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25 Jul 2019

A True Open Primary: California Should Allow Independents to Vote Unfettered in the Presidential Primary, a New Lawsuit Says

Written by  Ben Christopher, CalMatters

The way California holds its presidential primary violates the constitutional rights of political independents and misuses taxpayer dollars to “benefit wholly private political parties,” a nonpartisan election group will argue in a lawsuit it says it is filing against the state.

A draft filing from by the Independent Voter Project argues that Secretary of State Alex Padilla, who administers elections, is ignoring a state constitutional requirement to hold an “open” presidential primary, in which anyone—regardless of political party—can participate.

Currently, each political party decides who gets to vote in its primary, forcing political independents who want to participate to jump through additional administrative hoops, or join a party outright.

“The State of California can’t create a process that includes some voters and excludes others,” said Chad Peace, the Independent Voter Project’s legal counsel.

A spokesperson for the Secretary of State’s office said it would wait until the lawsuit is filed before commenting.

In the past, the Democratic Party has allowed political independents without a party preference to cast a vote in its primary—but those voting by mail have been forced to request the ballot ahead of time. That rule isn’t likely to change in 2020.

Right-leaning independents have had an even tougher time. State GOP rules typically require voters to re-register as Republicans if they want to vote in the party’s primary.

But independents and absentee voters—who also are disproportionately young and people of color—make up a growing share of the California electorate. As CalMatters reported last month, the current system could confuse a large portion of would-be voters, perhaps as many as a million Californians, and lock them out of the process.

Plaintiffs in the suit will include six political independents in California, including the Independent Voter Project’s executive director, Dan Howle.

The filing, slated for state superior court in San Bernardino County, argues that the state’s current primary process violates the California Constitution, which requires the state to hold an “open primary.” That term isn’t precisely defined in state law, but Peace argues that it means “open to voters without conditions.” 

This may be the first time this argument will be presented in a California court, but federal judges have weighed in elsewhere—and they have not been convinced, said Christopher Elmendorf, a law professor at UC Davis.

“The federal courts have said that parties have the right to keep non-members from voting for their candidates, as a general rule,” he said. “This sounds like an effort to relitigate under the state Constitution a type of claim that the federal courts have not simply just rejected, but have said itself is violative of the rights of the party.”

In its filing, the Independent Voter Project also argues:

State spending on a process that benefits private political parties violates the California Constitution.

Putting additional restrictions on the electoral choices of political independents violates their due process and equal protection rights as guaranteed by both state and federal constitutions.

Requiring a political independent to register with a particular party or request its ballot as a condition to vote for candidate violates their right of association (or, in this case, non-association) which is guaranteed by the first amendment of the U.S. Constitution.

Among the plaintiffs are both Democratic- and Republican-leaning voters who, the filing states, would like to vote for a presidential candidate running in the primaries of those two parties “without being forced to associate” with that party.

“Would you say to somebody, ‘Well, you have the freedom of religion, but you have to go to a Catholic Church in order to practice it?’” said Peace. “Then you also can’t say, ‘You have freedom of political expression and the freedom of vote, but you have to go to the Democratic Party’s private nomination process in order to exercise it.’ It’s the same argument.”

The Independent Voter Project has advocated for a “public ballot” for nonpartisan voters, allowing them to pick from a list of all the major-party candidates—though parties would not be obligated to count those votes.

The group has unsuccessfully lobbied state legislators to create such a ballot in the past.

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.

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