Argument: Primaries are largely the internal affairs of political parties

Issue Report: Primaries in US elections

Issue Report: Superdelegates


  • Walter Mondale. New York Times. February 2, 1992 – “The election is the business of the people. But the nomination is more properly the business of the parties….The problem lies in the reforms that were supposed to open the nominating process….Party leaders have lost the power to screen candidates and select a nominee. The solution is to reduce the influence of the primaries and boost the influence of the party leaders….The superdelgate category established within the Democratic Party after 1984 allows some opportunity for this, but should be strengthened.”
  • “Lopez-Torres v. New York Board of Elections.” 558 US ____ (2008). January 16, 2008 – “A political party has a First Amendment right to limit its membership as it wishes, and to choose a candidates election process that will in its view produce the nominee who best represents its political platform. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981); California Democratic Party v. Jones, 530 U. S. 567, 574–575 (2000). These rights are circumscribed, however, when the State gives the party a role in the election process—as New York has done here by giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot. Then, for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment. See id., at 573. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party’s nominating process, enabling it to prescribe what that process must be. Id., at 572–573. We have, for example, considered it to be “too plain for argument” that a State may prescribe party use of primaries or conventions to select nominees who appear on the general-election ballot. American Party of Tex. v. White, 415 U. S. 767, 781 (1974). That prescriptive power is not without limits. In Jones, for example, we invalidated on First Amendment grounds California’s blanket primary, reasoning that it permitted non-party members to determine the candidate bearing the party’s standard in the general election. 530 U. S., at 577. See also Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 224 (1989); Tashjian v. Republican Party of Conn., 479 U. S. 208, 214–217 (1986).”
  • Richard L. Hasen. “Whatever Happened to ‘One Person, One Vote?’ Why the crazy caucus and primary rules are legal.” Feb. 5, 2008 – “What gives? Didn’t the Supreme Court declare a ‘one person, one vote’ principle back in the 1960s requiring the equal weighting of votes? And shouldn’t this render most of these party rules unconstitutional? The short answer is no. Although most of the deviations from ‘one person, one vote’ would be unconstitutional if a state put them to work in the general election for president, party primaries and caucuses are different. Aside from some really egregious no-nos, such as weighting candidate delegate strength according to the race of their supporters, courts are likely to stay out of disputes over the rules for choosing the parties’ presidential nominees.
The reason for the different treatment is the hybrid nature of our electoral system. Party primaries and caucuses have elements that are public (the state often pays to run them, and they lead to choices on the public general election ballot) and elements that are private (political parties are not government entities, they are private associations). Private associations have a First Amendment right to exclude those who disagree with them, and to structure their internal affairs as they see fit. Presidential primaries straddle this public-private divide because presidential nominations are ultimately made at party-run conventions.The Supreme Court has said ‘it is too plain for argument’ that states can require parties to use primaries or conventions rather than caucuses or smoke-filled rooms to pick nominees who appear on the general election ballot. But beyond that lowest denominator, parties have a lot of autonomy. As Justice Antonin Scalia recently wrote for a seven-justice Supreme Court majority, ‘A political party has a First Amendment right to limit is membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.’
So courts won’t require a primary where a state hasn’t required one. Parties can decide on a state-by-state basis whether independent voters get to vote in their party primaries; how to weight delegate votes; and even the racial and gender composition of delegates to the convention. The party can enact affirmative action rules for its delegates, for example, to send a televised message about inclusiveness to the rest of the party and the viewing public.
Rules over presidential delegates are especially hard to challenge in court. As a federal appellate court explained in 1987, in a case challenging the Democratic Party’s requirement at the time of a roughly equal number of male and female delegates: A ‘vote for delegates is some steps removed from a vote for an actual candidate for public office. Delegates for practical purposes constitute the National Party—they make its rules, adopt its platform, provide for its governance, as well as nominate candidates.’ Courts are wary of interfering with the internal workings of the parties. Poking their noses into delegate selection could do just that.”