Primary Elections, Freedom of Association, etc.

In May 23, 2005, the United States Supreme Court handed down its latest decision involving primary elections. In the case of Clingman v. Beaver (No. 04-37), the Court again visited issues related to the regulation of primary elections, including who may properly be permitted, or prohibited, to vote in such an election.

At issue in Clingman was whether the State of Oklahoma could properly prohibit registered voters of one political party from voting in the primary election of another political party. The Libertarian Party of Oklahoma (LPO) had requested that its primary election be open to voters registered with other political parties, such as Democrats and Republicans.

While Oklahoma law permits the political parties to open their primary elections to independent voters, Oklahoma refused the request by the LPO due the restriction in state law prohibiting political parties from opening their primaries to registered partisans.

As noted by Justice John Paul Stevens, one can make a compelling argument that the Court's majority was wrong in upholding the Oklahoma statute. Justice Steven's dissent, as well as the opinion of the Tenth Circuit Court of Appeals, makes a strong case that political parties ought to be permitted to invite whomever they wish to participate in the primary election. Based on the application of associational rights, if the LPO wished to allow voters registered with other political parties to participate in its nomination process, then they should be afforded the ability to do so, Stevens and the lower court argued. Of course, the majority disagreed.

Clingman is the most recent in a line of cases analyzing the nexus between associational rights and the right to vote in primary elections. In this context, it's interesting to note the general assumptions that are explicit or implicit to these rulings.

First, though, a quick review of the U.S. Supreme Court's major cases over the years in this area. Independent voters do not have a right to vote in closed primary election unless a political party expressly invites their participation [Nader v. Schaffer, 417 F. Supp. 837 (Conn.), summarily aff'd, 429 US 989 (1976)]. A political party has the right to invite independent voters to participate in its primary election if it so chooses [Tashjian v. Republican Party of Connecticut, 479 US 208 (1986)]. Conversely, a state cannot require a political party to conduct an open primary; the party has a right to exclude independent voters [Democratic Party v. Wisconsin ex rel. LaFollette, 450 US 107 (1981)]. Along these same lines, a state cannot require a political party to select its candidates in a blanket primary, since such a primary would permit voters unaffiliated with a party to participate in the selection of that party's candidates [Democratic Party v. Jones, 530 US 567 (2000)].

However, while acknowledging that political party members have associational rights that can be applied to primary elections, the Court has found that states may limit these rights due to their interest in ensuring the viablity and ideological purity of political parties, in addition to providing for stability of the political system. Thus, the Court most recently indicated that political parties do not have an absolute right to determine who may participate in its primary. As noted above, the Court, in Clingman stated that a state can preclude registered voters of one party from voting in the primary election of another party.

The common theme to these cases is that primary elections are political party functions and thus the primaries should further the purposes of the political parties. However, these cases have arisen in states that have incorporated party registration into its voter registration system. Individuals in these states are required to declare a political party affiliation when registering to vote or declare themselves as 'independent.'

One obvious observation of this case history is that states, with the Supreme Court's help, have created a subsidized nomination process for political parties and thus puts the power of the state (including the power benefit from taxes paid) at the service of the political parties. Secondly, the Court has not clearly addressed the application of associational rights to open primaries in states with no party registration requirement.

In states like Alabama, voters do not declare any party affiliation when they register to vote. The only time a voter is required to affiliate with a political party is on primary election day. Thus, the formal affiliation between voter and party lasts for a relatively minute amount of time. Should such a brief affiliation provide the basis for restricting a voter's choices on primary election day? Is such a brief affiliation meaningful at all?

In Democratic Party v. Jones, the Court stated that "[a]s for the associational 'interest' in selecting the candidate of a group to which one does not belong, that falls far short of a constitutional right, if indeed it can even fairly be characterized as an interest. It has been described in our cases as a 'desire' ..." [544 US 573–574, note 5].

Following this logic, no Alabamian has a 'right' to participate in a primary election if political party registration is the evidence of membership in a political party and, thus, the basis of the associational rights that permits the state to constitutionally limit the choices of a voter on primary election day. It would appear that Alabamians merely have merely an 'associational desire' on which to base their voting in a primary election.

Should such a 'desire' be the foundation for herding voters toward a Democratic Party primary ballot or a Republican Party primary ballot? The case history of associational rights and primary elections would suggest that the open primary in Alabama should be examined to determine if a legitimate basis exists for restricting a voter's choice in a state-subsidized nomination process.