A version of this essay was first published in Law & Liberty.
The electoral results in my unsuccessful 2000 Republican primary election campaign for governor of Montana revealed an odd phenomenon: I’d lost Gallatin County (Bozeman), even though I swept most of the state’s other urban counties. Moreover, an ally of mine running for the Republican nomination for state senate in Gallatin County won by a margin somewhat smaller than expected.
The apparent explanation was that in the run-up to the election, the state’s teachers’ union urged their normally Democratic Gallatin County members to cross over into the Republican primary to vote against both of us. As a result, Democratic voters helped select the Republican nominees.
This maneuver was perfectly legal under Montana’s “open primary” law. In fact, Montana is one of many states with election statutes permitting non-party members to vote on party nominees.
Some of these statutes were enacted as ballot box initiatives. They are successful examples of a “Baptists and Bootleggers” coalition. In this case, the “Baptists” are left-of-center activists who favor diminishing the institutions (such as political parties) that mediate between the individual and government. The “Bootleggers” are wealthy donors who benefit when political parties are weaker, because their money can buy more political influence.
The victims of such coalitions are ordinary people of modest means: Working- and middle-class citizens who wish to influence political affairs traditionally opt for party activism, because it enables them to substitute shoe leather for cash. Reducing the role of parties lessens the ability of such people to influence. Electors not involved in politics can rely less on party “brands” as sources of information about the nominees. Candidates of modest means likewise suffer, because it costs more to run a campaign when one must address questions such as “How many non-party members are likely to vote?” “What kind of non-party member will vote?” “Whom will they vote for?” and “Is there likely to be a strategic invasion of the primary?”
Open primary laws are constitutionally suspect. Earlier this year, the Texas GOP filed a lawsuit to overturn its state’s open primary law. The Texas attorney general, who normally defends state laws, has decided not to do so in this case because he believes the measure is unconstitutional. The open primary’s defenders have been forced to seek other legal counsel.
In 2016, Colorado voters enacted an open primary initiative called “Proposition 108.” In 2023, the Colorado Republican Party challenged it in federal court. Proceedings are still pending.
Kinds of Primaries
Primary elections fall into several different categories, and the terms used to describe the categories are not always precise. For purposes of this essay, I’ve adopted the following nomenclature:
- In a closed primary, only registered party members may vote for candidates for the party nomination.
- In a partisan blanket primary, any voter, irrespective of registration, may vote for any candidate in any party. The winner of each party’s primary proceeds to the general election.
- In a non-partisan blanket primary, the parties may nominate in any manner they wish, but nomination does not guarantee a place on the general election ballot. Instead, in the primary election, voters select among a range of candidates. The candidates may indicate a party preference through ballot language, even if the party repudiates that candidate. The top few vote getters in the primary (usually two or four) proceed to the general election, irrespective of their party affiliation. A non-partisan blanket primary is sometimes called a jungle primary. This system is used in Alaska, California, Nebraska, and Washington State.
- In an open primary system, unaffiliated electors may vote in the party primary of their choice. Some states, such as Montana and Texas, do not register electors by party, so all voters are unaffiliated. In other states, such as Colorado and North Carolina, those registered by party are limited to that party’s primary, but unaffiliated electors may opt for any party’s primary. The Colorado-North Carolina system is sometimes called a “semi-closed” primary. Yet both kinds raise much the same constitutional issues, so this essay treats them together as “open.”
An Overview of Constitutional Questions
The First Amendment to the US Constitution guarantees freedom of religion, speech, petition, assembly, and the press. Freedom of association is an incident to these rights and, as the Supreme Court recognizes, generally includes the right not to associate. Thus, political parties may exclude people hostile to their views. Civil rights laws create some exceptions to the right of non-association, because of the compelling governmental purposes they serve.
The Supreme Court acknowledges that states have considerable flexibility in crafting their election procedures. The Constitution recognizes this explicitly for federal elections—both congressional (Article I, Section 4, Clause 1) and presidential (Article II, Section 1, Clause 2). The judiciary balances state interests against freedom-of-association interests by applying strict scrutiny to state rules that impose severe burdens on associational rights and rational basis scrutiny on rules that impose lesser burdens.
In my view, the Court effectively ruled in Democratic Party of the United States v. Wisconsin ex rel. La Follette (1981) that open primary laws do not survive constitutional scrutiny. To understand the context, though, it is best to start with a 2000 case, California Democratic Party v. Jones.
In Jones, the Supreme Court struck down California’s partisan blanket primary law. The Court held that the law imposed a severe burden on freedom of association because it permitted electors who refused to affiliate with a party—and, indeed, might be hostile to its goals—to participate in the selection of party nominees.
California argued that the law was constitutional despite the burden it imposed, because its purposes were compelling. Among those purposes were promoting “moderate problem-solvers” over “party hard-liners” and promoting “elected officials who better represent the electorate and expanding candidate debate beyond the scope of partisan concerns.” The Court found that these were just ways of saying the state wanted parties to nominate candidates other than those the parties would prefer to nominate. Indeed, it is hard to see how this kind of official viewpoint discrimination is even a legitimate state purpose, much less compelling.
The Court also suggested, although it did not hold, that a non-partisan blanket (jungle) primary might be permissible, because it does not impact internal party processes. The Court did not address the constitutionality of open primaries, but did cite favorably the 1981 La Follette decision.
