Pennsylvania has closed primaries. Senate Bill 357 would let independent voters choose which primary to vote in. According to this newspaper story, the bill has substantial support. So far it has not moved, and is in the Senate State Government Committee.
The newspaper story says the bill would set up an “open primary”, but that is not correct. “Open primary” has been defined in political science textbooks for over a century, and in U.S. Supreme Court opinions since 1972, as a system in which all voters may choose any party’s primary. Most southern states are open primary states. Typically, open primary states have a voter registration application that does not ask the applicant to choose a party, because there is no need for that information in an open primary system.
Here is the text of SB 357.
There is a more significant difference between the Pennsylvania bill and an open primary, not mentioned explicitly in Richard’s comments. Under the Pennsylvania proposal, persons registered with the ABC party could only vote in that party’s primary. In open primary states, persons who support the ABC party can vote in any primary they want.
Question: under current Supreme Court precedents, is it unconstitutional to force a party to allow independents to vote in its primaries? And is the answer to that question the same as the answer to whether it is unconstitutional to forbid a party from allowing independents to vote its primaries? For some reason, I can’t keep these rulings straight.
Prior to top two, California got around this issue by giving each party choice to allow independents.
The US Supreme Court ruled in 1986 in Tashjian v Republican Party of Ct that if a party wants to invite independents to vote in its primary, it may do so. The US Supreme Court hasn’t ruled on whether a party that doesn’t want to let independents vote in its primary has the right to block them. Lower courts have split. A US District Court in Idaho let the Republican Party block independents. But courts in Hawaii, South Carolina, and Montana have defeated lawsuits filed by political parties seeking to block independents in their primaries. Generally when parties lose these cases, the courts say there is no evidence that state law allowing independents to vote in primaries injures the parties.
Again-
Tashjian = one more MORON SCOTUS Op.
Parties = factions/fractions of PUBLIC Electors/Voters.
ALL [top 2 primary areas] or SOME [other areas] PUBLIC Electors nominate PUBLIC candidates for PUBLIC offices according to PUBLIC laws.
Much too difficult for SCOTUS HACKS to understand.
If you’re an “independent,” it is obviously hypocritical to want to vote in a party primary. Perhaps using the correct words would help? There is a big difference between being unaffiliated (No Party), and “independent.” Someone who is unaffiliated just hasn’t made their selection yet and thus the PA legislation is OK. We see lots of No Party registrations here in West Virginia due to Motor Voter whereby the party selection is left blank.
But, a true independent purposely chooses NOT TO affiliate.
Richard, thank you for the very helpful summary.
JB –
Any regime that has an *independents* and/or *unaffiliated* [ie de facto NON-partisan] line or column for primary candidates in *partisan* elections ???
@BR, RW,
The district court decision in Idaho was based on a belief that Democrats were voting in the Republican primary. Idaho used a pick-a-party primary where party affiliation is anonymous (similar to elections in Michigan, Wisconsin, Montana, and Hawaii where a voter marks a party on their secret ballot, or selects a party ballot, and discards the others).
In Idaho, the court discounted the Republican evidence because it was so weak. However, the defense for Idaho, explained that some voters picked a party for historical or ancestral reasons (they were Republicans because their father and grandfather were Republicans), but voted based on philosophical or political beliefs that were contrary to at least some party members (those who controlled the Idaho Republican party). The defense conceded that some Democrats or Democrat-leaning independents voted in the Republican primary. Idaho did not appeal the decision, and the legislature enacted partisan registration. Under the Idaho statutes, each party may choose which voters may vote in their primary. Idaho permits independents to affiliate on election day, so independents can become Republicans and vote in the Republican primary. Democrats permit Republicans to vote in their primary, so crypto-Democrats could register as Republicans and choose which primary they vote in. The Idaho Republican party is so dominate in some areas, that there are likely Democrat-leaning voters who register as Republicans in order to vote in decisive primaries.
Montana Repubicans and Hawaii Democrats have not cited the Idaho case even though they are all in the 9th Circuit,
A Washington district court, affirmed by the 9th Circuit, determined that voters thought of themselves as Democrats or Republicans, even though they never made a public declaration, and therefore could cross over on individual races. This was in the follow-on to ‘California Democratic Party v Jones’. This would seem to be contrary to the Idaho decision, unless one concludes that voter behavior is different in blanket primaries than pick-a-party primaries.
A district court in Arizona concluded that Libertarians could keep independents out of their primary, but then the SOS determined that independents could not sign Libertarian candidate petitions. This made it hard to find signers, so the Libertarians opened their primary to independents, The legislature then changed the petition requirement to be based on potential signers.
The fundamental problem is that when the state sponsors and recognizes partisan nominations it inextricably entangles itself in party matters and interferes with freedom of associate. In many states, it requires that voters declare their political beliefs before they are permitted to vote.
Eliminate partisan nominations and this conflict is resolved. Individuals can organize to recruit and promote candidates freely.