Does the primary system violate freedom of association?

by Harry on January 16, 2004

As the primaries creep up on us (in the US), I want to make a point against the primary system that seems obvious to me but I’ve not heard made elsewhere. It is simply this: it constitutes an unwarranted violation of the principle of freedom of association.

The States which have primaries effectively impose on political parties a process for selecting their candidates that the members of those parties have no (collective) choice about. I know that in some (perhaps all) states the primary is not binding, and can be overridden by a party convention. But suppose that Candidate A wins the primary and Candidate B is nevertheless selected by the party. Then Candidate B works at a tremendous disadvantage relative to a world in which he was selected by the party without the State having organized an independent vote against it. Why on earth shouldn’t party members (that is, people who have chosen to join and pay membership dues in a party) have the right to decide collectively which candidate they want to represent them, without any interference by the State? Closed primaries are bad enough; in open primaries the State effectively forces political parties to allow open opponents of their party to participate in candidate selection. Sometimes when I think about this I feel like a naïve European — there must be some justification that I am missing. State interference in the process of party formation is so extensive in the US already (it varies by state, but mechanisms include having non-partisan local races, restrictive ballot access rules, restrictions on out-of-state contributions, and the gerrymandering, sorry, redistricting process, quite apart from the stupid winner-take-all system); it just seems flat out wrong to force people who have freely associated for the purpose of contesting political power to share the process with their avowed (and paid up) opponents. So, what am I missing?



Jeremy Osner 01.16.04 at 6:02 pm

I had been wondering about this too, if in slightly different terms — I was wondering when and how the modern primary system came to be. The general is (somewhat broadly) specified in the constitution; how long did it take the primaries to spring up and get organized?


jason 01.16.04 at 6:20 pm

no way. you can still vote for whoever you want. you can write in a candidate. it’s just that everybody subscribes to it’s organization adn validity. so it’s essential voluntary.


Jeremy Osner 01.16.04 at 6:31 pm

Jason — it is not voluntary for the parties, I think is Harry’s point.


Nasi Lemak 01.16.04 at 6:46 pm

The justification (such as it is) is that US parties are quasi-public organisations under the umbrella of the state, not private associations of individuals: they have a special, prioritised and protected role (e.g. usually much harder to get a third-party candidate onto a ballot), but they also have a restricted and regulated status as (“quasi-“)public bodies.


Robert Lyman 01.16.04 at 6:47 pm

Point 1: Open primaries have been declared unconstitutional for the reason you give:

CA. Dem. Party v. Jones, 530 U.S. 567 (2000).

Point 2: Elections are expensive. The alternative to state-run primaries would be party-run primaries, which would drain a tremendous quantity of resources from the parties’ other activities. State-run primaries also have more credibility than party-run elections might have. So the parties are delighted to pass the costs on to someone else. Some minor interference in things like ballot access is considered a worthwhile trade, and indeed may be desireable for a party organization that doesn’t want total weirdos on the ballot, getting attention (not that there aren’t a few).

Point 3: the winner take all system has its problems, but also its merits, as do the proposed replacements for it. Dismissing it as “stupid” is more extreme than your (total lack of) argumentation would justify.


Matt Weiner 01.16.04 at 7:00 pm

That court decision makes my head spin. In most states, do the parties or the states get to decide whether the primary is open or closed? If it’s the states, does that decision now mean that any party in an open-primary state can close its primary simply by filing suit? Could we wind up with a state in which one primary was open and the other closed?
(Suggested answer, BTW: “I’m not your #@$% research assitant. :-))


Gwendolyn High 01.16.04 at 7:08 pm

Last year in Washington state, where I live, our open primaries (any voter allowed to vote for any candidate regardless of party in all the races) were struck down. The most likely plan is to have two seperate ballots – one for ‘each’ party for each election. How are my rights to vote for an idividual of my choice protected if I am going to be forced to choose one party’s ballot or the other when I am not a member or true-believer of either? And what about 3rd parties who may only have a candidate in a single race. I ask without irony. This is a major concern in our state.


Jeff 01.16.04 at 7:12 pm

This should be of interest to Harry: primary elections originated in Wisconsin, where ‘Fighting Bob’ LaFollette persuaded the legislature to adopt the system.

They became widespread in part because of the nomination of Hubert H. Humphrey in 1968, who did not enter a single primary and later lost to Richard Nixon.

As far as constitutional issues are concerned, I don’t see how the primary system violates the right of free association. A political party in any state is free to hold a convention and nominate a candidate for any office. Indeed, this occurs even in primary states.

