Power to the parties

Nevada’s political parties are protected from having their primary elections invaded by non-party members, under a U.S. Supreme Court decision released Monday. Nevada is one of 24 states affected.

The Oklahoma Libertarian Party had sued to overturn that state’s law restricting party primaries to party voters. The Libertarians wanted to open their own primary to all voters in hopes of attracting more voters.

The party primary election was a Progressive-era change that was intended to take power from party conventions and put it in the hands of party voters. But in most states, including Nevada, the political party was still treated as a private organization rather than an adjunct of the state. Party voters were viewed as nominating candidates to represent the party, and the party primary was used for that purpose as much as for narrowing the field of candidates. Choosing the candidate of a party to which a voter did not belong was seen as improper.

Legislatures, of course, had the option of doing away with partisan elections and putting all candidates for all offices into nonpartisan primaries. In some states, lawmakers specifically rejected non-party elections in which all candidates ran, preferring to retain the party primary as a means for party voters to choose their general-election representatives, though in some jurisdictions—notably California—"fusion” candidacies, in which candidates could run as candidates of more than one party, were permitted.

In some cases, crossover voting (as it’s known) between primaries has led to mischief. One example was when presidential candidate Eugene McCarthy nearly won the 1968 New Hampshire Democratic presidential primary in part because GOP voters—with no competitive race in their own party primary—crossed over to vote for McCarthy. In the 1972 Democratic presidential primaries, exit polls showed Republicans (again with no contest in their own primaries) crossed over to vote for George Wallace. In 2002 in Georgia, Republicans crossed over to defeated U.S. Rep. Cynthia McKinney in the Democratic House primary, provoking a lawsuit charging, “Malicious crossover voting occurs when one party invades another party’s primary to sabotage that party’s choice of its own nominee for political office. The Republican Party voters crossed over and affected the outcome.”

In the Oklahoma case, Justice Clarence Thomas’ majority opinion spoke directly to the mischief problem: “Oklahoma has an interest in preventing party raiding. … For example, if the outcome of the Democratic Party were not in doubt, Democrats might vote in the [Libertarian] primary for the candidate most likely to siphon off votes from the Republican candidate in the general election. Or a Democratic primary contender who senses defeat might launch a ‘sore loser’ candidacy by defecting to the [Libertarian] primary, taking with him loyal Democratic voters and thus undermining the Democratic Party in the general election. … Oklahoma has an interest in ‘temper[ing] the destabilizing effects’ of precisely this sort of ‘party splintering and excessive factionalism.’ “

But Justice John Paul Stevens dissented, saying this was a case of party leaders inviting non-party voters into the primary: “No one would contend that a citizen’s membership in either the Republican or Democratic party could disqualify her from attending political functions sponsored by another party, or from voting for a third party’s candidate in a general election. If a third party invites her to participate in its primary election, her right to support the candidate of her choice merits constitutional protection, whether she elects to make a speech, to donate funds or to cast a ballot.”

Stevens’ scenario, however, depends on party leaders being valid spokespeople for members of the party, a contention that grows more tenuous every year. State legislators have woven the role of two major parties into election laws so thoroughly that many voters register with parties because they are more or less forced to do so in order to vote in a primary with more than just school board and judgeship races. That their voter registration is a clear signal of their real political views, much less of party loyalty, is far from certain and, in fact, they may well view the major parties with jaundiced eyes. In many states, there have been efforts to respond to their ambivalence toward the major parties by moving toward nonpartisan primaries in which all candidates run.

In California last year, Ballot Proposition 62 would have ended party primaries and entered all candidates of whatever party in the same primary. It was opposed by an unusual coalition of normally competitive groups: the Democratic, Republican, Green, Libertarian, and Peace and Freedom parties. Gov. Arnold Schwarzenegger supported the measure, which failed when it drew “yes” votes equaling only 46.1 percent.

However, a similar measure in Washington was approved by voters. Initiative 872, filed by the Washington State Grange, was approved by voters who had watched two years earlier as a nonpartisan primary was overturned by the courts. The vote was overwhelming, 60 to 40 percent in favor of an open primary.

The implications of such nonpartisan primaries are substantial and don’t necessarily lend themselves to well-reasoned debates in ballot campaigns. Washington’s 872, for instance, makes it quite possible that two Democrats would be nominated for the general election, with no Republicans then running, or that two Republicans could be nominated with no Democrats in the race.

This was not widely known during the campaign, and an October poll showed support dropping sharply when the people being polled learned of it. (Washington Republican Party Chairman Chris Vance told Seattle Weekly this month, “Sometime soon there will be a lawsuit filed, probably in federal court, saying the top-two primary is a violation of the First Amendment.” The Washington Democratic Party will support the suit. The GOP is also taking steps to circumvent the new primary process through use of county caucuses and other maneuvers.)

No efforts have been made in Nevada to switch the state to an all-encompassing nonpartisan primary, at least at the last four Nevada legislatures. If the California experiences are any indication, state legislators elected in a party primary system have little interest in changing that system. Sweeping nonpartisan primaries would sharply undercut party authority, and some observers believe it would reduce the value of incumbency. So if such a change were to come in Nevada, it would probably have to be by initiative petition.

The Oklahoma court decision is Clingman vs. Beaver, and it is posted on the court’s Web page at www.supremecourtus.gov.