Why the Mississippi Democrats' Lawsuit Will Likely Win

California's blanket primary: All candidates of all parties were listed on the same ballot, and the top vote-getter from each party advanced to the general election. Thus, the voter could vote for a candidate of one party for one office, and a candidate of another party for another office.

Open primary: The party's primary ballot is available to any voter who requests it. Each voter, of course, may participate in only one party's primary.

Semi-closed primary: Some non-members are allowed to vote in a party's primary and others are excluded. In practice, it is independents who are allowed and members of opposing parties who are excluded.

In almost every state, the two major parties have the same type of primary-- though there are several exceptions to this. ~~SteveR

George Will's column of April 29, 2000:

WASHINGTON-- The U. S. Supreme Court last week heard arguments in a case [California Democratic Party v. Jones] that, if correctly decided, will strengthen First Amendment freedoms of speech and association and demonstrate that much of John McCain's strength in the primaries was made possible by state election laws inimical to those freedoms.

The question at issue is whether California's "blanket" primary abridges the freedom of individuals to associate in political parties that serve as their right to express their chosen philosophies.

In closed primaries, only registered members of a party can vote.

In open primaries, any registered voter can get any party's ballot.

In blanket primaries, no party has its own [separate] ballot or primary.

[Note: As you might imagine, I prefer my definitions (at the top of the page) to Mr. Will's. It's possible for only one major party in a state to have an open primary, as in Utah. And it's indeed possible, as in Alaska, for one major party to have its own separate primary ballot, while the other major party joins in a blanket primary ballot with one or more other parties.]

On a "blanket" ballot, voters can choose among all parties' candidates for each office. All candidates of all parties for a particular office are listed together under that office.

The Republican who gets the most votes among Republican candidates gets the party's line on the general election ballot, and so with candidates of all other parties. (California treats only presidential primaries differently: ballots are coded, and only votes of registered party members count in the allocation of national convention delegates.)

Californians want the blanket primary: They established it by initiative with 60 percent of their votes [in March 1996].

However, constitutionalism limits the wants that are permissible. As the Supreme Court has said, the purpose of the Bill of Rights is to put some things "beyond the reach of majorities"-- things like First Amendment freedoms.

Four California parties-- Democratic, Republican, Libertarian, and Peace and Freedom-- last week told the court that the blanket primary annihilates their freedom to associate for the expressive purpose of advocating their political philosophies.

It does so by stripping party members of control of the selection of their candidates and hence of their message.

In a blanket primary, a party's nomination can be won by a candidate other than the one who gets a majority of the party members' votes.

The court has said states can require parties to select candidates by primaries but do not have carte blanche to dictate the nature of the primaries (italics added). [Note: Actually, no federal court has ever said that states may require parties to nominate by primary.]

Proponents of blanket primaries say that by enabling lightly committed, barely partisan voters to opt for any candidate, they produce more "moderate," less ideological nominees.

Opponents say that even if it were (which it is not) obviously good to blur the philosophical clarity and dampen the ideological warmth of parties, government has no right to break parties to the saddle of such a state-imposed orthodoxy-- to mandate a primary the purpose of which is to change the nature of the parties' speech.

Proponents say that by multiplying choices, blanket primaries increase voter participation.

Indeed, California's assistant attorney general defended the blanket primary by asserting: "The more people you have voting, the more representative the candidates are going to be."

The court might flinch from ruling against blanket primaries because such a decision would have serious implications for the 21 states that have open primaries (italics added). It should not flinch.

If a blanket primary is (as the lawyer for California's Democratic Party says) "a free-love nominating system where (voters) go from party to party and no one has to declare any fidelity," an open primary is comparable (italics added).

For many voters, such as many Democrats and independents who gave McCain victories in New Hampshire's and Michigan's open Republican primaries, open primaries are one-night stands. [Note: New Hampshire actually has semi-closed primaries: there is voter registration by party, and independents may vote in either the Republican or the Democratic primary. Democrats and Republicans, however, must stick with their own parties.]

But blanket and open primaries force party members to associate with persons indifferent or hostile to the aims that party members join together in order to advocate (italics added).

Whatever can be said in support of California's desire to pump up the turnout in primaries, that desire cannot trump First Amendment freedoms.

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On June 26, 2000, by a vote of 7 to 2, the U. S. Supreme Court struck down California's blanket primary law. It is on this ruling that subsequent federal lawsuits against state-mandated open primaries have been largely based.

UPDATE (5/31/08): Miller v. Cunningham: In December 2007, in a suit brought by a local unit of the Virginia Republican Party, the 4th U. S. Circuit Court of Appeals held that there is a circumstance in which a state may not require an open primary (this case was originally called Miller v. Brown). The deadline has passed with no appeal being filed to the U. S. Supreme Court.

On April 11, 2008, Idaho Republican Party v. Ysursa was filed in U. S. district court. This suit challenges the Gem State's open primary law.

On May 28, 2008, the 5th U. S. Circuit Court of Appeals in New Orleans reversed the district court, which had held Mississippi's open primary law to be unconstitutional. The 5th Circuit dismissed the suit on procedural grounds. Mississippi Democratic Party v. Barbour, 07-60667