Non-Partisan Primaries Do Not Violate Political Parties' Freedom of Association

“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.”

(Supreme Court Justice Antonin Scalia writing in CALIFORNIA DEMOCRATIC PARTY et al. v. JONES, SECRETARY OF STATE OF CALIFORNIA, et al.)

The main objection to replacing the closed primary election system in Nevada is that political parties have a first amendment right to select who represents their party in general elections. This has most recently been expressed by leading Nevada political commentator Jon Ralston, the editors of the Las Vegas Review Journal, and Reno political columnist Orrin Johnson. I totally agree.

But as Justice Scalia noted when writing for the majority in California Democratic Party et al. v Jones, Secretary of State of California, et al. using a non-partisan blanket primary, or for that matter, no primary, does not violate this first amendment right. Such a system not only protects that right but also protects the right of the state to regulate elections to ensure greater voter choice, participation, and fairness.

The Nevada Election Modernization and Reform Act for 2017 (NEMRA - 2017) and its predecessor last session, were designed with this in mind; to let the state exercise its right to expand voter choice, participation, and fairness while not infringing on the political parties’ right of association. This is a win-win.

Why would any political party oppose engaging more voters and increasing membership and potential donations? It is important to note that except for the few months leading up to the presidential caucuses and primary, the only group regularly gaining voter share is Non-Partisan. Both the Democratic and Republican Parties have been losing voter share over the same period. Saying those who left the party can re-register if they want to vote ignores the message of these voter registration trends and gives the perception that party is more important than country, state, or county.

Why would any political party not want to have its positions supported by a wider segment of voters? Tailoring their message to a small segment, those more ideologically pure, is what has prompted voters to leave the parties, reduced voter turnout, and increased the negative influence of partisanship in all aspects of our lives. 

What would be the message if one or both of the major political parties endorsed and actively worked for passage of NEMRA – 2017? It would be one of inclusiveness, one where the needs of the state and country come before the needs of the party. It would be one of “we believe every voter, not just those who 100 percent agree with us, matter.” The result of this message would be increased voter interest, increased voter participation, and potentially increased party membership.

Non-Partisan primaries do not violate political parties' freedom of association. They do strengthen our electoral and governing processes to the benefit of the parties and the state.    

Nevada’s Strategic Planning Framework 2016 – 2020 and NEMRA - 2017

On April 11, 2016, Governor Brian Sandoval released the first edition of the Nevada Strategic Planning Framework 2016 – 2020. This plan, put together by the governor and his cabinet, lays out a vision and a framework to achieve that vision. Above all, it requires all sectors of the state government work together to enact and implement all the pieces that will continue to grow the economy and ensure a high quality of life for all Nevadans.

The framework is based on a vision that “Nevada’s best days are yet to come.” From that vision, it sets a mission “To create a new Nevada while honoring and enhancing 150 years of success.”, based on the values of:

o   Action

o   Collaboration

o   Inclusiveness

o   Integrity

o   Leadership

o   Optimism

o   Service

There are four strategic priorities central to all areas:

o   Vibrant and Sustainable Economy

o   Educated and Healthy Citizenry

o   Safe and Livable Communities

o   Efficient and Responsive State Government

With any long-range plan, the fluidity that comes with changing elected leadership, changing organizational structures, and new laws, regulations, and policies must be addressed to minimize the impact of such change on the overall plan. The framework laid out by Governor Sandoval does this by focusing on eight core governmental functions:

o   Business Development and Services

o   Infrastructure and Communications

o   Education and Workforce Development

o   Health Services

o   Human Services

o   Public Safety

o   Resource Management

o                   o   State Support Services

For this long-range vision for Nevada to be successful, the strategic priority of efficient and responsive state government is paramount.  The executive branch, the elected constitutional officers of the state must lead. Along with the elected legislative leadership, they must be able to bring all sides together and create a climate for respectful dialog to work through differences of opinion. The legislature, the 42 elected members of the assembly and 21 elected members of the senate are the workhorses who must fund the programs, make necessary changes to statutes, and provide the resources that will allow the vision to become a reality. This may be easier said than done.

In today’s political environment, elected officials are more likely to be judged on their loyalty to their political party base (a vocal but small segment) and ideological purity than on their dedication and desire to do what is best for the state. Actions and decisions may be based more on fear of being defeated in a primary election than on what the lawmaker truly believes is right. Working together to collaborate on viable programs, having respectful discussions that recognize differences of opinion yet don’t let those differences get in the way of reaching consensus can be risky and difficult. The result is often contentious party-line debate that impedes progress.

The Nevada Election Modernization and Reform Act for 2017 (NEMRA – 2017) could be an essential tool in meeting the framework’s priority of efficient and responsive state government. It clearly embraces the seven values of action, collaboration, inclusiveness, integrity, leadership, optimism, and service.

