As Bob Conner reported for IVN in 2014, New Jersey’s independents spent approximately $100 million to pay for primaries in which they could not vote between 2000 and 2013. The obvious question is, how did this come to be? How did taxpayers come to subsidize party primaries?
The origin of government-administered primaries begins in the late 1800s and early 1900s, when state governments began to intervene to curb the influence of party bosses and tackle corruption. A series of reforms – including regulations, the adoption of the Australian ballot, and direct primaries – culminated in the formation of a hybrid system, whereby public funds are used to administer primary elections that in some states bar participation by unaffiliated voters.
This hybrid system has grown out of how parties in most states historically selected their nominees: the caucus and convention system. Under this system, party members meet at caucuses – essentially local meetings – to select delegates who they believe best represent their values and the interests of the party. Then, the delegates meet at a convention to select a nominee to office: for instance, delegates from a state’s counties might convene to nominate a governor.
Under this previously prevalent system, while many delegates could have been grouped into competing factions at such nominating conventions, delegates often valued consensus and unity. Leaving a sizeable number of delegates dissatisfied could tempt those delegates to support a “bolting” candidate – one who would challenge the chosen nominee in the general election and fracture the party’s votes.
At Michigan’s Republican State Convention in 1884, delegates cheered for a losing candidate, Cyrus Luce, when he gracefully accepted defeat and expressed his support for the convention’s collectively decided nominee.
While this system has acquired the reputation of being corrupt and dominated by party bosses (such as in the infamous case of New York City’s Tammany Hall), historical evidence suggests that in many states, delegates acted with a great deal of autonomy and integrity at nominating conventions.
In 1882, the Los Angeles County Democratic Convention made clear that each delegate attended the state convention “without instructions” and was to vote “for the best interests of the party in accordance with the dictates of his own conscience.”
Yet the caucus and convention system was vulnerable to corruption and even outbreaks of violence when internal disagreements became irreconcilable. Efforts to reform the system began in California after two incidents in 1865 within the Union Party convinced lawmakers to regulate the conduct of party activity.
In one case, John B. Felton spent $250,000 of taxpayers’ money to try to secure his election to the U.S. Senate. Also that year, delegates from the Long Hair and Short Hair factions clashed at the party’s Sacramento County Convention, where they buffeted each other with pistols and hickory canes.
In 1866, the legislature passed the so-called Porter Law, which established regulations for primary elections including the delivery of notices regarding the time and location of an election and penalties for corruption. However, compliance was optional.
Over the decades, states began to make these regulations mandatory and prohibited practices such as vote-buying and ballot box stuffing.
The next major step toward the government administration of primaries occurred in the late 1880s and early 1890s, when states began adopting the Australian ballot (also known as the secret ballot). With this reform, the state assumed the burden of printing a uniform general election ballot.
While ostensibly sensible and unobtrusive, this measure required the state to determine who the authentic nominees were from each party and thus – by extension – which parties were qualified to appear on the ballot in the first place. To make these determinations, governments sometimes imposed arbitrary and excessive requirements for petition signatures and prior election performances that harmed minor parties.
While the major parties generally favored this reform because it freed them up to devote their funds to other activities and it validated the choice of the convention’s nominee (and thus worked to the disadvantage of dissident “bolters”), it also had a significant symbolic effect: in the words of scholars Jamie Carson and Jason Roberts, “the transition to the Australian ballot…sanctioned the existence of political parties as organizations subject to state control.”
Yet the most significant step toward the public administration of primaries occurred with the adoption of mandatory direct primary laws.
The direct primary, whereby party voters – not just delegates – select the party’s nominees, began in northwest Pennsylvania’s Crawford County, where the local Democratic Party implemented it in 1842, followed by the local Republican Party in 1860.
The direct primary was also popular among the Democratic Party in the South, since it expanded suffrage to a largely white and Democratic electorate while also allowing the party to define membership so as to exclude blacks from participation.
