Open Primary Voting and Ending Party Choice?

Next year, Oklahomans will have the opportunity to go to the polls and basically decide if the Republican Party will still be allowed to choose its own candidates for state elections. While this is being touted as closed versus open primary elections, it is more complicated than that.

As the U.S. Supreme Court has ruled that parties cannot be forced to open their primaries, Oklahoma’s State Question 836 is actually proposing what is known as a top-two primary. As this decision will greatly affect how the state’s leaders are chosen, it’s worth explaining a bit about the history of primaries.

When our nation first started, all candidates for elections — both state and federal — were chosen by caucuses. In other words, party leaders gathered and chose their candidates; the people had no say in the decision. By the 1820s, states had gone to a convention system where local leaders sent delegates to conventions to choose candidates. These conventions were still run by party leaders and the people still had little to no choice as to who their candidates were.

The first states to employ a type of primary system began in the South in the 1880s, but for all the wrong reasons. In the South, Democrats were essentially a one-party system, and the primaries allowed them to retain that control. Whoever the party nominated was basically guaranteed to win. So, the real elections were in the primaries.

The thing about the primaries was that, as a private group, parties could make their own rules of who could join. So, while the 15th Amendment said Blacks could not be denied the right to vote, they could be denied the right to vote in the Democratic primaries. The same rule also restricted poor whites from voting.

By the turn of the century, primaries came to represent something new — something much better. With the Populist Party and the rise of the Progressive Era (1890s-1920s), primaries became about democracy. Now allowing the people to choose their nominees took away the power from the party bosses. Minnesota and Wisconsin were the first states to pass laws requiring state positions to be nominated by primaries. Because candidates now had to appeal to voters to win the primary, they became more accountable to the people and less dependent on party bosses. By 1917, all but five of our 48 states held primaries to elect state positions.

Once primaries were accepted, the big question became should states use closed or open ones. In closed primaries, only voters registered with a political party can have a say in whom their party chooses as its candidate. Under this system, unaffiliated voters cannot vote in the primary, and independent voters must hold their own primaries. In open primaries, voters do not have to be registered with a party to vote in its primary. So, Republicans can vote in Democratic primaries and vice versa. Some states, like Oklahoma, are mixed. Democrats allow open voting while Republican primaries are closed.

This split system is perfectly legal as, since 1986, parties can choose for themselves who can vote in their own primaries; however, Washington and California found a way to skate around the law in 2008. (But we’ll get to that later.)

Connecticut law used to require that both parties hold closed primaries. While the Democratic Party, who controlled the state, approved of the law in 1984, Republicans pushed to allow independents to vote in their primaries — in other words, have an open primary. When Connecticut Secretary of State Julia Tashjian refused to alter the law, the Republican Party took her to court. The Supreme Court ruled in Tashjian v. Republican Party (1986) that the freedom of association under the First and 14th amendments protects political parties’ rights to determine who may or may not participate in their own primaries. Parties are private organizations, so they — not the state — can choose to be open or closed.

Then came California. In 1996, the Golden State passed a law changing its system from a closed primary to a blanket primary. Under a blanket primary, every voter (regardless of party affiliation) receives a ballot listing all candidates. Anyone could vote for any candidate. In each party, the candidate who received the most votes became that party’s nominee in the general election.

Members of both parties argued this system took away their First Amendment right of freedom of association. In California Democratic Party v. Jones (2000), the U.S. Supreme Court agreed, saying parties choose their nominees as part of their political message and identity. Forcing a party to admit nonmembers into its candidate selection process is a substantial intrusion on its freedom to define its membership and message. In other words, parties are private, and the state could not force open primaries.

However, a couple years later, Washington found a way around Jones by changing their primary to a top-two primary system. In this system, all candidates, regardless of party, appear on the same primary ballot. Voters can choose any candidate regardless of party. In California, the top Republicans and Democrats made it to the final election, but in Washington the top two vote-getters advance to the general election, even if both from the same party. As you can expect, the parties sued, claiming just as with California, this system this violated their First Amendment rights.

This time, however, the court disagreed. In Washington State Grange v. Washington State Republican Party (2008), the court ruled the top-two system does not nominate party candidates; it simply narrows the field of candidates for the general election. Therefore, it does not force parties to associate with candidates or messages they oppose. With this, California adopted the top-two system, making them and Washington the only two states in the union not to use closed, open or mixed primaries. (Louisiana is like a top-two system but more confusing.) In the other 47 states, parties decide their platforms, candidates and whether they allow members of other parties to vote in their primaries.

Now with State Question 836, the issue is, will Oklahoma become like California and Washington with their top-two system or will we allow parties to continue to decide what is best for their own party?

James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com. Thanks to Southwest Ledger for sharing his column.