Public funding for private elections

By Sen. Jim Elliott

Primary elections are kind of a strange creature; they are neither wholly private nor wholly public affairs. The private aspect is that they are elections in which a political party selects its candidates for offices in the general election; the public part is that the elections are conducted by and paid for by government. It is the public funding of the private event that intrigues me.

It makes sense that state governments cover the costs of putting on a general election. In a general election we are choosing members of government and conducting and paying for that election by the government is appropriate. But a political party is not a branch of government so why don't they pay for their own primary? My assumption is that because state election law requires primaries, the state elects to pay for them. Of course you have to remember that those same laws are made by members of those same political parties that would have to foot the bill if the state didn't.

Only a few states had primary elections before the tragicomic Chicago Democratic Convention in 1968. That was when the Democrats picked Hubert Humphrey as their presidential candidate even though Gene McCarthy had won all the primary elections. In fact, Humphrey chose to not run in any primary.

Five out of a possible six types of primary election processes are used in the various American states: closed, semi-closed, open, semi-open, blanket, and non-partisan blanket. In a closed primary only registered party members can vote in their party's primary election, while a semi-closed primary allows "non-aligned" voters to participate. An open primary—that's Montana—is one in which the voter is given a ballot for each party and decides which ballot to vote in the privacy of the polling booth, and in a semi-closed primary voters have to publically state which party's ballot they want to vote and then are given only that ballot.

And then there is the gone but not forgotten blanket primary where every party's candidates are on the ballot and voters can vote for any candidate for an office without regard to political affiliation.

Around every primary election I get asked why we have to choose only one party's ballot; we vote for the person, not the party, folks say. I get a lot of incredulous looks when I tell them it's illegal. Three states, Alaska, California, and Washington used to hold blanket primaries until 2000 when the United States Supreme Court said they were unconstitutional.

In 1996 California voters passed Initiative198 which established a blanket primary system. Four California political parties—Democratic, Republican, Libertarian, and Peace and Freedom—sued to have Initiative 198 declared unconstitutional and prevent it from being implemented. They lost in District Court, then appealed it to the Ninth Circuit Court of Appeals and lost there, as well. They then appealed to the U. S. Supreme Court which held that Proposition 198 violated a political party's First Amendment right of Free Association. Conservative and liberal Justices made up the 7-member majority with two liberals—Ginsberg and Stevens, disagreeing. Conservative Justice Antonin Scalia wrote the opinion for the majority.

The basis of the Supreme Court's decision was that First Amendment gives citizens the right to associate with whom they wish. It also gives people the right to decide with whom they do NOT want to associate. In essence a political party is nothing more than a group of people with similar points of view getting together to promote that point of view by electing their members to political office. To have to allow people of opposing views a part in their candidate selection process defeats the very purpose for which they are gathered together.

"Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views." Scalia wrote, " …In no area is the political association's right to exclude more important than in the process of selecting its nominee."

There is a type of blanket primary that is still legal, and it is found—where else—in Louisiana, home of interesting politics and politicians. It's called a Non-partisan blanket primary, and the top two vote getters—regardless of party affiliation—face each other in the general election.

In a time when a large part of the American public chooses not to affiliate with any political party, a partisan blanket primary, though illegal, is still an attractive option. But there is a legal way around this dilemma, and that's to follow Nebraska's lead and make some or all of the elective offices non-partisan. There are pros and cons to that, too, but that argument is for another time.