Resurrecting the white primary.

• Author: Katz, Ellen D.
• Position: Symposium: The Law of Democracy

INTRODUCTION

An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. (1) Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. (2) More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the one for whom they modify policy proposals and offer the political spoils that generate loyalty. Simply put, a competitive election offers every voter the potential to be this year's "NASCAR Dad." (3)

In safe electoral districts, candidates compete for votes, if at all, only in the majority party's primary. (4) Such primaries accordingly function as the only juncture for meaningful political participation in these jurisdictions. Current law nevertheless permits the exclusion of a sizeable minority of the district's electorate from participating at this pivotal point. The Supreme Court has recently reinvigorated a political party's associational right to exclude nonmembers from participating in the party's primary. (5) This right itself is not novel, as a generation's worth of precedent celebrates the associational rights of political parties to define racially inclusive membership qualifications. (6) What is new is the Court's insistence that this associational right trumps the participatory interests of nonmembers even when the primary reliably determines the ultimate victor in the general election. (7)

This rule repudiates what this Article argues is the core holding of the White Primary Cases, namely that the Constitution requires that all voters have access to a jurisdiction's sole juncture of meaningful electoral decision making. As discussed in Part I.A, scholars have long criticized the White Primary Cases, and in particular Smith v. Allwright (8) and Terry v. Adams, (9) for applying constitutional constraints to the private actors who orchestrated white primaries. (10) Smith and Terry have broad ramifications, but they neither expand the state action doctrine nor damage associational freedom to the extent these scholars allege. Instead, Smith and Terry posit that access to a competitive election is an essential component of the right to vote. (11) They recognize that meaningful political participation requires the opportunity to influence electoral outcomes. The white primaries that Smith and Terry invalidated denied this opportunity not simply because they were racially exclusive, but because they enforced their exclusivity in the context of determinative primary elections. (12)

After Smith and Terry, the Court recognized the right to vote to be a fundamental right protected by the Fourteenth Amendment. (13) Part I.B argues that, as a doctrinal matter, this development should have outlawed ideologically based exclusions from determinative party primaries, just as Smith and Terry prohibited racially motivated ones. (14) Insofar as the Fourteenth Amendment protects the right to vote, and access to a competitive election is an essential component of that right, Republicans excluded from the Democratic primary in a district that is safely Democratic are denied the right to vote for the office at issue. Such an exclusive primary is functionally equivalent to a general election in which only registered Democrats may participate. The latter restriction undeniably denies Republican voters their right to vote. A Democratic primary that both excludes Republicans and dictates the victor in the general election should be no different.

To be sure, Republicans could simply switch parties and thereby gain access to the Democratic primary. Republicans on Manhattan's Upper West Side today are obviously not in the same situation as African Americans in Fort Bend, Texas circa 1950. Yet the mutability of party affiliation should be of no consequence as a matter of doctrine. Fourteenth Amendment precedent makes clear that the right to vote cannot be made contigent on ideological commitments. Otherwise qualified voters may not be carved out of the electorate simply because they do not share the values or perspectives of the majority of other voters. (15) Accordingly, where the majority party's primary is the only locus of meaningful electoral decision making, that primary should be the election in which all voters are entitled to participate regardless of party affiliation.

This proposition is, of course, not law. It stands in tension with three decades of precedent in which the Supreme Court has demonstrated ever-increasing solicitude for the associational rights of political parties. (16) Not until California Democratic Party v. Jones, (17) however, did the Court expressly repudiate the notion that meaningful political participation requires access to a competitive electoral process. Jones flatly denies that voters have a right to participate in the primary of a party in which they are not members, regardless of whether the general election is a competitive or a perfunctory affair. (18) Jones thereby makes clear that a party's associational freedom to define its primary electorate need not be sacrificed when that primary is the determinative election. This associational right trumps any interest minority-party voters possess in influencing electoral outcomes. (19) In short, Jones holds that Smith and Terry do not extend beyond racially exclusive primary elections. (20)

Part II argues that even if Smith and Terry are limited to instances of racial discrimination, the Court's present disregard for the importance of electoral competition significantly erodes those decisions. Assuming Smith and Terry do no more than prevent a political party from manipulating the racial composition of its primary electorate, the associational right underlying decisions like Jones restores the ability to do just that.

This power devolves to the Democratic Party in particular because African Americans vote overwhelmingly for Democratic candidates. (21) And this power is a significant one, given that the racial composition of Democratic primaries often dictates the influence racial minorities exert in the political process, particularly as competitive districts become more scarce and racial bloc voting among Democrats declines. (22)

The Democratic Party may assert its associational interest in excluding nonmembers from its primary to increase the proportion of black voters in the primary electorate. There are two reasons why the Democratic Party might want to manipulate the racial composition of its primary electorate in this manner. First, as explained in Part II.A, doing so enables the Party to create an electorate likely to elect an African American representative. And a black presence in the legislature, and not simply a Democratic one, may be necessary to produce policies black voters generally support and hence to maintain black support for the Democratic Party. Black candidates and legislators may also be essential to energize black voters and to ensure that they turn out on election day. (23)

The Democratic Party may consequently want to promote descriptive black representation. For more than a decade, the majority-minority district (as opposed to the majority-minority primary) has been a dominant method of doing this. Yet, concentrating black voters in majority-black districts tends to place fewer Democrats in office than does dispersing these voters among several districts. (24) The majority-minority primary, in contrast to the majority-minority district, constitutes a vehicle by which the party may foster descriptive black representation (and its consequent benefits for the party) without generating the political losses often associated with the majority-minority district. (25)

Part II.B discusses the second reason why the Democratic Party might invoke the associational interest underlying Jones to concentrate black voters in the primary electorate. To minimize Democratic influence, a districting plan produced by Republicans will concentrate in a single district the maximum number of black voters possible within constitutional and statutory constraints. (26) Democrats may respond by excluding nonmembers from the party primary in such districts, thereby concentrating black voters even more. This Part argues that in a safe Democratic district, concentrating black voters in this manner may result in racial vote dilution through "packing," and thus may require redistricting to resolve the clash between the party's associational right and the minority voters' right to protection from racial vote dilution. The Democratic Party may thereby force redistricting and thus disperse among several districts the minority voters a Republican-controlled legislature has concentrated in a single district. In other words, it may use its power to manipulate the racial composition of its primary electorate to counter an unfavorable partisan gerrymander. (27)

Part II.C evaluates a recent case in light of these observations. It discusses Congresswoman Cynthia McKinney's 2002 defeat in the Democratic primary in Georgia's Fourth Congressional District and the lawsuit that followed, which unsuccessfully sought to establish that the state's open primary caused racial vote dilution within the meaning of the Voting Rights Act.

The Conclusion draws a parallel between the authority the Democratic Party now enjoys to control the partisan and racial composition of its primary and the power it exercised a century ago to operate the white primary. It explores the ramifications of this parallel in light of the Court's decision last Term in Vieth v. Jubelirer, (28) in...