Idaho Republican Party Wins Declaratory Relief on Keeping Non-Members from Voting in its Primary

On March 2, a U.S. District Court in Idaho ruled that the Republican Party may prevent people who don’t consider themselves Republican Party members from voting in the Republican primary. See this story. The case is Idaho Republican Party v Ysursa, 08-cv-165. Here is the 20-page decision.

UPDATE: here is some commentary about the decision on Daily Kos.


Idaho Republican Party Wins Declaratory Relief on Keeping Non-Members from Voting in its Primary — 26 Comments

  1. The court copied the NON-sense of the SCOTUS morons in the 2000 CA Jones case.

    PUBLIC Electors-Voters are doing nominations — NOT some sort of private party hack robots.

    ALL voters (as in the top 2 primary States) or SOME voters in subgroups — i.e. the party hack robot subgroups with or without independents and with or without other party hack subgroups.

    The 2000 Jones case is one more case among many to be over-ruled ASAP — to bring some sanity to election law in the U.S.A.

  2. Idaho should adopt the Top 2 Open Primary such as is used in other western states, including neighboring Washington. That system was identified by Justice Scalia in Jones as remedying political association issues, because the primary does not select the nominees of the political parties. This is the obvious solution since the judge relied so heavily on Jones.

    Alternatively, Idaho should permit each party to identify which voters may participate in their primary. If a voter was not permitted to vote in a particular political party’s primary, that party would be disabled on his ballot. While the Republican Party may designate voters who may vote in their primary, the party may not dictate that they do so.

    Each party could also determine which candidates may appear on their primary ballot. All candidates would also appear on a non-partisan section of the ballot which any voter might select. Parties could designate whether votes cast in the non-partisan section will count toward their nomination contests.

    To appear on the general election ballot as a party nominee, he would need to win a nomination contest in which 3% of all votes were cast. The winner of the non-partisan primary would also qualify, along with any other candidates in the non-partisan section of the ballot who received 10% of the total vote.

    Candidates who qualified only via the non-partisan section would not have any party affiliation appear on the general election ballot.

  3. #3, Justice Scalia, in his 2000 decision in California Democratic Party v Jones, was talking about an election with no party labels on the ballot. Justice Ginsburg’s opinion in that case makes it clear what Justice Scalia had in mind. And making it even clearer is that Justice Scalia dissented in the March 2008 decision Washington State v Washington State Republican Party, and said the Washington top-two was unconstitutional on its face. He said forcing the parties to put up with having their labels on the ballot next to candidates they don’t approve of is like forcing Campbell’s Soup to put up with Oscar the Grouch (the Muppets character) saying he likes Campbell Soup.

  4. Justice Scalia wrote, “Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot–which may include nomination by established parties and voter-petition requirements for independent candidates.”

    It would be rather bizarre that a candidate could qualify as the nominee of an established party, and yet not have that party label appear on the ballot. Do you not agree?

    Justice Ginsburg did not write a dissent in Jones. She did join Justice Stevens in his dissent (except where he was tilting at windmills in Part II). Justice Stevens in footnote 8, says that Scalia was talking about a system like in Louisiana.
    which of course does have party labels.

  5. When the party hack SCOTUS MORONS make WRONG classifications of the LAW, then all sorts of LUNATIC stuff happens.

    WRONG classifications in Williams v. Rhodes in 1968

    WRONG classifications in CA Dem v. Jones in 2000

    Result — CHAOS in ballot access — a mere 43 years and counting — perhaps to go on for centuries ???

    See however the Erie case in 1938 — overruling dozens and dozens of cases regarding the fictional *federal common law* going back about 98 years.

    What is the IQ of the New Age SCOTUS party hack robot ???

    How delusional are the SCOTUS folks when they split legal hairs into INSANE classifications ??? — see the numerous vague adjectives and adverbs in about 99 percent of SCOTUS cases.

    The *EQUAL* adjective — as in the 14th Amdt, Sec. 1 — is totally impossible for the SCOTUS folks to understand.

    Heaven help the U.S.A. — since the SCOTUS folks are SOOOOOO Super STUPID.

  6. For Immediate Release
    March 2, 2011
    Contact: Sarah Lyons 212-962-1824 / 917-658-9885
    Statement by Jackie Salit
    President of

    On The U.S. District Court Decision Ruling Idaho’s Open Primary System Unconstitutional

    “The decision of the U.S. District Court today is a deep disappointment to the independent voters whose political rights are now seriously impaired. The Republican Party asked the court to give it the right to redesign Idaho’s electoral process and relegate independents to the “no man’s land” of a closed primary system. The court gave them that right, in effect blurring the critical distinction between a public function, like elections, and the private interests of a political party. This is a dangerous precedent for our democracy. The entire process in the federal court reveals the conflicts inherent in this situation. First, the court allowed us, the independents, to be admitted as intervenors over the objections of the Republican Party, on the grounds that our interests deserved recognition and representation. But then the court negated those interests by allowing the Republican Party to run roughshod over them. We are in the process of assessing the decision and will decide what course to follow.”

