by Nathan Pittman
Recently, Idaho Democrats reaffirmed their commitment to an open primary, which allows any elector to choose that party’s ballot (and only that party’s ballot) in the primary election. Any voter in Idaho may choose to participate in the Democratic Party’s primary. This means that Democrats and unaffiliateds may vote in the primary, because a Republican choosing to vote in the Democratic primary would forego their right to participate in the Republican primary under Idaho law. The Democratic Party’s commitment to an open primary is significant, because it means that Idaho has both a closed and an open primary.
The transition to this semi-open primary system has been rocky in the Gem State. It began in 2008 with a coup in the Idaho Republican Party. A plank was included in the platform that called for primaries to be closed. A closed primary, however, would require changes to Idaho law, which up until this summer had no provision for recording partisan registration. In order to force the state to make this change, the Idaho Republican Party sued the Republican Secretary of State, arguing that Idaho’s open primary laws violated the Constitution in an as-applied challenge.
In March of 2011 U.S. District Judge B. Lynn Winmill concluded that the Idaho open primary law violated the First Amendment right of association that the Idaho Republican Party enjoyed. Judge Winmill relied on the Supreme Court’s decision in California Democratic Party v. Jones, which held that blanket primaries, where individuals could vote in any primary election across party lines, were an unconstitutional infringement on the associational rights of political parties. The Court reasoned that a political party would be unable to effectively convey its message if that message was in part controlled by individuals not affiliated with the party.
What is remarkable about Judge Winmill’s decision is how low the standard is for a plaintiff to show that their associational rights are being infringed. Judge Winmill relied on expert testimony to show that there was a roughly ten percent rate of crossover voting in Republican primaries. Judge Winmill acknowledged that these rates were lower than faced by the Court in Jones, but held that even lower rates of crossover voting would trigger grave Constitutional concerns. It is difficult to imagine, given Judge Winmill’s reasoning, any instance where a state could show that an open primary law could be considered constitutional in the face of a political party’s resistance to opening its nominating procedure. The Fourth Circuit seemed to agree with Judge Winmill when, in 2007, it struck down a similar open primary law in Virginia.
While the defendants in the Idaho case did not advance much in the way of a state interest that would provide a compelling justification for its open primary law, one of the interests advanced in Virginia has particular relevance for Idaho. The Fourth Circuit rejected an argument by the state that its open primary law was justified on the grounds that, in many instances, the primary was tantamount to the general election. The experts that Judge Winmill relied upon concluded that Idaho is the most single party state in the country, and that “voters do likely cross over; they have to in order to have any meaningful influence in elections and express their sincere preferences with regard to their own representation.”
In response to this decision, Idaho recently changed its primary election laws. The new law, which will govern this year’s elections, requires an elector wishing to vote in a partisan primary be registered with that party. Beginning this year, electors will register as members of a party. If an affiliated elector wishes to change affiliation, they must notify the Secretary of State by the last day that a candidate must file to run for the election. Unaffiliated voters may change affiliation on election day, though this is a commitment that will carry over to the next election. The law therefore makes it easy for unaffiliated voters to become affiliated, but makes it difficult for affiliated voters to switch their affiliation. The law builds in protections for affiliated voters who choose to vote in the Democratic primary, which allows unaffiliated voters to participate. If the unaffiliated elector chooses a partisan ballot when the party allows unaffiliateds to vote, then while the choice is noted they are not considered to be registered as a member of that party and may still quickly change their affiliation.
In a state like Idaho, a semi-open primary creates concerns. In no other state in the Union is a primary so closely tied to the general election. However, the Supreme Court, in the Jones and Tashjian cases, appears to have stripped states of the power to adjust primary processes to conditions within the state. It may be that Democratic complaints about growing radicalism among the Idaho GOP is just sour grapes, they have the misfortune of living in a state where the majority of people have rejected their party platform. But the fact remains that the only moderating influence on the Idaho GOP is the primary, because the Republican Party is assured dominance in the general. Judge Winmill, perhaps rightly, rejected the idea that growing radicalism could be a state interest that contravened the First Amendment. After all, it is the right of the Republican Party to be as radical as it wants, just as it is the right of voters to reject that Party if it is too radical for their tastes.
Nathan Pittman is a third-year student at William and Mary Law.