SCOTUS Hints Partisan Open Primaries May Be Unconstitutional

The U.S. Supreme Court might be headed toward a major decision regarding partisan open primary elections. In two court cases, the Republican and Democratic parties, respectively, have challenged the constitutionality of partisan open primaries.

The Republican case was brought in Montana, where the GOP controls the legislature. The Democratic case is in Hawaii, where the Democratic Party controls the legislature. In both cases, the parties argue that allowing nonpartisan voters to participate in their primaries violates their First Amendment right not to associate.

Both cases are on appeal to the Supreme Court. While the vast majority of cases are never heard by the Supreme Court, these cases have at least grabbed the court’s attention and could result in the further erosion of nonpartisan voting rights — indicating that a ruling on the issue is more likely to follow.

Specifically, SCOTUS has requested that the secretary of state of Montana inform the court whether there is an option for political parties to opt-out of the open primary in the Montana case, Ravalli County Republican Central Committee v Linda McCulloch.

The petition for a writ of certiorari in Ravalli v McCulloch poses the following question:

“Whether state-mandated open primaries, which require members of a political party to join with nonmembers when selecting party nominees, severely burdens a party’s First Amendment associational rights as a matter of law.”

According to Ballot Access News, the Montana secretary of state was asked to respond to the cert petition by next month. The request suggests that the Supreme Court may be ready to strike down any partisan primary election system that doesn’t give political parties the sole discretion over who can and cannot vote.

Importantly, this is the very reason why reformers in states like California and Washington have adopted nonpartisan primaries — removing any legal entitlement political parties may leverage to control the process.

Nearly half of states use either open or semi-open partisan primary elections to elect party nominees.

The ramifications of the court addressing such a question go beyond Hawaii and Montana. Nearly half of states use either open or semi-open partisan primary elections to elect party nominees. If the court rules in favor of the parties in these cases, the fastest growing sector of the electorate — independent voters — would be allowed to participate in the all important primary elections only to the extent the political parties they have rejected allow them to.

Taxation without representation?

Historical legal precedent also suggests the court is likely to rule in favor of the parties. In 2000, for example, SCOTUS found open blanket partisan primaries to be unconstitutional in the case of Democratic Party v. Jones.

In that case, all party primaries were listed on the same ballot and voters could choose to vote in different party primaries for different races. The court held that California’s open blanket primary violated the Democratic Party’s First Amendment right of association. Justice Scalia, defending the Democratic Party’s right, wrote:

“[The open blanket primary] forces political parties to associate with–to have their nominees, and hence their positions, determined by–those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.”

For states with nonpartisan primaries like California and Washington, where the purpose of the primary is not to elect nominees (a private purpose), but to simply narrow the candidate field (a public purpose), the conflict between a political party’s right of non-association and a voter’s right to participate does not arise at all.

Maybe we should be asking the court a more basic question: do elections serve people or political parties?

Given the question brought to the court by both major parties, the answer is likely to favor the petitioners.

So, at a time when 90 percent of elections are de facto decided during the primary, should we start asking the court that more fundamental question on behalf of the people?

A response from the Montana secretary of state is due on March 16, 2017.

Image: Gino Santa Maria / Shutterstock.com