The Slippery Constitutionality of Open Primaries

Since the early days of the American Republic, political parties have been vehicles through which people of modest means can participate effectively in politics. Like churches, families, associations, and corporations, parties are mediating organizations between the individual and government.

And like other mediating organizations, parties have come under fierce attack from the left. One form of attack has been promotion of state election laws allowing non-party members to vote for party nominees.

But on June 30, the Supreme Court issued a case that brought it one step closer to ruling that such laws violate the Constitution’s First Amendment, as incorporated against the states by the Fourteenth. The case was National Republican Senatorial Committee v. Federal Election Commission (hereinafter National Republican).

Party Primaries Explained

In the traditional closed party primary, party members vote on which candidates to nominate for the general election. But fourteen states require open primaries, which permit all electors—even those belonging to hostile parties—to vote in any party’s primary. The Republican Party of Texas has launched a lawsuit challenging that state’s open primary law.