Party Affiliation | Appendix A
Constitutionality of Open Primaries and Same-Day Affiliation Rules
In assessing what policy solutions will allow states to move to automatic voter registration, it is important to consider the constitutional limits on state candidate selection processes. States have some leeway to decide how primaries and party affiliation systems operate, under their plenary power to regulate elections, but recently the Supreme Court has given increasing weight to party preferences and associational rights in cutting back on state discretion. The Court has given parties fairly broad rights to exclude voters who are not formally, publicly affiliated with the party from a process that chooses a party's formal nominee (who will bear the party's imprimatur). While this line of cases may endanger open primaries, it is quite likely that closed primaries, even with a same-day affiliation rule for unaffiliated voters, would pass constitutional muster.
Four recent Supreme Court cases have suggested that mandatory open primaries may present a constitutional problem. Two subsequent lower-court litigations have tested the constitutionality of open primaries, without a conclusive answer.
In California Democratic Party v. Jones, 530 U.S. 567 (2000), the Court took up a challenge to California's blanket primary system, where every voter got a ballot which included all candidates for each office, who were listed with their official party designations. Voters could then pick and choose for each office, voting for candidates from different parties for each race, regardless of the voter's stated party affiliation. Then the top vote-getter in each race for each party would advance to the general election as the nominee for their party.
The Court found this system unconstitutional, in that voters who were wholly unaffiliated with the party could assist in choosing the formal party nominee. (Compare Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184 (2008), discussed below, where the Court rejected a similar challenge because the winning nominees were not designated as party nominees.)
Of course, in traditional open primary states, voters who are not affiliated with a party assist in choosing a party's nominee. And there are nine "closed" primary states where voters can affiliate with a party on the day of the election, creating little practical difference between the two kinds of primaries. The Court in Jones discussed what it considered the important distinctions between the blanket primary and open and closed primaries:
[The blanket primary] is qualitatively different from a closed primary. Under that system, even when it is made quite easy for a voter to change his party affiliation the day of the primary, and thus, in some sense, to "cross over," at least he must formally become a member of the party; and once he does so, he is limited to voting for candidates of that party.8
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8In this sense, the blanket primary also may be constitutionally distinct from the open primary, in which the voter is limited to one party's ballot. See [Democratic Party of U.S. v. Wisc. ex rel. La Follette, 450 U.S. 107,] 130, n.2 (Powell, J., dissenting) ("The act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party . . . . "). This case does not require us to determine the constitutionality of open primaries.
530 U.S. at 577 & n.8 (emphasis in original). By drawing the law at formal party membership, the Court distinguished closed primaries fairly strongly, suggesting that a closed primary system with day-of affiliation changes would pass constitutional muster. The Court's distinction for open primaries is weaker, and suggests that the Jones Court considered the constitutionality of mandatory open primaries to be less clear.
The question of whether open primaries are constitutional under the rationale of Jones turns on whether the act of choosing a particular party's primary ballot-even when that choice is not recorded or done in private-is itself an act of affiliation substantial enough to tip the scales in favor of constitutionality.
It is worth considering on this issue the opinions in Clingman v. Beaver, 544 U.S. 581 (2005). Clingman followed the Court's earlier decision in Tashjian v. Republican Party, 479 U.S. 208 (1986), where the Court held that a state could not require a party to hold a closed primary instead of opening its primary to unaffiliated voters. In Clingman, the Court considered whether a state could prevent a party from holding an open primary-one where voters registered with other parties could choose instead to vote in a different party's primary. A majority of the Court found that Oklahoma's law preventing voters registered in other parties from voting in the Libertarian Party primary, where the Libertarian Party wanted to open its primary in this way, did not violate the right to associate of either the party or the voters.
Justice Thomas, writing for himself, Chief Justice Rehnquist, and Justices Scalia and Kennedy, argued that voting in a party's primary was not
associat[ing] with the [Libertarian Party], at least not in any formal sense. They wish to remain registered with the Republican, Democratic, or Reform parties, and yet to assist in selecting the Libertarian Party's candidates for the general election. Their interest is in casting a vote for a Libertarian candidate in a particular primary election, rather than in banding together with fellow citizens committed to the LPO's political goals and ideals.
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However, a voter who is unwilling to disaffiliate from another party to vote in the LPO's primary forms little "association" with the LPO-nor the LPO with him.
544 U.S. at 588-89 (Thomas, J.). Justice O'Connor, writing for herself and Justice Breyer, took issue with this part of Thomas's opinion.
The plurality questions whether the LPO and voters registered with another party have any constitutionally cognizable interest in associating with one another through the LPO's primary. Its doubts on this point appear from two implicit premises: first, that a voter forms a cognizable association with a political party only by registering with that party; and second, that a voter can only form a cognizable association with one party at a time. Neither of these premises is sound, in my view. As to the first, registration with a political party surely may signify an important personal commitment, which may be accompanied by faithful voting and even activism beyond the polls. But for many voters, registration serves principally as a mandatory (and perhaps even ministerial) prerequisite to participation in the party's primaries. The act of casting a ballot in a given primary may, for both the voter and the party, constitute a form of association that is at least as important as the act of registering. . . . The fact that voting is episodic does not, in my judgment, undermine its associational significance; it simply reflects the special character of the electoral process, which allows citizens to join together at regular intervals to shape government through the choice of public officials.
