The Montana Republican Party filed a lawsuit last year, arguing that Montana’s open primary violates freedom of association for itself. Oral arguments are set for November 19, 2015. On October 23, the party filed its reply brief. That brief insists that if Montana requires parties to nominate by primary, then the state is obliged to set up registration by party on the voter registration forms.
The brief says, “The State’s refusal to register party affiliation severely burdens the ability of the Montana Republican Party to reach its members during the primary elections…by forcing the Party to participate in a state-run primary, the State removes the authority to select Party nominees from a small number of Party delegates to an electorate consisting of all of Montana’s 626,000 voters, all of whom are eligible to vote in its primary…the Party cannot identify its members amongst these 626,000 voters…Because the State’s mandatory open primary system severely burdens the Party’s constitutional right to identify its members, the State is obliged to ameliorate this burden by registering voters’ party affiliation.”
The party also says, “The State claims the Party ‘has apparently chosen not to create or maintain an official membership roll.’ This is false. The Party has attempted for decades to generate a list of its voters, but cannot create an accurate one.”
As far as is known, no party has ever asserted in a lawsuit that the U.S. Constitution requires a state to put a question about party membership on voter registration forms, if that state requires parties to nominate by primary. The claim that the party “cannot” create its own list of members seems unconvincing. Parties all over the world manage to build a membership list, without the help of government.
In Idaho, wouldn’t you have to be a card carrying Republican member to vote in their primary. The Republicans in Montana could just pay for their own primary and decide who votes.
In Montana, primary voters are given a ballot for each party. They fill out one and place it in the ballot box, and discard the others.
It seems like a party could provide a list of voters who may not receive their ballot and give that to election officials. They could simply take the voting roll for a precinct, and cross through names of persons they know are not Republicans, or at least suspect are not Republicans.
But that would require legislation, and most Montana legislators like the system the way it is.
Imposing party registration requires legislation. There is no way that a federal court will require partisan registration. In Idaho, the legislature acted after the federal court ruled. In Idaho the Republicans had an overwhelming majority, and had the governor. The state did not appeal the decision.
In Montana, Republicans only have a 29:21 majority in the senate – and much of the party complaint is that RINO senators give the Democrats effective control. Plus Montana has a Democratic governor.
A federal court could:
(0) Uphold the current system.
(1) Enjoin partisan primaries. The independent nomination process is still available, and parties and voters may organize to support independent candidates. This protects association rights of candidates, voters, and parties.
(2) Enjoin the Republican primary. Let would-be Republican candidates run as independents.
(3) Implement system where a party can exclude selected voters. A court isn’t going to take seriously the claim that the Republicans can’t tell who the Republicans are so the government has to tell them. A court could reasonably tell the Republicans to identify persons they don’t want voting in their primary. This preserves the system enacted by the legislature, and protects ballot secrecy.
Montana tried to pass legislation before that would allow registration by party, but it got killed because Independents then wouldn’t be allowed to vote in the primary. It’s time to end the primary system once and for all.
The court could also keep things exactly as they are but say that Montana must allow political parties to opt out of the primary and decide its nominees some other way.
Republicans like a tax supported primary as long as they control the rules. One year Republicans tried a presidential caucus and found out what that process costs in terms of time and money. The Republicans went back to using the primary.