In 2008, the court decided Washington State Grange v. Washington State Republican Party. Some writers claim that this case definitively upheld the validity of non-partisan blanket (jungle) primaries, but that is really not true. The court merely rejected a “facial challenge” to the law, where the plaintiffs had presented no evidence that their rights of free association were impaired. It is unclear what the result would be in an “as applied” challenge with a developed evidentiary record.
Now we can turn to the La Follette decision. Central to the case were three facts:
- Wisconsin law established an “open” presidential preference primary in which electors voted for their favorite presidential candidates, but in which delegates to the national convention were not elected. (Events like these sometimes are called “beauty contests.”)
- Political parties selected their own delegates in a closed process.
- But state law required those delegates “to vote at the National Convention in accord with the results of the open primary election.”
Based on these facts, the Court voided the Wisconsin system as a “substantial intrusion into the associational freedom of members of the National Party.”
Although the Court claimed it wasn’t ruling on the validity of an open primary per se, in legal effect, it did so. A requirement that delegates vote in accordance with the dictates of open primary voters is much the same as a requirement that delegates be elected in an open primary. Furthermore, the core issue is the same: May the state force a political party to admit non-members to the process of selecting its nominees?
In LaFollette, the Court answered with a clear “no.”
The Colorado Primary Law
In 2016, Colorado voters adopted Proposition 108 by a 53-47 margin, after a campaign in which the proponents (a classic Baptist-Bootlegger coalition) raised $5.3 million in contrast to the opponents’ $71,000. The measure retained the state’s system of party registration, but opened the primaries of “major parties” to unaffiliated voters. In Colorado, “major parties” are those whose gubernatorial candidates received at least ten percent of the vote in the last election.
Proposition 108 strongly incentivized electors to avoid party affiliation by (1) allowing unaffiliated electors to vote in any major party primary while (2) preventing affiliated electors from voting outside of their own party. Moreover, an unaffiliated voter may change his primary from election to election. Not surprisingly, since 2016, the unaffiliated share of the Colorado electorate has risen from a third to a half. There are now twice as many “unaffiliateds” as Republicans and almost twice as many as Democrats.
This has had a dramatic effect on primary voter composition. In the 2022 state Republican gubernatorial primary, for example, the winner’s margin of victory was only 48,970. But 246,341 of those who voted—nearly 37 percent of the total—were not, in fact, Republicans.
Proposition 108’s drafters inserted a mechanism by which a party can “opt out” of an open primary. However, it is almost impossible to qualify for an opt-out, and no party has ever successfully done so. The mechanism requires a three-quarters vote of a party’s central committee—not three-quarters of those voting, but of all members, voting or not. (Colorado party central committees have hundreds of members.) To preserve the opt-out, the procedure must be repeated annually.
In addition, Proposition 108 inflicts severe consequences on any group that does opt out. A closed primary is still not permitted; the party must choose its candidates by an assembly or convention procedure. This prevents the party from using a method that demonstrates electability. Nor may the assembly or convention select an open primary for some candidates and a convention nomination for others.
So even if a party were to meet the required three-fourths threshold, Proposition 108 would lock it into a method of selection that is (1) less than optimal and (2) brings with it the inevitable charge of being “undemocratic” and making decisions in “smoke-filled rooms.”
The drafters of Proposition 108 may have included the opt-out to reduce the apparent burden of the measure on the right of association. In reality, the opt-out is merely an ad horrendum device, designed never to be used.
The Constitutional Problems with Open Primaries
There are several reasons for believing that Proposition 108 may not survive Supreme Court review. First, as noted earlier, by the logic of the LaFollette case, the Court already has decided that open primaries are unconstitutional. Second, as the electoral numbers presented above demonstrate, the effect of Proposition 108 on the associational rights of party voters has been severe rather than marginal: When participating “unaffiliateds” amount to five times the winning candidate’s margin of victory, one cannot be confident that party members are the ones choosing their nominees.
Third, among the reasons recited by the sponsors of Proposition 108 were to produce candidates who “better represent all Coloradans” and “are responsive to the viewpoints of more Coloradans” and “are more responsive to a broader range of interests.” These were purposes the Supreme Court disallowed in Jones.
Finally, the opt-out provision, rather than lightening the burden of the law, operates as a prohibitive tax on the right of free association that no party will ever be able to pay.
In 2023, the Colorado Republican Party asked a federal district judge for a preliminary injunction against Proposition 108. The judge denied the request, partly on the ground that the opt-out provision rendered the measure’s burden on association rights less than severe. The judge also held that the state had a compelling interest in raising primary election turnout, and that after Proposition 108 was adopted, primary turnout increased.
As explained above, however, the opt-out mechanism really does not reduce Proposition 108’s burden on freedom of association. It is also unclear why raising the number of voters in a primary necessarily serves a “compelling” interest. Perhaps an education campaign encouraging qualified electors to vote might serve a compelling interest. But it is hard to say the same about waiving voter qualifications merely to encourage people to participate in a party they did not care enough about to join.
Colorado has a history of adopting measures that violate the First Amendment—only to see the Supreme Court strike them down. In the two latest cases, the court voided actions by which state authorities attempted to restrict First Amendment rights so as to promote an officially-preferred political ideology. Proposition 108 is a similar case: It impairs associational rights by manipulating the primary process to promote nominees with officially preferred political views. For this reason, Proposition 108 likely will not survive judicial review.