Open primary
Encyclopedia
An open primary is a primary election
that does not require voters to be affiliated with a political party
in order to vote for partisan candidates. In a traditional open primary, voters may select one party's ballot and vote for that party's nomination. As in a closed primary, the highest voted candidate in each party then proceeds to the runoff election. In a nonpartisan blanket primary, all candidates appear on the same ballot and the two highest voted candidates proceed to the runoff, regardless of party affiliation. The constitutionality
of this system was affirmed by the Supreme Court of the United States
in 2008, whereas a partisan blanket primary
was previously ruled to be unconstitutional in 2000.
. First, the open primary allows nonpartisan
or independent
voters to participate in the nominating
process. If these voters are allowed to help select the nominees then they may be more likely to vote in the general election, since one of the candidates could be someone the non-partisan voter voted for. Also, a moderate
member of one party may agree more with a candidate for the nomination of another party. This voter will have more of an incentive to participate in the general election
if there is a nominee whom he or she agrees with.
The open primary could also be viewed as bad for voter participation. Statistics show that voter participation in the United States
was higher when people could only vote in the primary for their own party. In Hawaii
, primary voter turnout fell from 74.6% in 1978 to 42.2% in 2006 after changing to open primaries. The closed primary system had more of an incentive for people to join one of the major parties. This led to people being more involved in the voting process. With the open primary, some argue, more voters become independent and are less likely to participate in the nominating or election processes.
Opponents of the open primary believe that the open primary leaves the party nominations vulnerable to manipulation and dilution. First, one party could organize its voters to vote in the other party's primary and choose the candidate that they most agree with or that they think their party could most easily defeat. Secondly, in the open primary moderates and independent voters can vote in either party. This occurrence may dilute the vote of a particular party and lead to a nominee who does not represent the views of his particular party.
For example, in the 2008 presidential primaries
, exit polls say John McCain
failed to win a single race among Republican
voters, up to Super Tuesday, yet during that same period he went from also-ran to front runner, because most non-Republicans who crossed over voted for him. In New Hampshire, Mitt Romney won among registered Republicans, but John McCain won overall http://www.cnn.com/ELECTION/2008/primaries/results/epolls/index.html#NHREP. Likewise, in South Carolina, Mike Huckabee won among self-identified Republicans, but John McCain won the state http://www.msnbc.msn.com/id/21228202.
Similarly, some Republican advocates called for Republicans to cross over and vote in the Democratic race, to help Hillary Clinton win, on the premise that Obama had a better chance of beating their candidate. The Rush Limbaugh Show
's "Operation Chaos" is the best known of these movements.
. These opponents believe that the open primary law violates their freedom of association
, because it forces them to allow outsiders to select their candidates.
Freedom of association has been recognized by the United States Supreme Court
. First, in NAACP v. Alabama, the court said that “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fifth and Fourteenth Amendment
, which embraces freedom of speech.”
In other words, the freedom of association is part of the freedom of speech. The freedom of speech
, which is found in the First Amendment to the United States Constitution
, is applied to the states through the fourteenth amendment. In Gitlow v. New York
, Justice Sanford states that “[f]or present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
This constitutionality raises a problem. The most popular alternative to the open primary is the closed primary. However, the closed primary can also be construed as unconstitutional. In Tashjian v. Republican Party of Connecticut, the United States Supreme Court determined that Connecticut
’s closed primary law was unconstitutional. The Connecticut closed primary law “[required] voters in any political party primary to be registered members of that party.” The Republican Party
of Connecticut, however, wanted to allow independents to vote in the Republican primary if they so chose. The problem with this closed primary law was that it prevented the Republican Party from allowing independent “registered voters not affiliated with any party to vote in Republican primaries for federal and statewide offices.” Since the Republican Party of Connecticut was not able to choose who it wanted to vote in the primary, the United States Supreme Court, in a 6-3 decision, stated that the closed primary law in Connecticut “impermissibly burdens the right of the Party and its members protected by the First and Fourteenth Amendments.”
On October 1, 2007, the U.S. Court of Appeals
for the Fourth Circuit ruled that the Virginia mandatory open primary statute was unconstitutional as applied to the Republicans because it imposed a burden on their freedom to associate under the First Amendment, although it explicitly did not rule on the question of whether an open primary law was in general unconstitutional as a burden on association.
A third alternative is the "modified closed primary", as has been in effect in California
since 2001. In California's primary, each political party may decide whether or not they wish to allow unaffiliated voters to vote in their party's primary. This appears to avoid the constitutional flaws of both the "open" and the "closed" primary as discussed above. In the 2004 and 2006 primary elections, the Republican, Democratic, and American Independent
parties all opted to allow unaffiliated voters to request their party's ballot. However, for the 2008 presidential primary election, only the Democratic
and American Independent parties took this option, while the Republican party did not.
for state and local elections since 1976, and began to be used in Washington, after numerous court challenges, in 2008.
