Bipartisanship: Democratic and Republican Lawyers Work Together to Restrict Voting Rights

Created: 15 May, 2014
Updated: 14 October, 2022
10 min read

Idaho attorney Gary Allen clearly recalls how he was received by state legislators when a federal district judge ruled that the state’s open primary system was unconstitutional.

“I stood in front of the legislative committee and told them, ‘You don’t have to do this,’” he said in an interview. “It isn’t in the interest of the voters or democracy or the state."

"I might as well have been talking to a wall,” he added.

Allen, a partner with a Boise-based law firm, saw his coalition group lose the case a few years ago to the state’s Republican Party, which successfully sued in federal district court to close Idaho’s primary and require any voter wishing to participate to first register with a party.

Idaho isn’t the first — or last — state to see litigation filed in recent years to overturn primary systems that allow voters of any party preference to select candidates for the general election. Nor is the Republican Party the only private political organization with a legally hazy but historically important public role trying to narrow the list of who gets to vote in primary elections — even while insisting that taxpayers still pay for it.

Lawsuits have been brought by both state Democratic and Republican parties over the last several years in California, Hawaii, Idaho, South Carolina, Washington, Virginia, and others over the same issue.

With a sort of bipartisanship unseen on Capitol Hill, the two parties have largely adopted the same legal strategy in moving to shut down primaries that allow voters more freedom in the electoral process and — some say — produce better, more representative outcomes. Arguing First Amendment rights, the parties argue that allowing any voter the ability to cast a ballot in their primaries infringes on their right of association and dilutes the reason why anyone would gather under a party banner in the first place.

But it’s that claim that tramples on another right, according to Allen: a voter’s right to participate in primary elections without declaring for any one party.

“Elections are a core state function,” he said. “The rights of association of the political parties are no more important than the rights of non-association of unaffiliated voters.”

Speaking with IVN, attorneys like Allen, a state legislator, and others hold that closing these primary systems both entrenches the two-party system at public expense and exacerbates a political environment in which the loudest few get the biggest say in who appears on the final ballot.

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Other sources say the closed primary system helps build a case of a different kind: the one against the actual legitimacy of the democratic process in the United States today.


The litigation filed in courts over the past decade is a patchwork process organized by state Democratic and Republican parties, independent of their national committees in Washington, D.C. But the legal basis for trying to close primaries — and the aggressiveness with which the two parties undertake each case — might just as well lead someone to conclude that it comes straight from the top.

And it does, in a way.

The source of the lawsuits in several states began in earnest after 2000, when the Supreme Court ruled in favor of the California Democratic Party in California Democratic Party v. Jones, a case the party brought against the state for holding a blanket open primary. The court sided with the party by a 7-2 decision, and the landmark case tipped over the same kinds of primaries also underway in Alaska and Washington.

Writing the majority opinion, Justice Antonin Scalia argued the California primary was unconstitutional because it prevented state Democrats from choosing their own candidates by pushing all the parties together under one big primary-election tent.

State parties — conservative and liberal alike — subsequently began suing their respective states over the following decade, with Democrats filing to close the primary in Hawaii and Republicans advancing claims about their own rights of association in Idaho, South Carolina, Virginia, and Washington. Coalition groups like the one led in part by Allen intervened in cases, helping uphold open primaries in states like Hawaii and South Carolina and losing to state parties in others like Idaho.

Litigation is still ongoing in some, but most already use closed primaries. Including the District of Columbia, 20 states currently require voters to register with a party in order to vote in primaries, according to FairVote.org, with most or all of their taxpayers footing the bill.

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Another 17 hold open primaries of different kinds. Seven, including Idaho, conduct a mix of open and closed or semi-closed primaries, while the next 7 conduct just semi-closed primaries.



Two states determine their candidates in nonpartisan, top-two primaries that allow voters of any stripe to winnow any number of candidates to just two — regardless of party affiliation — before general elections. One state, Louisiana, has a similar system, but the first stage in the election process is conducted in November when other states hold their general elections and there is only a runoff in a race if no candidate can get over 50 percent of the vote.

In an interview for IVN, Trevor Thorpe, executive director of the Idaho Republican Party, defended the suit that closed Idaho’s primary as one that simply allows “Idaho Republicans to be able to select candidates that represent Idaho Republicans in the general election.”

Harry Kresky, an ally of Allen’s and general counsel for the coalition that fought against primary registration laws in Idaho and South Carolina, said efforts by state parties come down to something else — namely, basic math.

“As more and more voters become independent, the Democratic and Republican parties grow less and less powerful, and risk losing their legitimacy with the public,” he said. “What they’re trying to do through these lawsuits is substitute broad-based support for their parties with top-down control of the primary process.”

He isn’t far off.

