Let All Voters Vote: Independents and the Expansion of Voting Rights in the United States by Jeremy Gruber, Michael Hardy, and Harry Kresky.
This is a comprehensive law review article that helps us understand where we are in terms of constitutional law in the current battle for equal voting rights for unaffiliated voters.
The U. S. Constitution begins, “We the people of these United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.” The active subject in this sentence is we the people.
It was Abraham Lincoln, whose Gettysburg Address is aptly quoted in the first paragraph of the article, who pointed out that free blacks were among the voters who ratified the Constitution in 1787. It is the right to vote that is the most basic unit of citizenship and American history can be viewed through the nation’s long and ongoing struggle to extend that right equally to all of its people.
Throughout the article the lawyers, Jeremy Gruber, Michael Hardy and Harry Kresky, emphasize the identification and protection of fundamental rights as an enduring part of the judicial duty to interpret the Constitution. They state that the fundamental principles of equality and freedom of association including the freedom of voters to choose not to affiliate with a political party are violated by the closed partisan primary system in which only members of the two major parties can participate in the selection of candidates who will appear on the general election ballot.
The article outlines the constitutional principles for equal voting rights for unaffiliated voters in primary elections and raises questions about the fundamental structural bias of party control of our elections. Included in the article is a review of the conflicting precedent over a party’s right to limit participation in its primaries…The inconsistent treatment of party primaries stands in contrast to cases treating equality of voting power as paramount.
In Tashjian v Republican Party of Connecticut the Supreme Court’s ruling supported “the right of the party’s members to determine for themselves with whom they will associate and whose support they will seek, in their quest for political success.” The Tashijian ruling made clear that the state could not compel a party to restrict primary voting to party members. However, the question of whether a state could compel a party to open its primary to unaffiliated voters remained unanswered by the Supreme Court.
The review points out that the Supreme Court has been willing to extend greater protection to a political party’s right of association than to the association rights of the individual voter.
It has always seemed to me ideal to move beyond partisan primary elections altogether to a nonpartisan system that gives all voters equal voting rights to vote among all the candidates and takes elections out of the confines of partisan gate keeping and political party control. Examples of nonpartisan public elections of the top two California model come to mind.
The last paragraph of the law review article states, “This article, we hope, demonstrated that the right of unaffiliated voters to vote, and to vote in what are now closed primaries, is a fundamental right inherent in the liberty of the person and her rights to freedom of speech and association under the First Amendment, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.”
One of the many brilliant accomplishments of this law review article is that it lays out the future usefulness of its arguments on behalf of voting rights and freedom in the further development of American democracy. Such legal foresight has been key to advances in civil and voting rights in cases such as Brown v Board of Education and Smith v Allwright, which found racial segregation in the Democratic Primary to be unconstitutional.
I know the authors to be lawyers whose work even beyond this article has made enduring contributions to the cause of a more perfect and just union.
Dr. Jessie Fields is a physician practicing in Harlem, a leader in the New York City Independence Clubs, and a board member of the All Stars Project and Open Primaries.
