ukmuiik

Question

In the US, various states have different rules on how parties may hold their primaries: some require direct ballots, some require caucuses, some states hold "open" primaries and some are "closed. But to me this seems perplexing as in principle political parties should be free to choose their candidates in whatever manner they see fitting, with no intervention by the state authorities.

So why do governments in the US get to regulate how political parties conduct their business?

Parties are free to choose their candidates by whatever manner they see fitting, if they're willing to do it themselves and pay the costs. — Aug 7 at 21:28
Even stranger, some states require you to register your party affiliation with them! — Aug 7 at 21:59
I only skimmed the answers, so someone maybe already said this: political parties need fewer signatures to put a candidate on the ballot. In return, the parties must follow certain rules. The State of New Mexico recognizes "major party candidates" (fewest number of signatures required), "minor party candidates" (more signatures required), and non-party candidates (highest number of signatures required): ballotpedia.org/â€¦ — Aug 8 at 15:32
I'm reminded that I'd love more complete answers to this related question — Aug 9 at 16:53

score 29 · Accepted Answer · 2018-08-06 23:55:37Z

A substantial factor were white primaries during the defining civil right struggles and the case law that followed from that. From a law paper on the topic "Developments in the State Regulation of Major and
Minor Political Parties" (which is 74-pages long, by the way):

If political parties were truly private organizations, they could exclude whomever they wished from political participation-a result that would conflict with the "White Primary Cases" in which the Court protected racial minorities'
right to participate in party primaries.

[in footonte] Cf Gray v. Sanders, 372 U.S. 368 (1963) (finding state action when the state enforces
exclusion of voters); Terry v. Adams, 345 U.S. 461, 469-70 (1953) (holding that the
use of a discriminatory preprimary election administered by a private association, which
determined the primary winner, constituted state action under the Fifteenth Amendment);
Smith v. Allwright, 321 U.S. 649 (1944) (determining that political party's exclusion
of African-American voters in primary constitutes state action); United States v. Classic, 313
U.S. 299 (1941) (holding that Congress can regulate fraud in primary elections); Nixon v.
Condon, 286 U.S. 73 (1932) (finding that party's exclusion of black voters when authorized
to determine voter qualifications constitutes state action).

And from Wikipedia's United States v. Classic:

Many observers assumed that the court had already ruled in Newberry v. United States, that primary elections could not be regulated under the powers granted to Congress under Article I, Sec. 4 of the Constitution. But writing for the majority, Justice Harlan Fiske Stone argued that the Newberry court had been deeply divided on the issue and no majority had ruled one way or the other. Utilizing the reasoning by Chief Justice Edward Douglass White and Justice Mahlon Pitney in their concurrent opinions in Newberry, Stone argued that the Constitution's protection of the right to vote cannot be effectively exercised without reaching to primary elections and/or political party nominating procedures.

Though broadly noting that the constitutional right to vote extends to a party primary even when it "sometimes or never determines the ultimate choice of the representative," the Court offered no standard for determining whether a primary "was made an integral part of the election machinery." However, in Morse v. Republican Party of Virginia, the Court clarified that this extends to virtually all primaries, noting that "Virginia, like most States, has effectively divided its election into two stages, the first consisting of the selection of party candidates and the second being the general election."

So basically the Supreme Court decided that there can be no free elections in the US without free primaries. Morse v. Republican Party of Virginia, (517 U.S. 186, 205-07 (1996)), which cemented/clarified this is a relatively recent decision, surprisingly.

However, the Fifteenth Amendment is relatively narrow. It

prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude".

So based on it the government(s) don't get to regulate everything relating to primaries or nominations. In particular, it doesn't say who can or cannot be nominated in a primary. And the case law in this respect is much, much less straightforward (one reason why that law review is so long). I'm not going to get into the details here... but I will mention one case that limited the state's right to dictate every minute detail of how primaries have to be organized: Republican Party v. Faulkner County; without getting into the gritty case details, the principles derived in this case were (quoting from the law review again):

Faulkner is significant because the Eighth Circuit used associational
rights as a substantive limit on the state's ability to dictate a
party's nominating procedures. A state can violate a political
party's associational rights if the state enacts a primary election system
that unduly burdens the party's association with its members. Moreover,
the court reached this conclusion by considering the actual impact
of the nominating procedure on the party's campaign activities. Thus, Faulkner suggests that courts balancing the burdens
imposed by an election scheme must consider evidence demonstrating
that a scheme actually interferes with the party's ability to organize
and campaign effectively. If the party can produce sufficient evidence,
they can object to a state-dictated candidate selection method
and the state must have a compelling justification for its electoral
scheme.

