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Saturday, February 6, 2016

Open Primaries Are An Attack On Voting Rights

The New Hampshire presidential primaries are days away. New Hampshire has what is called an open primary. That means anyone can vote in the primary regardless of their pre-existing party affiliation, which then changes upon their voting. You could call this "instant affiliation." I suggest you call it by its real name: Instant vote dilution.

In many states, voting in a party primary is restricted to people who have chosen their party in advance, sometimes well in advance. But in New Hampshire, the laws are incredibly permissive.

  • You can register to vote in New Hampshire and vote in the primary the same day.
  • You can "move" to New Hampshire, declare your "domicile," and vote -- all on Primary Day. 
  • You can declare your party affiliation -- on Primary Day.
  • After Primary Day, you can immediately un-affiliate by declaring you want to leave the party, just by filling out a form.
New Hampshire's laws punish bonafide party members and dilute their votes. In effect, they diminish the value of the affiliation. A long-time party member's vote counts no more than the vote of the individual who may "just have moved" from any of the neighboring states, or decided to vote in the party which he opposes, in order (as the theory goes) to have the opposed party choose the weaker general-election candidate.

This very danger was recognized by the United States Supreme Court in its excellent 1970 decision in Rosario v. Rockefeller. That decision explained the practice of "party raiding" and the value of deterring such raiding by making voters choose their political party well in advance of the primary election. (That case, in which the defendant was the legendary New York Governor Nelson Rockefeller, upheld New York State's 11-month deferred enrollment practice.) 

New York, and many other states, have a "closed primary" that restricts primary voting to party members makes party affiliation meaningful. The closed primary protects the First Amendment right of association of voters. The Rosario case recognized and upheld the concept that the idea of a party primary is to have the members of that party choose its nominee. It is the basis for party affiliation and the prime reason to be in a political party (for legal, voter registration purposes). 

Closed primary election laws act like anti-virus software. They allow bonafide and committed members to associate but to keep out hostile attackers. 

The open primary, conversely, attacks the right of association. It allows hostile attackers to dilute and affect the outcome. Open laws like those in New Hampshire, and Missisippi to name another state, invite mischief and effectively denigrate party affiliation. Nothing diminishes the value of party affiliation than to allow outsiders -- non-bonafide members with no allegiance to the "party" -- to participate in and distort the outcome of its primaries. 

The open primary also arguably violates the Fourteenth Amendment's Equal Protection Clause. That's because it subordinates the First Amendment associational right of "long time" party members to the hostile attackers' right to invade. If you're thinking that closed primary or durational-registration requirements (e.g., register in the party by some deadline well in advance of the primary) are unconstitutional on a similar ground that they "keep out" others who "have a right" to participate in whatever primary they choose, the answer is that they merely erect an even deadline, applicable to all voters, in advance of the primary. A conditional requirement like a deadline is thus not a barrier, but the result of a legal presumption of legitimacy of a voter who switches or declares parties sufficiently well in advance of the primary.

In other words, party affiliation (also called "party enrollment") deadlines do not prevent party raiding or electoral mischief. They just place a premium on attackers having the foresight to organize weeks or months in advance of the targeted primary.

What do you think about open primaries? Do you think an open primary defeats the purpose of selecting a political party?

Eric Dixon is a New York lawyer. 

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