Why Florida’s Closed Primary Law is Unconstitutional

The Founding Fathers distrusted political parties and didn’t mention them in the Constitution.  George Washington was against them. John Adams thought “a division of the republic into two great parties . . . is to be dreaded as the greatest political evil.” And yet here we are. Republicans and Democrats have turned politics into a national wrecking ball for partisan advantage at the country’s expense.

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Independent voters like me are a growing counterforce to this destructive development. As of August 20, 2020, a Gallup Poll reported 41 percent of Americans as I politically independent, 31% as Democrats, and 26 percent as Republicans.  Of the 13,809,451 Florida voters registered on June 20, 2020, about 26% were registered as not politically affiliated. I live In Sarasota County, Florida, where 82,126 voters (about 24.7 percent) had no party affiliation. Over the past seven years, Republicans and Democrats have lost ground to independent voters in the Sunshine State. Floridians younger than fifty accounts for about 58% of unaffiliated voters. In Florida, the handwriting is on the wall for Democrats and Republicans: Independents are a force to be reckoned with.

Not surprisingly, a Florida organization called “All Voters Vote” has proposed Amendment Three to the state constitution on the November 2020 ballot. The amendment eliminates Florida’s closed primary, allowing only registered party members to vote in their primary. A minority of states have the same primary system.

Upheld by the Supreme Court, Amendment Three would replace Florida’s closed primary with a “top-two” primary. All registered voters, whether party-affiliated or not, would vote in one primary. The two candidates with the most votes for each office would then advance as the candidates for that office at the general election, regardless of their party affiliation.  

The Republicans and Democrats have united to unsuccessfully urge the Florida Supreme Court to disqualify the proposed amendment on semantic quibbles. This political duopoly understands that independents threaten their stranglehold on Florida. Congenitally in disagreement, Republicans and Democrats agree on one thing: no group must challenge their lock on American politics. The proposal could still fail if 60 percent of the voters in November don’t approve it. Even if approved, the amendment does not go far enough. It applies only to state elections. The Florida closed primary violates the Constitution whether or not Florida voters approve the proposed amendment.

In Janus v. AFSCME (2018), the Supreme Court ruled that when Illinois compelled a public employee to pay agency fees to a union he did not belong to, that compulsion violated his First Amendment rights of political association. A state cannot force an individual or group to financially support points of view or associate with organizations to which they do not subscribe.

If a state were to use tax money to fund the Republican or Democratic Party directly, that would violate a First Amendment right that protects taxpayers from supporting a political position. The same principle prevents the state from using taxpayer money to subsidize a private religious group, such as the Mormons or the Catholic Church. Since the First Amendment explicitly prohibits the government from setting up “an establishment of religion,” what authorizes the government to set up “an establishment” of political parties?

The Constitution empowers states to regulate state and federal elections within those states. Counties and municipalities within the state typically hold and pay for primaries with occasional aid from the state government. The Independent Voters Project estimated the total cost of all party primaries in 2012 at $400 million.

Sarasota County alone spent $729,202.37 to conduct the 2016 primary, which I was excluded from as a registered voter. Like most jurisdictions, Sarasota County does not require political parties to reimburse the county for expenses incurred in running primary elections. Apart from using tax money to fund primaries, the Florida closed-primary approach is also a violation of the First Amendment right to politically associate or not associate because primary elections and general elections are now part of the same political process.

In Smith v Allwright (1944), the Supreme Court held that an African-American citizen had a constitutional right to vote in the Texas Democratic primary even though party members at a private party convention limited membership to white citizens. Texas primaries had become “part of the machinery” for choosing governmental officials in the general election so that both elections were judged part of a unitary election process.

Florida’s closed primary also violates the Equal Protection Clause of the Fourteenth Amendment because it both impermissibly discriminates against political independents in tax money and prevents them from the same influence in electing officials as the duopoly. When Democrats and Republicans give independents a take-it-or-leave-it choice with no “None of the above” alternative, nonaffiliated voters like me are forced to partake in a binary option made by the political duopoly. Of course, political parties also have associational rights under the First Amendment to decide membership qualifications. However, they have to make a choice. They can maintain their complete freedom to determine party membership by selecting candidates outside a state-sponsored and state-funded primary system on their own dime.

For over one hundred years, the political parties and party members picked cand
idates without a primary. Those parties had to pay out of their own pockets whatever nomination costs were incurred in holding caucuses and state conventions. This is still the usual way candidates are selected in Europe and other English-speaking countries. With the advent of state-sponsored and state-funded primaries in twentieth-century America, the Democrats and Republicans subsidized partisan primaries from taxpayers to the exclusion of some taxpayers. If Democrats and Republicans want the free ride they get through state-subsidized primaries, we must insist on our Constitutional right to allow nonparty members to participate.

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