Shawn GriffithsThe Independent Voter Project (IVP) has petitioned the US Supreme Court to hear its case against California’s use of a semi-closed presidential primary system, which the group states not only violates California law, but the US Constitution as well.
Petitioners have asked the high court to review the modified opinion of the California Court of Appeals, Fourth Appellate District, which says that independent voters (registered No Party Preference in California) do not have a right to equal expression in presidential primaries.
The appellate court asserted that the plaintiffs cannot demand that the State force parties to associate with non-members by allowing them access to their primaries – which is peculiar because that wasn’t what the plaintiffs asked of the court.
In fact, it misrepresented the plaintiffs’ case entirely.
READ: California Court Says It's OK to Suppress Independent Voter Rights
“Petitioners’ position in this case stems from a truly simple premise,” the petition to the Supreme Court states.
“If the State’s presidential-primary system cannot force political parties to associate with certain voters in the context of a primary election, then it surely cannot force certain voters to associate with political parties in that same context.”
In other words, at the core of their argument, the plaintiffs asserted that the same constitutional rights guaranteed to political parties and their members should also be guaranteed to individual voters outside the parties -- the right NOT to associate.
What’s more, the appellate court stated:
“In this case, we reject the [Petitioners’] assertion of a novel and peculiar constitutional right to vote in California's presidential primary for the candidate of a political party they have chosen not to join—without having their votes count for anything other than their expressive value.”
The court’s opinion, however, ignored a fundamental truth of presidential primary elections: All votes in presidential primaries are expressive. That’s because presidential nominees are selected according to rules set by the political parties, not the state.
To the extent states hold presidential primaries (and not all do of course), the outcomes are merely expressive (using the Court’s term) on the ultimate outcome. If the parties don’t want to follow the will of their voters, they don’t have to. They can simply change their internal rules if they don’t like the outcome of a state’s presidential primary.
In this case, the plaintiffs simply asked the court to recognize that elections should afford No Party Preference voters the same right to express their preference for presidential candidates as voters who chose to affiliate themselves with a political party.
IVP appealed the case to the California Supreme Court, but the court denied the petition without comment. The group says the US Supreme Court’s own precedent and the US Constitution not only gives the high court jurisdiction in this case, but ample reasons to grant its petition.
For example, the US Constitution protects the associational rights of citizens in the First Amendment – but this also guarantees the right not to associate, which the Supreme Court recognized in California Democratic Party v. Jones (2000).
The constitution also protects the right all eligible citizens over the age of 18 have to vote, which the Supreme Court has previously recognized extends to state elections, and the Fourteenth Amendment states that all citizens must be equally protected under the law.
The plaintiffs lay out the many cases throughout US history that support their claim that California’s expensive and confusing semi-closed presidential primary system suppresses the rights of No Party Preference voters, and thus is unconstitutional.
IVP originally filed its lawsuit in July 2019 with 6 individual plaintiffs from across the political spectrum to prevent voter confusion in the 2020 primary. The organization gave the state the opportunity to address the well-documented constitutional and practical ramifications of its semi-closed system.
READ: 10 Facts You Need to Know About CA's Confusing and Unconstitutional Presidential Primary
Its members even offered a simple remedy they called the “public ballot” option, which would send a presidential primary ballot to all No Party Preference voters (and voters who want the ballot) with all ballot-eligible candidates running for president listed, regardless of party.
Voters who cast a public ballot could express their preference for president like party primary voters, and the political parties could decide to factor in the results to their nomination process or ignore them -– just as they could ignore the votes of their own party members.
Plaintiffs argue that this process would actually be a benefit to political parties and election administrators -- not an infringement on their rights.
The parties’ prerogative wouldn’t change under the “public ballot” option. The remedy would simply open the process up to more voters, particularly No Party Preference voters who are not treated equally under the current system.
Election administrators, for their part, would no longer have to administer confusing “crossover” ballots -- but simply provide all independent voters with a “no party preference” ballot that actually includes candidates for President of the United States.
As the national discussions about voting rights focus on the leverage one of the two major parties has over the other, the Independent Voter Project is asking the Supreme Court of the United States to recognize a fundamental infringement on the right of every voter to participate in taxpayer-funded elections, whether or not they want to join a political party.