It is the state’s right, on the other hand, to choose its method of election. A state is under no obligation to place a political party’s convention-nominated candidate on the ballot. You may of course debate the wisdom of the primary system, but here’s the bottom line: political parties can associate freely all they want; they just have no constitutional right to political power or privilege.


cs 01.16.04 at 7:20 pm

I always assumed that the primary system was voluntary for the parties. They do it that way for the reasons robert mentions above. But if the leadership of a party wanted to set up some other system to select a candidate, aren’t they free to do so?


Ophelia Benson 01.16.04 at 7:29 pm

I’ve tried to explain the primary system to a Ukainian friend who finds it absurd. I have to think he’s right.

And look at the results – the consequentialist argument, if you like. The primaries pick such abysmal candidates. I long for a much more ‘elitist’ system in which the party picks the candidate and we idiot voters have no say in the matter.


Robert Lyman 01.16.04 at 7:33 pm


I’m not your research assistant. But: the form of the primary is established by statute, since it is a state-run affair. If a party thinks that the statute is unconstitutional, it can get a court to invalidate it. The legislature will then have to try again.

I don’t think, therefore, that we would ever have a state in which one party had a “closed” and another an “open” primary, since that would require statutes which discriminate between parties, which would be problematic in a number of ways.

At a practical level, these suits tend to be filed by the Dems, Republicans, Greens, and Libertarians all acting in concert. Really!

I, too, “live” in Washington, where this is a huge issue (that is, I’m a UVA law student who retains his residency and votes absentee.) Unfortunately for Gwen, she doesn’t have a legal “right” to vote for the candidate of her choice in the primary, since the primary is not a genuine election, but, technincally, a private affair in which the members of a private club pick their favorite member. I personally sympathize with her irritation–I myself rather like the open primary for personal and political-theory reasons–but unfortunately, as a matter of law, if she wants to vote for the club’s leader, she needs to join the club.

I wonder if, perhaps, she could claim a legal right to join ALL the clubs at once and thus vote in all their primaries? I don’t know of any case law, but perhaps I’ll look it up sometime (I suspect that this would not work). That would piss the parties off, no doubt. But it would please me!


Robert Lyman 01.16.04 at 7:36 pm

One more thing, regarding cs’s comment:

If a party really hates the primary system, it can deliberatly refuse to qualify anyone for the ballot, and then select its candidate by whatever means it chooses at the convention.

So it is really optional, at a practical level.


Decnavda 01.16.04 at 7:37 pm

The answer to you question, Harry, is that in the U.S. the state-run primary system is not coercive interference, but a state paid-for service to which the party can avail themselves to the extent desired. Parties have to meet the state’s criteria to participate. They can choose not to participate, but, as explained above, they would have to go through the cost of running primaries themselves. They can choose to ignor the results if they do not like the process – I remember one argument against some ballet measure related to primaries here in California a few years back was that the Democrats threatened to refuse our Presidential delegates if it passed. The parties can choose who participates – again, here in CA, independents can vote in some primaries but not others (I think the Republicans allow them, but the Dems don’t). Plus, parties are free to seat delegates not chosen by the parties – The Dems, but not the Repubs allow certain local officals to vote as delegates at the Presidential convention. They are called “superdelegates”.

So the Primaries are not interference, but a free service like the roads that even the Libertarians choose to avail themselves of.


John 01.16.04 at 8:55 pm

They can choose not to participate, but, as explained above, they would have to go through the cost of running primaries themselves.

Actually, they would not, because they wouldn’t have to hold primaries at all. Do any countries other than the United States have state-run voting to determine who a political party’s candidate should be?


Matthew Yglesias 01.16.04 at 9:06 pm

One also has to consider the historical phenomenon of the “white primary” in the Jim Crow South. Back in the day, the South was a de facto one-party state, so the right to vote in the Democratic primary was the only right that counted. Concordantly, state Democratic Parties adopted rules that banned African-Americans from voting in Democratic primaries, hence effectively disenfranchising them. The segregationists made precisely this sort of freedom of association argument against folks who wanted the practice banned.

The result of this was that anti-segregationist people wound up taking the view that political parties were not really private associations, and they were able to prevail upon the courts to accept this line of thinking in the name of desegregation.

That’s a reason, not an excuse, but fundamentally that explains why the U.S. and Europe differ on the question of whether parties have the sort of associational rights your concerned with. Also note that the Democratic and Republican parties don’t charge membership fees unlike most European political parties.


Eric E. Coe 01.16.04 at 9:35 pm

Jeez. Once, again, it comes back to the history of slavery. A dagger planted in the heart of the original Constitution, removed at great price in the Civil War, with subsequent poisionous effects to this very day. (Undermining state’s rights and free association; encouraging the growth of the federal government.) Utterly destructive to the preservation of Liberty for all (not just the lack of Liberty for blacks in particular).

