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Colorado's Open Primary
Is An Unconstitutional Abridgment of First Amendment Freedoms
By Dr. John C. Eastman and Charles Heatherly
Supreme Court Justice Antonin Scalia's majority (7-2) opinion in the landmark CALIFORNIA DEMOCRATIC PARTY, et al, V. JONES in 2000, which struck down California's Initiative 198, can help illuminate the current controversy over Colorado's open primary, a radical political reform adopted in November of 2016 by enactment of Proposition 108. The petitioners who took that California case to the U.S. Supreme Court included the California Republican Party and the California Libertarian Party.
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Six excerpts from Scalia's majority opinion are presented below verbatim. Six other judges concurred in the Scalia ruling --- Breyer, Kennedy, O'Connor, Rehnquist, Souter and Thomas. Stevens and Ginsberg dissented. (The two dissenting judges are no longer on the court, but two of the judges who joined Scalia are still there, Breyer and Thomas. See-- https://www.law.cornell.edu/supct/html/99-401.ZS.html
Two selections, #5 and #6, are especially relevant to the "good government" arguments often heard as justification of the Open Primary: Inviting participation by unaffiliated voters in Republican and Democratic primaries allegedly produces "more moderate" candidates competing for votes in the general election. However, the empirical evidence since 2016 that more "moderate candidates" are being elected is non-existent on the Democratic Party side and a source of growing controversy in the Republican Party.
The Colorado statute implementing Proposition 108 and the new open primary allows only one way to "opt out' of the new open primary, a 75% affirmative vote of the total membership of the party's governing body, the State Central Committee (SCC). If the SCC members do vote to opt out of the open primary, they have only two choices remaining for selecting Republican party nominees, by assembly or convention (or in combination). That highly restrictive language in the statute is another reason why the statute is unconstitutional: it forecloses returning to the Republicans-only primary that existed before the open primary was adopted by Proposition 108.
What has been missing from the public debate over the "opt out vote" is a more fundamental than limited choices: what is missing is a cogent argument demonstrating why and how it is the proper business of government in the first place to shape or channel the electoral choices of citizens-- Republican or Democrat -- toward "more moderate" candidates, however defined. Why is this simply assumed to be in a necessary and desirable thing in every circumstance and every election? As popular libertarian novelist Ayn Rand often warned, "Check your premises."
In his JONES decision, Justice Scalia is deeply skeptical of such progressive nostrums. Scalia doubts that the effects of this particular reform are a positive contribution to America's representative democracy. On the contrary, Justice Scalia believed and stated emphatically in his JONES opinion that it is clearly a "stark repudiation of freedom of association" as guaranteed by the First Amendment, and for that reason among others, is unconstitutional.
In the case of the most recent open primary in Colorado, in June of 2020, the forced pursuit of "moderation" required the mailing by the Secretary of State of Republican and Democratic primary ballots to about 1.7 million unaffiliated registered voters. The recipients were instructed, "choose one, and only one." Those 1.7 million ballots sent to non-Republicans exceeded the number of registered Republican voters by over 650,000-- and that gap has widened, not narrowed, each year since enactment of Proposition 108 in 2016.
The September 1, 2021 Active Voter registration numbers reveal the increasing possibility that in the June 2022 primary, the number of Republican primary ballots cast by Unaffiliated voters may outnumber ballots cast by Republicans. We are talking now not about the number of registered voters but actual ballots cast in the Republican primary:
If a Colorado Republican Primary were held in September of 2021 with the current active voter registration numbers, and the turnout of registered Republican voters was 50%, exceeding the highest primary turnout in recent history, Republican ballots cast in the primary by Republicans would be outnumbered by Republican ballots cast by Unaffiliated voters -- even if only 31% of Unaffiliated voters chose to cast the Republican ballots they received in the mail.
EXCERPTS FROM JUSTICE SCALIA'S MAJORITY OPINION
STRIKING DOWN CALIFORNIA INITIATIVE 198
1. "What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely. To the contrary, we have continually stressed that when States regulate parties’ internal processes they must act within limits imposed by the Constitution."
2. "Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidate espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself. See Cunningham, The Jeffersonian Republican Party, in 1 History of U.S. Political Parties 239, 241 (A. Schlesinger, ed. 1973). Consistent with this tradition, the Court has recognized that the First Amendment protects “the freedom to join together in furtherance of common political beliefs,” Tashjian, supra, at 214–215, 107 S. Ct. 544, which “necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only, ”La Follette, 450 U.S., at 122, 101 S. Ct. 1010. That is to say, a corollary of the right to associate is the right not to associate.“‘ Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association’s being."
3. "The record also supports the obvious proposition that these substantial numbers of voters who help select the nominees of parties they have chosen not to join often have policy views that diverge from those of the party faithful. The 1997 survey of California voters revealed significantly different policy preferences between party members and primary voters who “crossed over” from another party. Pl. Exh. 8 *579 Addendum to Mervin Field Report). One expert went so far as to describe it as “inevitable [under Proposition 198] that parties will be forced in some circumstances to give their official designation to a candidate who’s not preferred by a majority or even plurality of party members.”
4. "In concluding that the burden Proposition 198 imposes on petitioners’ rights of association is not severe, the Ninth Circuit cited testimony that the prospect of malicious crossover voting, or raiding, is slight, and that even though the numbers of “benevolent” crossover voters were significant, they would be determinative in only a small number of races.9169 F.3d, at 656–657. But a single election in which the party nominee is selected by nonparty members could be enough to destroy the party. In the 1860 Presidential election, if opponents of the fledgling Republican Party had been able to cause its nomination of a proslavery candidate in place of Abraham Lincoln, the coalition of intraparty factions forming behind him likely would have disintegrated, endangering the party’s **2411 survival and thwarting its effort to fill the vacuum left by the dissolution of the Whigs. See generally 1 Political Parties & Elections in the United States: An Encyclopedia 398–408, 587 (L. Maisel ed. 1991). Ordinarily, however, being saddled with an unwanted, and possibly antithetical, nominee would not destroy the party but severely transform it.“
5. "In sum, Proposition 198 forces petitioners to adulterate their candidate-selection process — the “basic function of a political party,” ibid.—by opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome—indeed, in this case the intended outcome—*582 of changing the parties’ message. We can think of no heavier burden on a political party’s associational freedom. Proposition 198 is therefore unconstitutional unless it is narrowly tailored to serve a compelling state interest."
6. "Respondents proffer seven state interests they claim are compelling. Two of them — producing elected officials who better represent the electorate and expanding candidate debate nominee positions other than those the parties would choose if left to their own devices. Indeed, respondents admit as much. For instance, in substantiating their interest in “representativeness,” respondents point to the fact that “officials elected under blanket primaries stand closer to the median policy positions of their districts” than do those selected only by party members. Brief for Respondents 40. And in explaining their desire to increase debate, respondents claim that a blanket primary forces parties to reconsider long standing positions since it “compels [their] candidates to appeal to a larger segment of the electorate.” Id., at 46. Both of these supposed interests, therefore, reduce to nothing more than a stark repudiation of freedom of political association: [that] Parties should not be free to elect their own nominees because those nominees, and the positions taken by those nominees, will not be congenial to the majority."
