Is the Idaho GOP Still After a Closed Primary?

From Ballot Access News:

Idaho is an open primary state and has never had registration by party. On primary day, any Idaho voter is free to choose any party’s primary ballot. Last year, the Idaho Republican Party filed a federal lawsuit, to force the state to give it a closed primary. But on September 4, 2009, U.S. District Court Judge B. Lynn Winmill ruled that the lawsuit requires a trial to determine whether it is true that voters hostile to the Republican Party have been voting in its primary. The Republican Party then said it would soon reveal its plans on how to proceed.

However, the party has not met the informal deadlines for revealing its plans for the trial. The Judge has set a status conference for November 30 to get an updated version of the party’s plans.

This sets off a series of questions. Usually, the courts yield to the parties on free association grounds, but it really is interesting to see how much this differs from state to state. In Idaho, the state Republican Party is demanding that the state government -- also dominated by Republican elected officials -- close the state's primaries. As the party argues, open primaries, like the ones held in Idaho for nearly four decades, potentially allow voters from outside the party to influence Republican nominations which by extension negatively impacts the party's freedom of association.

Why not, indeed?

What's interesting is that the same argument has been made in courts regarding open primaries. This movement in the courts -- at least on this particular question -- began with the 1986 Tashjian case before the Supreme Court. At issue in that instance was the fact that the Republican Party of Connecticut wanted to open up its primaries -- not close them as in the Idaho case -- but was prevented from doing so because of a Connecticut law, on the books since the 1950s, that kept primaries closed.

What did the Court decide?

Well, the Court sided with the Connecticut GOP: the law violated the party's rights to free association; specifically the party's right to invite -- in this case independents -- to vote in its nominating contests.

But this is a moving target, isn't it? Some states like Idaho or California have gone in quite the opposite direction. Faced with open primaries, parties in both the Gem state and the Golden state claimed that their free association rights were being threatened by partisans (and non-partisans, for that matter) of the other party. That the parties were unable to determine who would participate in its nominations was something Antonin Scalia, in the 7-2 opinion of the Court in the California Democratic Party v. Jones case, found to be "both severe and unnecessary."

That brings up an interesting distinction -- and there are several, actually -- between the California case and the one in Idaho. In California, all the major parties sued to have the blanket primary law invalidated. In Idaho, however, it is just the dominant Republican state party that is attempting to tear down the open primary system. The Democratic Party in Idaho could almost be considered a minor party in the state. And they could care less about the law simply because no or very few Republicans are crossing over to vote in the Democratic primaries. To top it off, the Democrats have often eschewed the primary as a means allocating presidential delegates; instead opting for a closed caucus on the state party's dime.

This, however, raises the biggest problem for the Idaho Republican Party in this case: the burden of proof is one the Republican Party. Their argument is that independents and Democrats could have undue influence (read: a moderating influence) on Republican nominations in the state. Proponents of the current open primaries law have simply said, "Prove it." In other words, how have nominations been negatively impacted by the inclusion of Democrats and independents in the process?

That's where this Idaho case is currently. It's stuck with the Idaho Republican Party trying to determine the extent to which Democrats and independents have made Republican nominees any less Republican/conservative. If Idaho Republicans want a closed primary or a closed nomination process, they are either going to have to do what the Democrats have done at the presidential level (Though, truth be told, Democrats in Idaho use a caucus as a means of keeping out Republicans and limiting, through a caucus, who participates and decides how delegates are allocated. See Meinke, et al. (2006) for more.) or just deal with it.

For now, though, it doesn't look like this particular case is going anywhere.

Read more about the Idaho case here and here.


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