Justices Reject State’s ‘Blanket Primary’ Law


The Supreme Court struck down California’s “blanket primary” law Monday, ruling that political parties--not the people at large--have a right to choose their nominees for the fall election ballot.

The 7-2 decision rejects an innovation that had proven popular with the state’s independent-minded voters. An extra 1.5 million of them went to the polls this year for the state’s March primary election, officials said.

But Justice Antonin Scalia, speaking for the court, said that party officials have a right to tell independents and other unaffiliated voters to go away.


The primary comes “at the crucial juncture [in the election year] at which party members traditionally find their collective voice and select their spokesman,” Scalia said. California violates the 1st Amendment “by forcing political parties to associate with those who do not share their beliefs.”

The ruling invalidates California’s law and presumably does the same for nearly identical systems in Alaska and Washington. It also raises doubts about the constitutionality of “open primary” laws in 29 states. There, voters can decide on primary election day whether they want to vote for Republicans, Democrats or nominees of other parties.

State officials have nearly two years to devise new rules to govern the primaries.

Undaunted by defeat, supporters of the blanket primary said that they may seek a move to nonpartisan primaries for statewide offices.

“We will look very hard at the option of nonpartisan primaries,” said Los Angeles lawyer James P. Clark, who represented the sponsors of the 1996 initiative that opened the door for all California voters to cast ballots for candidates of any party. “It would be a strange result,” he added, because the very parties that won Monday’s victory could be pushed out of the nominating process as a result. In his opinion, Scalia commented that a nonpartisan primary would not pose constitutional problems because the voters would not be choosing parties’ nominees. Instead, they would vote for the candidates of their choice, and the top two vote-getters would face off on the fall ballot.

In a traditional “closed” primary, a voter must register in advance as a Republican, Democrat, Libertarian or other party member and on primary day can choose only from among candidates seeking that party’s nomination.


In an “open” primary, voters can decide on primary day whether they want to vote as Republicans, Democrats or affiliates of some other political party.

In 1996, California voters adopted the most open system of all. In the March 7 primary, a voter could select nominees from any party and choose, for example, a Republican for one office, a Democrat for another and a Libertarian for a third. Proponents said that this system gave all voters a chance to participate and encouraged the nomination of moderates.

But many party activists opposed the change, contending that it allowed outsiders to hijack the nominating process. In fact, because the parties threatened to reject national convention delegates elected by nonparty members, state officials tweaked the rules: Only votes of party members counted toward selecting presidential nominees.

The early Republican presidential primaries illustrated the dispute. Texas Gov. George W. Bush emerged as the overwhelming favorite of traditional Republican voters and he won easily in states where only Republicans could vote in the primaries. Arizona Sen. John McCain, though a staunch Republican, was supported by voters from across the political spectrum, including Democrats and independents. In some of the states that had open primaries, he defeated Bush.

Last September, lawyers for four California parties--Republicans, Democrats, Libertarians and Peace and Freedom--challenged the state’s blanket primary in an appeal to the Supreme Court. The case (California Democratic Party and others vs. Jones, 99-401) came before the justices in March, just as the Bush-McCain race helped to focus the issue.

Scalia said that Californians set out to change the parties’ beliefs by rejecting “hard-liners” in favor of “moderate problem-solvers.” They have no authority to do so, he said, adding that only the “party faithful” have the right to decide their party’s message.

He was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy, David H. Souter, Clarence Thomas and Stephen G. Breyer. In dissent, Justice John Paul Stevens questioned how the Constitution limits “a state’s power to broaden voter participation in elections conducted by the state.” He also jabbed at the court’s conservatives, who often champion states’ rights but are willing to second-guess voters’ decision on how to run their primaries. Justice Ruth Bader Ginsburg joined his dissent.


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