    My solution is:

    Under our current state and federal systems, the general is where we not only elect our political representatives, states use this election to determine the number of petition signatures to get on future ballots, determine a party’s position on the ballot, etc. So reducing who can get on the general ballot requires all states to change their election laws. So I was ready to punt this part of my playbook. Then I can across this comment on someones blog:

    “Why don’t the different parties pay for the primary? It is not the election. It is to see who will run in the election according to the different parties…”

    Now I had something to work with. Why do we need state run primaries? We only need the states to run state and federal General Elections where all registered voters have a change to take part in the process of voting.

    To create a system to answer all the Supreme Court issues, I would create a General Election ballot system with these features:

    1. All Candidates selected by their parties (Major and Minor) paid for system.

    2. A fee or petition process for non-selected major and minor party candidates.

    3. A fee or petition process for independents.

    5. A fee or petition process for non-qualified party candidates. It would be up to the state to determine the process to become a qualified party.

    6. Write-ins.

    Ballot Format

    There would be two boxes next to the candidate’s name: One optionally indicates the candidates registered party, the other optionally indicates all endorsements.

    A possible additional element in the primary could be IRV. This would allow your first selection of a favorite son or daughter, vanity candidate, etc., and the use of other selections to rank your choices.

  7. #2: Those “other Western states” using the “top two” for state and congressional elections are Washington and California. PERIOD. The only other such state is Louisiana… for a grand total of three. Washington began using its “top two” in 2008, and the first regular elections for CA’s “top two” are in 2012, assuming that it’s upheld. Both states are facing “top two” litigation.

    Scalia wrote that “the top two vote getters (or however many the state prescribes) then move on…” So it could be a “top three,” a “top four,” etc.

    A state is not going to mandate official party nominations in a “top two,” since that would defeat one of the main purposes of that system, which is to enable voters to choose among all the candidates in the first round of the “top two” (if a state did mandate nominations, it would have a system like Georgia’s).

    How would you have Idaho’s parties identify voters’ party preferences? The most practical way to do that is party registration, which is why 29 states and the District of Columbia register voters by party.

    What if the same candidate wins both a party primary and the “non-partisan primary”? Would that candidate then appear twice on the general election ballot?

  8. Can this case be merged with the Washington case?

    After all, the political parties in Washington are arguing for a return to a system that a district court in the same circuit has ruled unconstitutional.

    And the 9th Circuit itself in the case about the Washington blanket primary determined that voters thought of themselves as Democrats or Republicans when they went into the voting booth, and were thus crossing over in individual races.

  9. #8 Washington is quite influential in Idaho. One of the Idaho universities plays its home football games in Washington, and Boise and Spokane are both close to the state line.

    Washington had a system like Idaho, and they replaced it with the Top 2 Open primary as soon as they could.

    Idaho already uses “Top 2” elections for judicial races which are contested during the primary, though it is possible for a candidate who receives a majority to be elected. It would be quite simple to extend this system to other elections. In 2010, 70% of Idaho commissioners races were not contested by both major parties at the general election. So partisan primaries disenfranchise large segments of the population.

    Alternatively, while the case is being appealed Idaho could simply use the independent nomination process that is already in place.

    Justice Scalia was being respectful of state legislative authority to determine how many candidates might advance.

    California law has specific provisions by which qualified parties may make endorsements in Voter-Nominated Offices, and have those endorsements disseminated at state expense on the sample ballot and voter’s pamphlet that are distributed to voters.

    Oregon’s Top Two proposal would have provided separate labels for candidate affiliation and party endorsement.

    Of course, no state has the authority to mandate that political parties make endorsements.

    It would be up to political parties to identify which voters may participate in their primaries. Of course they could not discriminate on the basis of race, sex, or age, without being in violation of the 15th, 19th, and 26th amendments. Nor could they charge a fee, since it would be the same as a poll tax (the 24th amendment applies specifically to primaries).

    It would probably have to be litigated how long a voter might have to be affiliated with a party to vote in its primary, and whether previous or current affiliation with another party would be a bar to affiliating with another party.

    The Republicans might interview prospective members. How else are they going to be sure that voters aren’t telling state officials that they are “Republicans”?

