Voting Rights Have Been Under Attack; But Not How You Think

Voting Rights Have Been Under Attack; But Not How You Think

Created: 22 April, 2015
Last update: 21 November, 2022
Our American election system is broken in no small part thanks to the

primary election system. The Republican and Democratic parties have worked hand-in-hand for over a century to make ‘their’ party primaries the centerpiece of the entire electoral process.

In an age where 43 percent of Americans consider themselves politically independent of the two major parties, the twisted state-sanctioned closed primary election process prevalent in the majority of U.S. elections frequently leads to election results that are patently warped.

The parties have managed to subvert the will of the electorate, generally, through a combination of clever redistricting (read: gerrymandering), as well as artful rewriting of state electoral laws in every state.

Consequently, across America, unpopular candidates with party-line doctrinaire positions routinely “win” (occupy) “safe” seats in general elections simply by pandering exclusively to the increasingly narrow-minded interest groups whose influence is magnified as the partisan voter bases decrease. This is because over 90 percent of elections are now ‘decided’ during the primary stage of the election process.



For example, Ted Cruz was elected to the U.S. Senate in 2012 by virtue of his winning the Republican Party primary in Republican-dominated Texas. The number of votes he actually received from the electorate in that primary represented less than 4 percent of all Texans.

Similarly, Hillary Clinton was re-elected to the U.S. Senate in 2006 by virtue of winning the Democratic Party primary in Democratic-dominated New York. The number of votes she actually garnered in that critical primary election represented less than 5 percent of all New Yorkers.

Would these two candidates have won in a more competitive election? Maybe. But that's not the point. Elections should serve voters. So every voter, regardless of party, should have a say before an election is 'decided' for anyone.

Nationally, the privatized primary election process will determine the field of ‘legitimate’ candidates for the presidential election in November 2016.

For example, significant public interest and media attention will give inordinate weight to the few voters in New Hampshire who control the outcome of its early primary. Yet, this massively influential bloc of voters represents less than 0.01 percent of the total estimated US vote!

State legislatures at the turn of the 20th century instituted publicly-funded primary elections as an attempt to democratize the candidate nomination process. Since that time, the parties have slowly reframed election laws through

legislatures and courtrooms to protect the party power structure from competition at the ballot box.

While parties have a private right to nominate candidates, and thereby preclude non-members from their voting process, the states and the federal government have a much larger constitutional obligation to provide all voters, not just party members, a meaningful opportunity to participate in our election process on a level playing field.

In other words, the individual political rights of every citizen cannot be infringed upon because a private political party has been given an unfair advantage.

The U.S. Supreme Court in California Democratic Party v. Jones (2000), for example, held that party primaries are private affairs, and therefore the state cannot force political parties to allow nonmembers to participate.

But the fact of the matter is that these supposedly private, closed party primaries are openly administered and promoted by most states, and are almost always funded by taxpayers.

In an effective and constitutional response to the outlawing of legally-mandated open primaries, voters in California and Washington states have adopted nonpartisan blanket primaries, which have all voters, candidates, and parties compete on the same ballot under the exact same rules. Party affiliation is irrelevant under the eyes of the law in those states.



On March 17, 2015, a legal challenge to New Jersey’s closed primary system was heard in the Third Circuit Court of Appeals in Balsam, et al. v. Guadagno (New Jersey Secretary of State).

In oral argument in that case, the attorney for the State of New Jersey said that the rights of political parties to control ‘their’ primary elections outweighed the interests of individual voters to participate in the election process on an equal playing field with Republicans and Democrats. The State of New Jersey literally said that voters who feel disenfranchised should simply join one of the two parties, or work hard to find a candidate of their own and go through a petition process to get them on the ballot.

The State of New Jersey argued in favor of this exclusionary process, despite the fact that 47 percent of voters in New Jersey are registered as unaffiliated. The state maintained that the exclusive nature of its primary elections is therefore not a question for the federal courts.

New Jersey’s argument, and the Third Circuit’s opinion in the state's favor, seems absurd when placed in a historical context.

In the 1940s, African-Americans challenged the constitutionality of the primary election system in Texas because the Democratic Party would not let them vote in this integral stage of the electoral process (Smith v. Allwright).

In that case, the Democratic Party made the same flawed argument that the State of New Jersey and the Third Circuit upheld in the current case. It argued that its primaries are private affairs and that African-Americans’ right to vote is unaffected because they could vote in the general election.

In 1944, the Supreme Court held that, because the Democratic Party’s primary served an important state function, the state could not in effect preclude African-Americans from voting under the Fifteenth Amendment because party rights do not trump the right of individual voters to be adequately represented.

In the 1960s, for example, both major political parties used a gerrymandering tactic called mal-apportionment to insulate themselves from competition within districts. In Republican-controlled states, the Republicans did it. In Democratic controlled states, the Democrats did it.

In brief, the party in power would draw some districts larger by population to effectively dilute the influence of voters in the opposition party. In defense of the mal-apportionment practice, both political parties and the state legislatures they controlled vigorously argued that the federal courts did not have jurisdiction to get involved in the apportionment of districts because it was a ‘political question' to be addressed within a state.

But in 1962, the Supreme Court in Baker v. Carr held that the Constitution protected the “political right” associated with the right to vote, and clearly distinguished this ‘right’ from a political ‘question.’ Then, in 1963, the Supreme Court in Gray v. Sanders determined that the practice of mal-apportionment was unconstitutional, and first articulated the now famous “one person-one vote” standard. Of significant note, Gray v. Sanders concerned the right to vote in a primary election.

The following year, the Supreme Court applied the same standard to a litany of similar cases challenging mal-apportionment  all over the country in Reynolds v. Sims.

The decision to uphold New Jersey’s exclusionary primary election, handed down by the Third Circuit Court of Appeals just a few weeks after oral argument, is perhaps testament to how high the hurdles have been raised for individual voters to participate equally in a political institution that has been controlled by political party insiders for so long.

But it’s really this simple: elections should be conducted for the benefit of every citizen, to elect representatives that truly represent their district, their state, and their country. Such elections would make government more accountable to the people, decrease the influence of narrow interest groups, and ironically, strengthen the parties by forcing them to broaden their message.

Today, American elections don’t do that.

And that’s simply not right.

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About the Author

Chad Peace

Chad Peace is president of IVC Media LLC, a partner at the law firm of Peace & Shea LLP, and legal strategist for the Independent Voter Project. He is also a Founding Board Member of the National Association of Nonpartisan Reformers.