MEMORANDUM DECISION AND ORDER
INTRODUCTION
This case presents the question whether the State of Idaho’s use of an open primary system to determine nominees for the general election violates the Idaho Republican Party’s First Amendment rights. Because the open primary permits substantial numbers of independent voters, as well as voters associated with other political parties, to “cross over” and participate in the Republican Party’s selection of its nominees, the Court concludes that, by mandating such a nomination process, the State violates the Party’s constitutionally guaranteed right to freedom of association.
The Idaho Republican Party and its Chairman, Norm Semanko, brought this action against Idaho Secretary of State Ben Ysursa, to challenge the State of Idaho’s use of an open primary to select candidates for the general election. Several interested groups have been permitted to intervene, including: (1) a group of Idaho registered voters who do not align themselves with any political party, and who consider themselves independents; (2) the American Independent Movement of Idaho, LLC (“AIM”); and (3) the Committee for a Unified Independent Party, Inc. (“CUIP”). Motion to Intervene, Dkt. 3. Neither the Democratic Party nor the Libertarian Party, both of which have had nominees selected using Idaho’s open primary over the last 5 election cycles, have sought leave to intervene in this suit.
The Court conducted a bench trial on October 13-14, 2010. The parties then submitted their post-trial briefs. The Court now issues its final decision.
ANALYSIS
Current System for Primary Elections in Idaho
Current Idaho law requires registration of voters 1 for federal, state and county offices, and allows registration and voting on election day. However, Idaho’s election laws do not require a declaration of party affiliation to register or vote in primary or general elections. Idaho Code §§ 34-404, 34-408, 34-408A, 34-401-34-439 generally, 33-904 (2008).
A “political party” is defined in Idaho’s election laws as “an affiliation of [voters] representing a political group under a given name as authorized by law,” Idaho Code § 34-109 (2008), and as “an organization of [voters] under a given name.” Idaho Code § 34-501(1) (2008). Political parties may qualify for the ballot in any of three ways: (1) having three or more candidates for Federal or State office on the general election ballot; (2) polling 3% of the vote for governor or presidential electors; or (3) by submitting a petition containing signatures of voters equaling 2% of the votes cast during the most recent presidential election. Idaho Code § 34-501(1)(a)-(c) (2008). Qualified political parties must hold state conventions and have state central committees. Idaho Code § 34-501(2) and § 34-504 (2008). With certain exceptions not relevant here, Idaho law requires that political party gen
Idaho’s primary election is an “open primary” system. Although any qualified voter may vote in the primary election without prior registration as a member of a political party, the voter must choose a single political party for which to cast his/ her votes in the primary. Thus, a voter may cast his/her primary ballot for candidates of one, and only one, political party in the primary election. The voter’s decision as to which political party’s primary contest to participate in is made in the privacy of the voting booth and not by declaration to election or party officials. Complaint, Dkt. 1, ¶ 26; Answer, Dkt. 5, ¶ 18; Ysursa Aff., Dkt. 26-3, ¶¶ 8, 10; Idaho Code § 34-2410(1)(d) (2008).
The open primary system is enforced in a number of ways. With respect to paper ballots, the Idaho election law provides that “there shall be a single primary election ballot on which the complete ticket of each political party shall be printed.... Each political ticket shall be separated from the others by a perforated line that will enable the [voter] to detach the ticket of the political party voted from those remaining.” Idaho Code § 34-904. Thus, Idaho primary election paper ballots are prepared so that all of a political party’s candidates are grouped together and physically separated from the candidates of all other political parties on the ballot. Ysursa Aff., Dkt. 26-2, ¶ 10; Idaho Code § 34-904. Voters are allowed to place votes for only one party in the ballot box. Ysursa Aff., Dkt. 26-2, ¶ 10. Ballots tallied by optical scanner or computer punch card readers use programs that do not count ballots which contain votes for candidates from multiple political parties. Ysursa Aff., Dkt. 26-2, ¶ 10; Idaho Code § 34-2410(1)(d)-(h).
Constitutional Limits on the States’ Regulation of Election Laws
In our federal system, the state plays a major role in structuring the primary election process. But the process by which a political party selects its nominees for general elections is not a wholly public affair which a state may freely regulate.
California Democratic Party v. Jones,
This political freedom of association (and right to exclude) is most critically manifested in the political party’s process of selecting its nominees. This process “often determines the party’s positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views.” Id. (Internal citations omitted). For this reason, the Supreme Court consistently “affirm[s] the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selectfs] a standard bearer who best represents the party’s ideologies and preferences.” Id. (Internal citation and quotations omitted).
