Justices Sound Dubious of ‘Blanket Primary’

The Supreme Court justices sounded on Monday as though they are ready to strike down California’s “blanket primary” law as unconstitutional.

“The very essence of the party’s right is to define its own message and decide its own candidates,” said Justice Sandra Day O’Connor. “What’s left if this can stand?”

The court heard oral arguments in a case brought by four California parties--the Republican, Democratic, Libertarian and Peace and Freedom--which contend it is their right alone to pick their candidates for the fall ballot. They do not want independents and other unaffiliated voters to have a voice.

The state’s blanket primary will not stand much longer if comments and questions during Monday’s oral argument signal the outcome. Since the primaries are part of the nominating process, the justices suggested that the parties have a 1st Amendment right to restrict who can vote.

A state lawyer, defending the law, said that the electoral system “belongs to the voters,” not the parties. But his argument ran into a buzz saw of skeptical questions.

The outcome in the case will not affect this year’s elections, lawyers said. But an adverse ruling could close future California primary elections to voters who have not registered with party affiliations.

California has been a leader in opening the nominating process. In 1996 voters approved an initiative that permits the widest possible choice during the primaries. Under this blanket primary system, a voter can choose a favorite candidate for each office, selecting from Republicans, Democrats, Libertarians and candidates of other parties.

With the exception of president, the nominee for the Republican Party is the Republican candidate who gets the most votes, even if many of those votes come from non-Republicans. Similarly, the Democratic candidate is the Democrat who gets the most primary votes, even if independents and others provide the majority.

The system is somewhat different in the presidential race. Voters in California’s March 7 primary could vote for any presidential candidate and all votes were counted in determining the winner in the popular vote. But only votes cast by members of a candidate’s party counted in awarding delegates to the national party conventions.

Only three other states--Alaska, Washington and Louisiana--have similarly wide-open primaries, lawyers said; the court’s decision could affect their primaries as well.

Earlier this year, the primary contest between Texas Gov. George W. Bush and Arizona Sen. John McCain illustrated the difference between open and closed primaries.

Bush was more popular among registered Republicans and, in states with closed primaries, he was the clear winner.

McCain was popular among independents and some Democrats. They could cast ballots in states with open primaries and, in some of those states, McCain emerged the victor.

An “open primary” is not quite as open as California’s blanket primary. In an open primary, voters decide on election day whether they want a Republican or Democratic ballot, and they then choose from the list of only Republican or Democratic candidates.

By contrast, Californians get a single primary ballot and can choose among all the candidates from all the parties.

Lawyers for the four parties challenged the 1996 law as unconstitutional. They lost before federal courts in Sacramento and San Francisco.

But they found a far friendlier forum in the Supreme Court.

The parties’ attorney, George Waters, said that opening the primaries to unaffiliated voters “is a wholesale assault on the party’s right to pick a standard-bearer [who] reflects its ideology.” It is an attempt “to commandeer the parties and blend them together,” he added.

He referred to supporters of Proposition 198 who said in 1996 that the blanket primaries would yield more centrist candidates and exclude ideologues.

Justices Antonin Scalia and Stephen G. Breyer spoke up for the virtues of ideological candidates.

“What if the party says, ‘I don’t want to be representative. I want to go my own way.’ You are saying the parties can’t put up their own candidate,” Scalia told the state’s lawyer. “This is democracy carried to an extreme.”

Breyer said that small parties, like the Libertarians, “are committed to an ideal,” and they say they “do not want to be saddled with a candidate who doesn’t reflect [their] ideals.”

Assistant Atty. Gen. Tom Gede said that opening the primaries has increased the turnout of voters and given independents a voice for the first time in choosing nominees for the fall ballot.

“It opens up the primary to all voters and it lets them decide the message” for the party, Gede said.

The case poses a basic conflict on who controls the nominating process: the parties or the voters.

While the justices appeared to side strongly with the parties’ lawyers, they also noted that a state could avoid the constitutional problem by adopting a system of nonpartisan primaries.

Attorney Waters said in response to questions that the parties would not have a constitutional claim if California made its races nonpartisan and officially excluded the parties from the nominating process entirely.

For example, the state superintendent of public instruction in California is a nonpartisan race. If no candidate wins a majority in the June primary, the top two run against each other in November.

The high court can be expected to rule on the case (California Democratic Party vs. Jones, 99-401) by July.