Supreme Court looks with suspicion on California’s blanket primary

Tuesday, April 25, 2000

Supreme Court justices seemed sharply critical yesterday of California’s blanket-primary system, which allows voters to pick and choose candidates from any party.

Comments from several justices during oral arguments suggested that they viewed the primary system as a violation of political parties’ First Amendment rights.

The state’s Democratic and Republican parties and several other political organizations challenged the blanket primary, approved by voters in a 1996 ballot initiative, as a violation of their freedom of association because it is a state-imposed system that forces parties to allow non-party members to help choose their candidates.

The court’s seemingly strong embrace of the freedom of association during arguments yesterday could foreshadow the justices’ approach to Boy Scouts of America v. James Dale set for argument tomorrow, in which the Boy Scouts organization is citing freedom of association to resist a state requirement that it allow homosexuals as members.

If the court strikes down blanket primaries in California Democratic Party v. Jones, its decision could also affect the more widespread open-primary concept that allowed Arizona Sen. John McCain to woo independent voters to vote in Republican primaries in several states this year. McCain joined a friend-of-the-court brief in the case in support of California’s primary system.

In open primaries, voters must pick one party’s ballot to choose candidates from on primary day. In California, by contrast, voters are given a ballot on which all parties’ candidates appear, and they can skip back and forth between parties for candidates for different offices.

A primary election is “the point at which the associational right of a party is at its zenith,” said Justice Sandra Day O’Connor, who asked rhetorically, “What’s left (of the First Amendment right) if this comes in?”

When Assistant California Attorney General Thomas Gede defended the blanket primary as a valid way for a state to make parties more representative and to remedy voter alienation and sagging voter turnout, Justice Antonin Scalia ridiculed him.

The blanket primary might also serve the state’s interest in reducing “acne, ringworm and traffic problems in L.A.,” Scalia said sarcastically. A political party should not be forced by the state to become more representative if it does not want to, Scalia added. “This is democracy carried to an extreme, tyranny of the majority.”

Chief Justice William Rehnquist also posited a political party that wanted to remain true to an unpopular principle. “If a party says legislative gridlock is good, wouldn’t that message be deterred” by the blanket primary?

Justice Stephen Breyer seemed most concerned with what he called “the Libertarian Party problem.” Namely, that a blanket primary could result in a candidate for a minor party like the Libertarians being selected mainly by non-Libertarians. “They can find themselves with a candidate who has nothing to do with the Libertarian Party,” said Breyer.

Gede could barely keep up with the attack, repeatedly falling back on his argument that blanket primaries are an opportunity, not a burden, for parties, and that interloping candidates could be dealt with through party endorsements. He also said the primary system has no effect on the content of a party’s message.

To which Justice David Souter replied that blanket primaries tend to produce “more centrist candidates” than traditional primaries do. “There is a change in content.”

Sacramento lawyer George Waters spoke first yesterday, arguing on behalf of California’s political parties that the blanket primary “makes party philosophy irrelevant.”

He assured justices they could strike down California’s primary system without affecting open primaries, but some justices seemed unsure that was possible.

Waters called the case a “direct descendant” of Tashjian v. Republican Party of Connecticut, a 1986 decision of the Supreme Court that said a state could not prevent a party from opening its primary to independents. Parties should be able to choose for themselves, Waters said, whether to allow non-members to participate in their primaries. “A party has a right to limit its nominating process,” he said.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.