The Idaho Republican Party’s Challenge to Idaho’s Primary Election Statutes
In June 2007, the Idaho Republican Party State Central Committee adopted the Closed Republican Party Primary Rule. It states in relevant part that “[o]nly persons who have registered as a Republican prior to the Primary Election will be allowed to vote on an Idaho Republican Party ballot in that Primary Election.” Semanko Aff., ¶ 9, Dkt. 28-4. The Idaho Republican Party asserts that, in light of the Closed Republican Party Primary Rule, Idaho’s primary election statutes violate its freedom of association.
The Supreme Court concluded in
Democratic Party of the United States of America v. Wisconsin ex rel. La Follette,
The plaintiffs alleged that California’s new blanket primary violated their First Amendment right of association. The District Court held that the blanket primary did not place a severe burden on the political parties’ right of association.
Id.
at 571,
This case is somewhat different from
Jones
because, unlike the blanket primary created by California Proposition 198, Idaho statutes mandate an open primary. As the Supreme Court explained in
Jones,
“[a]n open primary differs from a blanket primary in that, although as in the blanket primary any person, regardless of a party affiliation, may vote for a party’s nominee, his choice is limited to that party’s nominees
for all offices.” Id.
at 576, n. 6,
Recognizing the difference between blanket and open primaries, this Court nevertheless finds the Supreme Court’s analysis in
Jones
instructive. The Court in
Jones
relied heavily on its earlier decision in
La Follette,
a case dealing with an open primary. In
La Follette,
the Supreme Court confronted a challenge to the State of Wisconsin’s open presidential preference primary. In that system, voters did not select the delegates to the Democratic Party’s National Convention directly. Instead, they were chosen at party caucuses at a later time. Still, Wisconsin law required the delegates to vote in accord with the primary results, which allowed nonparty members to participate in the selection of the party’s nominee. This conflicted with the national Democratic Party’s rules. The Supreme Court struck down Wisconsin’s system, finding that it constituted an unjustified and substantial intrusion into the Democratic Party’s associational rights. In
Jones,
the Court characterized the holding in
La Follette
as follows: “Whatever the strength of the state interests supporting the open primary itself, they could not justify this substantial intrusion into the associational freedom of members of the National Party.”
Jones,
Ultimately, the Supreme Court in
Jones
determined that California’s blanket primary imposed a severe burden on the political parties’ First Amendment rights by forcing them “to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.”
Id.
at 577,
The Supreme Court also relied on expert testimony indicating that only 25-33 percent of all voters in Washington — a blanket primary state at that time — limited themselves to candidates of one party throughout the ballot. Id. The surveys relied upon by the Supreme Court also revealed different policy preferences between primary voters who crossed over from another party and the party members. Id.
The Supreme Court explained that these surveys, statistics, and opinions suggested that a blanket primary impedes the ability of political parties to select their own candidates. Based on this evidence, the Supreme Court concluded that “the prospect of having a party’s nominee determined by adherents of an opposing party [in a blanket primary] is far from remote — indeed, it is a clear and present danger.”
Id.
at 578,
On summary judgment in this case, this Court expressed concerns that the record was inadequate to determine whether Idaho’s open primary creates any of the same concerns that led the Supreme Court to deem California’s blanket primary unconstitutional. The Court’s major concern was whether crossover voting existed in Idaho under its open primary as it did in California under its blanket primary. The record before the Court on summary judgment contained no evidence on that issue. Without evidence about crossover voting in Idaho or other open primary states, the Court could not determine whether Idaho’s open primary subjects the Idaho Republican Party’s candidate-selection process to persons wholly unafflliated with the party.
Id.
at 581,
The Court could not simply borrow the statistics, opinions, and surveys from
Jones
because that case dealt with a blanket primary instead of an open primary. The Court could not determine what burdens or restrictions, if any, are placed on the Idaho Republican Party by Idaho’s open primary. In turn, the Court could not weigh the character and magnitude of the Idaho Republican Party’s asserted injury against the interests of the State as justification for any such burden imposed by its statutes.