In California, under Proposition 14, a measure that easily passed, traditional party primaries will be replaced in 2011 with wide-open elections. Proposition 14, known as the open primary measure, will give every voter the same ballot in primary elections for most state and federal races, except the presidential contest.
Primary election
A primary election is an election in which party members or voters select candidates for a subsequent election. Primary elections are one means by which a political party nominates candidates for the next general election....
that does not require voters to be affiliated with a political party
Political party
A political party is a political organization that typically seeks to influence government policy, usually by nominating their own candidates and trying to seat them in political office. Parties participate in electoral campaigns, educational outreach or protest actions...
in order to vote for partisan candidates. In a traditional open primary, voters may select one party's ballot and vote for that party's nomination. As in a closed primary, the highest voted candidate in each party then proceeds to the runoff election. In a nonpartisan blanket primary, all candidates appear on the same ballot and the two highest voted candidates proceed to the runoff, regardless of party affiliation. The constitutionality
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
of this system was affirmed by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in 2008, whereas a partisan blanket primary
Blanket primary
The blanket primary is a system used for selecting political party candidates in a primary election in the USA. In a blanket primary, voters may pick one candidate for each office without regard to party lines; for instance, a voter might select a Democratic candidate for governor and a Republican...
was previously ruled to be unconstitutional in 2000.
Voter participation
The open primary could be seen as good for voter participationVoter turnout
Voter turnout is the percentage of eligible voters who cast a ballot in an election . After increasing for many decades, there has been a trend of decreasing voter turnout in most established democracies since the 1960s...
. First, the open primary allows nonpartisan
Nonpartisan
In political science, nonpartisan denotes an election, event, organization or person in which there is no formally declared association with a political party affiliation....
or independent
Independent (voter)
An independent voter, those who register as an unaffiliated voter in the United States, is a voter of a democratic country who does not align him- or herself with a political party...
voters to participate in the nominating
Nomination
Nomination is part of the process of selecting a candidate for either election to an office, or the bestowing of an honor or award.In the context of elections for public office, a candidate who has been selected by a political party is normally said to be the nominee of that party...
process. If these voters are allowed to help select the nominees then they may be more likely to vote in the general election, since one of the candidates could be someone the non-partisan voter voted for. Also, a moderate
Moderate
In politics and religion, a moderate is an individual who is not extreme, partisan or radical. In recent years, political moderates has gained traction as a buzzword....
member of one party may agree more with a candidate for the nomination of another party. This voter will have more of an incentive to participate in the general election
General election
In a parliamentary political system, a general election is an election in which all or most members of a given political body are chosen. The term is usually used to refer to elections held for a nation's primary legislative body, as distinguished from by-elections and local elections.The term...
if there is a nominee whom he or she agrees with.
The open primary could also be viewed as bad for voter participation. Statistics show that voter participation in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
was higher when people could only vote in the primary for their own party. In Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, primary voter turnout fell from 74.6% in 1978 to 42.2% in 2006 after changing to open primaries. The closed primary system had more of an incentive for people to join one of the major parties. This led to people being more involved in the voting process. With the open primary, some argue, more voters become independent and are less likely to participate in the nominating or election processes.
Manipulation and dilution
For example, in the 2008 presidential primaries
Republican Party (United States) presidential primaries, 2008
The 2008 Republican presidential primaries were the selection process by which voters of the Republican Party chose its nominee for President of the United States in the 2008 U.S. presidential election...
, exit polls say John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
failed to win a single race among Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
voters, up to Super Tuesday, yet during that same period he went from also-ran to front runner, because most non-Republicans who crossed over voted for him. In New Hampshire, Mitt Romney won among registered Republicans, but John McCain won overall http://www.cnn.com/ELECTION/2008/primaries/results/epolls/index.html#NHREP. Likewise, in South Carolina, Mike Huckabee won among self-identified Republicans, but John McCain won the state http://www.msnbc.msn.com/id/21228202.
Similarly, some Republican advocates called for Republicans to cross over and vote in the Democratic race, to help Hillary Clinton win, on the premise that Obama had a better chance of beating their candidate. The Rush Limbaugh Show
The Rush Limbaugh Show
The Rush Limbaugh Show is an American talk radio show hosted by Rush Limbaugh on Premiere Radio Networks...
's "Operation Chaos" is the best known of these movements.
Constitutional issues
Opponents of the open primary argue that the open primary is unconstitutionalConstitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
. These opponents believe that the open primary law violates their freedom of association
Freedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
, because it forces them to allow outsiders to select their candidates.
