vote along party lines. Others couldn't pass the basic citizenship test that immigrants are required to pass. NONE of them deserve the privilege of voting. When the country was founded, only about 1/4 of the male population was eligible to vote. The Constitution has been amended several times to eliminate reasons which can not be used to prevent someone from voting. It has NEVER been amended to grant anyone the RIGHT to vote.

Scott Bolender
Scott Bolender

You can say whatever you want, but if our choice isn't first, you are opening up opportunity of cheating, and Everytime getting a candidate, of your choice, we have no power over delegates like you have, Delegates are looking for a chance at advancement, and that gives the party the power over them ....

Diane Keeling
Diane Keeling

The establishment is not going to give up their power without a fight. And they have the money and the resources to find ways to hurt us. Are we ready to do this? Really? Because if we start down this road and give up...it will be a generation sold down the river by their parents and grandparents.

Larry Johnson
Larry Johnson

You know between 1936 and 1968, only 12 states had primaries, the rest had party leaders pick candidates to support . The chaos if the 1968 election picks caused both main parties to develop a primary system to pick their candidates. There is nothing in the constitution about primaries and there is nothing to keep the parties to go back to the party leaders picking the candidates. In such a case you would have heard from a Bernie or a Trump..is that what you want ?? Also I hear that independents aren't allowed in the national presidential debates..again untrue. Any independent who gets an x amount of support can be included in the debates. I think it is 10% but probably more..anyway Ross Perot did, and debated.

Anatole Evans
Anatole Evans

Looking like things have to get worse before they get better! No Bernie Sanders to make it better, I vote Trump to make it worse! Tough Love! Change is coming! Getting very top heavy! Will not stay home and will not vote HRC! Anyone not shouting about our corrupt and broken political system is part of the problem! When I see HRC smile and pay lip service to what Bernie Sanders has been fighting for his whole political career it makes my blood boil! Clinton's done more damage to black families than the KKK! Do your home work on the private prison industry and the get tough on crime legislation and the resulting militarization of the police! HRC and Bill Clinton as guilty as sin!!! I think the notion that congress will work in harmony with HRC has been completely dispelled! Yes I think that revolution is going to be necessary!!! Without a revolution nothing changes! Question is who is energizing voters! Who is growing the voter base? Who will turn out young voters? Who will get voters out that traditionally don't vote? Who is getting the independent vote? By far Bernie Sanders is the best hope for meaningful change and HRC is the best candidate for more status quo and republican obstruction! Look at the polling trajectory of where Sanders started and how far HRC has fallen! Amazing and totally missing from the discussion! Hillary Clinton is asking us to believe the corrupting influence of money does not change congressional bills and votes! She is asking us to believe the one percent are spending billions in lobbying for no reason! If you are buying this I got some things I would like to sell you!!! Yes the media blackout is in full effect! Check out Trump coverage Vs. Sanders!!! Guns and abortion! Keeping the people distracted and stuck on stupid! Divide and conquer! Only rich lives matter? Stand up to Hill first!! Trump is next! About as fair and balanced as the Corporate media! Feel the Bern! The two party system has been playing the same game for forty years! The only ones benefiting and getting what they want is the one percent! Just a trending news story brought to you by repetition creates reality inc. Also brought to you by just ignore Bernie Sanders inc. Not all that different from how Bill Cosby handled these questions! Bill Clinton is just a much better liar! Check out the list of allegations and the number of women making them! I believe victims and I don't trust the Clintons! Bill Clinton and Bill Cosby used power, intimidation, and a persona larger than life to silence a lot of women! Just wrong! Rape was part of the allegations and money was paid out! How many women need to come forward before we believe them? HRC is enabler in chief!

Michael J Murphy Jr
Michael J Murphy Jr

If they are private they should be privately funded and any public money should only be used for nonaffiliated candidates.

Brian Tilson
Brian Tilson

I recently had a Democratic election official complain on this subject that It was because the State didnt give them enough money. She said that since the state wont pay for a primary we're stuck with the caucus system because thats all the Democratic party can afford. This response made no sense to me. Thoughts?

OurMont Ag
OurMont Ag

"Because political parties are private organizations," ? Can someone reeducate me ? If it is a Private Org. than My Vote does not matter and why am I paying for this !

Kevin Lessenberry
Kevin Lessenberry

Just do not vote for Either of the Two parties in the General election

Steve Sharp
Steve Sharp

If they don't want to care about the citizens' opinions, they can stop being funded by taxpayer dollars. If it's a private entity, they can pay for their own damn process.

