Partisanship Redefined: Why Blanket Primaries Are Constitutional

• Publication year: 2004
• Citation: Vol. 29 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 2WINTER 2005

COMMENTS

Partisanship Redefined: Why Blanket Primaries are Constitutional

Deidra A. Foster(fn*)

I. Introduction

In 2003, the Ninth Circuit Court of Appeals rendered a decision that would pave the way for drastic changes in Washington State's election process. In Democratic Party of Washington v. Reed, the court held that Washington's nearly seventy-year-old blanket primary was unconstitutional, and the Supreme Court declined to review the case.(fn1) The Ninth Circuit professed to be bound by California Democratic Party v. Jones, the Supreme Court case that ruled California's blanket primary unconstitutional just three years earlier, ignoring the argument that Washington's blanket primary differed materially from California's.(fn2) What followed was a melee of voter disapproval and disappointment. The Washington State Legislature reacted with damage control efforts but was conflicted. Legislators were pressured by voters who yearned for a primary system that would closely replicate the invalidated blanket primary voters had come to love. They also faced pressure from Washington's political parties to close the primary so that voters would be forced to select candidates for all offices from only one party. Indicative of the turmoil the loss of the blanket primary caused, the Washington State Legislature enacted a nonpartisan primary; Washington's governor vetoed that provision, resulting in the enactment of a Montana-style primary;(fn3) Washingtonians voted for an initiative to enact the nonpartisan primary as a means of preserving as many of the virtues of the constitutionally-flawed blanket primary as possible; and, at the time of this publication, the state of the primary remains up in the air as Washington voters await the Ninth Circuit's ruling on the appeal of a decision holding the nonpartisan primary unconstitutional.

This Comment argues that Reed should be overturned because it fails to appreciate the material distinction between the Washington and California primaries, and that Jones did not render all blanket primaries unconstitutional. In doing so, this Comment examines blanket primaries more generally and argues against the typical perception of political primaries as merely a component of party machinery. Part II explores the historical background of candidate nomination in political parties. Part III details the blanket primary today by exploring the California and Washington systems and the cases invalidating them. Part IV contends that blanket primaries may be deemed constitutional when they are carefully analyzed on a state by state basis, in their state specific context. This section also debunks the notion that political parties have the same rights as purely private organizations and posits that blanket primaries do not violate the freedom of association. In addition, Part IV analyzes a unique form of disenfranchisement that only blanket primaries can prevent and casts the oft-argued distinction between primary and general elections as illusory. This section concludes by tackling the issue of party raiding, arguing that although theoretically possible, it is unlikely, ultimately irrelevant, and not the concern of states.

II. The History of the Two-Party System and the Primary

Understanding the primary's various permutations requires an understanding of its relation to the two-party system and how the primary system evolved from other, more party-centered forms of candidate nomination.

A. The Two-Party System

The Constitution does not mention political parties, not because they were inconceivable to the Framers but because they were viewed negatively.(fn4) Thomas Jefferson's distaste for parties exemplifies the view of the Founders: Party affiliation "is the last degradation of a free and moral agent. If I could not go to heaven but with a party, I would not go there at all."(fn5)

American party politics nevertheless emerged soon after ratification.(fn6) George Washington's departure from the Presidency marked the emergence of American partisanship, with a debate brewing between notions of strong, centralized government advocated by Alexander Hamilton and state-dominated, decentralized government advocated by Thomas Jefferson and James Madison.(fn7) In the mid 1850s, both the Democratic and Republican parties established national committees with one representative from each state,(fn8) and it is within the context of political parties that the primary election evolved as a way to nominate party candidates.

B. Evolution of the Primary

Relatively speaking, the political primary is a new phenomenon. The oldest form of candidate nomination was the legislative caucus whereby a party's elected officials chose party candidates for the primary ballot in an informal meeting.(fn9) Due to concerns that the caucus system was too unrepresentative and too cumbersome to accommodate the growth of cities, the convention system arose as a replacement.(fn10) In the convention system, party members chose delegates to send to formal nomination meetings.(fn11) Critics condemned the convention system for being corrupt, fostering intimidation and bribery, and being class- and boss-ridden.(fn12) As a result of these criticisms, the direct primary system emerged as an attempt to "return nominations 'to the people'" by taking control from the party and giving it to the state.(fn13)

Political parties were not initially adverse to the adoption of primaries as nomination devices.(fn14) As America became more populous, urbanized, and heterogeneous, informal nomination procedures became inadequate.(fn15) In fact, parties advocated for primaries as a response to changing demographics.(fn16) The primary system was embodied first in party rule and then in state laws.(fn17) The primary was first used in Pennsylvania in the mid-1800s, and Wisconsin first adopted the direct primary as a compulsory statewide nomination method in 1903.(fn18) Wisconsin adopted the direct primary due to the Republican Party's domination of the state for nearly fifty years, which had led to concerns that the state was overly hostile to progressive legislation and candidates.(fn19) Nonetheless, the primary was first put to "general use" in the South, with the West, Midwest, and East following suit.(fn20) Today, use of the primary system in the United States is widespread, with some states employing it as a hybrid with the convention system.(fn21) The primary is an interesting political beast; while it serves a governmental purpose, its history reveals that it is a function of the parties themselves.

However, the primary system did not meet the parties' expectations. Arguably, returning candidate nomination to the people merely led to the nomination of people with recognizable political names.(fn22) The adoption of the primary is also seen to have undermined the strength and organization of the parties. It has facilitated ticket-splitting, whereby voters vote for candidates from more than one party in the same election. In the 1880s, a highly partisan period, ticket-splitting was widespread, accounting for at least twenty-five percent of apparent party members in some regions.(fn23) Today, ticket-splitting still has a strong presence in American politics, and there are some indications that American voters view ticket-splitting as a sign of intelligence.(fn24) The primary system arguably has further undermined the power of party politics, by creating competition within, rather than among, the party structure.(fn25)

Several other drawbacks of the primary system as a means of selecting party candidates stem from the fact that the primary system necessitates an additional election. It has been argued that the primary negatively affects voter turnout because voters are generally less likely to vote in the primary than in the general election.(fn26) Thus the voters who do turn out to vote in primaries may be unrepresentative of the party.(fn27) This added election also means that candidates have to do more campaigning, and parties are unlikely to fund candidates' campaigns in contested primaries.(fn28) The added expense of campaigning for the primary election may mean that the candidate is less equipped to succeed in the general election.(fn29) In sum, political parties first sought primaries but, as they felt the practical effects, the political parties reversed their position and subsequently opposed the primary system.

C. Types of Primaries

Primaries can generally be classified into two categories: nonpartisan and partisan.(fn30) In nonpartisan primaries, the names of all candidates running for office are listed on the ballot without a party designation.(fn31) Twice the number of candidates needed to proceed to the general election to face off, regardless of whether the top vote-getters are from the same party.(fn32) This runoff style of election has the benefit of ensuring that the winner receives a majority, rather than a mere plurality, of the vote.(fn33) In some non-partisan primaries, the candidate receiving a simple majority is elected without having to face the runner up in the general election. (fn34) Some states employ this method for nonpartisan offices, such as judgeships, and others utilize the runoff method in tandem with their partisan primaries.(fn35) This is particularly true in the South, where...