As the Nation prepares to watch the second set of Democratic presidential debates, we should be asking ourselves a question: What about the Republicans? Shouldn’t it be a big deal that the Republican Party is NOT planning to hold debates for the 2020 presidential primary?   We even see some of the state parties talking about not holding a primary at all.  Does that sound like fair and open elections?

Donald Trump isn’t the only 2020 Republican presidential candidate, and Bill Weld is no “nobody;” he’s a former two-term governor of Massachusetts, a former assistant U.S. attorney general, a former U.S. vice-presidential candidate where his name was on the ballot in every state, and has a myriad of international experience, not to mention the private sector. Furthermore, using the 2016 criteria for being allowed to debate in the Republican primary debates, Bill Weld (despite not polling amazingly high) is polling high enough (and a higher percentage than many of the Democratic candidates who will appear in their upcoming primary debate).  

I know, I know. It’s quite typical for incumbents who run for re-election for president – in both major parties – to get a lot of deference from the Party, a kind of “incumbent protection plan.”  So this isn’t just some outrageous maneuver orchestrated by Donald Trump; it’s pretty much the way it’s been done through the years by both major parties.

But I’m writing to point out why this party deference – by any Party – shouldn’t be tolerated or accepted; Republicans, Democrats, third parties, and especially independents should be demanding a change.  After all, by letting the Party declare the incumbent the de facto nominee, we’re saying that Party should come first in our elections, that protecting the Party’s ability to win – by squelching competition or criticism against an incumbent party member who has already demonstrated an ability to win – is more important than evaluating an incumbent’s performance while in office, or their character.

I thought elections were about individual citizens exercising their right to vote by evaluating the candidates, and then voting for the person who they want to represent them in office.  Instead, apparently, elections are about elevating one party above the others at all costs. When a primary election has the effect of determining who can and cannot appear on the final ballot, the primary election is just as crucial as the general election.  Perhaps to the most partisan among us, amassing power for the Party is a worthy cause, but most Americans don’t think in terms of Party when they vote – they vote for the person over the Party.

For over a decade, Gallup has been keeping a twice-a-month running poll on party affiliation, wherein those who identify as Republican ranges between 22% and 31%; those who identify as Democrat ranges between 27% and 35%; and those who identify as independent ranges between 36% and 47%.  In other words, those who don’t identify with a party hold a clear plurality, and almost a majority.

A recent NPR/PBS NewsHour/Marist poll shows that Americans are not sold on Trump, or, necessarily, on the Democrats.   So how have the Parties chosen to solve for American’s dissatisfaction?  They give them no choice and / or they force them to make a binary choice by severely limiting their options.  But American’s options shouldn’t be limited before they’ve even had a chance to select finalists for the General Election.  It’s completely disingenuous to shut candidates out of debates, and then claim it’s because no other candidates have shown viability.  Let the candidates debate first, and then let the American people determine whether they find the competitors to be viable.

Independents are taking great interest in a law review article recently published in the Touro Law Review, entitled, “Let All Voters Vote: Independents and the Expansion of Voting Rights in the United States,” by Jeremy Gruber, Michael A. Hardy and Harry Kresky.  The article takes an in depth look at the legal history of parties and voting rights in the United States, and makes a strong case for how the clear next step in our country’s march towards full and equal voting rights for all of its citizens is “[t]he full integration of unaffiliated voters into the process and the rejection of party membership as a qualifier to vote in an integral part of the electoral process.”  After a full review of all of the case law and its underlying principles, the article makes clear that shutting out and disenfranchising independent voters, even in primary elections, is a violation of First Amendment rights of association, as well as a violation of due process and equal protection guaranteed by the Constitution.  

A big reason why the Court hasn’t yet fully recognized the rights of unaffiliated voters is because it has fallen into the misguided idea that parties, being private entities with rights of association, should not be interfered with so as to create a significant burden, unless such regulation is narrowly tailored to advance a compelling state interest.  But it’s time to either declare parties to be state actors when it comes to serving as gate keepers in publicly funded primaries, or it’s time to declare the rights of unaffiliated voters to qualify as a compelling state interest calling for party regulation, or a termination of gatekeeper role.

This party tactic of refusing to allow for fully competitive primaries when an incumbent is involved is a case in point for why private parties should not be able to act as nearly unchecked gatekeepers in the first and arguably most important stage of our public election process, as it has the effect of disenfranchising and taking away any meaningful choice for a huge percentage of the electorate. Whether it be by not allowing them to vote, or whether it be by not providing an open platform for candidates, the result is the same:  voters are not allowed to be fully informed, nor are all voters and candidates allowed to fully participate in the process on an equal basis.

Republicans should be calling for debates in their primary because those who aren’t solidly behind Trump should be treated equally to those who support Trump, and they should have the opportunity to hear from the other candidate(s).  Republicans who do support Trump should also back debates, as they should want his nomination to be fully legitimate with a free and fair election.  Democrats should be calling for debates, not only as a matter of principle, but because their candidates shouldn’t have to have the disadvantage of facing an opponent who doesn’t have to face any competition before the general election.  Independent voters should especially be calling for debates because, even in open and semi-open primary states, independents are being disenfranchised when the election is being run as though it’s a given that the voters are subservient to the Party.  How can independent voters choose which party primary to vote in if they aren’t given a chance to fully hear from the candidates from both parties in a comparative forum?  Everyone should care about this issue as a matter of principle, as a fundamental characteristic of any free and fair election is fair competition.

Let’s not let this issue slide.  Until we win the legal case, there are various ways in which we can take steps to put pressure on the Republican Party – and all parties in the future – to hold debates.