Ninth Circuit Dodges Big Issue Related to Primaries and Party Associational Rights

The Ninth Circuit has decided Arizona Libertarian Party v. Bayless. At issue is the constitutionality of Arizona's primary system in which "voters who are unaffiliated, registered as independents or geistered as members of parties that are not on the primary ballot may vote in the party primary of their choice." The Libertarian Party argued that the law violated its constitutional rights under a string of Supreme Court cases, most recently California Democratic Party v. Jones. In Jones, the Supreme Court held that California's blanket primary (in which any voter could vote in any primary election for each office) violated the constitutional rights of the parties who objected to it. The Court left open the question whether this would apply to the open primary or other primary forms, but (as I and others have argued), the logic seems to apply to any form of primary.

In the new Ninth Circuit case, the court held that the Arizona system was unconstitutional as to choosing party officials, but the court remanded for further consideration of the larger issue as to the selection of candidates for regular elected office.

Here is the relevant analysis:

The district court also erred in failing to consider separately whether the participation of nonmembers in the selection of candidates is constitutional under California Democratic Party v. Jones. See 530 U.S. 567. Although forcing the Libertarians to open their primary to nonmembers for the selection of party candidates raises serious constitutional concerns, we conclude that the resolution of the constitutional issue turns on factual questions not decided by the district court. We therefore remand so that the district court may consider the severity of the burden this aspect of the primary system imposes on the Libertarian Party’s associational rights, whether the state has sufficiently justified that burden, and if so, whether the selection of precinct committeemen is severable from the remainder of this semiclosed primary system.

These factual issues must be reviewed in light of the Court’s opinion in Jones. The Supreme Court there held that California’s blanket primary system imposed a severe burden on a party’s right to decide for itself who it will, and will not, associate with for the purposes of selecting a candidate. Jones, 530 U.S. at 582; see also Reed, 343 F.3d at 1204-05. Under a blanket primary system, all voters are able to vote for any candidate, regardless of party affiliation. Jones, 530 U.S. at 570. This system differs from Arizona’s, which restricts registered members of opposing parties with ballot access to voting in their own party’s primary. Arizona’s system also limits independent and unaffiliated voters who choose to vote in a party primary to participating in selecting only the candidates of that party. The Supreme Court in Jones noted that a system “in which the voter is limited to one party’s ballot” may be “constitutionally distinct” from the unconstitutional blanket primary. Id. at 577 n.8.

In striking down California’s blanket primary, however, the Supreme Court focused on the potential for the participation of nonparty members, including registered members of other parties, to influence the choice of the nominee at the primary and to cause partisan candidates to change their message to appeal to a more centrist voter base. See Id. at 578-79. Because of their smaller size, minor parties such as the plaintiff here are at a greater risk of both of these outcomes when their primaries are opened to nonmembers. See id. at 578. We
observe that the Court in Jones treated the risk that nonparty members will skew either primary results or candidates’ positions as a factual issue, with the plaintiffs having the burden of establishing that risk. See id. On remand, the district court should separately consider the constitutionality of nonparty members voting for Libertarian party candidates for public office, including the primary system’s potential to change the party’s nominee or the candidates’ positions.

Should the district court determine that Arizona’s candidate selection system is constitutional under Jones, it next must conduct a severability analysis. In general, only the unconstitutional portion of a legislative enactment should be invalidated. See Nat’l Adver. Co. v. City of Orange, 861 F.2d 246, 249-50 (9th Cir. 1988). Although severability is a question of state law that we review de novo, see Randolph v. Groscost, 989 P.2d 751, 755 (1999) (setting out the test for considering the severability of provisions of voter-approved initiative under Arizona law); Salve Regina College v. Russell, 499 U.S. 225, 239 (1991) (holding that the district court’s interpretation of state law is reviewed de novo), we nonetheless consider it prudent to remand to the district court where “we
believe the district court is better able to decide the question in the first instance.” Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 529 (9th Cir. 1989).

The biggest news: this kind of decision avoids much disruption before the 2004 primary season gets underway. That may have been a major motivation for the court to remand for factual findings, which will take time.

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Professor Rick Hasen
Loyola Law School
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