In South Carolina, for instance, an African-American wishing to vote in the party primary required a written statement from ten white men testifying that they knew the applicant had voted for General Hampton for governor in 1876 and for the Democratic ticket ever since.
The statewide primary did not become mandatory, however, first until 1904, when progressive governor Robert La Follette of Wisconsin put the issue to voters in a referendum after winning reelection following a contentious – and legally fraught – victory against the “stalwarts” at the Republican nominating convention.
As the adoption of the mandatory direct primary rapidly spread, so too did the legal conception of political parties and the purported right of governments to manage their internal affairs. In 1907, the Supreme Court of California noted in its decision in Katz v. Fitzgerald that:
[I]t is sufficient to say that the conception that a political party is merely a private association of citizens [has] been very generally abandoned, and, where not abandoned, the conception itself has been destroyed, as in this state by force of the constitution and the statutory laws enacted under it. By virtue of the constitutional provision the state has seen fit to declare that political parties shall be as to their mode of holding conventions and nominating candidates for public office, regarded as public bodies whose methods are to be controlled by the state.
With the switch to the direct primary and the strict regulation of partisan activity, governments took over the responsibility of administering primary elections on the grounds that such elections were considered essentially public rather than private events.
In a decision on Oregon’s primary law from 1901, a court ruled in Ladd v. Holmes that “[t]he expense is incident to and in pursuance of a general law of the State, although it operates locally. The election is for the selection of precinct delegates and officers, which is properly a county charge.”
Previously, across the country, it was largely through the assessment of fees from candidates that parties paid for their primaries – a fee that both kept parties financially self-sufficient and also ensured that serious, bona fide candidates would seek office.
Today, it is commonplace for states to reimburse localities for the administration of primary elections.
In 1972, Texas Governor Preston Smith signed into law the McKool-Stroud Finance Act subsidizing primary elections, which he justified citing the practice in more than 40 states. The state covers up to three-fourths of the total costs.
In 2014, Texas paid out nearly $13 million for the administration of the state’s primaries in March, which included funds for county clerks, poll workers, travel expenses, and other miscellaneous expenses.
The law withstood a legal challenge in 1972 when the U.S. Supreme Court decided in American Party of Texas v. Bullock that it did not discriminate against minor parties, whose nominating proceedings are not subsidized.
The practice of subsidizing major parties’ primary elections was cemented into place when the Supreme Court ruled in Bullock v. Carter, also in 1972, that parties requiring candidates to pay excessive fees to appear on a primary ballot imposed an unconstitutional burden on the candidates’ Fourteenth Amendment right to equal protection. This ruling normalized the practice of having the public, not candidates or parties, pay for primary elections.
This hybrid system leaves independents in states with closed primaries dissatisfied, since they are, in some cases, forced to pay for the elections of private organizations in which they cannot, as independents, participate. Efforts to resolve this ambiguous situation can take two different forms.
On the one hand, states can view primary elections as public procedures not unlike general elections. This view would justify subsidizing the cost of primary elections, since political parties would not be construed as essentially private organizations, but as semi-private ones subject to government regulation.
This approach would justify the move away from closed primaries and toward those in which independents can vote in a party’s primary (as in open primaries) or for any candidate of their choosing (as in so-called nonpartisan primaries).
On the other hand, states could treat parties as truly private organizations and discontinue subsidizing their primary elections and regulating their activities, such as how they select candidates or define partisan membership (though still leaving in place, perhaps, basic rules against fraud and corruption).
In other words, independents are justified in criticizing having to subsidize elections for private organizations in which they cannot vote. Whether the proper solution is to maintain that spending and open up primary elections (while violating the self-determination of private organizations), or whether the solution is to end that funding and respect the integrity of political parties to manage their internal affairs (while risking the recrudescence of partisan practices that instigated 19th and 20th century electoral reforms in the first place), it all depends on larger questions about one’s beliefs regarding the legal nature and purpose of parties and primaries themselves.
It is the outcome of these more philosophical debates about the roles of parties and primary elections that will shape the direction of electoral reform across the country.