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Open primaries put to the test in Idaho and South Carolina

by Damon Eris, published

In the last month, federal district courts in Idaho and South Carolina have handed down rulings on Republican party lawsuits challenging the constitutionality of each state’s open primary system.  Idaho’s open primary system was struck down, but South Carolina’s was upheld.

On March 2, Chief Judge for the District of Idaho, B. Lynn Winmill, issued a ruling that declared the state’s nearly forty year-old open primary system unconstitutional.  The Idaho Republican Party had argued in its suit that the open primary system violated its First Amendment right to free association since it allowed voters not affiliated with the Republican party to cast ballots in GOP primary elections.  Relying on the US Supreme Court’s decision in California Democratic Party v. Jones, which struck down California’s blanket primary system on similar grounds, and evidence of significant “cross-over voting” in Idaho, Judge Winmill sided with the plaintiffs.  

     “Like the blanket primary system in Jones, Idaho’s current open primary system, as applied, forces the Idaho Republican Party to associate with, and have their nominees and positions determined by, those who have refused to affiliate with the party,” wrote Judge Winmill in the conclusion of his decision.  

Several Independent political organizations were granted permission to intervene in the suit, and one, the American Independent Movement of Idaho, has appealed the ruling.  

     "In Idaho, the Republican primary is often the only election that counts, and independents who wish to affiliate with the Republican Party for purposes of that primary should be able to do so,” said attorney Gary Allen, who filed the appeal for the group, according to a report at The Moderate Voice

In 2010, there were 43 Republican party candidates for public office in Idaho who ran unopposed in the general election.  

In the meantime, the Idaho legislature has quickly moved to institute a new system based on a partisan registration process.  Parties would have the option to allow Independents and members of other parties to vote in their primary elections, or to close their primary elections to all but registered members of the party.  Under the old system, voters did not register with a party, but rather chose a specific party’s primary ballot on the day of the primary elections.  The new legislation has already been approved by the state’s Senate.  

In the second lawsuit, the Republican Party of South Carolina objected to that state’s open primary system on grounds similar to those put forward by the Idaho GOP.  However, US District Court Judge Michelle Childs upheld the state’s open primary system in a ruling issued last Wednesday.  Relying on the US Supreme Court finding in Jones as well as a precedent from the Fourth Circuit Court of Appeals, Childs found that, because South Carolina’s election statutes “provide multiple methods for political parties to nominate candidates to the general election ballot,” the open primary system does not substantially infringe upon the party’s First Amendment right to free association.   Furthermore, no solid evidence of cross-over voting by members of other parties or Independents was presented in the case.  

Under South Carolina law, parties may nominate their candidates by means of the open primary, by a party convention or by petition.  In the case, the SCGOP argued that nomination by convention was not “a viable alternative to the open primary system,” but admitted that minor parties successfully nominate by convention in the state, and even that the GOP had itself utilized the party convention method of nomination in the past.

According to a report at Greenville Online, the South Carolina Republican Party is considering an appeal of the ruling. Queried on the matter, the state GOP’s Executive Director Joel Sawyer replied that party officials are “weighing our options with regard to an appeal.”  Republicans may alternatively urge the state’s legislature to allow voters to register by party.

On the other side of the issue, attorney Harry Kresky said, "It's a great day for independents. It's a great day for all voters in South Carolina."  Kresky is co-council for the Committee for a Unified Independent Party, which intervened in this suit as well as the case in Idaho.  In 2008, a majority of candidates for the state’s legislature ran unopposed in the general election, as reported at the Greenfield Daily Reporter.  If Independents were barred from voting in the state’s primary elections, they would be effectively disenfranchised from the political process.

Twenty-five states currently have a closed primary system, sixteen have an open primary system and the remainder have a mixed form or use some other nomination method, according to Fair Vote

For the full text of the two decisions discussed above, see Ballot Access News (Idaho and South Carolina).