In a recent essay in Life & Liberty, Robert G. Natelson argues that open primaries may violate the First Amendment rights of political parties by allowing people who are not party members to participate in choosing their nominees. His argument starts with the rights of the party. The more fundamental question is whether it starts in the right place at all: When a state conducts a primary election, whose rights are we even talking about?
Natelson’s answer is primarily the rights of political parties. He argues that because parties have a First Amendment right to decide with whom they associate, the government cannot require them to allow people who are not party members to participate in choosing their nominees. He relies on a number of Supreme Court decisions involving political parties and places particular weight on National Republican Senatorial Committee v. FEC. But in doing so, he moves too quickly past the most important fact in the debate: a state primary is an election conducted by the government, not a private meeting of a political organization.
A primary election is created by state law, administered by public election officials, financed by taxpayers and conducted with the machinery of government. The candidates who emerge from it are candidates for public office. The fact that they appear on the ballot with a party designation does not change the nature of the election or turn the government officials conducting it into agents of a private organization. If the state has made the primary part of the process through which public officials are selected, the constitutional rights of the voters participating in that process cannot simply disappear because a political party is involved.
The Supreme Court recognized this principle long ago. In United States v. Classic, the Court held that a primary could be an integral part of the process by which public officials were selected and therefore subject to constitutional protections. In Terry v. Adams, the Court refused to permit a private political organization to control the selection of public officials while escaping constitutional scrutiny. And in Smith v. Allwright, the Court rejected the argument that a state-regulated primary could be treated as a private party affair in order to exclude Black voters from a primary that was part of the state’s machinery for choosing public officials.
That case is especially worth consideration here. Thurgood Marshall, who argued the case, later called it the most important case of his career before Brown. The circumstances today are different, but the use of primaries to shut out voters of color is not. Substantial numbers of Latino, Asian and African-American voters are registered independent. In NYC alone, 54% of the 1.2 million independents in the city are voters of color.
Those decisions did not diminish the importance of political parties. They recognized something more basic: once the government makes an election part of the machinery for choosing public officials, the people who participate in that election have constitutional rights too.
Natelson’s analysis largely reverses that starting point. He begins with the party and asks what the party has a right to control, then treats that answer as though it necessarily determines who may participate in the public election. But political parties have always been entitled to conduct their own affairs. They can decide who joins, choose their officers, establish their platforms, hold conventions and private meetings, endorse candidates and decide what their organizations stand for. No one seriously disputes that. The government has no right to dictate the membership of a private organization or tell it whom it must recognize as a member. The question in an open primary is different because the government is not regulating a party meeting. It is determining the rules for an election that the government itself has established.
That distinction matters most for the voters Natelson’s analysis largely leaves out: the millions of Americans who choose not to affiliate with a political party. These voters are not outsiders to the electoral system. They are citizens who are otherwise qualified to vote, who pay the taxes that support the election and who will live under the government produced by its results. Yet in a closed primary, their decision not to join a political party can be enough to prevent them from participating in an election that the state itself conducts.
Natelson sees the party’s associational rights in that circumstance. He should also have to address the voter’s.
The First Amendment protects freedom of association, but the constitutional protection for association has never meant that government may simply compel affiliation as the price of exercising other rights. The Supreme Court has recognized the freedom not to associate in cases such as Roberts v. United States Jaycees and Janus v. AFSCME. Those cases arise in very different settings, and they do not answer the primary-election question by themselves. They do, however, make clear why the argument that an independent voter can simply join a party misses the constitutional problem. The choice not to join a political organization is itself a choice the individual is entitled to make.
A closed primary effectively tells that voter that there are two choices: remain independent and surrender a voice in the primary, or affiliate with a political party and regain it. That is not merely a rule about the internal affairs of a party. It is a government rule that makes political affiliation a condition of participating in an election.
Natelson’s reliance on National Republican Senatorial Committee v. FEC does not solve this problem. That case concerned federal restrictions on coordinated expenditures by political parties and candidates. The Court was considering government regulation of political spending and expression, and held that the restrictions at issue violated the First Amendment. Natelson takes that protection for a party’s political activity and extends it to a very different question: whether the party has a constitutional right to determine the electorate in a state-administered primary.