    If a candidate won the nomination of multiple parties, all such parties would appear next to his name. If a candidate qualified for the general election ballot on the basis of the non-partisan primary, no nomination status would be shown.

  10. #8 What about the top 2 primary in nonpartisan NE ??? — a mere FOUR.

    Is DOOM coming for the party hacks in ALL 50 States ???

    Stay tuned — regarding the top 2 appeal from WA State in the 9th Circuit — likely going again to SCOTUS.

    P.R. and App.V. — NO primaries are needed.

  11. #9: The Idaho ruling struck down the state-mandated open primary. If the Washington “top two” is struck down, the Washington parties can have open primaries if they want them. The parties could even go back to the blanket primary if they wanted to.

    #10: Washington, unlike Idaho, had a long history with the blanket primary, in which voters could cross party lines in the first round. This was a major factor in the enactment of the “top two” in WA.

    California used the blanket primary in 1998 and 2000, which was a factor in the passage of the “top two” there.

    66% of Oregonians said NO to the “top two” monstrosity.

    In every state where at least one party excludes some voters from its primaries, there is voter registration by party.

    In some states, a voter may register with a party at the polls on primary day and immediately vote in that party’s primary. In Iowa and Wyoming, a voter may switch his registration from Party A to Party B at the polls and vote in the primary of his new party.

    #11: Washington, California, and Louisiana are the only states that use the “top two” for all state and congressional elections. Nebraska uses the “top two” to elect its one-house legislature.

  12. How many nonpartisan top 2 regimes in Local govt regimes in ALL 50 States ???

    Party hacks trying to retake such regimes to have more party hacks in such regimes ???

    i.e. the All politics is local stuff.

  13. #10: “… no state has the authority to mandate that political parties make endorsements.”

    States have the authority (1) to recognize parties’ nominations; (2) to prescribe the method(s) by which those nominations are made; and (3) to limit the general election ballot to one candidate per party per office.

    For state and congressional elections, of course, none of the three “top two” states does the above three things.

  14. #12 If the Idaho decision stands, then Gary Locke will have signed unconstitutional legislation, and vetoed perfectly constitutional legislation, and caused 7 (and counting) years of litigation in his home state. No wonder he was appointed Commerce Secretary.

    Idaho, like Washington, has a long history of the State government NOT maintaining records of the political beliefs of its citizens and preserving the secret ballot.

    Idaho does not have to do anything. They have a perfectly legal alternative procedure for qualifying candidates for the general election. If the Republicans don’t want to have a primary, they can simply get behind a petition drive for candidates favored by Rod Beck. Only 50 signatures are needed to run for the legislature, 1000 to run statewide, 500 for Congress.

    Or Idaho can simply expand its already existing Top 2 procedures to apply to additional offices.

    The scheme that you are suggesting where voters register their party affiliation with the government may not be any better at protecting the rights of political association than the current Pick-A-Party primary.

    Judge Winmill rejected the Republicans’ evidence, which is not surprising considering how weak it was. Instead he relied on the State of Idaho’s expert testimony that there probably was benign cross-over voting in Idaho. It explained how political scientists define political identification by asking voters whether they were Democrats, Republicans, or Independents. If they say Democrats or Republican, then they are asked whether they are a strong Democrat (Republican) or a weak Democrat (Republican). If they say that they are an independent, they are asked if they tend to lean toward one party or the other. These leaners are often more likely to support the presidential candidate of the party, than the weak partisans. They may say that they are independent because of the social cachet, or because they don’t associate with what they view as more extreme elements of the party. These leaners who may actually be more supportive of the candidates of the party, than those who claim to be partisans, but who do so only weakly.

    Some of those independent leaners don’t claim to be partisans because of their reluctance to support persons who they view to be extremist, yet vote in the primary. Winmill counted these voters as cross-over voters. But they may be willing to register with the party, so as to not be totally disenfranchised. But what if they do, and Rod Beck then loses a 4th primary in a row? The Republican Party could make a sound legal case that they were forced to associate with non-extremists. What does Idaho do then? It could become a never ending game of Semanko Says.

    So it is much simpler to let the Republican Party identify those individuals that it wishes to permit to vote in its primary.

    Your proposed scheme does not protect the Republicans right of political association; it interferes with ballot secrecy; it makes voters political allegiances a matter of public record; it disenfranchises voters.

    Any of three alternatives:

    (1) Eliminate primaries and partisan nominations;

    (2) Top 2 non-partisan primary;

    (3) Party-maintained voter lists in conjunction with the Pick-a-Party Primary.

    Do a better job and don’t impose a regulatory burden on the state.