The decision in Faulkner was based on broader principles previously set out by the Supreme Court in Eu v. San Francisco County Democratic Central Committee:

"a State cannot justify regulating a party's internal affairs
without showing that such regulation is necessary to ensure an election
that is orderly and fair."

So basically, in US jurisprudence, there is a balance of interests to be taken into account: fair elections stand in balance with unnecessary interference in party's internal affairs, the latter stemming from the right to political association.

Additional consideration - Primaries are generally paid for with public funds (i.e. government money). If the government is funding the primary, it follows that the government is entitled to a say in how the primary is run. — Aug 7 at 3:07
@aroth: a good point, but I don't know which was the chicken and which the egg in this case; having to follow laws and state regulations for their primaries probably resulted in requests for funding as well to meet the standards, etc. — Aug 7 at 3:12
And this is in fact a common feature of American jurisprudence, and a great many Supreme Court decisions in particular: a constitutional provision which prohibits Y can make prohibiting/regulating X also constitutional if failure to do so would effectively undermine and neuter the prohibition on Y. But if X is not specifically mentioned this prohibition/regulation must have compelling reasons, and the legislation typically must be tailored to achieve the goal with the minimum of imposition. I.E.: Limits on inciting violence or yelling "fire!" in enclosed spaces as exemptions to free speech. — Aug 7 at 4:22
@aroth: "The Federal Election Commission administered the first public funding program in 1976. Eligible Presidential candidates used federal funds in their primary and general election campaigns, and the major parties used public funds to pay for their nominating conventions. Legislation for public financing of Presidential candidates was first proposed, however, in 1907. In 1966, Congress enacted the first public funding legislation, but suspended it a year later. In 1971, Congress adopted similar provisions, which formed the basis of the public funding system in effect today." — Aug 7 at 13:34

Joe 57117 · Answer 2 · 2018-08-06 22:11:26Z

up vote
5
down vote

There is a practical reason not yet mentioned by the other answers, that is: the state needs to print the ballots for the general election in November. Therefore, the state has to determine which candidates merit to be put on the ballot. Therefore, the state must make some kinds of laws about which parties are officially recognized, how each party may/must choose its nominee, how an independent candidate may earn a place on the ballot, and so on. States have chosen different approaches to solving these problems, but they cannot do nothing.

answered Aug 6 at 22:11

Joe

57117

4

In most countries governments manage quite fine to print ballots without interfering in how parties choose to select their candidates. And how do your primary ballots get printed?
â€“Â Henning Makholm
Aug 7 at 9:35

1

How do those governments know which names to print on the ballot? They must have some way of determining it, for example, requiring a certain number of signatures to be collected.
â€“Â Joe
Aug 7 at 13:49

2

x @Joe: Indeed. Note that it is still the party itself that decides who they're going to collect signatures for -- they don't give random passers-by the right to vote against the party running the candidate team they want to run and force them to run different candidates (who may not even agree with the party about anything ...).
â€“Â Henning Makholm
Aug 7 at 15:20

@HenningMakholm That would be the best policy, IMHO, but I believe some states do have "open primaries" in which anyone can vote. With regard to signatures, usually it's the candidates themselves and their backers that do that. Primaries are how the party decides which of multiple hopefuls will be its nominee for the general election.
â€“Â Joe
Aug 7 at 16:26

add a commentÂ |Â

hszmv 3,292215 · Answer 3 · 2018-08-06 18:53:57Z

Generally, this is because of the 10th Amendment, which basically says that the Constitution only grants the Federal Government the rights that it says it does. Anything not explicitly listed in the constitution as a power the Federal Government has, the power devolves to the State (or the individual). As such, primaries are not mentioned in the constitution (nor political parties at all, the founding fathers didn't want party politics at all).

Most questions along the lines of "Why does the state have this power and not the federal government" are pretty much because the power was not mentioned in the Constitution, and thus, are state powers.

The reason why the states have this rule is because the states are technically 50 separate "countries" that collectively conduct their foreign policy with each other and non- US nations through the powers of the Federal Government.

