Topic:
PRIMARIES;
Location:
PRIMARIES;

OLR Research Report


September 25, 1998 98-R-1174

FROM: Mary M. Janicki, Principal Analyst

RE: Open Primaries

You asked whether the Connecticut legislature has considered adopting an open primary law. You are interested in other states' rules for participating in primary elections, and you also want to know the arguments for and against the open primary system.

SUMMARY

Primaries for the nomination of candidates for office or delegates to a party convention are classified as closed or open depending on whether or not tests of party affiliation are required. In a closed primary, registered voters must declare their party affiliation on, or prior to, election day and receive only the ballot of their party choice. In an open primary, any voter can participate regardless of party affiliation. Under a third system, the so-called “blanket” primary, voters can “mix and match” their votes by voting for candidates from different parties for different offices.

In 1986, the U.S. Supreme Court ruled that Connecticut's then-closed primary law was unconstitutional. The Republican Party had challenged that system and won based on the argument that the law infringed on the party's First Amendment associational rights. In the following legislative session, the General Assembly enacted the current system. Connecticut law now allows unaffiliated voters to vote in a primary election if authorized by a political party's rules. It is not a completely open primary system open to all registered voters regardless of political affiliation. Neither major party currently includes unaffiliated voters among those who can vote in their primary.

Prior to the resolution of the Tashjian case, the legislature considered several bills that would have allowed unaffiliated voters to participate in a primary if permitted under party rules. None passed until after the U.S. Supreme Court ruling. Only one bill sponsored during the past 20 years, in 1981, would have clearly established an entirely open primary system in this state, but that bill died in committee.

Generally, about half the states have some form of open primary with another four adopting the blanket or nonpartisan primary. Of the 22 states with a closed primary, four allow unaffiliated voters to declare a party at the polls and vote in the primary. The blanket primary used in three states has been upheld in court, but an appeal of the California law is expected to go to the U.S. Supreme Court (which has already refused to rule on the Alaska law).

The arguments for and against open primaries take either side of questions such as (1) the freedom of association of parties versus individual rights, (2) the advantages of a strong two-party system of government, (3) voter participation, and (4) the characterization of the resultant party nominees. Those who argue for the open primary say it opens a crucial step in the electoral process to all voters, stimulates interest and participation in elections, and leads to candidates in the general election who appeal to a broad section of the population rather than factions of a party. Opponents of the open primary support strong parties and their control of the nomination process. They also argue that opening the primary exposes the party to “raiding,” cross-over voting for the opposing party's weakest candidate in the hopes that this candidate will win the primary only to be beaten at the general election. Closed primaries, they say, keep down the cost of campaigning, and result in more balanced slates of candidates.

DEFINITIONS

At a closed primary, voters receive only the ballot of their party choice. Voters must declare their party affiliation on, or prior to, election day. The type of primary in which voters receive a ballot for all parties and select the party of their choice in the privacy of the voting booth is generally referred to as an open primary. A few states have a blanket primary in which voters are not restricted to one party as they are in an open primary. In Alaska, California, and Washington, each voter receives a ballot that contains the primary ballot for all parties. However, a voter in the blanket primary may pick and choose among the parties and vote for different parties' candidates for different offices. The only restriction is that the voter can indicate only one choice for each office.

THE TASHJIAN CASE

In 1984, the Republican Party of Connecticut adopted a change in its party rules to permit unaffiliated voters to vote in primary elections for certain state offices. At the time, the rule conflicted with the state's primary law that allowed only enrolled party members to participate in a primary. The Republican Party filed and won its suit in federal court. The state appealed the case to the U.S. Court of Appeals and to the U.S. Supreme Court (Tashjian v. Republican Party of Connecticut et al., 107 S.Ct. 544 (1986)). That court affirmed the lower courts' decisions finding the state's closed primary law unconstitutional. The Court did not rule on the relative merits of open and closed primaries, but based its decision on political parties' First Amendment associational rights.

CURRENT LAW

In the year after the Tashjian ruling, the General Assembly enacted legislation establishing procedures whereby unaffiliated voters can vote in a primary election if authorized by a political party's rules. The rules can specify whether unaffiliated voters can vote for candidates for only some or for all of the offices being contested. But no unaffiliated voter can participate in the primary of more than one party on the same day.

PA 87-509 did not create a completely open primary system under which any voter can participate in any party's primary. But it did accommodate the law to comply with the court ruling to permit parties to open their nominating procedures to unaffiliated voters. Neither major party's rules currently allow unaffiliated voters to vote in a primary; although for a short time the Republican Party's rules did so, as well as the rules of A Connecticut Party.

No party has proposed a rule and the legislature has not considered a bill to allow enrolled members of another party to vote in its primary, a proposal that the Tashjian court distinguished from its ruling. The law as changed in 1987 has not been challenged.