544 U.S. at 600-01 (O'Connor, J.). These two opinions suggest a split between finding party enrollment the sine qua non of association between parties and voters, and a more functional view that considers voting with a party to be of the same associational valence regardless of a voter's formal affiliation.
A final Supreme Court case deals with the limits the Constitution places on states in designing partisan primaries. In Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184 (2008), the Court considered whether Washington's non-partisan top-two blanket primary violated political parties' associational rights. The Court had made clear in Jones that a nonpartisan top-two primary was constitutional; the wrinkle in the Washington case was that the law, while calling for a "nonpartisan" primary nonetheless provided for candidates' own stated "party preferences" to be included on the ballot.
The Court's conservative justices split. Justice Thomas, writing the majority opinion, described the plaintiffs' complaint as the voter confusion threatened by the party preference label. That is, in the general election, voters would mistakenly conclude that candidates with particular party preferences were the candidates of those parties, and that this mistake would seriously impinge on parties' rights to choose their imprimaturs under Jones. The majority found that the record presented by the parties' pre-enforcement challenge did not provide sufficient proof of this kind of voter confusion to justify an injunction.
Chief Justice Roberts, joined by Justice Alito, wrote separately to emphasize that if voters perceived association between the candidate and the party they stated a preference for, it would amount to forced association, but that the law could be enforced in a way to avoid voter confusion.
Justice Scalia, joined by Justice Kennedy, wrote in dissent, emphasizing the centrality of the ballot as a means of party communication, and suggesting that including the indication of a candidate's party preference on the ballot-regardless of whether voters were confused as to the meaning of the party preference statement-represented a kind of forced association. Scalia's opinion describes at length what he perceives as the illegitimate motives for the law-a "dislike for bright-colors partisanship."
It seems likely, then, that a "closed" primary-even where same-day affiliation is forced on the parties-would be considered constitutional by the Court. Even the Justices who are most concerned with defending parties against perceived encroachment on their rights consider formal party affiliation an important distinction. It is less clear the fate of open primaries or semi-closed, which may be functionally indistinct from closed primaries, but do not require formal enrollment or affiliation with a party, under these cases.
There have been two fully litigated lower court cases after Jones that take up the question of a forced open primary.[1] In Miller v. Brown, the Eastern District of Virginia and then the Fourth Circuit considered a challenge by the Virginia Republican Party to Virginia's open primary.
In Virginia, party affiliation is not tracked. Parties are allowed by law to choose their nominees through meetings, canvasses, conventions, or primaries. However, if a party chooses to select a nominee for a particular race through a primary, that primary must be open to all voters. Voters must publicly select a particular party's ballot, but there is no separate affiliation requirement or any other way to test party loyalty. While ordinarily a party can choose any method to select the nominee for any particular office, if the current officeholder is an incumbent of that party, the incumbent has the right to choose the nominating method for that office.
In Miller, the incumbent officeholder, a Republican state senator, had opted for a primary election. The party committee for that senate district had adopted a rule that called for only party members to participate in nomination processes. The district party committee filed suit, claiming Virginia's general requirement that primaries be open severely burdened the party's freedom of association, and that this burden was particularly severe where the party was required by its incumbent's choice to hold a primary.
Somewhat oddly, the state in the Miller case conceded in the district court and the appeals court that an open primary that was forced on a party would be a severe burden under Jones, and that an open primary in a state which tracked party registration would be unconstitutional.[2] The case thus focused on (1) whether, where a party can avoid a primary altogether and opt instead for a nominating procedure in which non-party members are excluded, it is unconstitutional of the state not to offer the option of a closed primary; and (2) whether, if Virginia's scheme was otherwise constitutional, an incumbent's choice of the open primary over his party's wishes was nonetheless an unconstitutional burden on the party's rights.
The district court answered the first the question in negative, finding that while a mandatory open primary would very likely be unconstitutional, the choice parties had under Virginia law to opt out of a primary altogether and instead use a different nominating process saved the system. Under Jones, the possible constitutional problem presented by open primaries is forced association, but under Virginia's law, parties could avoid forced association with non-party members by using different nominating processes. Parties have no intrinsic right to closed primaries in particular-only to a nominating process that allows for exclusion of non-party members.
The court then turned to the party's as-applied challenge to the imposition of an open primary on the party as a result of the incumbent's choice of a primary. Once again, the state defendants had conceded the point that a forced open primary was a severe burden. The court found that none of the state's proffered interests-protection of voters' rights to vote in the primary of their choice and to change their affiliation without state interference; protection of voters' right to hold political beliefs anonymous; and promotion of the integrity of the voting process and encouragement of voter participation-were sufficient to justify the law. The court relied almost exclusively on Jones in making its findings, overlooking or ignoring the distinction Jones drew between a blanket and an open primary.
