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In the United States, primary elections are publicly-funded (I had trouble finding a direct citation for this but top Google hits are in general agreement that taxpayers pay most if not all the costs). But not all states allow all registered voters to participate. Some states (Wikipedia counts twelve) hold closed primaries, where only party members may vote in a particular party's primary, thus disenfranchising independent voters, and even voters registered to parties that do not hold their own primary. This answer says it is even a crime for an independent voter to attempt to participate in a closed primary election!

Additionally, according to this poll, in 2015 a record 43% of voters were independent. (I could not find figures for the 2016 election but I imagine it is even higher considering the upward trend.) So the effect is that some states exclude nearly half of voters from their primary elections.

That is not to mention other exclusionary tactics such as lengthy residency and party registration requirements, most infamously New York's onerous six month party registration requirement, which exclude even more people.

I understand that the parties are private organizations which are free to conduct their own elections however they like, but their elections are publicly-funded and state-administered. Taxpayers pay for their elections, and government employees execute them, all for the exclusive benefit of the parties. And yet some states make it a crime for registered voters to vote unless they are already associated with the party - sometimes up to six months in advance of an election. Considering how many people this excludes, doesn't this violate the Equal Protection Clause?

And secondly, I've read the counter-argument that voters are free to register with a party in advance of a primary election (however, sometimes no less than six months in advance!), but doesn't this requirement violate the freedom of association, which should implicitly grant a freedom to not associate?

Are there any other Constitutional problems with closed, taxpayer-funded elections that I've missed?

How can closed, taxpayer-funded primary elections, which effectively funnels millions of taxpayer dollars to the parties who benefit exclusively, possibly be Constitutional?

  • Can you provide an example of a state or municipality that makes it a crime for registered independents to vote? – T.E.D. Apr 27 '17 at 22:53
  • @T.E.D. from a comment to an answer in the linked question: "Florida Title IX Chapter 104, either 104.011, 104.041 or 104.16 depending on the actual circumstances of how the vote was cast (False swearing; submission of false voter registration information, Fraud in connection with casting vote, Voting fraudulent ballot, respectively). All of which are 3rd degree felonies and punishable by either 5 years in prison and/or $5,000 fine, or 10 years in prison in the case of habitual offenders (775.082, 775.083, 775.084) " – user9389 Apr 27 '17 at 23:17
  • @T.E.D. Florida is also a closed primary state, so registered independent voter in Florida attempting to vote in a party primary would probably be violating the law that @ notstoreboughtdirt just referenced. But IANAL. If other closed primary states don't have similar laws, they certainly permit the parties to exclude independents from voting, if not require them to exclude independents. All of which seems like a violation of independent voter rights. – J Doe Apr 27 '17 at 23:26
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    @JDoe Primaries are not defined in the Constitution in any way. Voters in the primaries have no special rights. As Avi pointed out the Supreme Court has ruled against discrimination based on race but racial discrimination is protected by federal law and would have been illegal even outside of the primaries. – JonK Apr 28 '17 at 0:12
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    @JDoe - "What do you think would happen when I want to exercise my right to vote and refuse to leave until they give me a ballot with candidates for that race?" What I think would happen is that you'd be sitting there until they close the polling place down and the pollworkers have carted the equipment and ballots off. If you refuse to leave then, I suppose you might get arrested for vagrancy or trespassing (both of which are perfectly constitutional things to get arrested for). – T.E.D. Apr 28 '17 at 13:24
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As you pointed out, parties are private organizations, and therefore are not bound by Constitutional limitations. It is true that party primaries are generally funded and administered by the state, but the courts have not consistently considered this a sufficient state action nexus for Constitutional limitations to attach.

In general, the Constitution only applies to government actors. This principle is called the state action doctrine. See, for example, Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976). However, there are some situations in which Constitutional limitations can apply to private organizations. If the private organization performs a function traditionally performed only by the government, Marsh v. Alabama, 326 U.S. 501 (1946), or if there is sufficient support from the state that the state is considered a joint participant in the endeavor, Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), then even a private organization can be required to respect Constitutional rights.

A primary election would seem to satisfy both conditions for finding state action. And indeed, in some cases, the Supreme Court has ruled that party primaries violated the Equal Protection clause. In Smith v. Allwright, 321 U.S. 649 (1944) and Terry v. Adams, 345 U.S. 461 (1953), the Supreme Court held that Texas could not hold or rely on primary elections that prohibited black people from voting.

However, in other cases, including the cases most relevant to partisan limitations on primary participation, the Supreme Court has defended the independence of political parties. In California Democratic Party v. Jones, 530 U.S. 567 (2000), the Supreme Court struck down a California law requiring parties to open their primaries to voters regardless of their party registration. The Supreme Court held that this violated the parties' rights to freedom of association under the First Amendment.

The cases here have, admittedly, been less than consistent. And there are reasonable arguments that primary elections should be considered state action, and therefore subject to Constitutional limitations. But the most recent and specific Supreme Court cases on this subject have emphasized the independence of the political parties as private organizations. States, therefore, have limited power to impose regulations on party primaries, and parties retain the freedom to discriminate in ways that the state itself could not.

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