What a painful lesson of history.


Matt Weiner 01.16.04 at 10:09 pm

Rob–Thanks! That’s more research than I could reasonably have expected, at the rates I’m paying.

I’m reminded that in S. Carolina, apparently the parties have to pay for primaries themselves, and the cash-strapped Democrats flirted with the idea of commercial sponsorship. (This was all over the ‘sphere a ways back.)


harry 01.16.04 at 10:21 pm

Thanks Robert for explaining all that, and also to others for the various kinks. Constitutional issues aside, I’m still inclined to think that it constitutes interference with the principle of FA, even though participation is ‘voluntary’, basically because its availability puts the non-participants at a big disadvantage. But, again, that’s because I think of political parties as free associations of individuals, not quasi-institutions of the state. I guess that’s the difference between the European and US conceptions of democratic participation.
Matthew — presumably the reason that the Reps and Dems don’t charge membership dues is because membership is irrelevant to one’s ability to select candidates, and selection of candidates is the major determinant of policy positions, no? It seems to me a consequence of, rather than a background to, the primary system. Membership dues are one way of keeping wierdos out. Expulsion is another — I don’t know of a single party in Britain, for example, that would tolerate one of its elected officials supporting a candidate running against another of its candidates. Talk that way in Wisconsin and people call you a Stalinist.

I apologise for calling W-T-A stupid without argument — I didn’t want to have *that* discussion here, and still don’t, so I’ll leave it to another post.


Jeff 01.16.04 at 11:05 pm

Plenty of weirdos have cash to spare. Membership dues just keep the poor people out.


harry 01.16.04 at 11:11 pm

Depends on the level they are set at. Usually they are set low, but membership requires commitment to various ground rules — eg (in most cases) that you will not campaign agaisnt the parties candidates.
ANyway, the American system is tilted a little toward the rich itself, no?


Bruce 01.17.04 at 12:28 am

Now here’s the real question: Why do the political parties have privileged legal status in U.S. elections? In a special congressional election in California, they hold what amounts to an open free-for-all primary. If there is no clear winner, the top Democrat and top Republican face off in a second round.

Now note: The top two candidates do not go to the second round. California’s districts are so gerrymandered and polarized that in many of them, two Democrats or two Republicans are likely to lead a first-round vote. Yet the two most popular candidates in such a district do not face each other.

It’s ridiculous as a matter of logic and in practice serves only to contribute to our ludicrously polarized state politics. Sigh.


Tom T. 01.17.04 at 1:15 am

Virginia’s Democratic primary is coming up on Feb. 10, and, partly because Virginia voters do not register by party, it is open to all. Lyndon LaRouche is on the ballot, and it will be interesting to see how many people vote strategically for him.


Reimer Behrends 01.17.04 at 2:04 am

Harry wrote: But, again, that’s because I think of political parties as free associations of individuals, not quasi-institutions of the state. I guess that’s the difference between the European and US conceptions of democratic participation.

That would be inaccurate (or at least an overgeneralization). For instance, article 21 of the German constitution makes the political parties “quasi-institutions of the state”. They are required to have an internal organization that conforms to democratic principles and to publicly account for their finances. The Law on Political Parties details their constitutional status and their rights and responsibilities further.

Article 6 of the Spanish constitution and article 51 of the Portuguese constitution give political parties similar roles and subjects them to similar constraints.


sue 01.17.04 at 2:23 am

Ophelia writes: “And look at the results – the consequentialist argument, if you like. The primaries pick such abysmal candidates. I long for a much more ‘elitist’ system in which the party picks the candidate and we idiot voters have no say in the matter.”

Sadly, it wasn’t that candidates chosen in the “smoky backroom” were elitist, or even that they were clever segregationists. Political criteria were no better back then, just that the audience was smaller and more homogeneous – core party members and contributors. Same promises, posterior-smooching and patronage, at least as much outright corruption, but no competition among interest groups presenting posteriors for smooching as we have now. Just the same sorry bunch of not-quite-dead white men, north and south. The Democratic primary was created in part because the party had no interest in pleasing some of its most vocal supporters – young hippies, war protestors and civil rights advocates. At least now a wider, more representative variety of idiots get a say in who runs.

In an abstract version of UK vs. US party politics, I’d far prefer to have a say in choosing the candidate for whom I will most likely vote, though in an election run by the state, where anyone is free to register to vote in either party’s primary, without committing money or a vote in the general election for that party.