The question is about why the government in general regulates this, rather than a state vs federal question. — Aug 6 at 18:58
@JonathanReez I would recommend you specify that in your answer then — Aug 6 at 19:12
@hszmv the question is already explicit about why this is a matter for any kennel of government rather than a purely internal matter for the parties to put forward a candidate chosen by whatever method the party decides. — Aug 6 at 19:40

I.B. Guest 111 · Answer 4 · 2018-08-07 21:01:21Z

It sounds like we're talking about Presidential primaries here, so it's because the Constitution explicitly assigns to the states the right to chuse in what manner the state's electors shall be chosen and primaries are part of that process.

score 29 · Accepted Answer · 2018-08-06 23:55:37Z

A substantial factor were white primaries during the defining civil right struggles and the case law that followed from that. From a law paper on the topic "Developments in the State Regulation of Major and
Minor Political Parties" (which is 74-pages long, by the way):

If political parties were truly private organizations, they could exclude whomever they wished from political participation-a result that would conflict with the "White Primary Cases" in which the Court protected racial minorities'
right to participate in party primaries.

[in footonte] Cf Gray v. Sanders, 372 U.S. 368 (1963) (finding state action when the state enforces
exclusion of voters); Terry v. Adams, 345 U.S. 461, 469-70 (1953) (holding that the
use of a discriminatory preprimary election administered by a private association, which
determined the primary winner, constituted state action under the Fifteenth Amendment);
Smith v. Allwright, 321 U.S. 649 (1944) (determining that political party's exclusion
of African-American voters in primary constitutes state action); United States v. Classic, 313
U.S. 299 (1941) (holding that Congress can regulate fraud in primary elections); Nixon v.
Condon, 286 U.S. 73 (1932) (finding that party's exclusion of black voters when authorized
to determine voter qualifications constitutes state action).

And from Wikipedia's United States v. Classic:

Many observers assumed that the court had already ruled in Newberry v. United States, that primary elections could not be regulated under the powers granted to Congress under Article I, Sec. 4 of the Constitution. But writing for the majority, Justice Harlan Fiske Stone argued that the Newberry court had been deeply divided on the issue and no majority had ruled one way or the other. Utilizing the reasoning by Chief Justice Edward Douglass White and Justice Mahlon Pitney in their concurrent opinions in Newberry, Stone argued that the Constitution's protection of the right to vote cannot be effectively exercised without reaching to primary elections and/or political party nominating procedures.

Though broadly noting that the constitutional right to vote extends to a party primary even when it "sometimes or never determines the ultimate choice of the representative," the Court offered no standard for determining whether a primary "was made an integral part of the election machinery." However, in Morse v. Republican Party of Virginia, the Court clarified that this extends to virtually all primaries, noting that "Virginia, like most States, has effectively divided its election into two stages, the first consisting of the selection of party candidates and the second being the general election."

So basically the Supreme Court decided that there can be no free elections in the US without free primaries. Morse v. Republican Party of Virginia, (517 U.S. 186, 205-07 (1996)), which cemented/clarified this is a relatively recent decision, surprisingly.

However, the Fifteenth Amendment is relatively narrow. It

prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude".

So based on it the government(s) don't get to regulate everything relating to primaries or nominations. In particular, it doesn't say who can or cannot be nominated in a primary. And the case law in this respect is much, much less straightforward (one reason why that law review is so long). I'm not going to get into the details here... but I will mention one case that limited the state's right to dictate every minute detail of how primaries have to be organized: Republican Party v. Faulkner County; without getting into the gritty case details, the principles derived in this case were (quoting from the law review again):

Faulkner is significant because the Eighth Circuit used associational
rights as a substantive limit on the state's ability to dictate a
party's nominating procedures. A state can violate a political
party's associational rights if the state enacts a primary election system
that unduly burdens the party's association with its members. Moreover,
the court reached this conclusion by considering the actual impact
of the nominating procedure on the party's campaign activities. Thus, Faulkner suggests that courts balancing the burdens
imposed by an election scheme must consider evidence demonstrating
that a scheme actually interferes with the party's ability to organize
and campaign effectively. If the party can produce sufficient evidence,
they can object to a state-dictated candidate selection method
and the state must have a compelling justification for its electoral
scheme.

The decision in Faulkner was based on broader principles previously set out by the Supreme Court in Eu v. San Francisco County Democratic Central Committee:

"a State cannot justify regulating a party's internal affairs
without showing that such regulation is necessary to ensure an election
that is orderly and fair."

