In less than two weeks, the presidential nomination contest will begin with the Iowa caucuses, and a week later, the New Hampshire primary. One of the key questions about such contests is which voters have the opportunity to participate in these contests – i.e., whether the primary or caucus is “closed,” “open,” or somewhere in between. You might think that answering this question is straightforward. Think again.
When I was tasked with updating one of our website’s most popular resources - the primaries chart – I had no idea that the assignment would lead to a journey akin to Alice’s trip down the rabbit hole. Yet, I quickly found myself mired in state law, party rules, and what seemed to me to be nonsensical distinctions. These would make it difficult for any unaffiliated voter to discern whether or not he or she were able to vote in the upcoming primary.
I initially began researching congressional primary rules, and then added presidential primary rules as well. Upon first beginning this journey of reading through each state’s statutes and making calls to each state office, I said to myself, “I am capable. I am somewhat intelligent. I just passed the Virginia bar. How hard can this be?” I quickly found out that the answer to that question was “very.“
FairVote’s classification system divides primaries into three types: open, closed, and semi-closed. Open primaries mean that any voter can choose the ballot of any party, no matter the voter’s affiliation. Closed primaries mean that only voters who are registered for a particular party can vote in that party’s primary. Semi-closed primaries encompass a range of possibilities in between. For example the state laws in New Hampshire require voters registered for a particular party to vote only in that primary, but independent or unaffiliated voters may vote in any party’s primary if that party allows for it.
However, these three these categories failed to encompass every type of party rule and state law. In some states, such as Kansas, one major party might have a rule allowing independents to participate, while the other major party does not. Several states do not register voters by party, changing what it means to be able to vote in different primaries. North Dakota does not have party registration at all. Some states such as California and Washington have a “Top Two” system that essentially gets rid of the idea of nominations --- two candidates of the same party can advance to the general election and be the only choices available to voters.
Thus, the idea of the “commentary” box in the chart was born. It was a way for all states that did not succinctly fit into a category to explain themselves in that box. Yet, still, this was not enough.
In reviewing my work, I made calls to every state’s Secretary of State or Department of Elections office. When I inquired what type of primary that state held, many times I encountered a person who would state: “You may classify it this way, but we would actually classify it another way.” For example, the representative from the Indiana Secretary of State’s Office told me that the state’s primaries could actually be classified as either closed or open, depending on one’s definition, but in Indiana, the primary was classified as “modified open.” Suddenly I realized that these universal categories were not so universal, after all. In fact, there is no uniformity among the states. These categories were merely a means of trying to order the disorder that is the primary system as we know it.
And to this point, I have still not even discussed how parties play into the mix. In most states, it is really the parties’ contest anyway, even if taxpayers are paying for it. Many states such as Alaska, Connecticut, Maryland, New Mexico, North Carolina, South Dakota, Utah, and West Virginia, do not set the laws that govern the primary; instead, the parties control who may vote in each primary. In these cases, voters’ eligibility may change from year to year, depending on the party rules.
Where voters are not registered according to party affiliation, primaries are completely open. Still, laws as in Illinois require voters to publicly state their preference “in a loud and clear voice.” Finally, in other states, such as Texas, voters remain unaffiliated before entering each primary election, but become affiliated with a party the moment they enter the ballot box and choose that party’s ballot.
Furthermore, as I discussed in Politico last month, the states do not have the final say when it comes to nominating delegates to the party conventions in the presidential contest. The party rules are supreme over state law.
At the end of this journey, I am left with one overall impression: this form of direct primary that was meant to bring democracy to the people, has actually served to complicate matters so much that voters are actually further isolated from the process than ever before. The system in place is a tangled mass of state and party rules. This jumble could and should be simplified and standardized, or voters will find themselves too exasperated to care.