Monday, June 4, 2012

Who owns the primary?

There's a longstanding and robust debate among political scientists and legal scholars about whether parties are public or private entities. This debate is more than just academic -- it ends up affecting just who is allowed to participate in primary elections. Decades ago, it was common to think of parties as purely private associations, and private associations are, of course, allowed to include or exclude pretty much anyone they want. But when Democratic parties in some southern states decided to limit access to their primaries just to white citizens, the U.S. Supreme Court found that to be unconstitutional, claiming that primaries served a public function and thus could not discriminate by voter race.

On the other hand, parties aren't completely public entities; the Supreme Court has held that they are, in some senses, private associations, and their members thus have privileges over non-members. In the case California Democratic Party v. Jones (1999), the majority ruled that California's blanket primary, which allowed voters of any party or no party at all to choose among all candidates of all parties, was unconstitutional, in large part because it allowed people who were not members of a party to pick the party's nominees. Justice Scalia, writing the majority opinion, wrote:
[U]nder California’s blanket primary system, the prospect of having a party’s nominee determined by adherents of an opposing party is far from remote – indeed, it is a clear and present danger.... [A] single election in which the party nominee is selected by nonparty members could be enough to destroy the party.
Those are strong words, firmly claiming that the party belongs to its members. Unaffiliated voters, by this logic, do not have a "right" to participate in a primary election; it is up to the party whether or not they want to include them. The decision of whom to nominate for office, the most important decision a party makes, should be left to those who have some stake in it, those who have claimed membership.*

So how does this square with Proposition 14, California's top-two primary? Doesn't such a primary (which takes place tomorrow) allow nonparty members to pick party nominees? Proposition 14 got around this by changing the definition of the primary election, following the guidance of the Court in Jones. The language of the proposition amended the state constitution to change primaries from party contests to "voter-nomination primary elections." So the primary in California no longer belongs to parties, but rather to the voters.

This is particularly interesting because in American politics over the past century, we have generally not drawn a distinction between the winner of a primary and the party nominee. That was part of the logic of creating primary elections in the first place: to create a clear, public, unambiguous determination of just who the nominee was. Now in California, as in Nebraska and Louisiana, the primary and the nomination have been decoupled, and the parties must resort to other means to converge support on a preferred candidate.

*I should mention that, back in 1942, E. E. Schattschneider argued that the whole idea that party "members" had some stake in its selection of candidates was absurd. Schattschneider noted that party members are not required to pay dues, perform duties, attend rallies, solicit votes, or even vote for their party's nominees. They don't need to notify anyone in their party if they wish to leave it:
Membership in a political party is therefore highly unreal because the party has no control over its own membership and the member has no obligations to the party.... In what sense is a partisan injured if he is deprived of the right to control an organization toward which he has no duties? The whole theory is chaotic (pp. 56-59).
Obviously, this isn't the dominant view today among political observers. But it is a useful perspective when one considers the desired level of openness in a primary election.


  1. The parties, effectively and morally, ceased being private organizations when laws were written giving them, not by name but by laying out impossible-to-miss qualifications that were simultaneously nearly impossible to meet for any other party, "major party" status and therefore automatic inclusion for their nominee on the ballot. That turned them into part of the public process.

    When they insisted that they were private organizations, the voters of Washington (of which I was one) and California (of which I was one) decided to take the parties out of the process, officially.

    It's better this way, anyway. There are many places where one of the two major parties has such an advantage that the general election is meaningless. When was the last time San Francisco elected a Republican? Although the parties claim otherwise, two candidates from the majority party on the ballot is more choice in the general election than one candidate and one sacrificial lamb.

  2. "[I]n American politics over the past century, we have generally not drawn a distinction between the winner of a primary and the party nominee."

    I can think of one case where the party leadership, if not the state, drew that distinction. In the 1998 Alaska primary, a woman named Sylvia Sullivan won the primary for the Alaska Independence Party's candidate for Governor, but the party leadership refused to endorse her, instead endorsing the Republican candidate. The State of Alaska didn't accept the judgment of the AIP party leadership, and kept her on the ballot for the general election.

    I wouldn't be surprised if that had happened to other minor parties' candidates in other states, but I don't know of any other examples. Has the author (or any of the other posters to this blog) heard of similar instances of the primary winner not being accepted by the party leadership as its nominee?

    1. This happens once in a while, but it's pretty rare. Dan Maes won the Republican nomination for governor in Colorado in 2010, but the party quickly distanced itself from him, and most GOP leaders ended up endorsing Tom Tancredo, who was the nominee of the American Constitution Party. There are some similarities with the Dede Scozzofava race in NY-23 three years ago, and with Joe Lieberman not being the Democratic nominee in 2006 but still having a lot of Democratic elite support.