OPEN PRIMARY PROPOSALS

In the past 20 years, the General Assembly has considered one (possibly two) bills proposing an open primary. Prior to enactment of the 1987 law, many proposals were introduced permitting unaffiliated voters to participate in primary elections, but none of them extended participation to all registered voters. In 1979, Representative Wall sponsored HB 6242, An Act Concerning Eligibility to Vote at a Primary. The proposed bill was referred to the Government Administration and Elections (GAE) Committee where it died without a hearing. Since it was never drafted, we have only the statement of purpose that does not indicate whether the measure would have opened the primary to any voter or just those who are unaffiliated.

In 1981, Representative Swensson sponsored the only legislation raised in the past 20 years that clearly would have opened the primary system in the state. Her bill, An Act Allowing Open Primary Elections (HB 6183), would have allowed voting by independent voters and “crossovers” in primary elections. It died in the GAE Committee after a public hearing at which there was no testimony except for the Bristol registrar of voters' opposition to allowing anyone not enrolled in a party to participate in its primary.

OTHER STATES

States conduct their primaries with a variety of eligibility requirements for voters. There are the classic open and closed primaries; while some states follow practices that are classified as “semi-open” or “semi-closed.” In these states, voters do not enroll as party members upon registration and are permitted to request any party's ballot on the day of the primary, or unaffiliated voters are allowed to vote in any party's primary, or party rules may permit voting by unaffiliated voters. Experts differ on the number of states in each category, depending on how they classify the procedures for requesting a ballot on the day of a primary.

Open Primary

In an open primary, a registered voter may request, on election day, the ballot for any party's primary in which the voter intends to vote, whether or not the voter previously has registered as a member of that party. But the voter may only vote in one party's primary election. Table 1 lists the 13 “classic” open primary states. In these states, any registered voter can choose the party primary in which he wishes to vote. He receives the ballots of all parties or a consolidated ballot and makes his selection in secret. The voter is restricted to casting votes for candidates of one party only. The ballot is void if he votes in more than one primary.

Table 1: Classic Open Primary States

Hawaii

Montana

Vermont

Idaho

North Dakota

Virginia

Michigan

South Carolina

Wisconsin

Minnesota

Tennessee

 

Missouri

Utah

 

In 11 other states shown in Table 2, voters need not enroll in a political party before the primary in order to vote. But they do need to publicly declare on election day the party in whose primary they want to participate.

Table 2: Open Primary States Where Voter Selects Party on Election Day

Alabama

Indiana

Ohio

Arkansas

Iowa

Texas

Georgia

Massachusetts

Wyoming

Illinois

Mississippi

 

Closed Primary

In the closed primary of the classic sort the primary voter must be registered as a party member for some period of time prior to the primary election day (22 states) (see Table 3). In four of them, voters must have been enrolled in a political party but unaffiliated or new voters may declare a party at the polls (in some cases only if party rules permit).

Table 3: Closed Primary States

Arizona

Maryland

Oklahoma

Colorado*

Nebraska

Oregon

Connecticut

Nevada

Pennsylvania

Delaware

New Hampshire*

Rhode Island

Florida

New Jersey*

South Dakota

Kansas*

New Mexico

West Virginia

Kentucky

New York

 

Maine

North Carolina

 

*Unaffiliated voters (or, in the case of New Jersey, new voters) may declare a party at the polls (in some cases only if party rules permit). All others must have been enrolled in a party.

Blanket Primary

Only a few states have what is called a “blanket” or nonpartisan primary. In Alaska, California, and the State of Washington, voters receive a ballot that contains the primary ballot for all parties. But they can "mix and match," voting for candidates from different parties for various offices. In 1997, California voters passed Proposition 198 by a substantial majority, creating its blanket primary system to begin with the 1998 elections. The California Democratic Party challenged the new law, claiming it interfered with the party's associational rights in choosing its nominees. But a federal district court upheld the law. Alaska's blanket primary has been upheld in court and the U.S. Supreme Court refused to hear an appeal on the challenge (O'Callaghan v. Ulmer, 914 P.2d 1250 (1996), cert. denied, 117 S.Ct. 1690 (1997)).

The blanket primary contrasts with Louisiana's “open election” in which any candidate with an absolute majority is elected at the primary. All candidates, regardless of party affiliation, appear on a single ballot. If no candidate receives fifty percent plus one vote, the candidates receiving the most votes, regardless of party, compete in a run-off election.

ARGUMENTS FOR AND AGAINST

Since there were so few bills and almost no testimony here in Connecticut dealing with open primaries, we have no legislative history of any local debate on this issue. However, political scientists and the arguments in court cases describe the positions on both sides of the question of open or closed primaries.

