Antonin Scalia Set Seeds For Non-Partisan Open Blanket Primary

“Respondents could protect them all by resorting to a nonpartisan blanket primary. Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot—which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee. Under a nonpartisan blanket primary, a State may ensure more choice, greater participation, increased “privacy,” and a sense of “fairness”—all without severely burdening a political party’s First Amendment right of association.”

These words were penned by U.S. Supreme Court Justice Antonin Scalia when writing the majority (7-2) decision in California Democratic Party, et al v. Jones, Secretary of State of California, et al, certiorari to the United States Court of Appeals for the ninth circuit (No. 99–401. Argued April 24, 2000—Decided June 26, 2000). The full decision can be found here.

In 1996, California voters passed Proposition 198 creating a partisan blanket primary where all candidates, regardless of party affiliation appeared on the same ballot with the candidate of each party who received the most votes becoming that party’s nominee for the general election.  The parties sued claiming violation of the First Amendment right of association. The Ninth Circuit upheld the law, however in Jones, the Supreme Court overturned.

The paragraph quoted above appears at the end of the decision. What I find interesting is that while ruling a blanket primary that allows voters not affiliated with a particular political party to choose that party’s nominee(s) violates the First Amendment right of association, Justice Scalia is agreeing with the proponents’ argument of an overriding state interest by recommending an alternative process that would pass Constitutional muster.  In 2008, the Court did just that by a vote of 6-3 in Washington State Grange v Washington

Two versions of the Nevada Election Modernization and Reform Act (NEMRA) are presented on this blog. The first version implementing a top-three non-partisan, open, blanket primary with Ranked Choice / Instant Runoff Voting (RCV / IRV in general election clearly conforms with Justice Scalia’s decision in Jones. The modified version of NEMRA proposed last month more closely resembles a semi-closed primary in that members of opposing political parties cannot vote for the nominee of the party of which they are not affiliated while voters not affiliated with any political party may vote for the nominee of either party. I have received mixed legal opinions. Some say allowing voters registered as Non-Partisan to choose a political party’s nominee without declaring at least temporary membership in that party by selecting only that party’s ballot, as done in a traditional semi-closed primary, violates Jones. Others say that as long as opposing party members do not participate in each other’s nominating process the conditions set in Jones are met.

Ideally the Legislative Council Bureau (LCB) should review both NEMRA proposals and advise legislators of any legal concerns. This advice will assist any legislator(s) considering filing a BDR as well as committee and full legislature consideration.