On February 18, U.S. District Court Judge B. Lynn Winmill, a Clinton appointee, heard oral argument in Idaho Republican Party v Ysursa. This is the case in which the party is trying to obtain a closed primary for itself. Idaho is a state with no registration by party. The hearing lasted just over an hour. It was difficult to tell which way the judge was leaning, but his opinion will probably be out in a month or two. There was little press coverage of the hearing.
Well, Minnesota also does not have party registration and ND has no voter registration at all. So this may have bigger implications.
This lawsuit illustrations a problem with our electoral vocab, if you will. How do we choose to define and thus govern political parties?
If we want to only have two parties, then they should operate like all-inclusive, catch-all, big tents that include any eligible adult who shows up to vote or be a candidate. Period.
If we want parties to be more exclusive — not unlike say, the BSOA, then we that also means that we have to make it easier for people who are excluded from one party to start their own or be an Independent.
Here’s the AP story on Wednesday’s oral argument.
I believe the US Supreme Court has ruled TWICE that each political party has the absolute right to determine for itself who will participate in the selection of it’s candidates. A party cannot be forced to hold an open primary, nor can it be forced to hold a closed primary. The decision belongs to the party alone.
In his dissent in Tashjian, Justice Scalia noted that it was the Republican state convention that had decided to partially open the primary, and not the registered members of the Republican Party, suggesting that it was unknown whether they would be in favor of letting persons who refused to join the party from diluting the influence of party members in the choice of nominees.
In Idaho we have a situation where there in an additional layer of indirection. In Idaho, the Republican state central committee has voted to close the primary. The state convention opposed the closed primary. And we don’t know what the voters who chose the party candidates and party precinct officials think.
Such a fundamental and constitutional issue should be decided by the appropriate electorate itself. If the governor of Idaho wanted to change the definition of a voter in Idaho he could do nothing. The legislature could propose a constitutional amendment, but it would not take effect until the People would vote on adoption of the amendment.
In a republic, the governor is not the sovereign. Even the legislature is not sovereign. The People are sovereign.
The State of Idaho surely has the right to regulate the manner in which a party decides to open or close its primary. So it should provide for the following procedure:
(1) State party convention may propose closing/opening convention.
(2) Voters vote on proposal at next primary.
If a party decides to close its primary, then 60 days prior to a primary the party (county central committees?) should provide to the state of Idaho either:
(a) a list of voters entitled to vote in its primary; or
(b) a list of voters not entitled to vote in its primary.
The list would be a form prescribed by the Secretary of State, including in a electronic format.
The state in its administration of the party primaries would ensure that no voters not on a list of type (a); or on a list of type (b) vote in that party’s primary.
A voter could cast a provisional vote, which would be counted subject to a decision by a party tribunal.
This scheme would preserve the sovereignty of the Republican Party over its affairs.
#3: No open primary law has yet reached the Supreme Court. As to the Virginia law, the 4th Circuit said that, when a party is forced to hold an open primary, the party decides who is eligible to vote in that primary.
In 2007, a US District Court ruled Mississippi’s open primary law unconstitutional; the 5th Circuit, however, dismissed the suit on procedural grounds.
The Tashjian decision gave parties the right to invite independents into their primaries. In Clingman v. Beaver, the Supreme Court said that the state MAY prohibit parties from inviting members of opposing parties to vote in their primaries.
#4: “The [Idaho Republican] convention opposed the closed primary.”
Prior to the filing of the lawsuit, at least one GOP state convention voted in favor of closed primaries; the state central committee– the party’s governing body– adopted the rule for a closed primary. Last summer– after the current suit had been filed– the state convention voted, 199-192, in favor of open primaries. But last month the central committee voted to continue the lawsuit.
“Such a fundamental and constitutional issue should be decided by the appropriate electorate itself.”
California’s blanket primary was enacted through a ballot initiative approved by some 60% of the voters. The US Supreme Court reversed (7-2) the two lower courts and struck down the law (California Democratic Party v. Jones).
In the 1930s, the voters of Washington state approved the blanket primary by referendum. In 2003, the 9th Circuit struck down the law, and in 2004, the Supreme Court refused to hear the state’s appeal (Reed v. Washington State Democratic Party).