So basically, in US jurisprudence, there is a balance of interests to be taken into account: fair elections stand in balance with unnecessary interference in party's internal affairs, the latter stemming from the right to political association.

Additional consideration - Primaries are generally paid for with public funds (i.e. government money). If the government is funding the primary, it follows that the government is entitled to a say in how the primary is run. — Aug 7 at 3:07
@aroth: a good point, but I don't know which was the chicken and which the egg in this case; having to follow laws and state regulations for their primaries probably resulted in requests for funding as well to meet the standards, etc. — Aug 7 at 3:12
And this is in fact a common feature of American jurisprudence, and a great many Supreme Court decisions in particular: a constitutional provision which prohibits Y can make prohibiting/regulating X also constitutional if failure to do so would effectively undermine and neuter the prohibition on Y. But if X is not specifically mentioned this prohibition/regulation must have compelling reasons, and the legislation typically must be tailored to achieve the goal with the minimum of imposition. I.E.: Limits on inciting violence or yelling "fire!" in enclosed spaces as exemptions to free speech. — Aug 7 at 4:22
@aroth: "The Federal Election Commission administered the first public funding program in 1976. Eligible Presidential candidates used federal funds in their primary and general election campaigns, and the major parties used public funds to pay for their nominating conventions. Legislation for public financing of Presidential candidates was first proposed, however, in 1907. In 1966, Congress enacted the first public funding legislation, but suspended it a year later. In 1971, Congress adopted similar provisions, which formed the basis of the public funding system in effect today." — Aug 7 at 13:34

Joe 57117 · Answer 6 · 2018-08-06 22:11:26Z

up vote
5
down vote

There is a practical reason not yet mentioned by the other answers, that is: the state needs to print the ballots for the general election in November. Therefore, the state has to determine which candidates merit to be put on the ballot. Therefore, the state must make some kinds of laws about which parties are officially recognized, how each party may/must choose its nominee, how an independent candidate may earn a place on the ballot, and so on. States have chosen different approaches to solving these problems, but they cannot do nothing.

answered Aug 6 at 22:11

Joe

57117

4

In most countries governments manage quite fine to print ballots without interfering in how parties choose to select their candidates. And how do your primary ballots get printed?
â€“Â Henning Makholm
Aug 7 at 9:35

1

How do those governments know which names to print on the ballot? They must have some way of determining it, for example, requiring a certain number of signatures to be collected.
â€“Â Joe
Aug 7 at 13:49

2

x @Joe: Indeed. Note that it is still the party itself that decides who they're going to collect signatures for -- they don't give random passers-by the right to vote against the party running the candidate team they want to run and force them to run different candidates (who may not even agree with the party about anything ...).
â€“Â Henning Makholm
Aug 7 at 15:20

@HenningMakholm That would be the best policy, IMHO, but I believe some states do have "open primaries" in which anyone can vote. With regard to signatures, usually it's the candidates themselves and their backers that do that. Primaries are how the party decides which of multiple hopefuls will be its nominee for the general election.
â€“Â Joe
Aug 7 at 16:26

add a commentÂ |Â

hszmv 3,292215 · Answer 7 · 2018-08-06 18:53:57Z

Generally, this is because of the 10th Amendment, which basically says that the Constitution only grants the Federal Government the rights that it says it does. Anything not explicitly listed in the constitution as a power the Federal Government has, the power devolves to the State (or the individual). As such, primaries are not mentioned in the constitution (nor political parties at all, the founding fathers didn't want party politics at all).

Most questions along the lines of "Why does the state have this power and not the federal government" are pretty much because the power was not mentioned in the Constitution, and thus, are state powers.

The reason why the states have this rule is because the states are technically 50 separate "countries" that collectively conduct their foreign policy with each other and non- US nations through the powers of the Federal Government.

The question is about why the government in general regulates this, rather than a state vs federal question. — Aug 6 at 18:58
@JonathanReez I would recommend you specify that in your answer then — Aug 6 at 19:12
@hszmv the question is already explicit about why this is a matter for any kennel of government rather than a purely internal matter for the parties to put forward a candidate chosen by whatever method the party decides. — Aug 6 at 19:40

I.B. Guest 111 · Answer 8 · 2018-08-07 21:01:21Z

It sounds like we're talking about Presidential primaries here, so it's because the Constitution explicitly assigns to the states the right to chuse in what manner the state's electors shall be chosen and primaries are part of that process.

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