The final tally:
some voters have no vote,
some have one vote,
some have two.
And that's not the whole problem.
Limiting the privilege of candidacy on the basis of party membership abridges the right to exercise the privilege of candidacy. Running for United States office is a United States citizenship privilege. The right to exercise this privilege equally is a fundamental right.
Only three candidacy limitations are allowed (age, citizenship, and residency). Party isn’t listed as an allowed limitation. Voter registration may not limit candidacy in any way. The Constitution does not prohibit more than one member of a party on the general ballot.
“Party candidates” also double party members’ rights of association versus voters of no party. The right to associate (or not) claimed by political parties is a right of their members as individuals, not a right of a party as an entity. Members of parties and voters of no party have identical rights of association.
Neither the privilege of candidacy nor the right to exercise it equally may be affected by party members’ rights of association in any way differing from that of voters of no party. Party members have no greater or lesser right to reject a candidate on that basis than voters of no party.
At any rate, since elections fall squarely under the Establishment of Justice clause, in this context the rights to
take precedence in the law over freedom of association.
In California Democratic Party v Jones, 530 US 567 (2000), the Supreme Court adjudicates a question entirely dependent on the Primaries Clause without applying or even mentioning it. The case is wrongly decided without it, forbidding states to hold open primaries that allow
a voter of any or no party to freely choose
a candidate of any or no party for any office. (Convention ballots don't have to void electoral results to violate independent voters' right of selection. Any restricted ballot does.)
This holding is based on the notion that parties have the right to select "party candidates" by means of primaries, a right that voters may not violate. To hold that primaries aren't wholly public elections (since they are also for the use of parties, private entities) defeats our purpose for putting them in the Constitution in the first place:
to make them wholly public elections like our other elections.
Participation in United States primary elections is a privilege of American citizenship (Amendment XIV, Section 1). No group of voters may assert any right in elections above that of each state's voters as a body or as individual citizens, established in Article I, Section 2
and protected against state or federal laws in Amendment XIV
(because states enforce state & federal electoral laws).
CDP v Jones gives parties rights above voters' in primaries. It was distinguished (limited in scope) in Washington State Grange v Washington Republican Party, 552 US 442 (2008) but not overturned.
At best CDP v Jones puts party members' right not to associate with candidates they don't like above the public's rights of selection or association. But party membership doesn't double a person's rights
of selection or association (see 2 below).
If non-party members can't use their right not to associate
to throw out the results of a primary election,
party members can't use their right not to associate
to throw out the results!
The precedents for proximate injury are Baker v Carr, 369 US 186 (1962) and Reynolds v Sims, 377 US 533 (1964), which apply the Right to Vote and Equal Protection clauses to the political process as "one person, one vote". Both cases involved redistricting rather than voting (see Evenwel v Abbott) but in a 1975 Michigan case, Stephenson v Ann Arbor Board of Canvassers, "one person, one vote" determined that an instant runoff system of voting (then called "MPV") was constitutional. The decision's description of why MPV doesn't violate the Equal Protections clause shows why second selections by parties does.
From the Stephenson ruling:
"Under the MPV system [...] no voter has more than one effective vote for one office. No voter's vote can be counted more than once for the same candidate. In the final analysis, no voter is given greater weight in his or her vote over the vote of another voter, [...]"
in elections the selection right takes precedence.
All of these rights derive from the inalienable right to ordain and establish government. That is the main governing clause. No exception is carved out for parties or anyone else.
A few things that can't trump (sorry) the governing clauses:
After 52 years, it's high time
the voters returned primaries from parties to the states.
The people elect.
Parties can't select.
Supreme Court caselaw can be found at www.supremecourt.gov/opinions/opinions.aspx
Not even removing the Preamble from the law (see The Most Important Clause in American Law) affects this because Amendment IX states the people can reserve any right the Constitution doesn't mention. We assert in the Preamble the inalienable right to ordain and establish all governmental powers. If the Preamble can't be used to assert rights this becomes a right not mentioned.
Parties as entities have no Constitutionally-protected rights of selection or association: the rights of people who associate with each other may only be considered in the aggregate where all associates agree, for example in a special-interest group's special interest. This would seldom apply to parties, which include people with some common and some diverging interests. Only if all party members rejected a candidate could they claim an aggregate right as a party not to associate with that candidate. And since an aggregate right can't be used to double any person's rights anyway, it would be irrelevant even if members did agree.
