Editor's Note: Video of oral argument from March 13 can be viewed here.
Oral argument for a lawsuit that challenges California’s semi-closed presidential primary system is scheduled for March 13 before a California appellate court. Plaintiffs argue that the primary system in place not only limits individual voting rights, but violates state and federal constitutional protections.
The lawsuit was originally filed in July 2019 by the Independent Voter Project (IVP) and 6 individual plaintiffs from across the political spectrum to prevent voter confusion in the 2020 primary -- giving the state an opportunity to address both the constitutional and practical ramifications of its wacky semi-closed primary -- but the state has failed to act on any of IVP’s legislative or legal efforts.
Four years and another confusing semi-closed primary later -- the problem still persists.
The lawsuit asserts that the California Constitution requires the state to conduct an open presidential primary. Section 5, Article 2 of the California Constitution states that “...the Legislature shall provide for [...] an open presidential primary.” An open process, by definition, extends the right to participate in these taxpayer-funded elections to all qualified voters, regardless of their party preference.
Yet, California uses a modified closed presidential primary (also called semi-closed) that bars 5 million No Party Preference (NPP) voters and all no party preference candidates from participating in these state-funded and administered elections unless one of the state-sanctioned political parties allows it.
In short: the political parties decide who can and cannot vote in California’s presidential primaries. Plaintiffs, most simply, argue that the state should decide who gets to participate -- and that decision must include every registered voter, regardless of party.
To add insult to injury, the Independent Voter Project estimates that state-taxpayers spend nearly $100 million on presidential primaries every election cycle, as the voter inequities continue.
In recent cycles, three parties have allowed NPP voters to participate while three parties have denied access. Even when a party does allow NPP voters to request a crossover ballot – like the Democratic Party – many voters can still miss out on the opportunity to vote.
A 2016 CA120 survey found that nearly 90% of NPP voters were interested in voting in the presidential primary. Two-thirds of these voters indicated that they planned to vote in the Democratic primary. Yet only 6% of permanent absentee voters registered NPP in LA County received a Democratic crossover ballot.
It is not an opinion that the California presidential primary process is complex and confusing to voters. It is a widely reported fact.
California hasn’t always conducted this type of primary. Voters approved the use of an “open blanket” primary in 1996 under Proposition 198. The new system replaced a closed partisan primary that only allowed registered party members to participate with primaries in which every voter's ballot listed all candidates running, regardless of political affiliation, and voters could freely choose among them.
The candidate from each party that garnered the most votes became their party’s nominee in the general election.
The “open blanket” primary was a short-lived reform. Four parties filed suit arguing that primary elections were private nomination processes and the parties had a First Amendment right to exclude nonmembers from the process.
The US Supreme Court sided with the parties in California Democratic Party v. Jones. The late Justice Antonin Scalia wrote that the forced association with nonmembers under the “open blanket primary” created a heavy burden “on a political party’s associational freedom.”
Plaintiffs in IVP's lawsuit do not contest the associational rights of parties cited in Democratic Party v Jones. They assert that the same rights guaranteed to parties also apply to voters, and it is unconstitutional to condition the right to vote on association with a private political organization.
IVP believes that the rights of parties and voters do not need to be in conflict. The lawsuit does not ask the court to force parties to allow NPP voters to vote in party primaries. Instead, IVP has for years offered a simple remedy to protect the rights of both sides of this conundrum:
A nonpartisan “public ballot” option for voters who can’t or don’t want to vote in a party’s primary.
Put simply, California would continue to distribute partisan presidential primary ballots for state-sanctioned parties, but all voters would have the option to select a public ballot that lists every candidate running for president, regardless of political affiliation, and the parties can decide whether or not to include the results of these ballots in their nomination process.
The parties have already asserted in their rules and before the courts that they can pick their nominee regardless of primary results or state law. Internal party dealings can effectively end a presidential nomination process before California has its primaries.
The parties’ prerogative wouldn’t change under the “public ballot” option. The plaintiffs’ remedy would simply open the process up more to independent voters. Yet, the California Legislature has not exercised its power over election law to implement this option.
Instead, the State of California continues to force election administrators, workers, and voters to be burdened by complex and cumbersome rules.
