South Carolina GOP Files Suit vs. Open Primary Law

On June 1, the South Carolina Republican Party and its Greenville County affiliate filed suit in U. S. district court against the state law that enables each voter to pick a party on primary day. The GOP wants to be able to block non-Republicans from voting in Republican primaries (Greenville County Republican Party v. State of South Carolina and Hudgens, 6:10-cv-1407-HFF).

Parties in the Palmetto State must pay the costs of their municipal primaries. The Republicans' lawsuit argues that this is a good reason for the party to be able to decide who is eligible to vote in its municipal primaries (less than 10 South Carolina municipalities still use party primaries in electing their city officials; the rest have nonpartisan elections, in which all candidates are listed on a single ballot).

The suit also attacks the "three-fourths rule." For federal, state, and county offices, parties may nominate by convention instead of primary; the law requires a three-fourths convention vote to trigger a nominating convention. The Republicans would seem to have a better chance of having this law struck down than the open primary law. The court(s) may well strike down the three-fourths rule and tell the party that, if it wants a closed process, it can choose by a simple majority to nominate by convention instead of primary (see Miller v. Cunningham, 2007).

"[The Republicans said the] lawsuit is aimed at forcing the Legislature to require voters to register by party before voting in primary elections."

"[Greenville County GOP chairman Patrick] Haddon said the party ultimately hopes the Legislature will force party registration as far in advance as 90 days."

It's worth noting that, in every state where at least one party excludes some voters from its primaries, the state registers voters by party. It's up to the state as to (1) whether there is registration by party, and (2) what the deadlines for registering are. Some states even let people register at the polls on primary day and vote in the primary of their new party.

"It's unclear how the proposal would affect people who vote in Republican primaries but consider themselves political independents."

In 1986, the U. S. Supreme Court empowered parties to invite independents to vote in their primaries (Tashjian v. Republican Party of Connecticut). Thus, if South Carolina's open primary law were struck down, each party would be able to decide whether independents were eligible to vote in its primaries.

Unless state law prohibits it, a party may even invite members of opposing parties to vote in its primaries-- which the South Carolina Republicans obviously won't do (Clingman v. Beaver, 2005).

In May 2008, the 5th U. S. Circuit Court of Appeals in New Orleans reversed the district court and dismissed the lawsuit against Mississippi's open primary law (Mississippi Democratic Party v. Barbour, 07-60667). The reason for this was that the Democrats had not adopted a rule for a closed primary. The South Carolina Republicans have apparently also not ratified such a rule.

The trial in the challenge to Idaho's open primary law is scheduled to start on October 12, 2010 in the U. S. district court in Boise (Idaho Republican Party v. Ysursa, 08-cv-165). Parties in the Gem State have no nominating option other than the primary.

Here's a brief audio of Chairman Haddon talking about the South Carolina lawsuit (a ruling from the 4th U. S. Circuit Court of Appeals, of course, can be appealed to the U. S. Supreme Court, which has never yet reviewed an open primary case).