By Michael Howell
The Ravalli County Central Committee has filed a lawsuit in federal court in Helena contesting open primary elections in Montana. They are seeking to enjoin Montana Secretary of State Linda McCulloch and Ravalli County Elections Administrator Regina Plettenberg from distributing Republican primary ballots to non-Republican voters. They claim in the lawsuit that Democrats have crossed over to vote in Republican primaries for years in order to aid liberal candidates in defeating conservatives.
“This year they were more brazen,” wrote their attorney Mathew Monforton, in a press release about the suit which was filed in U.S. District Court in Helena on September 8.
“One casualty of this effort,” he wrote, “was Senator Scott Boulanger, who lost his primary by 39 votes to Pat Connell, a liberal who rejects the party platform.”
The Committee’s lawsuit is based upon its First Amendment right of association, “which includes a right of disassociation.”
Delegates to the Republican state convention in Billings in June, along with the state Central Committee, voted almost unanimously to limit participation in their primary elections to registered Republicans, excluding Democrats, Libertarians, Constitutionalists and Independents.
The lawsuit claims that the First and Fourteenth Amendments of the U.S. Constitution are being violated by Montana’s open primary elections. It claims that Montana state law requires the two major political parties to use the state’s primary system to elect their candidates for public office, but by using an open primary it allows Democrats and others to cross over and “raid” the Republican Party’s primary elections. It is claimed that on average from 20% to 30% of voters participating in the Republican primaries are Democrats or other non-Republican voters who can then determine the Republican candidates for office as well as their internal leadership. They note that many of these cross-over voters are “openly antagonistic to the ideology and principles of the Republican Party.” They say this unconstitutionally alters the Party’s message.
The RCC points to a federal district court decision in Idaho in 2011 in which they claim the Idaho open primaries were found to be unconstitutional for the same reasons. Following that ruling, the Idaho legislature changed the law to require closed primaries.
In that case the Court found that “the process by which a political party selects its nominees for general elections is not a wholly public affair which a state may freely regulate.” It found that a political party’s right to associate “necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.” It found an important corollary of the right to freely associate is “a right to not associate.”
“Thus when a court considers a challenge to state election law, the court must ‘weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights’.”
The Court, in its reasoning, pointed to a case in California in which the U.S. Supreme Court found a “blanket primary” election system adopted in California was unconstitutional. In that case, the Supreme Court relied on statistical surveys done in California and Washington state, showing that when voters crossed over they swung the vote on important matters of policy. The surveys also found that the policy positions of legislators elected from blanket primary states “are more moderate and reflect the preferences of the voters at the center of the ideological spectrum.” The Supreme Court cited one expert who determined that it is inevitable under a blanket primary that political parties will be forced to give their official designation to a candidate who is not preferred by a majority or even a plurality of party members.
“The Supreme Court concluded in that case that “the prospect of having a party’s nominee determined by adherents of an opposing party [in a blanket primary] is far from remote—indeed, it is a clear and present danger.”
The Idaho court’s concern in the case against its open primary turned upon many of the same questions, but the record before the court in that case did not contain any evidence on the issue of whether cross-over voting existed in that state under its open primary to the same degree it did in the blanket primary of California. Without knowing those facts the court could not weigh the appropriate factors. As a result the case went to trial where expert testimony was given on the subject.
The Court then quotes the defendant’s own experts in the case, stating that “Inside the Idaho open primary system, especially in a one-party state like Idaho where Republican party primaries are in most cases the ‘only game in town’, 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 representation….”
The court then notes that election results over the last two decades show the degree of imbalance. At the time, Republicans held 28 seats in the Idaho State Senate, while Democrats only held seven. Of the 70 members of the House of Representatives, 57 were Republicans and only 13 Democrats. On top of that, all statewide elected offices, including Governor, Lieutenant Governor, Attorney General, Secretary of State, State Controller, State Treasurer, Superintendent of Public Schools, both United States Senators and both United States Representatives are Republicans. Republicans often run unopposed in the state making the primary elections even more important. The cross over vote was estimated at about 10% for Democratic crossovers, but possibly 20% to 30% if independent voters and other party voters were counted. The Idaho court found these numbers to be significant. It notes that the Supreme Court in its decision had observed that even “a single election in which a party nominee is selected by nonparty members could be enough to destroy the party.” If it didn’t destroy it, the court contemplated, it could “severely transform it.”
The Idaho court found that “here, we are not dealing with a blanket primary, but Defendant’s own experts warn that changing Idaho’s primary from open to closed will likely have the ‘very real and immediate effect of… producing more ideologically extreme candidates’.”
“At first blush,” wrote the court, “that would appear to be a strong argument for maintaining the status quo. But, choosing ideologically extreme candidates is precisely what a political party is entitled to do in asserting its right of association under the First Amendment. The court cannot “simply move the general election one step earlier in the process, at the expense of the party’s ability to perform the ‘basic function’ of choosing its own leader.” The court stated that it could not find any meaningful distinction between the open primary in Idaho and the blanket primary found unconstitutional in California.
“Like the blanket primary system…, the current open system in Idaho forces the Idaho Republican Party to open up its candidate-selection process to persons wholly unaffiliated with the party. And, like the blanket primary, ‘such forced association has the likely outcome… of changing the party’s image’,” wrote the court.
The Court noted that, although cross over voting could still occur, it would be less likely given that the voter would have to formally register with the party prior to voting. It also notes that the State of Idaho made no real attempt to show that Idaho election statutes are narrowly tailored to serve a compelling interest that would override the party’s constitutional right to associational freedom. The State did argue that there were two such interests, maintaining maximum ballot secrecy and effective administration of its same-day registration statute and avoiding changeover costs. The Court dismissed both those arguments, saying that the Supreme Court had already found those arguments were not “compelling.”
According to information contained on the National Conference of State Legislatures website, eleven states currently have closed primaries and eleven states have open primaries. The rest mostly have some sort of hybrid or what is called a “top two primary.”
The issue of the constitutionality of open or closed primaries is complex. In Hawaii, it was the Democratic Party in 2013 that wanted to close the primaries in that state to stop cross over voting but that court suit was dismissed in 2014. In New Mexico, the Democrats came out against closed primaries. In this case there was also a state law insuring that all registered voters were qualified to vote in all elections. In New Jersey, a lawsuit was filed arguing that the state’s closed primary was unconstitutional because it bars nearly 50% of all state voters from the process because they exercised their right to not associate with any political party. The suit also alleges that the state, which foots the bill for the annual primary election, violates the New Jersey constitution by allocating money for primaries, which are held on behalf of private political parties.
One twist in the issue appears to be who is filing the lawsuit. One political party in a state may argue that its right to associate and disassociate is being infringed upon by cross over voting in the primaries because it has adopted a closed primary rule. But someone from another party that has an open primary rule could also make the same argument. For instance, the Supreme Court found that Connecticut’s closed primary violated the rights of one political party that had decided to allow non-affiliated people to vote in its primary. The reasoning was that the closed primary violated that party’s ability to define its own associational boundaries.
According to the California Initiative Review of Primary Elections conducted by the University of the Pacific, McGeorge Law School, “… closed primaries are constitutional when all political parties limit participation to registered members. Closed primaries become unconstitutional when at least one party wishes to open its primary to nonmembers because it violates the associational rights of a political party and its members.
“Specifically, the outcome of a case challenging a closed primary election law depends on who is bringing the action: a political party and its members or a non-party, DTS [declined to state] voter. A closed primary violates a political party’s right to associate because it restricts the party’s ability to determine with whom it associates, while a DTS voter’s right to associate is not infringed upon because he may associate by simply registering as a party member.”