Utah Judge to Strike Down Constitutionality of Open Primaries

In Utah, a federal judge will soon decide if the state’s open primary system for the nomination of candidates is unconstitutional. The case could have dramatic implications on the future of primary elections, which have become the most important stage of the election process.

U.S. District Judge David Nuffer mentioned Tuesday that he intends to find that forcing political parties to open their primary elections to unaffiliated voters violates the First Amendment right of political parties to protect themselves from the influence of non-members. Nuffer has not yet issued his decision, but he did say he was inclined to rule in favor of the Republican Party, who has asked the court to invalidate the open primary.

This case could have dramatic implications on the future of primary elections, which have become the most important stage of the election process.
“Honestly, that’s how I think I’m ruling,” Judge Nuffer said after hearing arguments on Tuesday.

The issue concerns the primary system created under SB54, a law that passed in 2014 as a compromise between those who wanted to completely abolish the old closed caucus and convention system (CCS) and those who wanted to open the election process to more voters.

Most simply, SB54 provided two avenues for a candidate to get on the partisan primary election ballot: (1) by winning a qualified party’s private and closed caucus vote, or (2) by gathering a sufficient number of signature petitions. If a candidate is not from a ‘qualified’ political party, their only option is to gather the requisite number of signatures.

Supporters of SB54, like Count My Vote, see the system as a way to ensure that all voters can have a say in the selection of candidates during all meaningful stages of the election process. Opponents of the law, like the Republican Party in Utah, argue that the primary election serves a private function — to elect nominees of a political party — and that allowing non-members to participate at this stage compromises the fundamental right of the party to protect their ideological purity from the influence of non-members.

“I’m satisfied that our claims are what we say they are, which is that the statute is unconstitutional. But also that as the party, we get to decide our membership and we get to decide how we will proceed in nominating our candidates,” Utah Republican Party Chairman James Evans told Deseret News.

While the Republican Party chairman would be happy with a ruling in the party’s favor, many voters are not likely to feel the same. If the judge strikes down the new open primary system, 40 percent of Utah’s electorate won’t be allowed to participate in the primary process, an integral stage of the election, because they have chosen not to join a ‘qualified’ political party.

Rick McKeown, co-chairman of Count My Vote, told the Salt Lake Tribune:

“What’s disappointing is the reaction that suggests the [Republican] Party, any party, would become more exclusive and preclude people from exercising their franchise as opposed to encouraging more people to be involved.”

At a time when voter turnout is historically low and confidence in both political parties is plummeting, the tendency of political parties to run to the courts to insulate themselves from electoral competition is becoming an increasingly attractive tactic.

In fact, it was the Democratic Party in California that set the precedent for which the Republican Party of Utah relies upon in this case. In Democratic Party of California v. Jones, the Supreme Court held that the State of California could not force the political parties to allow non-members to participate in their ‘blanket’ open partisan primary elections.

Notably, in California, reformers had the last laugh when they passed Proposition 14, which implemented a nonpartisan, “top-two” primary in 2010. Under the nonpartisan system, the state of California effectively took the control of primary elections away from the political parties altogether, and handed it back to the voters — all voters, candidates, and parties are treated exactly the same under that nonpartisan system.

In fact, the same organization has sued the State of New Jersey, arguing that a closed primary system is unconstitutional because it transfers an integral stage of the public election process to the exclusive control of two private organizations, the Democratic and Republican parties — in violation of an individual voter’s First Amendment right to not associate with a political party and his or her Fourteenth Amendment right to equal protection under the law.

The Supreme Court recently declined to hear a petition on that case.

Eventually, reformers are likely to have their day in court. At some point, the United States Supreme Court will need to decide the fundamental question: “Do elections serve people, or parties?”

It could be several years, or decades, before reformers can put enough pressure on the courts to take up the issue. So in the meantime, judges will be inclined to follow the precedent established by the two major parties in Democratic Party v. Jones.

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