For the Supreme Court to uphold a state-mandated open primary, it would have to reverse its own reasoning in the California blanket primary case. E. g.: Political parties have “the freedom to identify the people who constitute the association, and to limit the association to those people only.”
If Idaho Republicans don’t like the job that the state central committee is doing, they can replace the committee members.
#5 Idaho Law 32-707(4) – authorizes the party convention to “[a]dopt rules, regulations and directives regarding party policies, practices and procedures.”
Surely one state convention can change the positions taken at a previous convention, no? And I don’t see the significance of including the vote total as far as the decision making process of the convention.
The state central committee consists of persons chosen by precinct committee members who were chosen by members of the Republican Party in the primary. I don’t know if there is any sort of recall or involuntary replacement procedure.
But let’s assume that the central committee can rule by fiat. Is that such a good idea? Even if the State of Idaho can not require an open primary (assuming that the current system is an open primary), surely they can regulate the manner in which a political party determines whether or not it will have a closed primary and the manner in which the party identifies its members.
Idaho law (34-501(1) defines, “[a] ‘political party’ within the meaning of this act, is an organization of electors under a given name.”. That is, the Republican Party is an organization of voters.
So it seems quite reasonable for the legislature to delegate to the party proper whether or not it wishes to close its primary. So the legislature could permit a state party convention to decide whether to present the question to the party members at the next primary. This seems eminently preferable than a decree by Rod Beck or Hugo Chavez or whomever.
And then if the party members determine to have a closed party, let the party determine who is permitted to participate. It shouldn’t be the state regulating participation in the primary should it? Does the state of Idaho maintain the rosters of Rotarians, Kiwanians, and Elks in the state? Instead, simply let the Republican party identify which voters may vote in its primary. A simple list of eligible voters is all that is required.
The cases you have cited are not relevant to the issue. Let’s say that there were people who wanted 16 YO or permanent resident aliens to be able to vote. The Governor of California could not make that change. The California legislature could not make that change. Only the People of California could make that change through a change in their Constitution. The only thing the legislature could do would be to propose the change – and they wouldn’t even have to do that if it were an initiative. I’m saying that the Idaho Republican Party should be able to say who votes in the Idaho Republican Party, and not some executive or legislative body such as the Central Committee or Party Convention.
In Connecticut, California, Arizona, and Oklahoma the State maintained a list of party registrants. In the various primary participation cases it has been an issue of whether or not persons that the state had identified as being non-members could vote in a party’s election or not.
In Reed v. Washington State Democratic Party the 9th Circuit held that voters think of themselves as being members of a party – even if they don’t register as such. It was on that finding that they determined that the Washington blanket primary was not materially different than the California blanket primary struck down in Jones.
So in effect, the Pick a Party primaries formerly used in Washington, and currently used in Idaho are closed primaries. A voter can only switch parties every two years, so I don’t see why the State of Idaho should go to the expense of keeping track of something that is unnecessary.
#6: The first suit against Idaho’s open primary law was dismissed because the 70-plus Republican activists who filed the suit did not have standing. If the state central committee did not have standing, the court would also dismiss the current suit.
“The state central committee consists of persons chosen by precinct committee members who were chosen by members of the Republican Party in the primary.”
Right– and when the PC members run for re-election, the party rank-and-file can vote them out.
The US Supreme Court defines the present Idaho system as a state-mandated open primary. Near the end of his majority opinion in the California blanket primary case, Justice Scalia said that that case did not require the court to determine the constitutionality of the open primary.
Party registration is the most practical way of identifying voters’ party preferences. In every state which has closed primaries, the state registers voters by party. There is even party registration is some states that do not have closed primaries– Iowa, Utah, Alaska, e.g.[1] Other than for president, Louisiana had no party primaries from 1978 through 2006, and yet that state has registered voters by party since 1916.
The California and Washington state blanket primary cases have been the main precedents for the suits against state-mandated open primaries– in Virginia, Mississippi, and now Idaho.
[1] Alaska’s Republicans and Utah’s Republicans have semi-closed primaries, in which independents are invited to participate.