  15. #15, a classic open primary is not unconstitutional, except as applied to a political party that doesn’t want a classic open primary. Both the Democratic Party of Washington state, and the Republican Party of Washington state, want a class open primary for themselves.

    And we still don’t know if top-two is constitutional or not. The US Supreme Court decision of March 2008 did not settle the ballot access issue, or the trademark issue, or the issue of whether top-two violates freedom of association as applied.

  16. #16 Then it becomes a game of Semanko Says. The Washington political parties were happy enough with the blanket primary. If California hadn’t adopted its version, they’d probably still be using it.

    After the 9th Circuit had been overturned in Jones, they really didn’t have a choice but to overturn the Washington blanket primary. A lot of good it did for Locke to say in his veto message that he wished the political parties hadn’t filed suit.

    Remember that the Libertarians actually qualified to have a primary in Washington. Instead of getting legislation passed that would let them remain a minor party, they could have filed suit against the Pick-A-Party primary.

    There is zero chance of winning on the ballot access issue. You really don’t think Nebraska’s Top 2 primary for its legislature is unconstitutional do you?

    Wasn’t most of the evidence of freedom of association as applied based on newspaper clippings?

  17. #17, there is a greater than 50% chance that the ballot access argument will win against Washington state’s top-two. The US Supreme Court said in Munro v Socialist Workers Party in 1986 that there is no constitutional difference between a prior vote test to qualify for the November ballot, and a petition requirement to qualify for the November ballot. Petitions to get on the November ballot can’t be greater than 5%. Ergo, neither can a prior vote test be greater than 5%, but the Washington state top-two system requires, on the average, 30% voter support to get on the November ballot. The Aug. 20, 2009 decision of Judge Coughenour, disagreeing with me, simply skips mentioning that part of Munro v Socialist Workers Party. The 9th circuit will do a better job.

  18. Comment #15 leaves me feeling like a mosquito in a nudist camp: I hardly know where to start.

    Gov. Locke authorized the “open primary, private choice” for Washington. At that time, there had been no litigation against the state-mandated open primary. Now, some 7 years later, a US district court has declared it unconstitutional. It’s very likely that that ruling will be appealed; meanwhile, it’s also possible that the ruling will be stayed.

    You could argue that some 20 states– the open primary states without party registration– are using an unconstitutional system… except that, if the Idaho ruling is upheld, a party that objects to the open primary in any of the remaining 19 states will have to file suit against it, assuming that the state law is not voluntarily changed. Such a suit would be an easy case.

    Third paragraph: After the Republicans have gone through all the time, trouble, and expense to gain the ability to decide who’s eligible to vote in GOP primaries, you would expect them to dispense with their primary altogether and run all their candidates as independents? (In the first place, the state will continue to mandate that parties hold primaries, so someone will be running in the GOP primary, regardless.)

    You should follow your own advice and just vote in general elections in Texas. As least as recently as March 2010, you voted in a party primary. Don’t you think you’re encouraging the bastards?

    Paragraph 5: My “scheme”– which is used by 29 states and D. C.– is the most practical way of identifying voters’ party preferences, if any. Once that has been accomplished by party registration, the Idaho GOP will be able to determine who’s eligible to vote in GOP primaries.

    I sometimes wonder if you’ve actually read California Democratic Party v. Jones. The Supreme Court quoted the 9th circuit’s definition of a crossover voter: it’s an independent voter or one who is a member of a competing political party.

    Not only do 29 states and D. C. register voters by party: some 11 of the open primary states (including your state of Texas) publicly record each voter’s party choice on primary day.

    Have you raised hell with the Texas legislature about your choice of party being publicly recorded?

  19. #17: As I recall, there was litigation against Washington’s blanket primary in the WA state courts as far back as the 1930s. The parties probably figured they also couldn’t win in the federal courts, plus the blanket primary was very popular with the voters.

    US district judge Burgess upheld WA’s blanket primary AFTER the US Supreme Court had struck down California’s blanket primary. The 9th circuit then reversed Burgess, and the Supreme Court refused to hear the state’s appeal.

    Richard #18: Doesn’t the five percent vote test for the November ballot only apply to candidates for the US Congress?

    California blanket primary: All candidates of all parties were listed on a single primary ballot. The top vote-getter from each party advanced to the general election, where any independents were also on the ballot.

  20. #19 Governor Locke could have read the Jones decision, particularly the Stevens dissent, and realized that “open” party primaries were subject to legal challenge, and realized that if they removed the crucial element, that of party nomination, as Justice Scalia suggested, they would be OK.