In Support of the Open Primary

Freedom of Association and the Two-Party System. Supporters of the open primary view it more as the first step in a two-step electoral process than as a party function. To counter the political parties' First Amendment challenge, supporters argue that as long as the law regulates election procedures in a nondiscriminatory way, the open primary law should be upheld in order to serve a compelling state interest. Courts have ruled in favor of individuals' inclusion and the associational rights of voters whether the principle is contained in state law or party rules. Interestingly, the federal court judge ruled against the political party claiming its associational rights in the California case when, in the Tashjian case, the Supreme Court ruled in favor of the party on those grounds. The federal district court ruling held that the political parties' arguments that the blanket primary intrudes on the selection of their own candidates, could depress the vigor and morale of party activists, and could affect the ability of a party to discipline elected members are outweighed by the state's compelling interests in reducing partisan strife, ameliorating unrestrained factionalism, increasing representativeness of elected officials, giving voters greater choice, and increasing voter turnout. Because the burdens on parties would fall equally on all of them and would not affect other party activities, the court upheld the Open Primary Act (California Democratic Party v. Jones, 984 F.Supp. 1288).

In the ballot pamphlet published for Proposition 198, proponents argued that the open primary permits voters to voter “for the best candidate for each office, regardless of party affiliation” thereby giving voters greater choice. It would increase voter participation in the primary election, restore healthy competition particularly in “safe” legislative districts in which one party clearly dominates, make elected officials more responsive to voters as opposed to party officials, reduce the power of special interest groups, and strengthen the political parties by assuring the nomination of candidates with broader bases of support (California Democratic Party, at 1290).

In arguing against the parties' position that an open primary permits members of the opposing party to “raid” the party by voting to nominate the weakest candidates, the U.S. Supreme Court has stated in dicta that such a fear is greatly exaggerated (Democratic Party of U.S. v. Wisconsin, 450 U.S. 107, 122-23, n. 23 (1981)). Little evidence supports the argument that massive crossover voting for an opposing party's weakest candidates occurs. Evidence suggests that any voters who cross party lines do so to cast ballots for candidates whom they intend to support in the general election, not to nominate weak candidates.

Interest and Voter Turnout. Requiring party affiliation (as the closed primary system does) excludes many voters from participating. The large block of independent voters is effectively disenfranchised from an important state of the electoral process. Some voters want to keep their political persuasion private, so refuse to enroll as party members. Supporters of the California initiative (Proposition 198) argued that opening the primary would increase voter turnout, give voters more choices, increase competition among candidates, and result in the nomination of more moderates.

Candidate Competition and Moderation. The broadest voter participation in the primary is more likely to produce candidates who appeal to a broad cross-section of voters. Opening the primary process promises less dependence on political “bosses” and a more independent electorate that votes on the merits of individual candidates.

In Opposition to the Open Primary

Freedom of Association and the Two-Party System. The most common argument made against the open primary is its interference with political parties' right to choose their nominees. Political parties have challenged the open primary system on First Amendment grounds, claiming that it interferes with their associational rights in choosing candidates that best represent the party positions on issues.

Historically, a strong party system has been viewed as essential to the successful functioning of the American system of government. The increased participation of voters who need not reveal their party affiliation may not be desirable in view of the importance of the political party. Opening nominating procedures to non-party members weakens party discipline and parties' ability to organize and select candidates loyal to their goals. It can dampen the morale of party activists. The open primary system tends to encourage voters to ignore party lines and party differences. If the party is the vehicle for settling intra-party differences, it should be open only to bona fide party members with a strong party attachment and interest in party politics. And special interest groups can displace weakened political parties.

Opponents of the open primary system consider it an invitation to party political mischief or “raiding.” Crossover voting may occur when the voter sincerely chooses to vote for the most preferred candidate to win in the general election. Or the voter may be engaged in “strategic” voting, designed to obtain the best possible outcome, by voting for the voter's second choice in a setting where the voter's first choice, within the voter's own party, is certain to get the nomination and the voter decides to influence another party's primary and thus the choice at the general election. The practice of raiding occurs when the voter casts his primary ballot for the candidate perceived as the weakest of the opposing party in order to assure defeat in the general election.

Interest and Voter Turnout. In the Tashjian case, the state argued that permitting independents to vote in primaries would be too costly and create voter confusion, in addition to undermining the two-party system.

A practical disadvantage of an open primary system is the added cost of campaigning. In a closed primary, candidate spending need only be directed to party members, rather than to the entire electorate. In addition, the closed primary system with its party rosters provides voting records to show party affiliation for purposes of signing candidate petitions, appointing officials to bipartisan boards and commissions, filling vacancies in local offices, and recruiting party workers.

Those who support closed primaries argue that party affiliation increases with partisan primaries. They create a stronger bond between the candidate and party officials and election workers.

Candidate Competition and Moderation. Open primaries can produce unbalanced tickets since party members recognize (and nominate accordingly) the importance of geographic, ethnic, religious, racial, or philosophical diversity.

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