An Independent’s Case Against Open Primaries

There is little doubt that the major national parties have, on the whole, behaved atrociously this election season. On the Republican side, there have been loyalty pledges, insubstantial RNC-arranged debates, and conversations about rule changes designed to thwart specific candidates.

But the Democratic Party has not been guiltless. From undemocratically enfranchising unaccountable superdelegates at the national convention, to acting impartially by fundraising for one particular candidate and by intervening in a dispute against another, to limiting the number of debates and excluding one candidate from a debate at the last minute, the DNC and its chair, Debbie Wasserman-Schultz, have angered many Democratic members and voters.

Naturally, the major parties are especially unpopular among independents, who, in many states, are barred from participating in a party’s presidential primary or caucus. In New York, for instance, more than 3 million voters were kept from the polls because of the state’s closed primary law – a law criticized by Democratic candidate Bernie Sanders and defended by Wasserman-Schultz.

Yet no matter how contemptibly party leaders behave, and no matter how frustrating closed primaries might be, independents should resist the call for more states to pass open primaries – for both principled and pragmatic reasons. Citizens should not impose on parties their supposed right to help determine the parties’ nominees because it both violates these private groups’ freedom of association and because it will cause voters (and “outsider” candidates) to be drawn in and co-opted by the very entities they have chosen not to join in the first place.

A caveat: this is not to say that parties should not be encouraged to open up their internal elections to non-members; indeed, it may be in their interest to do so. But this is an option that should be left to the parties themselves and not to be effected through state force.

While it is no doubt unpleasant for many independents to accept, parties, as private organizations, have a constitutional right to manage their own affairs without undue state interference. This right has been upheld by the Supreme Court on several occasions, including in 19751981, 1986, and 2000.

Not all of these rulings have been to the disadvantage of independents; after all, it was the 1986 decision in Tashjian v. Republican Party that held that the Connecticut branch of the Republican Party had the right to allow independents to participate in its primaries, despite the state having passed a closed primary law.

Still, some independents oppose closed primaries on the grounds that they, as taxpayers, are forced to subsidize these private elections. (It is irresistible to note a historical irony in this objection: it was state mandatory primary laws implemented a century ago that have resulted in many of today’s government-administered, taxpayer-funded party elections – laws that many pro-democracy reformists supported and state political parties opposed.)

Nevertheless, while independents may have a legitimate grievance in this respect, the call for open primaries is ultimately misguided. Why? Because it is possible to empower independents during the primary process without violating the constitutional rights of political parties.

In its amicus brief in the case ofBalsam v. Guadagno challenging New Jersey’s closed primary law, FairVote rightly noted that “open primaries are not the only alternative to closed primaries,” citing alternatives such as “the possibility of ‘top four’ primaries, eliminating primaries altogether, adding a separate ‘public primary,’ or any number of other options.”

The public primary option, which establishes a separate primary for independents whose nominee advances to the general election, is perhaps the best reform proposed thus far. It succeeds in being inclusive of all citizens without infringing on parties’ rights or reducing competition. Enfranchising independents thus need not come at the expense of political parties’ rights to determine their party membership and to select their own nominees.

But there are also pragmatic reasons for why independents should reject the call for open primaries. Expanding open primaries, while solving the immediate problem of independent disenfranchisement in taxpayer-funded elections, is problematic for two reasons: first, because it would strengthen the two-party system (which it ought to be the goal of independents to weaken, if not replace), and second (and relatedly), because it would misdirect and potentially exhaust the reformist energy needed to pass more significant, truly democratizing changes.

It is not uncommon for independents to complain about the nature of the two-party system, lamenting the absence of a viable third party, the bipartisan dominance of political debates, and the shortage of independent candidates; yet further adopting open primaries would only bolster the two-party system.

By funneling more voters into Democratic and Republican contests, opening more primaries would tempt more “outsider” candidates like Bernie Sanders and Donald Trump to run not as third party or independent candidates, but instead as Democrats and Republicans – regardless of their disagreement with or lack of commitment to those parties.

A situation in which all primary elections were open would be harmful to those who are trying to make American politics genuinely more inclusive: it would reinforce the notion that meaningful political participation occurs only within the major parties, and it would stymie efforts to build stronger third parties that can break the bipartisan control over not just elections, but over the entire political process.

It is for these principled and pragmatic reasons that the Green Party of New York has issued a statement criticizing the recent call to open the state’s primaries. Such a reform, the party argues, would not only violate “a fundamental element of the right to freely assemble,” but also “serve the short-term interests of unaffiliated voters at the expense of party members who spend time and energy building a fighting organization with a coherent platform and agenda.”

The party recommends that citizens endorse “comprehensive voting reforms to support multiparty democracy,” including ending gerrymandering, improving “fusion” voting rules, and implementing proportional representation.

In short, instead of clamoring for the right to vote in the primary contests of parties they refuse to join (even just temporarily), independents should instead seek to make the political process genuinely open and competitive, such as by working to reduce ballot access barriers, to increase the viability and visibility of independent and third party candidates, and to improve voters’ political representation.

Without these measures, a reform like opening primaries will be superficial at best, and counterproductive at worst. Rather, citizens should change the rules of the game so as to give voters more appealing choices. With more choices, voters can punish parties that behave in unpopular ways and that take voters’ support for granted by backing candidates and parties that better represent their values and interests.

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