To what Extent Can the State Limit Participation in a Primary?

Clingman v. Beaver

Oklahoma’s semi-open primary law is challenged by the Libertarian party (LPO) because it prohibits anyone registered as anything other than Libertarian or Independent from voting in its primaries, even while the LPO is seeking the votes of Democrats and Republicans.

This case is framed in the First and Fourteenth Amendment’s right to association. The majority indicates that a voter maintains the ability to freely associate by changing parties, and that voters have no associational right to vote with the LPO while maintaining their association with another party because they are not “banding together” with the LPO, a term that is traditionally used to describe free association. The majority declares that strict scrutiny need not be applied because the burden of this law on speech is not “severe.” Thus the law does not have to be “narrowly tailored to a valid State interest,” but rather must simply fulfill an “important regulatory” State interest

The majority then gives 5 reasons that legitimate Oklahoma’s interest. By opening the primaries to all voters, (1) the LPO will be overrun by non Libertarians, (2) This will create voter confusion, (3) The State has an interest in maintaining voter classifications as viable and identifiable, (4) This would interfere with electioneering and reduce the ability of the State to encourage voter participation, and (5) This would allow for “party raiding.” For example: Democratic voters could choose a candidate to siphon off votes from a Republican candidate, or a disenfranchised Democratic candidate could switch to the LPO and destroy any possibility of another Democratic candidate from succeeding.

I entirely agree with Justice O’Connor’s opinion, concurring in part. While she concurs with the majority, she disagrees with the premises (1) “that a voter forms a cognizable association with a political party only by registering with that party” and (2) “that a voter can only form a cognizable association with one party at a time.” Justice O’Connor also argues that some other issues raised after trial and before the review by the Supreme Court should not be addressed, but do raise serious questions that may change the outcome of the case as the effect of the law would have to be considered cumulatively. She states that “even if each part of a regulatory regime might be upheld if challenged separately, one or another of these parts might have to fall if the overall scheme unreasonably curtails associational freedoms.”

The dissent simply argues that none of the five intersts are sufficient to justify this law. As to the fifth reason (the only one that I find truly compelling) the dissent argues that the District Court found it “unpersuasive,” and that voters and candidates would have to be exceptionally cunning to make this reason viable. However, from experience I am led to believe that (especially in elections) anything is possible, and thus the dissent’s argument is itself unpersuasive.