On appeal, the Fourth Circuit issued a more limited opinion affirming the district court in both its denial of the facial constitutional challenge and its finding in favor of the as-applied challenge. They noted the Jones Court's careful reservation of the question of the constitutionality of open primaries, and specifically reserved the question
whether the act of voting in one party's primary affiliates a voter with the party sufficiently to protect the party's right to associate with those who share its political beliefs. . . . [W]e do not decide whether the open primary statute, viewed in isolation, impermissibly burdens a political party's associational rights, because it clearly does not do so in light of the other methods of nomination permitted by Virginia law, under which a party is free to exclude voters with whom it does not wish to associate. . . . [W]e need not decide this question in reviewing the as-applied ruling because the [state] does not challenge the holding of the district court that forcing the [party] to conduct an open primary severely burdens its right of free association.
Miller v. Brown, 503 F.3d 360, 366 n.6 (4th Cir. 2007). While the district court had affirmatively held the forced open primary unconstitutional, the Fourth Circuit relied exclusively on the state's concession that it was a severe burden, without deciding the issue as a matter of law.
The state petitioned the full Fourth Circuit to hear the case en banc, a petition which was denied. Judge Wilkinson dissented from the denial of the petition, taking the panel to task for, inter alia, leaving open the question of whether open primaries are constitutional after Jones. Wilkinson strongly argued that open primaries are a constitutional and legitimate choice for states to make, emphasizing the affiliation created between a voter and the party on the day of the election. Wilkinson suggested there was no difference between an open primary and a closed primary with same-day registration. Wilkinson concluded by emphasizing that closing off open primaries as a constitutionally permissible choice would constitutionally enshrine hyper-partisanship and throw into doubt the primary systems of many states. See Miller v. Cunningham, 512 F.3d 98 (4th Cir. 2007) (Wilkinson, J., dissenting from denial of rehr'g en banc).
The second case assessing the constitutionality of an open primary in light of Jones was Mississippi State Democratic Party v. Barbour, in the Northern District of Mississippi and the Fifth Circuit. Mississippi has a requirement that voters are not eligible to participate in primary elections unless they intend to support the party's nominee in the general election. State law provides no way to enforce this provision, however, and the state does not track party registration. The Democratic Party claimed that the lack of an enforcement mechanism for that provision of law was unconstitutional under Jones as a burden on their right to associate only with Democrats.[3]
The district court, without much analysis, concluded that Mississippi's primary system was an unconstitutional infringement on the party's right to not associate with non-party members, and dismissed the state's asserted interests as ones that were rejected in Jones. The court also concluded-somewhat out of the blue-that mandatory photo voter identification was also necessary to guarantee that no non-party-members would vote in the party primary, and ordered the implementation of both a closed party primary and a voter identification rule. Miss. State Democratic Party v. Barbour, 491 F. Supp. 2d 641 (N.D. Miss. 2007).
As the Fifth Circuit put it, the district court's ruling "spawned a free-for-all on appeal." The state attorney general, a Democrat, argued in his appeal that the plaintiffs' claims were not justiciable; the governor and the secretary of state, both Republicans, filed a separate brief supporting the photo ID ruling; the Democratic party leadership cross-appealed opposing the photo ID requirement; the NAACP intervened to also challenge the photo ID requirement; and the Mississippi Republican Executive Committee intervened to insure that they would not be forced to close their party primaries.
The Fifth Circuit "put the parties out of their litigation misery," finding that the party's claims were not justiciable for lack of standing and ripeness. Basically, the court found that the party had not moved far enough along in its plans to hold a closed primary; while the party plaintiff in the Virginia litigation had adopted a rule stating its intention to hold a closed primary, the party in Mississippi had "taken no steps to authorize the party to conduct closed primaries." The Mississippi Democrats had applied for preclearance of a closed primary from the Justice Department and had internally authorized the lawsuit, but the circuit court was unimpressed. It seems likely the Fifth Circuit was happy to be able to dispose of the mess on jurisdictional grounds.
While these cases suggest that states should be cautious before moving to forced open primaries, they likewise suggest that closed primaries with formal affiliation rules-even where same-day affiliation is possible-are likely to pass constitutional muster. It is therefore almost certainly no constitutional bar to shifting party affiliation rules to accommodate a system of automatic voter registration.
[1] As of April 2009, a third lawsuit has been filed challenging South Carolina's open primary, Harms v Hudgens, No. 6:09-1022-HFF (D.S.C. April 16, 2009).
[2] The Virginia Attorney General is Bob McDonnell, an announced candidate for Governor this year and generally considered a conservative Republican. Disputes over open and closed primaries can often pit the moderate wing of the party against the more extreme wing, with the former in favor of opening up processes to crossover voters who will support them, while the latter often prefer closed processes to guarantee perceived ideological purity.
[3] In Mississippi, the Democratic Party structure is controlled by African-American party leadership; moderate white Democrats are generally thought to prefer to keep the primaries open so white voters who may be reluctant to self-identify as Democrats, and who regularly vote for Republicans for statewide or national office, will vote in large enough numbers in Democratic primaries to allow moderate white Democrats to win.