Burdick,
At trial, the parties submitted both expert and lay testimony about the effects of crossover voting. The parties agreed to submit the evidence subject to post-trial Rule 702 motions. For their part, Plaintiffs submitted expert testimony from Robert Moore and David Ripley. They also submitted expert testimony from Michael Munger, who relied heavily upon the reports of Moore and Ripley. After the evidentiary hearing, Defendant and Intervenors moved to exclude Plaintiffs’ expert testimony pursuant to
Daubert v. Merrell Dow Pharms., Inc.,
Martin & Saunders’ statement is supported by the political imbalance that has persisted in Idaho for years. Election results tallied by the Idaho Secretary of State show the degree of imbalance over the past two decades, www.sos.idaho.gov/ elect/results.htm. Currently, Republicans hold 28 seats in the Idaho State Senate, while Democrats hold only 7. Of the 70 members of the House of Representatives, 57 are Republicans and only 13 are Democrats. All statewide elected offices, including Governor, Lieutenant Governor, Attorney General, Secretary of State, State Controller, State Treasurer, Superintendent of Public Schools, both United States Senators and both United States Representatives are Republicans.
Furthermore, since 1992, Idaho has had 35 legislative districts, with one State Senator and two State Representatives per district, totaling 105 seats. Elections are held every two years. Contested Republican primaries far outnumber contested Democratic primaries every year. The following chart shows the number of Republican and Democratic contested primaries out of the total 105 seats from 1992 to 2010._
REPUBLICAN DEMOCRATIC CONTESTED CONTESTED YEAR PRIMARIES PRIMARIES
1992_30_12
1994_18_5_
1996_33_6_
1998_31_2_
2000_33_2_
2002_52_8_
2004_37_3_
2006_27_1_
2008_28_0_
2010 31 2
Moreover, Republican candidates often run unopposed in the general election, making the primary that much more important. The same is not true for Democrats. The chart below shows the number of Republican and Democratic candidates who ran unopposed in the general election from 1992 to 2010.
YEAR UNOPPOSED REPUBLICAN CANDIDATES IN GENERAL ELECTION UNOPPOSED DEMOCRATIC CANDIDATES IN GENERAL ELECTION
1992_28_14_
1994_50_6_
1996_38_4_
1998_50_5_
2000_42_4_
2002_18_1_
2006 31 11
2008 32
2010 43
Martin & Saunders also explain that extant empirical literature on crossover voting shows “that an effective estimate of the average of crossover voting in the literature comes in at around 10%, under the strict definition of crossover voting — of one side’s partisan identifiers voting in another party.”
Martin & Saunders Report,
Ex. E, p. 15, Dkt. 60-9. However, Martin & Saunders also state that “[t]he amount of raiding
2
from Democratic partisans is very likely small.... ”
Martin & Saunders Report,
Ex. E, p. 17, Dkt. 60-9. A 10% crossover may be somewhat lower than the numbers relied upon in
Jones,
but in
Jones
the Ninth Circuit and Supreme Court defined a crossover voter to include both independents and voters registered to a competing political party.
Jones,
But even if the more strict definition of crossover voting is considered, and independent voters are not included,
3
the number is still significant. In fact, an even smaller number of crossover voting would cause constitutional concerns. In
Jones,
the Ninth Circuit acknowledged that, even where statistics showed significant numbers of crossover voting, “the prospect of malicious crossover voting, or raiding, is slight, ... and they would be determinative in only a small number of races.”
Jones,
Thus, even if we use the most conservative estimate of 10% crossover voting, with only a small number of partisan raiders, the effects can be devastating to a party.
4
Additionally, the Supreme Court in
Jones
explained that even the respondents’ own expert in that case concluded that the policy positions of Members of Congress elected from blanket primary states are more moderate and more reflective of the preferences of the bulk of voters at the center of the ideological spectrum.
Id.
Here, we are not dealing with a blanket primary, but Defendant’s own experts warn that changing Idaho’s primary from open to closed will likely have the “very real and immediate effect of ... producing more ideologically extreme candidates.”
Martin & Saunders Report,
Ex. E, p. 18, Dkt. 60-9. At first blush, that would appear to be a strong argument for maintaining the status quo. But, choosing ideologically extreme candidates is precisely what a political party is entitled to do in asserting its right of association under the First Amendment. The Court cannot “simply move[] the general election one step earlier in the process, at the expense of the parity’s] ability to perform the ‘basic function’ of choosing [its] own leader[].”
Jones,
The Court cannot find any meaningful distinction between the open primary in Idaho and the blanket primary found unconstitutional
Jones.
Like the blanket primary system addressed in
Jones,
the current open primary system in Idaho forces the Idaho Republican Party to open up its candidate-selection process to persons wholly unafflliated with the Party. And, like the blanket primary, “[s]uch forced association has the likely outcome ... of changing the [party’s] message.”