Freedom of association has been recognized by the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. First, in NAACP v. Alabama, the court said that “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fifth and Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, which embraces freedom of speech.”
In other words, the freedom of association is part of the freedom of speech. The freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, which is found in the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
, is applied to the states through the fourteenth amendment. In Gitlow v. New York
Gitlow v. New York
Gitlow v. New York, , was a decision by the United States Supreme Court, which ruled that the Fourteenth Amendment to the United States Constitution had extended the reach of certain provisions of the First Amendment—specifically the provisions protecting freedom of speech and freedom of the...
, Justice Sanford states that “[f]or present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
This constitutionality raises a problem. The most popular alternative to the open primary is the closed primary. However, the closed primary can also be construed as unconstitutional. In Tashjian v. Republican Party of Connecticut, the United States Supreme Court determined that Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...
’s closed primary law was unconstitutional. The Connecticut closed primary law “[required] voters in any political party primary to be registered members of that party.” The Republican Party
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
of Connecticut, however, wanted to allow independents to vote in the Republican primary if they so chose. The problem with this closed primary law was that it prevented the Republican Party from allowing independent “registered voters not affiliated with any party to vote in Republican primaries for federal and statewide offices.” Since the Republican Party of Connecticut was not able to choose who it wanted to vote in the primary, the United States Supreme Court, in a 6-3 decision, stated that the closed primary law in Connecticut “impermissibly burdens the right of the Party and its members protected by the First and Fourteenth Amendments.”
On October 1, 2007, the U.S. Court of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
for the Fourth Circuit ruled that the Virginia mandatory open primary statute was unconstitutional as applied to the Republicans because it imposed a burden on their freedom to associate under the First Amendment, although it explicitly did not rule on the question of whether an open primary law was in general unconstitutional as a burden on association.
Alternatives
The alternative most supported by opponents of the open primary is the closed primary.A third alternative is the "modified closed primary", as has been in effect in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
since 2001. In California's primary, each political party may decide whether or not they wish to allow unaffiliated voters to vote in their party's primary. This appears to avoid the constitutional flaws of both the "open" and the "closed" primary as discussed above. In the 2004 and 2006 primary elections, the Republican, Democratic, and American Independent
American Independent Party
The American Independent Party is a right-wing political party of the United States that was established in 1967 by Bill and Eileen Shearer. In 1968, the American Independent Party nominated George C. Wallace as its presidential candidate and retired Air Force General Curtis E. LeMay as the vice...
parties all opted to allow unaffiliated voters to request their party's ballot. However, for the 2008 presidential primary election, only the Democratic
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
and American Independent parties took this option, while the Republican party did not.
States with an open presidential primary
- AlabamaAlabamaAlabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...
- ArizonaArizonaArizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
(Semi-closed, with primaries open only to unaffiliated or unrepresented voters, except for the Libertarian primary.) - ArkansasArkansasArkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...
- GeorgiaGeorgia (U.S. state)Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
- HawaiiHawaiiHawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
(Open primary for state, local, and congressional races; caucus system for presidential races.) - IdahoIdahoIdaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....
- IndianaIndianaIndiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...
- MassachusettsMassachusettsThe Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
(All races' primaries open for "unenrolled"/unaffiliated voters only) - MichiganMichiganMichigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....
- MinnesotaMinnesotaMinnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...
- MississippiMississippiMississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...
- MissouriMissouriMissouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
- New HampshireNew HampshireNew Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...
- North DakotaNorth DakotaNorth Dakota is a state located in the Midwestern region of the United States of America, along the Canadian border. The state is bordered by Canada to the north, Minnesota to the east, South Dakota to the south and Montana to the west. North Dakota is the 19th-largest state by area in the U.S....
- South CarolinaSouth CarolinaSouth Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...
- TennesseeTennesseeTennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...
- TexasTexasTexas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
- VermontVermontVermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
- VirginiaVirginiaThe Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
- WisconsinWisconsinWisconsin is a U.S. state located in the north-central United States and is part of the Midwest. It is bordered by Minnesota to the west, Iowa to the southwest, Illinois to the south, Lake Michigan to the east, Michigan to the northeast, and Lake Superior to the north. Wisconsin's capital is...
States with open primaries for other elections
A similar system known as a nonpartisan blanket primary has been used in LouisianaLouisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
for state and local elections since 1976, and began to be used in Washington, after numerous court challenges, in 2008.
In California, under Proposition 14, a measure that easily passed, traditional party primaries will be replaced in 2011 with wide-open elections. Proposition 14, known as the open primary measure, will give every voter the same ballot in primary elections for most state and federal races, except the presidential contest.