California Democratic Party, et al. v. Jones, Bill, CA Secy of State (06/26/2000)

April 24, 2000

7-2 for California Democratic Party (June 26, 2000)

Open primaries, Proposition 198, 1st Amendment association rights

Questions presented:

Whether a voter-approved proposition that mandates a state to allow voters to cross party lines in primary elections violates the 1st Amendment rights of the political parties to associate and choose their own nominees.

Brief:

Voters from California passed Proposition 198 by a large margin in March of 1996. Proposition 198 altered California’s primary system to allow voting irrespective of candidate or voter party affiliation.

It was the first time California has experimented with such a primary since 1900 when it was declared unconstitutional by the California Supreme Court in Britton v. The San Francisco Board of Elections Commissioners.

In that case the court said: "The law violates the bill of rights and the reserved rights of the people belonging to a political party to control and govern their own political party and their own primary election of delegates."

By the 2000 Presidential campaign, open primaries had become the most commonly used primary system.

In open primaries, a voter may request the ballot of whatever party the person feels like voting in regardless of the voter’s party affiliation. However, the voter can only vote in one primary.

Closed primaries limit voting within the political parties to voters who have registered as members of that party for a specified period of time prior to the primary election. This was the format California used prior to the passage of Proposition 198.

A "semi-closed" primary is one in which voters must vote in their particular party, however Independent voters are free to vote in any party they wish.

Finally, a blanket primary, which is what California adopted with Proposition 198, calls for voters to receive one ballot. They may vote for each office contested regardless of party affiliation. California and three other states –Alaska, Louisiana and Washington – have opted for such a system. In California's March 7, 2000 primary, the state will use a blanket primary format.

The final vote on Proposition 198 was 3,340,642 (59.51 percent) to 2,273,064 (40.49 percent). Despite this overwhelming majority, members of the California Democratic Party, the Peace and Freedom Party and the Libertarian Party of California sued California Secretary of State Bill Jones, claiming that Proposition 198 was unconstitutional and sought to enjoin its implementation.

In addition, the California Republican Party intervened as plaintiff while "Californians For An Open Primary" intervened as a defendant.

The plaintiffs argued that the proposition violated their 1st Amendment rights of association. They also argued that as a result of Proposition 198, there will be a large number of cross-over voters which will affect the selection and behavior of party nominees and elected officials; weaken party discipline; increase the costs of primary elections by causing candidates to compete as if it were a general election; dampen the morale of party activists; and disrupt internal party structure and governance.

Jones countered that a blanket primary will intensify the election and allow for better representation in elected office. He also pointed to the large numbers of party members that passed Proposition 198 as proof that the parties had already approved it.

According to exit polls, 61 percent of Democrats, 57 percent of Republicans, and 69 percent of Independents supported Proposition 198.

On Nov. 17, 1997, the district court sided with Jones. "The parties’ characterization of the likely amount or effects of cross-over voting due to a blanket primary is overdrawn," said U.S. District Judge David Levi, in also ruling that Proposition 198 withstood the 1st Amendment challenge.

"The court rejects the argument that the ‘parties’ defined as the electorate, have agreed to Proposition 198 and that this lawsuit is merely an attempt by dissidents to carry on intra-party disputes that they previously lost at the ballot box," Judge Levi wrote.

On March 4, 1999, a unanimous panel of the 9th Circuit Court of Appeals affirmed, and was so impressed with the district judge’s reasoning that it "elected to adopt it as the opinion of our court."

That opinion was agnostic about the feasibility of a blanket primary. "The court does not decide whether a blanket primary is a good idea; it may prove to be a bad idea, in which case the people of the State presumably will act to reform the system in the future as they have in the past," the court wrote.

Levi also reaffirmed a state’s sovereignty. "Each of the States has its own experiment in democratic government. The history of election law is one of change and adaptation as the States have responded to the play of different political forces and circumstances. There is little reason to expect that the future will be any different," the opinion read.

In California’s case, the court said that it was a system that represented the best interest of its residents. "The court concludes that a blanket primary serves sufficiently weighty interests that the State of California should not be precluded from ever trying such a procedure."

On Jan. 21, the U.S. Supreme Court granted certiorari in the case.

On June 26, 2000, the Court overturned by a 7-2 vote California’s Proposition 198 "blanket primary" system which allowed voters to cross party lines during primary elections, stating that it violates the 1st Amendment associational rights of political parties.

The Court reasoned California’s primary was a viable threat to the continuing health of political discussion, afforded non-party-aligned voters the opportunity to influence elections in organizations to which they do not belong, and superceded the rules of private organizations.

While California’s primary system was overturned, the Court did not address the status of open primaries -- in which voters may declare party affiliation on election day -- in 21 other states, nor did the court directly address the primary systems in Washington, Alaska, and to a certain extent Louisiana, which have primaries similar to the one overturned in California.

"Proposition 198 forces political parties to associate with -- to have their nominees, and hence their positions, determined by -- those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival, " wrote Justice Antonin Scalia for the majority. "A single election in which the party nominee is selected by nonparty members could be enough to destroy the party."

The Court ruled that the processes by which political parties select their nominees are not wholly public affairs that states may regulate freely, and furthermore, citizens have the right to form like-minded political parties that are protected from the votes of non-members.

"In no area is the political association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s positions on the most significant public policy issues of the day," Scalia wrote. He went on to state that Proposition 198 takes away a party’s "basic function" to choose its own leaders and is functionally "both severe and unnecessary."

The Court suggested that California could serve the ends it wanted by adopting a non-partisan blanket primary, similar to the system in place in Louisiana, that allows voters to choose any candidate regardless of party affiliation with the top two vote-getters squaring off in a general election.

"The [non-partisan blanket primary] has all the characteristics of the partisan blanket primary," Scalia wrote, "save the constitutional one: Primary voters are not choosing a party’s nominee."

He added that under a non-partisan primary, "a State may ensure more choice, greater participation, increased ‘privacy,’ and a sense of fairness," without jeopardizing a political party’s 1st Amendment right of association.

Justice Scalia was joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Anthony Kennedy, David Souter, Clarence Thomas and Stephen Breyer.

Justices John Paul Stevens and Ruth Bader Ginsburg dissented.

Observing that primaries are not private affairs, Stevens argued that the majority misconstrued the 1st Amendment by limiting a state’s power to broaden voter participation in the electoral process.

"In my view," Stevens wrote, "the First Amendment does not mandate that a putatively private association be granted power to dictate the organizational structure of state-run, state-financed primary elections."

Stevens also felt that the Court blurred the distinction between a private organization's right to define itself and its messages and the state's right to define the obligations of citizens and organizations performing public functions.

Stevens also questioned the viability of the remaining open primaries and felt that neither Washington, Louisiana nor Alaska's blanket primary systems would likely stand up to a court challenge under the majority's reasoning.

"This Court’s willingness to invalidate the primary schemes of 3 States and cast serious constitutional doubt on the schemes of 29 others at the parties’ behest is," Stevens wrote, "an extraordinary intrusion into the complex and changing election laws of the States."