Id.
at 581-82,
Finally, Defendant contends that a closed primary would make no real difference with respect to affiliation because Idaho voters make that choice when they pick a ballot at the voting booth anyway.
In
Jones,
the Supreme Court stated that it “can think of no heavier burden on a political party’s associational freedom” than changing the party’s message.
Id.
at 582,
State Interests
Defendant made no real attempt to show that Idaho election statutes are narrowly tailored to serve a compelling state interest. Assuming the Court would not conclude that the current system places a heavy burden on the Idaho Republican Party’s associational freedom, Defendant argued only that it need show an important regulatory interest. Defendant argued that two such interests apply: (1) maintaining maximum ballot secrecy and effective administration of its same-day registration statute; and (2) avoiding changeover costs.
With respect to secrecy, the Supreme Court in
Jones
has already determined that it is not a compelling interest. The Supreme Court explained that a state’s interest in assuring the confidentiality of one’s party affiliation information in all cases cannot conceivably be considered a “compelling” one.
Id.
at 585,
The same-day registration argument also comes up short. Defendant explains that a public disclosure requirement would require separate ballots, as opposed to the single ballot used today. Defendant argues that this will create administrative burdens and costs because election officials will need to prepare for demands for each party’s ballot, which would be difficult to gauge prior to the election. Defendant is correct that the Party’s Closed Republican Primary Rule will likely cause some administrative burdens and costs to the State. However, there is no support for an argument that avoiding these burdens and costs are a compelling state interest.
Finally, Defendant’s argument that the State has an interest in avoiding changeover costs also fails. Again, there will likely be such costs, but there is no evidence that avoiding these one-time costs are a compelling state interest.
In Plaintiffs’ Statement of Clarification Re: Requested Relief, Plaintiffs clarify that they seek only a declaration that Idaho’s current primary system violates their First Amendment rights. Dkt. 90. The Idaho Republican Party asks for a declaration that Idaho Code § 34-904 is unconstitutional as applied to it. Plaintiffs do not request an affirmative remedy. Oct. 15, 2010 Tr., 21:1-22:13.
CONCLUSION
For the above reasons, the Court finds that Plaintiffs have met their burden. Accordingly, the Court concludes that Idaho Code §§ 34-904 is unconstitutional as applied to the Idaho Republican Party. The Court will enter a separate judgment in accordance with Fed.R.Civ.P. 58.
Notes
. The Idaho election law refers to voters as “electors.” To make the Court's decision more understandable to the lay reader, the court will substitute the term "voter” for "elector” in quoting from and referring to the Idaho statutes governing elections, unless the context requires otherwise.
. "Raiding” is a form of strategic cross-over voting in which voters from one party systematically vote for a weak or undesirable candidate, often using selective voting in just one or two elections and ignoring the rest of the slate of elections. In a close primary, the cross-over "raider” can potentially throw the race to the weaker candidate, thereby improving the chances of their own preferred party candidate. Munger Report, p. 3, Dkt. 61-4.
. There are compelling reasons why independent voters should be included in assessing the impact of cross-over voting. Although there is a tendency to regard independent voters as lining up philosophically somewhere between the two major political parties, there is no certainty that independent voters are philosophically or politically agnostic. Voters may well choose to be independent voters because their views lie outside the heartland of political thought and they perceive both parties as being insufficiently conservative or liberal for their tastes. But, regardless of their reasons for remaining unaffiliated, the independent voters, in voting in a political party's primary, have the same potential to influence and modify that party's platform, message, and slate of candidates.
. In addition to "raiding,” political scientists have identified three other types of crossover voting, including "sincere crossover voting,” "hedge voting,” and "impact voting.” While not as pernicious as "raiding,” each of the other forms of crossover voting have significance for the Republican Party's freedom of association — particularly given the reality of Idaho politics. "Sincere crossover voting” occurs when a person votes in the 'other' primary because she likes one of those candidates more than any of the candidates in her own party. "Hedge voting” occurs where the outcome in the voter's own party is certain, because of incumbency, or lack of opposition. The voter then crosses over and votes in another party primary because the race is more 'interesting,' or competitive, and thus the voter's vote has a greater chance of influencing the outcome. This is a 'hedge' in the sense that if the voter’s own party candidate does not win, the voter may influence the eventual winner, even if that candidate is from the other party- “Impact voting” occurs in a state, like Idaho, which is effectively a 'one-party' state. If it is perceived that it is impossible for the voter's own party to win, the voter may cross over to be able to cast a vote in the election that actually matters, because the impact of the vote will be higher there. Munger Report, p. 3, Dkt. 61-4.