Has the one-ballot-only primary system ever been challenged in court?

March 8, 2018 6:54 PM

I am an independent voter in Illinois, and have strong opinions on which Democrat I'd prefer on the ballot in November and which Republican I'd (really, really not) prefer. Illinois is an "open primary" state, so I can choose either party's ballot to vote on. But I can't take both. That means practically speaking that I can only vote halfway in the primary. In a two-party system where the Democrat or Republican will win a national race 99.999% of the time, the ability to only vote for primary candidates from one party feels disenfranchising.

I get that, in theory, the parties themselves are having the primary to choose their own party's candidate (as opposed to a general election), and so it makes sense that only that party's members would vote for him or her. But realistically it shouldn't work like that in our modern day when you only get two choices in November. And I get that, in theory, if you allowed people to take both ballots then there would be some subterfuge where Republicans would vote for the worst Democrat and vice versa. But other voters' bad behavior shouldn't affect honest voters' right to choose candidates.

Has anyone ever tried to make a voting rights suit challenging the notion that voters must be restricted to one party's ballot? Is it realistic that you could make a case?

posted by AgentRocket to Law & Government (7 answers total)

In terms of what is best for the public good, I agree that it should work like that, however any challenge would have to have a basis in law, and unless state or federal law steps in to regulate how primaries are performed, parties can choose whatever rules they want.

In other words, the problem is one with the laws themselves, which would require a legislative solution, not a judicial one.
posted by Aleyn at 10:46 PM on March 8, 2018

>And I get that, in theory, if you allowed people to take both ballots then there would be some subterfuge where Republicans would vote for the worst Democrat and vice versa.

The problem is, the "best" Republican you would choose, very well might be the "worst" republican in their eyes, and vice versa.
posted by pyro979 at 3:52 AM on March 9, 2018 [1 favorite]

Some states do use a system that would get around this issue somewhat. In a nonpartisan blanket primary (or "jungle primary"), everyone chooses from a list of all candidates, regardless of party; the top two vote-getters then compete head-to-head in the general election. This system occasionally results in two Democratic or two Republican candidates running against each other in the general election. This system is currently used in Louisiana, California, and Washington.

Previously, California and Washington used a blanket primary system, in which voters in the primary could vote for candidates from either party, and then the top vote-getter from each party would advance to the general election. This was ruled unconstitutional in 2000 in California Democratic Party v. Jones, with the reasoning that it unfairly infringed on the freedom of the political parties to chose which candidates they affiliated themselves with. It seems like your scheme might run afoul of this ruling.
posted by Johnny Assay at 4:41 AM on March 9, 2018 [2 favorites]

Has anyone ever tried to make a voting rights suit challenging the notion that voters must be restricted to one party's ballot?

I am unaware of any such case that's specific to semi-open/semi-closed primaries like IL's but (IIRC) there have been cases about closed primaries that found them entirely kosher.

Is it realistic that you could make a case?

No.
posted by GCU Sweet and Full of Grace at 6:14 AM on March 9, 2018 [2 favorites]

It's important to keep in mind that essentially a political party is a private entity, so they get to make the rules about how they select who will represent them on the ballot. But because they use public resources to get those ballots to the public and have them counted, the public does have some recourse.

I live in Washington State where we have had had "top-two" primaries for some time. And in districts that are reliably democratic or republican you end up having two people from the same party running against each other in the general election. I think that actually is a positive, since then the choice is between two candidate who are actually viable.

Now in the primary I still only get to choose one candidate. I don't get to chose my preferred republican and my preferred democrat (or preferred Salmon-Yoga-Party candidate) to run against each other in a general election.
posted by brookeb at 10:03 AM on March 9, 2018

Another reason that this primary system isn't as unfair as you might think: When there is a party primary, there's always another route to get on the general election ballot, whether by forming a third party or gathering signatures. It's often impractical and very rarely results in electoral success, but at least you can argue that the partisan primary doesn't have a monopoly on ballot access.
posted by Jasper Fnorde at 10:10 AM on March 9, 2018 [1 favorite]

And I get that, in theory, if you allowed people to take both ballots then there would be some subterfuge where Republicans would vote for the worst Democrat and vice versa. But other voters' bad behavior shouldn't affect honest voters' right to choose candidates.

I think you're really underestimating the perverting effect this would have on an election.

To use just a quick numeric example, suppose the electorate is divided equally between Republican and Democrat, 10000 people on each side.

Suppose one party has four candidates that had it just been just that one party voting, would have finished with 4000, 3000, 2000, and 1000 votes apiece.

The other party would have 10000 votes to play with to subvert this election. Worst case scenario, the otherwise lowest performing candidate wins with 11000, nearly triple the legitimate candidate's total. It would take a much smaller percentage of votes to push the #2 candidate into the lead.

And it doesn't even have to be malicious. As pyro979 points out, the democrats vote for the most democrat-like Republican and vice versa, potentially resulting in a general election where each voter's best choice is the "opposing" candidate...
posted by cali59 at 2:24 PM on March 9, 2018