That conclusion does not follow from the case. Protecting a political party from government restrictions on its political expenditures is not the same thing as giving the party constitutional control over who may vote in an election created and conducted by the government. One concerns the government regulating political expression. The other concerns the rules governing participation in an election. The fact that both questions involve the First Amendment does not eliminate the difference between them.
The same problem appears in Natelson’s discussion of Democratic Party of Wisconsin v. Wisconsin ex rel. La Follette. That case involved the ability of a state to bind delegates to a national political convention based on the results of a state preference primary. The Supreme Court held that Wisconsin could not force the Democratic Party to accept delegates selected in a manner inconsistent with the party’s own rules for its national convention. The state was attempting to dictate how the party conducted its own national nominating process. That is a very different proposition from a state deciding who may participate in an election that the state itself conducts to determine which candidates will appear on the general-election ballot.
California Democratic Party v. Jones presents the same distinction. The Court struck down California’s blanket primary because the particular system required political parties to accept nominees selected through a process that allowed voters to participate without regard to party affiliation. The Court found that this imposed a serious burden on the parties’ ability to define their own nominees. But the decision did not establish that political parties own state primaries or that every system permitting unaffiliated voters to participate is unconstitutional. It addressed the constitutional burden created by a particular election structure; it did not transfer control of the state’s electoral machinery to the political parties.
That distinction is important because there is a tendency in this debate to treat any primary involving a political party as though it were necessarily the party’s own election. It is not. The state decides whether to have a primary, when to hold it, how to administer it, how candidates qualify for the ballot, how votes are counted and what legal consequences attach to the result. Political parties operate within that public framework, but their presence within the system does not transform the system into a private organization.
There is a historical reason to be cautious about that way of thinking as well. Direct primaries developed during the Progressive Era, in substantial part, because Americans were seeking to reduce the control of party bosses and political machines over the selection of candidates and give ordinary voters a greater role in the process. Whatever view one takes of the various primary systems that states have adopted since then, the basic history cuts against the idea that candidate selection is simply an internal matter for political parties. Primaries were brought into the electoral process precisely because candidate selection had become too important to leave entirely in the hands of party organizations.
None of this means that parties cease to have associational rights when they participate in a primary. They do not. It means those rights have to be considered alongside the rights of the voters and the character of the election itself. A party remains free to control its membership, its leadership, its platform and its private activities. What it cannot establish simply by invoking the First Amendment is that the state has surrendered control over the electorate in a public election.
For independent voters, this is not an abstract dispute about organizational autonomy. It is a very practical question. A voter who has chosen to remain independent is not asking to write a party platform, select its officers or dictate whom the party should recognize as a member. The voter is asking to participate in an election through which the government selects the candidates who will compete for public office.
That voter has made a political choice not to join a party. Why should exercising that choice mean giving up a voice in the election?
Natelson’s essay does not adequately answer that question because it spends so much time asking what political parties are entitled to do that it never fully confronts what the government is doing to the voter. The Constitution protects political parties as important participants in our political system, but it also protects individuals in their decisions about political association. Those protections do not have to conflict. A state can recognize the role of political parties while structuring its own elections in a way that allows citizens to participate without first declaring themselves members of one.
For millions of independent Americans, that is what this debate is really about. They are not asking for control of anyone else’s political organization. They are asking to remain who they are and still have a voice in choosing the people who will govern them. Making party membership the condition for that participation turns a private political affiliation into a government requirement.
The First Amendment protects the freedom to associate and to not associate. Natelson (and opponents of open primaries more generally) would have it transformed into a license to compel association.
We cannot allow that. The First Amendment should not be twisted into a justification for compelled political association. And it certainly should not be used to tell an American citizen that, before they can vote in their own government’s election, they must first join someone else’s political party.
Jeremy Gruber is Senior Vice President of Open Primaries, a national organization advocating for open and inclusive primary systems and the rights of independent voters. He is the author of “Let All Voters Vote: Independents and the Expansion of Voting Rights in the United States.”
