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August 8th, 2010

Operation Chaos

By Nathan Tucker

Recently, Illinois Governor Pat Quinn used an amendatory veto to create an open primary system in his state.  Currently, Illinois operates a closed primary system in which voters must first register with a particular political party.  Once they have declared a political party, the poll worker will then provide them with a ballot listing the names of the candidates running to represent that party.

By preventing a Republican from voting for a Democrat, or an Independent for a Green Party candidate, the closed primary system ensures that the eventual party nominee is actually the person chosen by members of that party.  The majority of states currently operate some form of the closed primary, including Iowa and Illinois.

Under Quinn’s changes to Illinois law, voters would no longer be required to state which party they belong to, if any.  Under the illusion that voters are scared away from closed primaries because they would have to declare a party, Quinn argued that “Illinois’ not about professional politicians…We need to use a crowbar to open up the process and let people vote in a primary without disclosure of their party.”

Presumably, Illinois would only become a partially open primary because voters would still be required to vote only for one party’s slate of candidates up and down the ticket.  This would prevent, for instance, voters from voting for Republican candidates for governor and Secretary of State and Democrats for Lt. Governor (who, in Illinois, is selected by voters rather than the gubernatorial candidate) and Attorney General.

California voters, however, refused to share such restraint when they recently passed Proposition 14, better known as the Top Two Candidate Open Primary Act.  Under California’s new primary regime, all voters, even Independents, will receive the exact same ballot listing every single candidate for office.  Candidates will be designated with their party of choice, if they desire to list a party at all.

Unlike Illinois, voters in California will not be required to vote a straight party ticket but can instead vote for whichever party they desire for each office listed.  The two candidates who receive the most votes will then face each other in a run-off, regardless of party affiliation.  It is entirely plausible, therefore, that two Democrats could face each other in November for the governor’s mansion, or two Republicans would end up on the general election ballot for the same Congressional seat.

The changes Illinois and California have made to their primary systems are just the latest in a disturbing trend towards abridging the ability of people to associate together for the purpose of political speech and choosing their candidate as their spokesman.  The U.S. Supreme Court has long recognized the First Amendment rights of political parties to “associate with the persons whom they choose and to refrain from associating with persons whom they reject.”

As a part of this right of political speech and association, political parties have the right to choose and promote the “standard bearer who best represents the party’s ideologies and preferences.”  As Justice Scalia noted in a 2008 dissent, “The electorate’s perception of a political party’s beliefs is colored by its perception of those who support the party, and a party’s defining act is the selection of a candidate and advocacy of that candidate’s election by conferring upon him the party’s endorsement.”

But open primaries flagrantly deprive political parties of their constitutional right to ensure that only their members choose their standard bearer.  Under open primary schemes, a candidate can pick which party he wants to be affiliated with (even if they don’t want him because he is unrepresentative of their platform) and be made that party’s spokesman by voters who are not members of that political party.

Open primaries will also all but ensure that minor political parties such as the Libertarian, Green, and Constitution Parties will not be represented on the general election ballot come November because, in most case, their candidates will be unable to finish among the top two candidates in the primaries.  Without such access to the ballot box, the Federalist Party would never have given birth to the Whig Party, which in turn gave birth to the Republican Party.

The ability of like-minded individuals to join together to form a political party to select a standard bearer who, if elected, would work to implement their political ideology is a core right protected by the First Amendment.  It is imperative that courts vigorously protect that right by striking down open primary laws such as those in Illinois and California.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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