NEMRA – 2017 allows legislators to do what is best for the state without having to fear being “primaried”. Use of ranked choice / instant runoff voting (RCV / IRV) has proven to return civility to campaigning and legislating. With elections and legislating requiring appealing to more than just the small party base, candidates and legislators can address issues in a pragmatic fashion rather than ideologically pure dogma.  

Governor Sandoval’s Nevada’s Strategic Planning Framework 2016 – 2020 is an initiative that will be mostly undertaken after he leaves office. Successful implementation will take a willingness to continue on its path by his successor as well as legislators who may succeed those currently serving. It will require putting in place processes that allow transition of personnel while encouraging open, respectful, and honest debate. NEMRA – 2017 is such a process.  

Critics and Supporters of Election Law Change Agree Some Change is Needed

There has been a lot of media attention recently concerning a change to Nevada election law enacted by the 2015 Nevada legislature. The change focused on how an elected official is chosen when only one political party has candidates vying for a particular office.

Before the change, if only two candidates of the same party were running for the office, both candidates would appear on the general election ballot foregoing the primary election. If more than two candidates from the same party were the only ones running, the top two finishers in the closed primary election would advance to the general election. This would allow all voters in a legislative district to vote on who represented them in the legislative body.

Under the change, all candidates from the same political party will compete in a primary election with the winner advancing to the general election as an unopposed candidate. Supporters of this change say it is the political party’s right to select its nominee and that if voters registered in another party or as non-partisan want to participate they should change their voter registration to the party with candidates. Opponents of the change say all voters of the district should have a voice in who represents them without having to change party. Unlike when a candidate is unopposed; only one person filed to run for the office, two from the same party still represent a choice that should be presented in the general election. This is different from a party choosing its nominee.

In spite of all the back and forth, there is agreement – changes to our election process are needed.

The author of the change, State Senator James Settelmeyer (R - Minden), as vice-chair of the Senate Legislative Operations and Elections Committee along with committee chair State Senator Patricia Farley (R - Las Vegas) were the sponsors (officially it was a committee bill) of the original bill calling for a modified blanket primary system. Speaking of the original bill, Senator Settelmeyer was quoted in an article by Las Vegas Review Journal political reporter Sandra Chereb as saying the concept “is to allow everyone to vote in the primary.” He further said “It’s good to give people choices,” For the most recent article Senator Settelmeyer also stated “I would still support and vote for the bill that I brought,” he said. “To me it’s about the concept of having bold choices in which way we wish to go forward.” Senator Farely added “You want to get everybody’s voice in the process. I would like to see it open up in the primary. If I’m a registered independent and I like a Republican, I shouldn’t have to change my party affiliation.”

In an editorial supporting the change published on April 12, 2016 in the Las Vegas Review Journal the editors closed by saying “To encourage both major parties to field legislative candidates across the board, stop drawing district boundaries to guarantee a predictable outcome. Not only would both Democrats and Republicans have an incentive to field qualified candidates, voters of all affiliations would be more likely to get out and cast a ballot.” The drawing of legislative boundaries is a major issue for proponents of election reform. A bill to create a legislative advisory panel for reapportionment and redistricting was introduced in the 2015 session but failed to pass.

http://leg.state.nv.us/Session/78th2015/Reports/history.cfm?ID=561

On April 12, 2016, I appeared on the Alan Stock Show on KXNT in Las Vegas. While Stock fully supports the current system, he closed by telling me we need “four strong political parties, Republican, Democratic, Conservative, and Liberal.” To achieve this would require going to multi-member legislative districts. Again, this is a major reform put forward by proponents of election reform.

Orrin Johnson, a political columnist contributing to the Reno Gazette Journal and another supporter of the 2015 change closed his April 17, 2016 column by saying, “I, for one, will be happy when political parties no longer enjoy any official sanction or recognition in our electoral procedures. The First Amendment, as it should, protects the rights of people to assemble into various organizations for political activism, but that doesn’t require us to have statutes with different rules for “major” or “minor” parties.” This sentiment is a driving force behind election reform.

In solving any problem, the first step is to determine if there are any areas of agreement, of common ground. Clearly there is agreement on the need for change in our political processes. Sandra Chereb, through her story highlighting the recent change to elections when only one party has candidates has brought this problem to the surface. Perhaps the Nevada Election Modernization and Reform Act, the catalyst for the original bill in 2015, is the vehicle to reach the solution. 

GOP Loses Voter Share as Democrats Gain

As expected, with the presidential caucuses just completed and primary election campaigns kicking into high gear, Nevada voter registration statistics for March, 2016 continue to show a slight shift away from the growth of Non-Partisan voters. With minor exception, all registration groups; Democratic, Republican, Non-Partisan, and minor parties gained voters across all demographics. However in the more important statistic, voter share, the Democratic Party was the only group to increase voter share across all sectors of the electorate. The numbers are the complete opposite for the Republican Party, Non-Partisan, and minor parties. Not only did they lose voter share, they lost share in all sectors.