The UK alternative is where candidates are given seats in districts of varying safety, whether or not they have a history with that area, know of its problems and/or assets. The thought that one is expected to vote for a candidate who might hold views extreme for his/her party, or be unusually unpleasant, because that would help give control of the Commons to that party – that seems really awful. Even though from what I can tell, your MPs are generally more thoughtful, articulate, competent and probably even more honest than most of our Congress. And of course we’ve all stepped on cockroaches smarter, more articulate, competent and honest than the current US pres…


cafl 01.17.04 at 3:48 am

I was just having a discussion with my husband remarking on the youth of most posters in the blogosphere, and strange effect of witnessing the effect of this lack of common memories. Ophelia, if you had been a young adult in 1968, watching the Democratic Presidential Convention, with Chicago Mayor Richard Daley running the show, white segregationists Missippians being seated instead of the delegation of black Missippians who had been excluded from the primary process (with the cry of free association) and with police beating anti-war demonstrators in the streets, perhaps you wouldn’t “long for a much more ‘elitist’ system in which the party picks the candidate and we idiot voters have no say in the matter.”


decon 01.17.04 at 4:39 am

Ditto Yglesias. See J. Morgan Kousser’s “Colorblind Injustice” for a nice history of this trick & many more used to disenfranchise the freed slaves and their descendents.


arbitrary aardvark 01.17.04 at 4:27 pm

Some online resources include

The tradeoff between the party’s right of association and the government’s right to set up a democratic process is discussed in Tashjian. Jones was about blanket primaries (unco) rather than open primaries (constitutional).
Presidential primaries are a different animal than state primaries. In the event of a conflict between the party’s rules and the statutes, the party’s rules usually win.
The white primary cases, U.S. v Classic, Nixon v. Herndon, Nixon v Condon, are an exception.
In my county in Indiana, a slating convention picks the candidates, who pay a large fee, who go on to almost always win the almost meaningless primary, and then run in gerrymandered districts.
The primary is a reform from the progressive party in the 20s.
It has public and private aspects, so election lawyers like me can usually find work arguing that the legislature has screwed up again in some manner.
Currrently, special interests like common cause and public citizen promote unconstitutional election laws, providing full employment for those of us in the free speech community. We win some we lose some.


Doug 01.17.04 at 5:47 pm

pssst, cafl, i think ophelia was kidding…


Jim Flannery 01.18.04 at 8:46 am

I’m sort of amazed that I’ve made it to the bottom of this page without seeing anybody point out that Iowa, which is all over the election news at the moment, does not have primary elections.

What is a caucus?


Jonathan Monroe 01.18.04 at 9:55 pm

In the UK candidates are not “given” seats – there is a vote of the party members in the constituency. In a seat the party expects to win, these selection meetings are extremely hard fought – a prospective candidate will probably visit every member (typically several hundred) personally at least once. Non-local candidates, extremists and other undesirables are only nominated if the party members want them. And increasingly national party organisations (which set the rules for candidate selections) are vetting prospective candidates to weed out nutcases.

So what is the difference? In a British selection, only party members can vote – not all registered supporters.

And since we can reject membership applications that means we preserve our freedom of association. Why should anyone who isn’t a Conservative have a say in who the Conservative candidate is? Membership dues are something of an irrelevance – the minimum rate for my party comes out at less than 10 USD a year.

I don’t understand why more Republicans don’t register as Democrats and vote for Al Sharpton in the primaries. Under our system anyone who is actively against your party or has been in the past can be excluded from choosing your candidate.

Viz-a-viz cost, the parties pay for the running costs of candidate selections, but the relatively small electorates mean that they are not very expensive. (john is right on here)

If the Government offered to organise and pay for primaries I doubt any of the UK parties would take up the offer. I can see how views in the US might be different because of the Jim Crow history.


sue 01.20.04 at 3:49 am

Jonathan writes:
“I don’t understand why more Republicans don’t register as Democrats and vote for Al Sharpton in the primaries.”

Well, some people do cross-register for strategic reasons. However, it would be hard to do this effectively without careful organization, and consequent leaks of memos and such. That and the enormous fraction who can’t be bothered to vote at all, and the assorted spin, slander, disenfranchisement and lies, and really the effect that worries you is vanishingly small. :) And of course, there are usually some competitive races in one’s own party/district, and voters probably care more for those than strategy.

Non-local candidates, extremists and other undesirables are only nominated if the party members want them.

Hmm. So Keith Vaz, Michael Portillo, etc. weren’t given plum constituencies, it just so happened that a majority of party faithful in those districts (but not in more marginal ones) spontaneously asked the nationally-known gentlemen to stand there? I’d blame my distorted view on periodic purchases of Private Eye, which gives specifics of local party preferences being crushed, but it’s reported the same way, with less detail, in the Guardian.

Look, the UK system works quite well in the UK given its particulars, and the US with its different ones has a different one. And oddly enough, the biggest problems in each country are generally unrelated to candidate selection.

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