Constitutional Issues
Opponents of the open primary argue that the open primary is unconstitutional. These opponents believe that the open primary law violates their freedom of association, because it forces them to allow outsiders to select their candidates.
Freedom of association has been recognized by the United States Supreme Court. First, in NAACP v. Alabama, the court said that “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fifth and Fourteenth Amendment, which embraces freedom of speech.”
In other words, the freedom of association is part of the freedom of speech. The freedom of speech, which is found in the First Amendment to the United States Constitution, is applied to the states through the fourteenth amendment. In Gitlow v. New York, Justice Sanford states that “or present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
This constitutionality raises a problem. The most popular alternative to the open primary is the closed primary. However, a mandatory closed primary can also be unconstitutional. In Tashjian v. Republican Party of Connecticut, the United States Supreme Court determined that Connecticut’s closed primary law was unconstitutional. The Connecticut closed primary law “ voters in any political party primary to be registered members of that party.” The Republican Party of Connecticut, however, wanted to allow independents to vote in the Republican primary if they so chose. The problem with this closed primary law was that it prevented the Republican Party from allowing independent “registered voters not affiliated with any party to vote in Republican primaries for federal and statewide offices.” Since the Republican Party of Connecticut was not able to choose who it wanted to vote in the primary, the United States Supreme Court, in a 6-3 decision, stated that the closed primary law in Connecticut “impermissibly burdens the right of the Party and its members protected by the First and Fourteenth Amendments.”
On October 1, 2007, the U.S. Court of Appeals for the Fourth Circuit ruled that the Virginia mandatory open primary statute was unconstitutional as applied to the Republicans because it imposed a burden on their freedom to associate under the First Amendment, although it explicitly did not rule on the question of whether an open primary law was in general unconstitutional as a burden on association.
Read more about this topic: Open Primaries In The United States, Pros and Cons
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