Michael Larmey
Michael Larmey

Democratic National Committee You people can be replaced

George Adams
George Adams

I'm paying for the primary with my taxes and as an American citizen I have the right to vote. That allows me to vote for the candidate of my choice, and I should be able to regardless of party affiliation. If the party wants to keep the primary closed to all who are not affiliated then the party, not the state, should be responsible for all costs incurred.

Janet Masters
Janet Masters

I live in California and did not know all this hokey pokey was going on across the country.

David M Hodges
David M Hodges

Thank you for sharing your expertise. 

I might not be as patient as I should be with documents that read like court paperwork, so forgive me if I've missed some crucial detail. It appears from what you've written that there is no constitutional requirement that non-partisan primaries allow only two candidates to proceed. Is there indeed no constitutional need to allow only the top two vote getters to move past the primary? Was this number of candidates chosen for pragmatic reasons alone? 


Another question: What would be the constitutional legality of always including a "none of the above" option on main-election ballots, so that dissatisfied voters could express their discontent with the choices and, if "none of the above" should win, force a new election? I can tell you I would be voting "none of the above" very often. Has this been tested in court?

Finally: Is there any constitutional reason for California's exclusion of presidential primaries from its open non-partisan system, or is this a compromise that might by undone?

As I've noted in an article making no attempt to grapple with constitutional issues http://ivn.us/2016/05/18/achieving-true-voter-enfranchisement/, I don't feel particularly "enfranchised" by California's top-two primary system. I actually felt more enfranchised when primaries were closed, since I could always choose the team I wanted to be on well enough in advance to vote for a candidate whose party was sure to be represented in the main election. These days, I'm most often left with two candidates I cannot vote for in good conscience.

So, I must ask, if in every election you're forced to vote for the candidates you find least scary or least disgusting, not ones you actually support, is it fair and accurate to say you've been "enfranchised"? I think not.



Dave Nyquist
Dave Nyquist

Ya gotta really wonder why HRC and the Establishment are so against Bernie and what the people want, because Hillary and all the Corp Crooks have big plans to screw the American Sheeple even more, I mean it is really obvious

Fran Moyer
Fran Moyer

The "people " have voted with 3 million more votes than Bernie...simple math

Mark Splinters
Mark Splinters

Fran, you are missing the point entirely. Try to look past this election.

Jordan Frith
Jordan Frith

Are you paying attention Fran Moyer? Did you read what the post is actually about? Closed Primaries are the very reason that more Bernie votes aren't being counted. And they won't get the chance to be in November if the DNC has it's way. "Simple math" as you condescendingly put it is NEVER so simple when the electoral process I'd involved.

Joe Stingel
Joe Stingel

Fran, your number doesn't count caucus states. You can toss that number right into the garbage heap with the rest of the Hillary propaganda.

Michelle Lauer
Michelle Lauer

if taxpayers are paying for these elections and every one of their vote should count

Jack Wilson
Jack Wilson

In other words it's another way to cheat the people out of there votes , This is there way of getting Killary into the White House and if this happens like Putin said there will be a War and I for one is on his side

Karen Bushey
Karen Bushey

Voters rights should be the most important. Our vote is our voice, and should not be compromised. Also. I feel that the fact that the primary elections are taxpayer-funded should negate their status as private.

Jordan Frith
Jordan Frith

Very true. Take my money & include me, or use your own money for your election

Jean Bauer
Jean Bauer

Wonder how many voters would actually donate enough money to even begin to run a primary. Dreams are just that and not reality. If you want a voice in party politics, join and give of both your time and money. And not just in the big presidential elections.

Jennifer Nevarez
Jennifer Nevarez

Wait so I can be a member of all parties! Sweet in gonna go vote in every party primary... oh wait.

Karen Bushey
Karen Bushey

Jennifer Nevarez In VT we have an open primary. This means that the day you vote, you choose which party's primary to vote in.. This way everyone can vote without having to register for a certain party. This makes it easier for people to vote independently and also eliminates many of the issues we have seen this election where voters had their party affiliations changed, etc. It's my opinion that this is the best system if we are going to continue to fund the primary elections with taxpayer money.

Terrence Wolf
Terrence Wolf

Jean Bauer This country is more important than a party. The parties make it easy for some people to keep control of our government. That can not be allowed. This government belongs to every American taxpayer. So I will be an American and not a Democrat or Republican. But I will not give up my right to have a say in my government either.

Carol Oliva
Carol Oliva

Voter system seemed rigged with the delegate systems in place. Clinton foundation is paying women 38% less than men in the same job. This seems unfair to women.