    Rules of the Idaho Republican Party require that only “registered” Republicans can vote in their primary. There are no registered Republicans in Idaho, since Idaho does not have party registration. So Idaho may not conduct a nominating primary for the Republicans, and it has no process by which internal nominating processes may be recognized. “Republican” candidates could run in the Democratic or Constitution primaries, or run as independents.

    Or if Idaho stopped running primaries, all candidates could run for office. The only element lacking is a majority requirement. Idaho already has non-partisan Top 2 primaries, where the top candidates advance to the general election (unless a candidate receives a majority). They could simply expand this procedure to other offices.

    In an open non-partisan primary, there is no need for party registration at all.

    The state of Texas does not maintain permanent records of party affiliations. The only reason that there are any records is to keep voters from voting in more than one primary, or crossing over in the runoff or signing the nominating petition of a candidate after they have already helped nominate a candidate for a particular office.

    BTW, I found an article from 2003, that said that Washington Democrats favored a closed primary.

  21. #20 Warren Magnuson was the attorney general who successfully defended the blanket primary.

    The political parties did not raise the issue of congressional elections until the appeal process, and so it was dismissed by Judge Coughenour.

  22. #7 “Why don’t the different parties pay for the primary? It is not the election. It is to see who will run in the election according to the different parties…”

    Is privatizing elections a good idea for our democracy?

    Party lovers think so, but I don’t. While SCOTUS allows parties substantial control over election administration, fortunately some public momentum is moving away from that idea.

    I think party administration of elections is unconstitutional. Art 1, sec 4, and Art. 2, sec 1 (w/ 12th Amd), put election administration in hands of state gov. In my purist opinion, to put elections in hands of private corporations, aka parties, violates this part of our Constitution.

    Second, how could anyone w/ democratic values trust private corporations to nominate candidates with the public interest at the top of their agenda? Doesn’t decades of experience prove the parties can’t do this?

    Prop 14 to the rescue! CA Prop 14 goes a long way in the right direction. That is, towards a state administered nonpartisan nomination and election process (which is what the Founders originally intended). Prop 14 takes control away from the private organizations – that’s why they oppose it. Access to the ballot is made easier for independent individuals, and the special privileges the parties once had are reduced. That’s why their supporters complain.

    Those private, self-serving organizations we call “political parties” still have too much power in our election process, but Prop 14 has started a momentum towards greater democracy. We should keep going in the right direction, and forget about expanding privatization.

  23. #7 RE Idaho, Salit says, “We are in the process of assessing the decision and will decide what course to follow.”

    I say sic Harry Kresky on ‘em! I’d like to see how the self-proclaimed ‘originalists’ now on SCOTUS would defend the two-party system when confronted w/ the anti-party writings of folks like Madison, Hamilton, Marshal, Jefferson, and Washington (see some of the quotes at

  24. Two-Party System Repression in Idaho

    In my view, personal integrity is unfairly burdened by closed primaries, or any primary that requires a person to declare party membership to qualify to participate.

    Here is the moral dilemma for the individual: If I agree with but three planks of the Repub 12 point platform, I may feel that I am being untrue to myself by declaring that “I am a Repub.” If I agree w/ 9 of the items in the Dem’s 12 point platform, and strongly disagree with three, how can I be true to myself if I declare myself “a Dem”? So, what is one to do? Keep one’s moral integrity, and be barred from participating in the democratic process? Or, violate one’s moral integrity and declare that one is “a Dem,” or “a Repub”?

    In California, 3.5M voters were denied the right to vote in primary elections because they remained true to themselves as “independent” thinkers. Now, Idahoans who remain true to their personal integrity will be faced w/ a dilemma they didn’t have before. Judge Winmill has taken away a substantial amount of individual freedom.

    To allow private organizations to control who votes in primaries, is to thrust upon the American people a “no win” choice – either be true to oneself, and lose the right to vote in a primary, or violate one’s moral integrity so as to exercise the right to vote.

    Isn’t this like a poll tax? Shouldn’t the right to vote be free of pressures on the voter’s personal moral integrity?

    How can the First Amd right of private organizations, like political parties, carry more Constitutional weight than the personal integrity of the individual? Isn’t freedom of thought and expression a greater individual right?

    Those Idahoan Repubs who brought this suit are Royal Hypocrites if they say they cherish “individual rights,” while demanding closed primaries at the same time.

    William J. Kelleher, Ph.D.

  25. The vast majority of democratic nations don’t have primaries at all. There is an election, period. It seems to work fine. Voter turnout in most other countries is significantly better than U.S. voter turnout.

    The U.S. seemed to get along fine without primaries in the years before 1910 or so.

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