A Gallup poll found a record-high number of voters — over 42 percent — self-identified as independent in 2013. Proponents say numbers like those speak truth to power and signal the need to end closed primary elections that force voters in more than half of all states to declare their membership in parties that have been around since 1865.

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Barry Burden, a professor of political science at the University of Wisconsin, said he partly agrees with the notion that different primary models can lead to an uptick in ideologues — but with conditions and for different reasons. Research shows voters in states with registration laws tend to think of themselves as more partisan, he explained, suggesting real-world divisions could result from the psychosocial effect of simply identifying as Democrat or Republican.

“But there’s not a consistent finding that shows these registration laws actually lead to more polarization,” he added.

At least one prominent study backs his positions.

Writing for the Midwest Political Science Association last year, university researchers drew some surprising conclusions about primaries from their foray into nearly 20 years of opinion polls. Rather than validate long-running beliefs, their statistical regression work sketched a picture showing that states with open primary elections tended to experience more polarization in their politics than those with closed primaries.

“In fact,” the researchers wrote, “most of the effects we found tend to be the opposite of those that are typically expected: the more open the primary system, the more liberal the Democrat and the more conservative the Republican.”

But there was some leavening in the politics of a handful of states, according to the researchers.

One was Louisiana, which the researchers found elected more moderate legislatures with more middle ground, despite party affiliations. Looking at California, researchers said that despite carrying the reputation of being one of the most polarized states in the nation, it showed signs that it was the “only state where a change in primary state has produced the expected moderating effect.”

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Kresky demurred on whether states should or should not adopt different kinds of open primaries, maintaining that the most important aspect of these cases is a voter’s First Amendment right to refuse affiliation with any party, period.

“We’re not asking courts to come up with remedies,” he said. “We’re asking the courts to prevent the parties from putting their interests before the rights of the voters to fair, equal, and meaningful participation in every phase of the electoral process.”



Adding injury to insult for some, the state Democrats and Republicans suing to exclude voters from their primaries also don’t seem to have a problem taking government handouts to pay for them.

The National Journal recently reported that taxpayers in New Jersey — a state the EndPartisanship.org coalition has filed suit against to defend the rights of all voters -- forked over about $24 million for a special election in 2013. Roughly $12 million paid for a closed primary that obligated voters to turn red or blue.



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That’s the case in Idaho, where the same attorney who represented the state’s Republican Party is now running for statewide office, according to Allen. Asked whether Idaho’s Republican Party had a right to close primaries on the basis of association and still pay for them with taxpayer funds, Thorpe declined to comment.

“Politically, I think it’s a problem for any party like Idaho’s Republican Party,” Allen said. “They’re saying, ‘We have these rights of affiliation under the Constitution, but please fund our private primary elections.’ That doesn’t sit well with Idahoans.”

State funds for primaries may be symptomatic of what Burden calls the “unusual nexus” of legally unclear public and private interests vested in the Democratic and Republican parties.

Critics of the two-party system say that an unusual marriage manifests itself in other examples of electoral tinkering — namely, gerrymandering, the process by which legislatures redraw their congressional districts after each census.

Writing for The New York Times last year, Dr. Sam Wang showed how Republicans held onto the U.S. House with a 234-to-201 margin in 2012 despite the stunner that Democrats received 1.4 million more votes for their seats nationwide. He equated systematic gerrymandering in different states to “partisan disenfranchisement,” the result of state legislatures using a divide-and-conquer strategy to slice opposing voters off districts where their votes may statistically carry more weight and wedge them into other blocs more likely to side with the redistricting party.

According to his own simulations, states without gerrymandered processes would have brought the House to a much more accurate margin in 2012 — about 220 Republicans to 215 Democrats.

“Gerrymandering seems like a very straightforward distortion of the process,” Burden said.

Asked whether these electoral distortions and concerns about money could add up to make a steadily weakening democracy, the professor said he thought so:

“I think the electoral process could be made worse by partisan primaries that don’t appeal to the average voter and gerrymandering that doesn’t produce accurate results.”

Yet another, more provocative study by researchers with Northwestern and Princeton weighed data from opinion polls from the past 30 years and made a conclusion likely only to magnify claims that partisan primaries and redistricting rig what it means for the people to govern themselves through their representatives.

The United States, the study concluded, is a democracy dominated by its elites — an oligarchy, as several news outlets dubbed it, where affluent citizens and special-interest groups overwhelmingly decide policy, and where, in the words of the researchers, “the preferences of the average American appear to have only a miniscule, near-zero, statistically non-significant impact upon public policy.”

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Still, Allen seems to take one issue at a time. He told us that he remains optimistic despite what happened in Idaho — maybe because it all comes back to basic math.

“The good news is that primaries will change as different generations make changes that better reflect democracy,” he said. “You’ll see this undone as the Millennial generation comes of age and unwinds this injustice over the next 20 years.”

Photo Credit: IndependentVoting.org

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