California-style primaries banned

'Blanket' primaries draw voters, but the court says they violate parties' rights.

Should Democrats participate in the selection of a Republican nominee for public office? Or Republicans help pick the Democratic Party's candidate in a primary election?

The US Supreme Court has now answered both questions with a resounding "no."

In striking down California's "blanket" primary system, which lists all candidates on one ballot and allows citizens of all political stripes to vote for any party's candidate, the high court ruled that political parties in California have a constitutional right to exclude nonparty members in primary elections.

The ruling is expected to boost the clout of political parties, whose influence with American voters has been steadily eroding. At the same time, it signals to states a need to tread carefully when they experiment with different election systems, such as the blanket primary, in their determination to lift sagging voter turnout.

The decision is "good for political parties" and, by extension, "good for the body politic," says Mark Braden, a partner with the law firm Baker & Hostetler, who filed a brief arguing that the blanket primary should be rejected. "Western democracies don't function without political parties. Efforts to reform [the parties] out of existence would have been debilitating" to governance.

California established the blanket primary after 60 percent of state voters approved Proposition 198, a 1996 ballot initiative. The three other states that hold blanket primaries - Alaska, Louisiana, and Washington - presumably will also now have to revise their systems.

The right to associate

In its 7-to-2 decision yesterday, the court said the blanket primary violates the constitutional right of political parties to associate with whom they choose.

"Proposition 198 forces petitioners to adulterate their candidate-selection process - the basic function of a political party - by opening it up to persons wholly unaffiliated with the party," writes Justice Antonin Scalia in the majority opinion. "Such forced association has the likely outcome - indeed in this case, the intended outcome - of changing the parties' message."

He adds, "We can think of no heavier burden on a political party's associational freedom. Proposition 198 is therefore unconstitutional."

While the court grounded its decision in the First Amendment's guarantee of "free association," some analysts see in the decision an intent of protecting the major political parties.

"It looks like once again the Supreme Court has taken on the role of protecting the Democratic and Republican parties," says Allan Lichtman, chairman of the history department at American University here. "The court is not particularly sympathetic to third-party interests and concerns, and is going to look at itself as a bulwark of mainstream political parties."

The court ruling did not directly address the system of "open" primaries, held in 21 states. In those, voters can choose which party's primary they will vote in, even if they are not enrolled in that party.

Yesterday's decision "at least casts them into doubt," says lawyer Erik Jaffe, who represents the Eagle Forum Education and Legal Defense Fund. "You will very likely see future challenges to ... open primaries. That is where the case could have significant future effects."

While the court's decision defends the free-association rights of political parties, others say it tramples on individual rights.

"This ruling just violated my right of political association," says Sherry Bebitch-Jeffe, a political scientist at the Claremont Graduate School in California. "I am a registered independent, and now I can't vote in a primary."

She cautions, however, against overstating the impact of California's blanket primary on lifting voter turnout.

Proposition 198 "did not dramatically increase voter turnout," says Ms. Bebitch-Jeffe. "Rather, I would say it had minimally ticked up." The blanket primary brought 1.5 million registered voters into the process, she says, compared with the 15 million registered voters in the state.

Getting around the blanket

In practice, the parties operating under the blanket primary weeded out nonparty voters and counted only party-member votes to determine who would get to campaign under the party's banner in the general election. But the larger vote totals created a possibility that crossover voting by independents and nonparty members would create a situation in which the party's nominee was not the candidate who received the most votes.

In a dissenting opinion, Justice John Paul Stevens says that while First Amendment protections of freedom of association applied to the internal actions of political parties, they do not implicate primary elections, which are a form of state action.

"The protections that the First Amendment afford to the internal processes of a political party do not encompass a right to exclude nonmembers from voting in a state-required, state-financed primary election," Justice Stevens writes.

*Daniel B. Wood and Yvonne Zipp contributed to this report.

(c) Copyright 2000. The Christian Science Publishing Society

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