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| OPEN SEASON | |
 February 2000 
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Are open primaries a fair means of choosing a party's nominee? Louisiana State Law Professor John Baker and University of Iowa Political Science Professor Rebecca Morton answer your questions. |
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Kathleen
Eichmeier of Oakland, CA, asks: I'm very frustrated with the California primary process. I voted for an open primary, but it's become nothing more than a "beauty contest." I would like to see McCain and Gore face off in the general election, and would vote for McCain in the primary if my Democratic vote would do any good. Democrats can only support McCain's candidacy through contributions of time and money -- I can't cast a vote that will count. In the end, it is registered Republicans who will decide. Can the experts explain why the system is structured this way?
Rebecca
Morton responds: The reason for California's strange presidential primary is a consequence of our federal system of electoral regulation. The U.S. Constitution leaves much of the regulation of the electoral process to the discretion of the states. Since the Supreme Court outlawed whites-only primaries in the south, primary elections have been seen as an integral part of that electoral process and states have been allowed to regulate participation in those elections as long as these regulations do not violate particular constitutional guarantees and rights. Yet, significant differences across states exist in the openness of primaries as noted above. Political parties have sometimes challenged open primaries as restricting their rights of political association and a lack of compelling state interest. California's recent change to an open primary has also been subjected to such challenges and the case will soon be argued before the U.S. Supreme Court. While it is unclear how the Court will rule on the constitutionality of California's new open primary law in general, previous Supreme Court rulings do suggest that in disputes between national parties and state regulations of presidential primaries, the Court has held in favor of the national parties. Most noteworthy, in 1980 Wisconsin held an open presidential primary and state law required that the delegates vote at the national convention in accord with the results of the primary. But the Democratic National Party indicated it would not seat the Wisconsin delegates since open primaries violated national party rules. The Supreme Court, in Democratic Party of United States v. Wisconsin ex rel. La Follette, declined to enforce the Wisconsin law. The Court noted the extraterritorial nature of Wisconsin's attempt to regulate the Democratic National Convention and pointed out that a single state lacks the power to purport to engage in extraterritorial regulation of a presidential ejection that is uniquely national in scope. Because of this ruling, California elected officials were worried about a possible problem if they held their presidential primary as an open primary. What if the national conventions refused to seat the delegates since they were elected by an open primary? Thus, California officials devised the procedure of coding the ballots by party affiliation of the voter so that the parties could calculate votes for delegates based solely on the votes of party members. John
Baker responds: Kathleen, with political pluralism (See Response No. 1) comes the constitutionally guaranteed First Amendment right of association. If a group of people want to advance a particular political agenda, they have the right to gather together for that common purpose (as long as their purpose is not to commit a crime). In order to succeed politically, of course, they cannot be too exclusive due to their need to attract others who support their aims. Having worked to establish the vehicle to accomplish those aims, however, they are also likely to be vigilant to prevent the organization from being redirected towards purposes fundamentally opposed to the mission of the party. Predictably, therefore, the Democratic Party will resist policies viewed as anti-labor union and the Republican Party will resist proposals for increased taxation. Every viable party is interested in self-preservation. It preserves its form of association through some process -- whether party primaries, caucuses, or "smoke-filled rooms" -- designed to assure selection of candidates bearing the party's name who are committed to its basic policies. Party primaries, while more open to participation than "smoke-filled rooms," are not as open as open primaries. Open primaries, however, make the parties much less viable as organizations. Why should anyone join -- much less volunteer to work -- when the privileges of membership are no different from non-membership? While you may like McCain, it appears that that is not sufficient to cause you to change your party registration from Democrat to Republican. Maybe you are ambivalent at best about the existing parties or are even inclined to oppose the existence of parties altogether. Our Constitution certainly protects your right to selectively support any party, just as it protects the right of others -- even against a majority vote -- to organize strong parties, if that is possible. The media have wittingly or unwittingly often portrayed party politics as undemocratic by giving great play to "outsider" candidates such as, McCain, Bradley, Ventura and Perot. The message of the medium is that parties are not sufficiently responsive to the views of a majority within the party. In fact, of course, a party over time necessarily reflects the views of the majority of its members: if the leadership does not respond to changes of opinion among its members, it will lose membership. A party faced with changing views among its membership will continue to reflect the views of its members -- either because it changes its leaders and/or its policies or because it retains only those members who continue to support its unchanged policies.
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