Door Wrongly Closed on Open Primary

While the political parties are preening and prancing at their conventions this month, they deserve raucous boos from California voters.

The U.S. Supreme Court also merits an earful of jeers. Pulling on a robe does not make a political appointee infallible, as seven jurists showed recently in throwing out California’s open primary.

That’s not just my layman’s view. U.S. Rep. Tom Campbell (R-San Jose) teaches constitutional law at Stanford and he says “the court’s opinion was very wrong, poorly reasoned.”

Campbell, the Republican nominee for the U.S. Senate, was an original advocate of the open primary because it helps moderate candidates like himself.

Gov. Gray Davis has a law degree and he also doesn’t mince words in criticizing the court. Indeed, it’s unlikely you’ll ever hear any public official use harsher language to denounce a Supreme Court ruling: “The court is 100% wrong. It’s old-time thinking and wrongheaded. It ignores the voters’ interest.”

The Democratic governor was one of the few state politicians to endorse the open primary initiative when voters approved it four years ago by a landslide 60% to 40%. It carried every county. A Times exit poll found that 58% of Republican voters supported it, along with 60% of Democrats.

The culprits here are the state Democratic and Republican leaders who blew off their parties’ voters and sued them--a strange way to attract new converts.

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To back up, California’s open primary--with its “blanket” ballot--was the most open of all the various open primary systems. In most open primaries, voters select either a Democratic or Republican ballot. In California, voters were handed one ballot listing all the candidates. They could pick and choose, regardless of party.

Political leaders fretted about nonmembers crashing their parties and doing mischief. At minimum, the pols feared nonmembers would dilute party purity; at worst, they’d intentionally nominate weak candidates to compete against their own party’s nominees.

Never mind the stack of academic research showing that very few open primary voters--maybe 2% to 5%--are conspiratorial. But an open primary does encourage citizen participation in elections; the voter turnout last March was the highest in 20 years for a presidential primary.

The Supreme Court, however, sided with the party pooh-bahs. In a 7-2 decision written by Justice Antonin Scalia, the court declared that California’s open primary violated the 1st Amendment “by forcing political parties to associate with those who do not share their beliefs.”

Professor/congressman Campbell--who carries a copy of the Constitution in his wallet--says the court wrongly interpreted the 1st Amendment “right of the people peacefully to assemble and to petition the government for a redress of grievances.” The court concluded this language protects the parties’ right of association, but it really should preserve the people’s voting rights, Campbell says.

He notes the Constitution grants the states power to establish the “manner” of elections. Amendments have guaranteed voting regardless of race or gender, required the election of senators, abolished the poll tax and lowered the voting age to 18. “There’s not one word about parties,” Campbell points out.

Most Californians probably would agree with Justice John Paul Stevens, who wrote in his dissent that the nation’s founders “looked upon parties as sores on the body politic . . . Parties ranked high on the evils that the Constitution was designed to check.”

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Most people, indeed, are jeering the court, according to a new survey by pollster Mark Baldassare for the Public Policy Institute of California. It finds that 64% of Californians have an unfavorable opinion of the court ruling.

Also, 71% support a proposed partial solution that the Legislature will begin debating today. The bill, by Sen. Steve Peace (D-El Cajon), would allow voters registered as “declined to state” to cast ballots in a party’s primary, if the party permits. The state Republican and Democratic chairmen like the idea. So does Davis. There’s no major legislative opposition.

“Parties are an anachronism,” Peace says. “They’re going to have to be more open to change, more accessible to real people.”

As for the Supreme Court, he says “these people are creatures of the political process. It’s natural they’d see this through party machine politics. But our society has moved way beyond the relevance of party institutions.”

It has moved toward nonpartisan independence. The upshot of the Peace bill will be more independent voters and fewer party members. The parties will have won in court and lost in the electorate.