Primaries' case a constitutional matter


WASHINGTON -- Last week, the Supreme Court heard arguments in a case that, if correctly decided, will strengthen First Amendment freedoms of speech and association, and demonstrate that much of John McCain's strength in the primaries resulted from state election laws inimical to those freedoms.

The question at issue is whether California's "blanket" primary abridges the freedom of individuals to associate in political parties that serve as their right to express their chosen philosophies.

In closed primaries, only registered members of a party can vote. In open primaries, any registered voter can get any party's ballot. In blanket primaries, no party has its own ballot or primary.

On a "blanket" ballot, voters can choose among all parties' candidates for each office. All candidates of all parties for a particular office are listed together under that office. The Republican who gets the most votes among Republican candidates gets the party's line on the general election ballot, and so with candidates of all other parties. (California treats only presidential primaries differently: ballots are coded, and only votes of registered party members count in the allocation of national convention delegates.)

Californians want the blanket primary: They established it by initiative with 60 percent of their votes. However, constitutionalism limits the wants that are permissible. As the Supreme Court has said, the purpose the Bill of Rights is to put some things "beyond the reach of majorities" -- things like First Amendment freedoms.

Four California parties -- Republican, Democratic, Libertarian and Peace and Freedom -- last week told the court that the blanket primary annihilates their freedom to associate for the purpose of advocating their political philosophies. It does so by stripping party members of control of the selection of their candidates and hence of their message. In a blanket primary, a party's nomination can be won by a candidate other than the one who gets a majority of the party members' votes.

The court has said states can require parties to select candidates by primaries but do not have carte blanche to dictate the nature of the primaries. In 1986, the court overturned Connecticut's law requiring closed primaries, siding with Connecticut's Republican Party, which wanted an open primary to broaden its base.

Proponents of blanket primaries say that by enabling lightly committed, barely partisan voters to opt for any candidate, they produce more "moderate," less ideological nominees. Opponents say that even if it were (which it is not) obviously good to blur the philosophical clarity and dampen the ideological warmth of parties, government has no right to break parties to the saddle of such a state-imposed orthodoxy -- to mandate a primary the purpose of which is to change the nature of the parties' speech.

Proponents say that by multiplying choices, blanket primaries increase voter participation. Indeed, California's assistant attorney general defended the blanket primary by asserting: "The more people you have voting, the more representative the candidates are going to be."

Opponents ask, in what kindergarten is that theory of representation taught? There is much more to representation than elementary arithmetic. Parties are indispensable instruments of representation because they aggregate interests and articulate distinctive doctrines of justice. But parties cannot do this if they can be hijacked by drive-by voters with no durable interest in the parties, acting on transitory whims, or even to make mischief by burdening a party with a weak candidate.

The court might flinch from ruling against blanket primaries because such a decision would have serious implications for the 23 states that have open primaries. It should not flinch.

If a blanket primary is (as the lawyer for California's Democratic Party says) "a free-love nominating system where (voters) go from party to party and no one has to declare any fidelity," an open primary is comparable. For many voters, such as many Democrats and independents who gave Mr. McCain victories in New Hampshire's and Michigan's open Republican primaries, open primaries are one-night stands.

The court has said that freedom of association "plainly presupposes a freedom not to associate." But blanket and open primaries force party members to associate with persons indifferent or hostile to the aims that party members join together in order to advocate. And such primaries can allow people completely unassociated with the party to foist upon it nominees -- messengers -- who express messages contrary to those the party members wish to express. Whatever can be said in support of California's desire to pump up the turnout in primaries, that desire cannot trump First Amendment freedoms.

George F. Will is a syndicated columnist.

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