It's time to review the convenient but misleading shorthand of referring to individuals' right of association as a right of their association as an entity. This is an error, and it compounds the error in CDP v Jones. All these nonsensical extensions of corporate personhood lead up to Citizens' United and should be addressed either by statutes that contradict them or by cases challenging them. See How to End Corporate Personhood by Statute for a real solution to the entity mess, but the primaries question is discrete and governed by the electoral clauses. We can address it today, defeating one element of Citizens' United.
In June & July 2016, RepairRestoreSafeguard.org ran ads asking people to file for injunctions in their states like the one described. We believe this contributed (a lot) to the RNC's abandoning its attempt to override the ballot.
This organization is nonpartisan.
We're pursuing the political revolution of repairing, restoring and safeguarding the public's role in the political process. Part of the damage has come about by statute or ruling, but some happens when ordinary Americans violate the process for the sake of a desired result. Sometimes this is due to ignorance.
Learn your political rights under the Constitution and defend them!
This is an easy one! The American people have never had an easier electoral reform.
If your state allows ballot initiatives see The Impartial Elections Act.
If not, it will take either passage of the federal The Public and Impartial Primaries Act, or a court case. The federal bill will be needed to correct the definition anyway. It's already been submitted to Congress. Tell your Senators and Representative to sponsor it!
The Public & Impartial Primaries Act
52 USC 30101, sections 1 & 16 now read:
(text removed by the Act is indicated by underlining & italics)
(1) The term “election” means
(A) a general, special, primary or runoff election.
(B) a convention or caucus of a political party which has authority to nominate a candidate
(C) a primary election held for the selection of delegates to a national nominating convention of a political party; and
(D) a primary election held for the expression of a preference for the nomination of individuals for election to the office of President.
(16) The term “political party” means a political association, committee, or organization which nominates a candidate for election to any federal office whose name appears on the election ballot as the candidate of such association, committee, or organization.
Your state's name may be substituted for the words "this state". Use riders with caution.
Calling all independent voters!
The following is not legal advice. If you aren't familiar with these procedures, retain an attorney to file for you. You'll eventually have to retain an attorney who can practice before the Supreme Court, but organizations may represent you pro bono in a landmark case. Don't forget to tell the media.
File a Complaint for Injunctive Relief with a Motion for Preliminary Injunction
in your district court* versus
your state's department, division or board of elections,
the Primaries clause of Amendment XXIV, the Right to Vote, Equal Privileges and Immunities and Equal Protections clauses of Amendment XIV, Amendments XV, XVII, XIX, XXIV & XXVI, Article I, Sections 2 and 4, and Article II, Section 2,
to enjoin that:
To bring this state's United States primary and general elections into compliance with the Constitution of the United States, they will be held impartially by this state, will be open to all voters, will equally accommodate all candidates including independent and write-in candidates, and in no statute, rule or practice will discriminate regarding membership in a political party.
A complaint on these grounds meets the four requirements for an injunction:
*To find your courthouse and its website: www.uscourts.gov/about-federal-courts/federal-courts-public/court-website-links. A 3-member district court panel will take the case. Its decision will be appealed directly to the Supreme Court.
The more districts, the better.
The courthouses are waiting.
Are you in?
starts with a party-dominated
Party politics confuses voters' and candidates' rights (which are real) with "parties' rights" (which aren't). Congress' rules give unwarranted powers to the majority party, including preventing impeaching or expelling anyone from the majority party. Even the Supreme Court was confused into giving political parties more rights than voters!
Party politics violates voters' and candidates' rights, and it causes chaos in government. We can stop it when we stop letting "the two-party system"
(or any party system) control our Presidential and Congressional electoral process.
We can end partisan elections by three methods:
1. Voters are already suing their states to open primaries, to open debates, and to hold primaries in the first place (in a state that cancelled them).
2. Because the revotes at national party conventions override the states' own primary elections, any candidate (or voters who voted for that candidate) who won a state's primary, but did not win a national convention revote, can sue the state to put the state primary winner's name on the ballot instead of the winner of the party-convention revote.
3. A non-major-party candidate who had a realistic chance of winning and whose loss could have been affected by a two-party-only debate or similar political process can sue Congress and their state's department of elections. See below.
Parties are private organizations, not units of government. Primaries were originally for their use. But when the leadership of two major parties has that much power over candidacy, a small group of people has a great deal of power over our elected Senators, Representatives, and Presidents.
They also have power over voters' rights.
