Primary Election (Update)

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As constitutional custodians of the electoral process, states have the power to regulate both voters' access to the polls and the conduct of the political parties. Constitutional questions pertaining to primary elections mainly stem from the tension between the state's interest in open, participatory politics and the party's interest in controlling the nominating process and voters' participation in primaries. The first amendment guarantee of freedom of association suggests that parties ought to be free to control participation in their primaries as they please. In contrast, the inexorable push toward broad participatory rights of individuals in all stages of the electoral process necessitates limits on the power of parties to include or exclude persons from voting in primaries. Greater individual participatory rights come at the expense of the parties' ability to select and elect candidates who embrace the party label and its programs.

The Supreme Court has repeatedly addressed the propriety of state restrictions on access to the voting booth in primary elections. These decisions have required the Court to rank the competing constitutional voting rights of individuals and associational rights of parties.

The Court's efforts to alleviate these tensions grew out of the discriminatory practices of the Democratic Party in the Deep South. The Court firmly established the quasipublic nature of party primary activity in the White Primary cases—notably, smith v. allwright (1944) and terry v. adams (1953)—when it overturned the discriminatory rules of southern Democratic state parties that sought to limit participation in their primaries to white voters only. Regarding primaries, the Court viewed parties as functionally equivalent to the state, and therefore ruled that such discriminatory practices violated the equal protection clause of the fourteenth amendment. In Kusper v. Pontikes (1973), the Court again sided with individual voting rights over party associational rights, rejecting an Illinois state statute that limited primary participation based on prior party affiliation.

More recent cases have presented conflicts between party rules and state laws regulating who can participate in party primaries, conventions, or other party activities. The Court has generally deferred to party rules on these questions. Several key decisions rendered the party determinative in controlling access to the nomination process, either through open primaries or through the establishment of convention delegate selection procedures. The crux of the constitutional right of association, as the Court explained in Tashjian v. Republican Party of Connecticut (1986) was the party's "determination of the boundaries of its own association and the structure which best allows it to pursue its political goals." In Eu v. San Francisco Democratic Committee (1989), the Court unanimously invalidated a California statute that, among other things, stripped parties of the ability to endorse candidates in primary elections. These decisions gave solid constitutional protection to the parties' right of self-determination, even if the decisions watered down formal party affiliation. They ensure that parties retain control of access to primary and candidate selection processes. Some commentators have heralded these decisions as marking the reassertion of political parties over the nominating process.

This optimism received a setback in Morse v. Republican Party of Virginia (1996), which involved a conflict between a state party rule and a federal statute. The Court in Morse narrowed parties' associational right by subordinating it to the voting rights act of 1965, striking down a party's attempt to impose a fee on those attending its state convention. By restricting participation at the convention, the fee unconstitutionally undercut individual voting rights. Morse suggests that federal statutes and constitutional voting rights trump the associational rights of state parties to define themselves in an exclusionary fashion. In the name of nondiscriminatory political participation, the Court subordinated the association of the party faithful to the right of peripheral "members" to take part in integral party decisionmaking. The party's freedom to identify its members yielded to the dominant impulse for more-inclusive rules and individual participation. By equating parties with the state and treating party action as state action, Morse may lead to broader state intrusion into future party activity.

David K. Ryden


Epstein, Leon 1986 Political Parties in the American Mold. Madison: University of Wisconsin Press.

Lowenstein, Daniel H. 1995 Election Law: Cases and Materials. Durham, N.C.: Carolina Academic Press.

Maveety, Nancy 1991 Representation Rights and the Burger Years. Ann Arbor: University of Michigan Press.

Ryden, David K. 1996 Representation in Crisis: The Constitution, Interest Groups, and Political Parties. New York: State University of New York Press.

——1999 'The Good, The Bad, and The Ugly': The Judicial Shaping of Party Activities. Pages 50–65 in John Green and Daniel Shea, eds., The State of the Parties, 3rd ed. Boulder, Colo.: Roman & Littlefield.