California Open Primary to Be Reviewed by Justices

California’s new open primary system, where voters get to choose their favorite nominee regardless of the candidate’s party, has been put under a legal cloud.

In something of a surprise, the U.S. Supreme Court announced Friday that it will hear a challenge filed by four California political parties, including the Republicans and Democrats.

They say it is their registered voters, not the electorate in general, who should have the right to choose the party’s nominee.

“Nominees represent the party, so it should be the party’s decision, not the public’s,” said George Waters, a Sacramento lawyer who filed an appeal on behalf of the parties.

However, advocates of open primaries say that they give a voice to far more voters.

“There are about 1.6 million [registered] independents in California, and before they were disenfranchised in the primary elections,” said Los Angeles lawyer James P. Clark.

The legal challenge should have no effect on the balloting this year, lawyers said. The high court will hear the case in April and issue a ruling by July, long after California voters have selected nominees in the March 7 primary.

But the ruling will determine whether the nominating process in the future will be controlled by the parties or left open to the public.

Under the old system, voters on primary day received a ballot listing their party’s candidates. Registered Republicans voted for Republicans, Democrats for Democrats.

In 1996, nearly 60% of the state’s voters endorsed Proposition 198, which authorized the shift to an open primary.

Now, under the new system, voters on primary day receive a single ballot listing all the candidates for state and federal offices. They are free to choose among them, regardless of their party affiliation. For example, a voter on March 7 could select a Republican candidate running for president, a Democrat who is seeking a U.S. Senate seat and a Libertarian who is running for the state Senate.

The Republican candidate who receives the most votes for a particular office will be that party’s nominee, even if he or she won with cross-over votes from Democrats or independents.

Political scientists suggest that this system should yield more centrist candidates, rather than strong partisans of the left or right.

Only three other states--Alaska, Washington and Louisiana--use this form of wide-open, “blanket” primary. More than a dozen states have a type of limited open primary that allows voters on election day to choose a Republican or Democratic ballot.

California’s open primary system was first used in 1998, and political experts differ on whether it had much effect on who was nominated.

To complicate matters further, the March 7 presidential primary will operate under the old system as well as the new under a special arrangement approved by the state Legislature.

Primary voters will receive a single ballot listing more than a dozen presidential candidates. They can vote for one candidate, regardless of the hopeful’s party affiliation.

But, at the insistence of the national parties, these ballots will be tallied separately for Republicans and Democrats.

Only the votes of Republicans will be counted in choosing the party’s delegates to the Republican National Convention in Philadelphia. And only the votes of registered Democrats will be counted for awarding delegates to the Democratic National Convention in Los Angeles.

But the state will publish a separate tally of the total votes.

“It will be a beauty contest,” said Charles H. Bell Jr., a Sacramento lawyer who represents Republicans.

The separate count could garner political points for some challengers, even if it does not win them delegates.

For example, Sen. John McCain, the Arizona Republican who has run as a maverick, might draw votes from Democrats and independents. If so, he could claim to be the best candidate for the Republicans in the general election, even if Texas Gov. George W. Bush wins the most votes of registered Republicans.

For its part, the Supreme Court has gone back and forth on issues involving elections and state ballots.

Two years ago, the court upheld a Minnesota law that barred so-called fusion candidates, those with the backing of two parties. A nominee might be the choice of both the Democrats and the Farm Labor Party, yet he could list only one party affiliation on the ballot. The state controls the election process, the court ruled.

But last year, the court struck down a Colorado law that required signature-gatherers for ballot measures to be state voters. It was a free-speech issue, the court said, rejecting the state’s claim that it controlled the ballot process.

In California, party lawyers sued in 1997 to overturn the open primary system. They said that the nominating process “defines a party’s ideology” and therefore should be protected by the 1st Amendment. This is particularly true for small parties, such as the Libertarian Party and the Peace and Freedom Party, they argued.

But a federal judge in Sacramento rejected their claim, as did the U.S. 9th Circuit Court of Appeals.

The parties appealed to the Supreme Court in September. After considering the issue for weeks, the justices said Friday that they would hear arguments in April on the case (California Democratic Party, California Republican Party vs. Jones, 99-401).

Lawyers on both sides of the issue were surprised by the announcement, although party officials said that they were delighted.

“Win or lose for California, at least we’ll have a definite ruling for the country on this,” said California Democratic Party Chairman Art Torres.

“We’re encouraged,” said Stuart Deveaux, a spokesman for the California Republican Party, “but until we get the final decision of the Supreme Court, we are not jumping up and down.”

Times staff writer Carl Ingram in Sacramento contributed to this story.