We ratified the 24th Amendment in 1964 to end corrupt and racist practices like poll taxes, and to make primaries elections for our own use –
reaffirming that elections are public, open & governed by the Constitution, protecting our rights & privileges.
But the two powerful major parties kept Congress from passing any enacting statutes until after 1968's protested conventions.
Congress still hasn’t enacted it fully.
Nor have the states.
The courts have yet to enforce it fully.
The US Code's definition of elections (52 USC section 30101-Definitions) still violates it.
“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied by Congress or any State by reason of failure to pay a poll tax or any tax.”
The Poll Tax clause wouldn't require the words "primary or other". "Election" would be enough. But all text in the Constitution has meaning and purpose. The purpose of the Primaries Clause is to state that primaries are now elections, not party functions. Primaries are now subject to the clauses on United States elections.
The text adds that federal elections select all elective federal offices, excluding state or private offices. In the Poll Tax clause this applies that clause to these elections. In the Primaries Clause it prohibits using federal primaries for state or private elections.
Private party primaries and caucuses persist. Closed primaries and second rounds of primary ballots at private national party conventions persist. Parties continue to select one member as that party’s nominee. Partisan control of some general electoral functions persists.
The right of United States citizens to elections that are public and impartial (nonpartisan) is a fundamental right. Abridging this right has a direct and damaging effect on the accurate representation of the public interest, and on effective government.
Reclaiming elections is important in itself. But without restoring the Preamble to use in court, without protecting voting rights and without reforming campaign finance, apportionment, districting problems like gerrymandering and unbalanced economic power in government, its effects will be limited and temporary. Why is it the first step, then?
Because the 24th Amendment is already in the Constitution, it's an easy reform we can do right now.
Don't fall for the "proportional representation" scam.
It's just party politics in another form.
These acts address the real problem.
Images - StudioUndertheBed, ian', StudioUndertheBed
Party conventions, primaries, caucuses and debates violate the Constitution. Clauses cited at RepairRestoreSafeguard.org> The Public & Impartial Primaries Act
The Constitution prohibits private elections for public offices. For example, in Article I, section 2 the people of the several states reserve the right to choose Representatives. This defines these elections as public, held by the states, for all voters and all candidates.
Nomination is selection.The people reserve the right of selection. The Constitution gives parties no right to select or nominate; just the opposite.
We expressly assign holding elections - determining their times, places and manners - to the states, under Congress. They may not abdicate it. It’s a task we assign, like "making laws" (Congress can’t abdicate that!). The Constitution doesn't grant parties any governance powers at all.
While the legislatures and Congress have this power, where the Constitution expresses requirements or limitations neither Congress nor the states may add to or remove them.
Each state appoints its delegates to the Electoral College. We may use popular ballot, legislative ballot, or executive appointment, but may not abdicate this reserved power.
We've reached a crisis. We started parties to represent positions, not to create voting blocks. Party encroachment on elections has led us to elect candidates without knowing their positions.
And putting elections and electoral functions at parties’ discretion grants political parties exceptional power to affect the outcome of elections without oversight. Federal, state and local governments must preserve the integrity of elections.
Limiting the right to vote on the basis of party membership abridges the right to vote. All of the Constitution’s selection clauses include voters of any or no party. No exceptions are listed. The 14th Amendment's Right to Vote clause doesn’t list belonging to a party as an allowed reason to deny the vote, limiting any state or federal vote to members of one party or to members of parties in general. Voter registration may not limit a voter's freedom of selection.
Party primaries violate all voters’ freedom of selection in both primary and general elections. Primary ballots may not limit a voter's freedom of selection at all. A state's general-election ballots may be limited to nominees determined by that state's entire body of voters in a primary election."Party nominees" are only determined by party members or their delegates.
Closed primaries violate by denying the vote to voters of no party. States may not make or enforce any law that abridges any United States citizen’s voting privilege, or the equal right to exercise it.
Voting at a party convention violates by doubling party members’ rights of selection versus voters of no party. Each voter’s right to a vote equal to that of every other voter is a fundamental right. No election may provide one vote to some voters while providing more than or less than one vote to other voters. No election may have one round of voting for some voters while having more than or less than one round of voting for other voters. Party conventions may of course conduct other party business. But delegates can’t vote on candidates at conventions – that party’s members already voted in that primary.
And in 52 USC 30101, “the expression of a preference for” nomination gives the power to actually nominate to someone else – in this case, party delegates.