Open Primaries

March 22, 2016

For many years—decades, probably—the notion of open primaries has fascinated me. Why, I have wondered, should someone who chooses not to be affiliated with a particular party, or any party, get to choose that party’s candidate for any office?

The Grand Old Party aka the Republican Party raised this issue in Ravalli Republican Central Committee, etc. v. Linda McCullough, Secretary of State of Montana, etc., before the U.S. Supreme Court. And it’s about damn time it has happened. Here’s the Emergency Application for Injunction, and here is Lyle Denniston’s analysis, Montana GOP Challenges Cross-Over Voters, at

Frankly, I’m shocked, shocked by the fact that issue has never been addressed by the U.S. Supreme Court. Political parties are found nowhere in the U.S. Constitution. For sure, we have a tradition which involves two major parties, but they exist in no significant way within the law. And, to the extent by which they exist at all under the law, parties are voluntary associations of individuals with which anyone can associate. But, and this is the really important part, you have to associate! Nowhere in the U.S. Constitution is there a reference to a right of association. However, in N.A.A.C.P. v. Alabama (1958) the U.S. Supreme Court, unanimously, held that the speech and assembly freedoms set forth in the First Amendment to the Constitution imply a right to associate freely.

Parties are efficient, without doubt. By having them, and only two which really matter, we have manageable ballots. Our form of democracy would work not well at all if we had the several parties which exist in Israel and in several EU countries.

The government does support parties. Voter registration involves choosing a party (or not). Primary elections are, in the main, paid for by governmental bodies. (Some states pass on funding presidential primaries, but for other federal and all state and local offices, publicly funded primary elections are the rule.)

Notwithstanding the governmental role, parties are associations of individuals. Anyone can associate, by registering, but the notion that someone can be “independent” and pick and choose among party primary ballots makes little sense. No more sensible are rules which allow a D to vote in the R primary, or vice versa.

The rationale I hear is that someone who chooses to register as an Independent gives up something if she or he cannot vote in a party primary. Sure! Absolutely! And so what? If you want to have a say about the identity of a particular party’s candidate, associate by registering.

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