If this trend continues until close of registration for the general election it does not bode well for Republican chances to retain control of the state legislature or at-risk congressional seats. Conversely, if the trend subsides after close of registration for the primary and reverts back to Non-Partisan gaining voter share at the expense of the two major parties, are all bets off. My instinct tells me the later will come to pass.

The Non-Partisan and minor party loss of voter share leading up to the primary election is normal when primary elections are closed, restricted to those registered to vote in one of the major parties. If a person registered to vote as Non-Partisan or in one of the minor parties wishes to vote in a primary, they must re-register in the desired party. Since the general election has no party restriction, chances are these voters will switch back to their original registration following the primary. But will these new party members actually vote in the primary? Primary election turnout has averaged below 25 percent since 2000. 

State-Wide

Party	Change in # Voters	% Change	% Voter Share	Difference in Voter Share %
D	16,320	3.36	40.07	0.61
R	4,399	1.01	35.30	-0.28
NP	982	0.42	18.68	-0.25
Other	492	0.66	5.95	-0.08
Total not D or R			24.63	-0.33

Democratic increase Feb / Mar in voter share over Republican +1.39%

Clark County

Party	Change in # Voters	% Change	% Voter Share	Difference in Voter Share %
D	13,109	3.61	43.81	0.62
R	3,185	1.21	31.24	-0.29
NP	1,311	0.80	19.40	-0.27
Other	449	0.96	5.47	-0.14
Total not D or R			24.87	-0.41

Democratic increase Feb / Mar in voter share over Republican +0.91%

 Washoe County

Party	Change in # Voters	% Change	% Voter Share	Difference in Voter Share %
D	2,700	3.21	36.59	0.72
R	526	0.57	38.77	-0.24
NP	-321	-0.75	17.97	-0.35
Other	-113	-0.72	6.67	-0.30
Total not D or R			24.64	-0.65

Republican voter share over Democratic decreased Feb / Mar -0.96%

Rural Counties

Party	Change in # Voters	% Change	% Voter Share	Difference in Voter Share %
D	601	1.48	25.43	0.16
R	688	0.83	51.63	-0.02
NP	-8	-0.03	15.90	-0.14
Other	93	0.82	7.04	0
Total not D or R			22.94	-0.14

Republican voter share over Democratic decreased Feb / Mar -0.18%

18 – 34 Year Old

Party	Change in # Voters	% Change	% Voter Share	Difference in Voter Share %
D	15,147	2.99	40.33	1.17
R	5,665	7.89	25.31	-0.36
NP	628	0.76	27.07	-0.66
Other	118	0.53	7.29	-0.15
Total not D or R			34.36	-0.81

Democratic increase Feb / Mar in voter share over Republican +1.53%

55+

Party	Change in # Voters	% Change	% Voter Share	Difference in Voter Share %
D	4,351	2.01	40.51	0.36
R	1,902	0.85	41.21	-0.11
NP	-236	-0.32	13.33	-0.20
Other	29	0.11	4.95	-0.05
Total not D or R			18.53	-0.47

Republican voter share over Democratic decreased Feb / Mar -0.07%

 In the legislature, both assembly and senate districts remain unchanged from February with 11 senate districts (52.38%) and 21 assembly districts (50%) having the number of voters registered as Non-Partisan or total not registered as either Democratic or Republican either exceeding or  within five percent of one of the major political parties.

Given the low turnout of primary elections, it is questionable if the closed primary’s systemic exclusion of eligible voters produces the best results; effective and efficient government. This is especially questionable in races where only one party has candidates running in a primary and no Non-Partisan or minor party candidate has filed for the partisan office. Under a change to the Nevada elections statute made by the legislature in 2015, the winner of the primary becomes the sole candidate in the general election. In simple terms this means 20 - 25 percent of one political party’s registered voters (perhaps less than 10 percent of the total electorate) elects the office holder representing the entire constituency made up of voters of all persuasions.

Primary elections have been part of our election process for so long it’s possible some voters believe those elections and the parties themselves are part of the U.S. and / or Nevada Constitution.  Truth is political parties and primary elections are not mentioned anywhere in the U.S. Constitution. The Nevada Constitution does mention political parties but only in the context of requiring vacancies in partisan elected offices to be filled by a person of the same political party and limiting membership on the state Supreme Court Commission on Judicial Selection and Commission on Judicial Discipline to no more than one from the same political party.  The state Constitution also mentions primary elections but only to the point of limiting campaign contributions and ballot language related to a candidate’s acceptance of term limits. Nowhere in the Nevada Constitution are political parties or primary elections required.

I’ll continue to report monthly voter registration trends. The important question of whether increased major party registrations translate into increased voter turnout on June 14, 2016 is unknown. The Nevada Election Modernization and Reform Act of 2017 (NEMRA – 2017) would make this question irrelevant.