Independent voters have no constitutional right to cast ballots in primaries

Imagine if the abortion-rights group Reproductive Freedom For All had to allow the members of Operation Rescue, made up of antiabortion advocates, to participate in choosing its leaders. Or if the NAACP had to allow Ku Klux Klansmen to vote in an election to choose the NAACP’s leader.

Ridiculous, right?

That kind of absurdity is essentially what the Pennsylvania Supreme Court is being asked to endorse in Smerconish v. Commonwealth, a lawsuit filed on July 15 as a legal challenge to Pennsylvania’s closed primary system.

In Pennsylvania and eight other states, voters who do not belong to a political party are barred from taking part in the primary process. The Smerconish case seeks to have the court force Pennsylvania to hold open primaries, in which voters can cast ballots for a party’s nominee regardless of their registered affiliation.

The plaintiffs would like Pennsylvania to join the 19 states in which at least one party allows open primaries in congressional and statewide races. (Sixteen states use semi-closed primaries; Louisiana does not utilize the traditional primary system.)

The plaintiffs claim the state’s closed primaries violate the state constitution by denying independent voters the right to vote in primary elections.

There is no such right.

Indeed, there is a far better claim that open primaries would violate the rights of party members, because open primaries allow people who don’t belong to any party to interfere with party members’ choice of who should be their leader.

Which brings me back to the two groups I identified at the start of this op-ed — Reproductive Freedom For All and the NAACP.

Those interest groups are not political parties, but surely constitutionally protected associations of people should not lose their rights to select their own leaders because they function as political parties and engage in the constitutionally protected activity of trying to influence elections.

As the U.S. Supreme Court has recognized for decades, political parties are expressive associations with the right to select their own leaders and nominees — and that have the right not to associate with outsiders who might alter the parties’ ideological beliefs or messages.

The plaintiffs in the Smerconish case claim closed primaries violate the portion of the state constitution guaranteeing elections that are “free and equal.”

» READ MORE: Pennsylvania voters would benefit from an open primary system | Editorial

But there is nothing unfree or unequal about a law that allows all registered voters to vote in elections to determine the nominees of their own parties. And, it almost goes without saying, Pennsylvanians have never had a constitutional right to elect the leaders or nominees of associations to which they do not belong.

None of this is to say closed primaries are the best way to select the candidates who will compete in the general election.

Because only party members participate in closed primaries, closed primaries may benefit ideologically extreme candidates (liberals in Democratic primaries and conservatives in Republican primaries) compared with primaries where all voters are welcome to participate.

Although that result reflects the ideological diversity of the United States, one may prefer an electoral structure that gives an advantage to moderate candidates who can attract support from independents and members of the other party, in addition to voters from their own party.

To say open primaries may have some desirable effects, however, is not to say that the state or federal constitution gives independents a right to choose the nominees of parties they choose not to join.

If independents want to vote in primary elections, they can — by joining a party. Until they do, it is perfectly constitutional for a state to say a party’s nominee should be chosen by the members of that party.

Closed primaries may or may not be good. They are definitely constitutional.

Michael R. Dimino is a professor of law at Widener University Commonwealth Law School, where he teaches courses related to constitutional law, election law, federal courts, statutory interpretation, and criminal law.