Justices concerned about violations of political parties' rights

Posted: Monday, April 24, 2000

(Washington-AP) -- The U-S Supreme Court today (Monday) heard arguments on whether to overturn the open primary system used in Alaska and three other states.

At least two justices indicated they have serious problems with allowing voters to pick and choose from the candidates of all parties on their primary ballots.

But the justices were warned that protecting political parties' rights with a ban on such crossover voting will endanger the open primaries in about half the states. Those states let voters choose which party's primary they want to cast ballots in.

A decision on the case is expected in June.

''The very essence of the party's right is to define its own message and decide its own candidates,'' Justice Sandra Day O'Connor said while criticizing California's blanket primaries, under attack from four political parties.

Justice Antonin Scalia worried aloud about letting voters ''with absolutely no commitment to a political party, not even for a day'' help nominate a party's general-election candidate.

''What about the party that doesn't want to follow the crowd?'' he asked before warning of ''the tyranny of the majority.''

George Waters, a lawyer representing the political parties, argued that California's system is ''a wholesale assault'' on their ability ''to choose a standard-bearer who best represents their views.'' A blanket primary ''makes ideology irrelevant,'' he said.

But Thomas Gede, California's lawyer, contended that a state's primary election ''belongs to the voters,'' and not to the various political parties.

The court's decision is expected by late June.

Among the friend-of-the-court advice the justices received was a pro-blanket primary brief from Sen. John McCain of Arizona, who relied heavily on Democrats and independents in his campaign for the Republican presidential nomination this year.

McCain got strong boosts from victories in New Hampshire and Michigan, states with open primaries, but in California he finished third behind Democrat Al Gore and Republican George W. Bush.

State primary laws fall into four major categories. At one end of the spectrum is the closed primary, in which only registered party members can participate in choosing a party's nominees. At the other end are blanket primaries, which, for example, allow voters to cast a ballot for a Republican candidate for governor, a Democrat for Congress and a Libertarian for state attorney general. Alaska, California, Louisiana and Washington state have blanket primaries.

In between are open primaries, in which voters are allowed to choose on election day which party's primary they vote in. Such voters get to select the nominees of one party only.

And in a fourth variation, some states permit newly registered and independent voters to participate in the primary of their choice. States that have modified their closed primary systems in that way include Colorado, Maine, Massachusetts, Nebraska, New Hampshire, New Jersey, Oklahoma and Rhode Island, the court was told in written briefs.

When asked by O'Connor whether invalidating California's blanket primary would cast doubt on other states' open primaries, Waters said a constitutional distinction could be made between the two systems.

But Gede disagreed, saying striking down California's system ''would jeopardize open primaries all over the country.'' He warned against ''the slippery slope of total party autonomy.''

Gede was peppered by questions and critical comments from O'Connor and Justice Anthony M. Kennedy, both of whom often cast key votes in close cases.

Scalia and Chief Justice William H. Rehnquist also sounded doubtful about California's system. Justice Clarence Thomas, who did not speak during the hour-long argument session, most often sides with them.

Justices Ruth Bader Ginsburg, David H. Souter, John Paul Stevens and Stephen G. Breyer seemed more sympathetic to California's effort -- a 1996 ballot initiative overwhelmingly approved by the state's voters -- to encourage nomination of more moderate candidates.

Gede said the blanket primary has resulted in greater participation among the states' 15 million registered voters, and has allowed 1.5 million independent voters to participate in the primary process.

The system was challenged by the state's Democratic and Republican parties, along with the Libertarian Party and the Peace and Freedom Party. They lost in lower courts.

In Alaska, the state Republican Party passed rules early in the 1990s allowing only Republicans and independents to vote in Republican primaries. Those rules were enforced in the 1992 and 1994 elections.

But that policy was challenged, and in 1996 the Alaska Supreme Court upheld the state's blanket primary law, saying it was justified by the state's interests in encouraging voter turnout, increasing voter options and making elected officials more representative of the voters.

The U.S. Supreme Court's decision could cloud Louisiana elections scheduled for later this year. The state's open primary for local elections will be Oct. 7. The congressional open primary will be Nov. 7, along with the presidential election. Runoffs, where necessary in congressional races, will be held Dec. 9.


On the Net: For the appeals court ruling in California Democratic Party v. Jones: http://www.uscourts.gov/links.html and click on 9th Circuit.

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