In discussions on possible reform to the Democratic Party’s system of selecting nominees, the 2000 Supreme Court case California Democratic Party, et al v Jones is an important talking point regarding whether the Democratic Party can require States to hold open primaries.
Some have cited this case for the proposition that the Democratic Party CAN compel states to hold open primaries. This is incorrect. What the case stands for is the proposition that a state can NOT compel upon a party the method of choosing its nominees without regard to the parties’ First Amendment association rights. It does not stand for the proposition that a political party can compel a State to do anything with regard to the process of choosing party nominees.
In Jones, the Court stated:
Respondents rest their defense of the blanket primary upon the proposition that primaries play an integral role in citizens’ selection of public officials. As a consequence, they contend, primaries are public rather than private proceedings, and the States may and must play a role in ensuring that they serve the public interest. Proposition 198, respondents conclude, is simply a rather pedestrian example of a State’s regulating its system of elections.
We have recognized, of course, that States have a major role to play in structuring and monitoring the election process, including primaries. See Burdick v. Takushi, 504 U.S. 428, 433 (1992); Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986). We have considered it “too plain for argument,” for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion. American Party of Tex. v. White, 415 U.S. 767, 781 (1974); see also Tashjian, supra, at 237 (Scalia, J., dissenting). Similarly, in order to avoid burdening the general election ballot with frivolous candidacies, a State may require parties to demonstrate “a significant modicum of support” before allowing their candidates a place on that ballot. See Jenness v. Fortson, 403 U.S. 431, 442 (1971). Finally, in order to prevent “party raiding”–a process in which dedicated members of one party formally switch to another party to alter the outcome of that party’s primary–a State may require party registration a reasonable period of time before a primary election. See Rosario v. Rockefeller, 410 U.S. 752 (1973). Cf. Kusper v. Pontikes, 414 U.S. 51 (1973) (23-month waiting period unreasonable).
What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely.4 To the contrary, we have continually stressed that when States regulate parties’ internal processes they must act within limits imposed by the Constitution. See, e.g., Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989); Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981). In this regard, respondents’ reliance on Smith v. Allwright, 321 U.S. 649 (1944), and Terry v. Adams, 345 U.S. 461 (1953), is misplaced. In Allwright, we invalidated the Texas Democratic Party’s rule limiting participation in its primary to whites; in Terry, we invalidated the same rule promulgated by the Jaybird Democratic Association, a “self-governing voluntary club,” 345 U.S., at 463. These cases held only that, when a State prescribes an election process that gives a special role to political parties, it “endorses, adopts and enforces the discrimination against Negroes,” that the parties (or, in the case of the Jaybird Democratic Association, organizations that are “part and parcel” of the parties, see id., at 482 (Clark, J., concurring)) bring into the process–so that the parties’ discriminatory action becomes state action under the Fifteenth Amendment. Allwright, supra, at 664; see also Terry, 345 U.S., at 484 (Clark, J., concurring); id., at 469 (opinion of Black, J.). They do not stand for the proposition that party affairs are public affairs, free of First Amendment protections–and our later holdings make that entirely clear.5 See, e.g., Tashjian, supra. [Emphasis supplied.]
Of course a political party can accede to a state’s proffer of an open primary to choose its nominees. They do so now in states like New Hampshire, Wisconsin and Ohio, to name 3 of many. But a political party can not require that states hold primaries at all, much less open primaries. Thus, states like Florida, New York and Pennsylvania provide closed primaries, which of course a political party can reject as its nominating mechanism.
In his dissent in Jones, Justice Stevens wrote:
When a political party defines the organization and composition of its governing units, when it decides what candidates to endorse, and when it decides whether and how to communicate those endorsements to the public, it is engaged in the kind of private expressive associational activity that the First Amendment protects. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 354—355, n. 4, 359 (1997) (recognizing party’s right to select its own standard-bearer in context of minor party that selected its candidate through means other than a primary); id., at 371 (Stevens, J., dissenting); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989); Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 124 (1981) (“A political party’s choice among the various ways of determining the makeup of a State’s delegation to the party’s national convention is protected by the Constitution”); Cousins v. Wigoda, 419 U.S. 477, 491 (1975) (“Illinois’ interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention” (emphasis added)).3 A political party could, if a majority of its members chose to do so, adopt a platform advocating white supremacy and opposing the election of any non-Caucasians. Indeed, it could decide to use its funds and oratorical skills to support only those candidates who were loyal to its racist views. Moreover, if a State permitted its political parties to select their candidates through conventions or caucuses, a racist party would also be free to select only candidates who would adhere to the party line. [Emphasis supplied.]
The highlighted text gives away the game it seems to me on the notion the State can dictate to a political party how it chooses its nominees. That is why Justice Stevens following line is jaerring:
I think it clear–though the point has never been decided by this Court–“that a State may require parties to use the primary format for selecting their nominees.” Ante, at 4. The reason a State may impose this significant restriction on a party’s associational freedoms is that both the general election and the primary are quintessential forms of state action.4 It is because the primary is state action that an organization–whether it calls itself a political party or just a “Jaybird” association–may not deny non-Caucasians the right to participate in the selection of its nominees. Terry v. Adams, 345 U.S. 461 (1953); [Emphasis supplied.]
I do not think this is correct and indeed it is a dissent to a decision that in my view decides the exact opposite. But even if it were the rule, it actually would create a rule whereby a State can impose a nomination selection process on a party and thus deprive the party itself of any control over the nomination process. To wit where a state imposed a closed primary process the Party would have no recourse. Thus in Florida for example, the choice of a closed primary would bind the Democratic Party. But in fact that is not the rule. The party can reject the State run primary and choose its own nominating process.
But that choice necessarily involves rejection of the state chosen process.Justice Stevens wrote:
Although I would not endorse it, I could at least understand a constitutional rule that protected a party’s associational rights by allowing it to refuse to select its candidates through state-regulated primary elections. See Marchioro v. Chaney, 442 U.S. 191, 199 (1979) (“There can be no complaint that [a] party’s [First Amendment] right to govern itself has been substantially burdened by [state regulation] when the source of the complaint is the party’s own decision to confer critical authority on the [party governing unit being regulated]”); cf. Tashjian, 479 U.S., at 237 (Scalia, J., dissenting) (“It is beyond my understanding why the Republican Party’s delegation of its democratic choice [of candidates] to a Republican Convention [rather than a primary] can be proscribed [by the State], but its delegation of that choice to nonmembers of the Party cannot”). A meaningful “right not to associate,” if there is such a right in the context of limiting an electorate, ought to enable a party to insist on choosing its nominees at a convention or caucus where non-members could be excluded. In the real world, however, anyone can “join” a political party merely by asking for the appropriate ballot at the appropriate time or (at most) by registering within a state-defined reasonable period of time before an election; neither past voting history nor the voter’s race, religion, or gender can provide a basis for the party’s refusal to “associate” with an unwelcome new member. See 169 F.3d, at 655, and n. 20. There is an obvious mismatch between a supposed constitutional right “not to associate” and a rule that turns on nothing more than the state-defined timing of the new associate’s application for membership. See La Follette, 450 U.S., at 133 (Powell, J., dissenting) (“As Party affiliation becomes … easy for a voter to change [shortly before a particular primary election] in order to participate in [that] election, the difference between open and closed primaries loses its practical significance”).
I would submit to Justice Stevens that that in fact is the Constitutional rule that Jones reiterates. No one has ever questioned a party’s right to create its own nominating process. But what a party can NOT do is tell a State how to organize a primary.