“I believe the US Supreme Court has ruled TWICE that each political party has the absolute right to determine for itself who will participate in the selection of it’s candidates. A party cannot be forced to hold an open primary, nor can it be forced to hold a closed primary. The decision belongs to the party alone.”
Who pays for it? If it’s the state, than I don’t see how a party can argue they should have a closed primary unless they are willing to pay for it themselves. Private functions should be paid for by private money. As primaries are ran by the state, they are paid for by state money.
#7 A court could still find that the state central committee does not have standing. Remember what Scalia wrote in Tashjian.
And regardless of any court decision, the State of Idaho is free to define new procedures. Since Idaho defines a “political party” as a organization of voters, it seems quite reasonable for Idaho to give authority to the organization and not to its executive bodies. That would be the republican way.
“Right– and when the PC members run for re-election, the party rank-and-file can vote them out.”
The central committee is attempting to dictate who may vote in the primary. And those who vote in the primary are supposed to be able to vote them out? The central committee chooses the voters and the voters choose the central committee??? Did all the central committee members go to college in Moscow?
If the Republicans want Idaho’s election laws changed, they can vote for legislators who will change the law.
The US Supreme Court’s classification of Idaho’s primary should be regarded as cursory. It was irrelevant to the particulars of the cases that they have decided.
California did not have an open primary. It had a primary in which persons who were not registered with the party could vote in nomination races of that party on a selective basis. There was one primary where there was one Democrat, one Republican, and two Libertarians. A bunch of voters decided that they wanted to weigh in on the nomination of which Libertarian would appear on the general election ballot, since the Democrat and Republican were sure of nomination. More people voted in the Libertarian primary for that race than were registered as Libertarians.
Washington tried to differentiate their blanket primary from California on the basis of 3 issues:
(1) It had been in place a long time, and had been even evaluated by the US Supreme Court – that of course did not matter.
(2) They permitted minor parties and independent parties to nominate by convention, so you wouldn’t have a problem with interference like had happened in California – but it could still occur between the major parties.
(3) It did not have party registration. Washington argued that Republicans and Democrats were not voting in the other primaries for individual races, since they weren’t registered as such.
The 9th Circuit found that voters considered themselves to be Republicans or Democrats, and that the Washington’s blanket primary was not materially different than California’s because of that.
You can’t vote in more than one primary in Idaho. And elected state officials are free to change parties 3 months after the election where they ran as the nominee of a party. So why shouldn’t a voter be permitted to choose his party every 2 years? All you are doing is making busy work for state employees.
“Party registration is the most practical way of identifying voters’ party preferences. In every state which has closed primaries, the state registers voters by party.”
Practical for whom? Idaho conducts the primaries for the parties. If a party wants to limit participation to certain voters, let them identify who they want to vote or not vote.
#8 It is far from an absolute right.
In Tashjian the court ruled that the qualification for primary voters for congressional elections must be at least as broad as that for the lower house of the legislature. In Klingman v. Beaver said that a state didn’t have to let a party invite registered members of another party into its primary.
The blanket primary case Jones wasn’t really about a party deciding who should be permitted to vote in a primary, but whether a primary was part of the process to choose elected officials, or to choose party nominees.
The Supreme Court has ruled that a party may not discriminate on the basis of race in its primary, nor may it impose what was considered to be a poll tax. It most likely would get into problems if there was a qualifying period before voting period, which begins to look a lot like a residency requirement.
I doubt that the Supreme Court would ever uphold any sort of test – such as test of knowledge about government or history or political beliefs in order to register with a party or vote in its primary. The Supreme Court is not going to uphold a provision that restricts a party registrant from supporting the candidate of another party, whether verbally, contributing cash, or any other way.
So this leaves you with self-identification. A Republican is someone who says they are a Republican. In an open primary in a state without party registration, the voter essentially identifies themselves as a member of a party every 2 years.
If a party wishes to restrict participation in its election, it should be a decision by the party itself, and not some executive body; and the party should be responsible for its own record keeping.
#8: In 1995, in an Arkansas case, the 8th Circuit ruled that, when the state requires parties to nominate by primary, the state must pay the costs of those primaries (Republican Party v. Faulkner County).