Anaya Nolan
The laws governing primary elections vary from state to state in the US and can even differ within states by locality and political party. States decide which method of voting will be used, whether felons can vote, and whether voters must show identification at the polls. They also choose the date of the primary and determine if it will be open or closed. While states hold considerable power in determining the rules for elections within their borders, they do not have absolute power. For example, the US Supreme Court has the final say on whether laws are constitutional, and the federal government mandates that all federal elections, primary or otherwise, be held in accordance with the Voting Rights Act.
| Characteristics | Values |
|---|---|
| States' powers | States hold considerable power in determining the rules for all elections that happen within their borders. |
| State laws | State laws vary and can even differ within a state by locality and political party. |
| Primary election types | Open, semi-open, semi-closed, and closed primaries. |
| Voters | Registered party members, unaffiliated voters, independents. |
| Ballot access | States may place restrictions and regulations on a party's ballot access requirements. |
| Federal elections | Must be held in accordance with the Voting Rights Act. |
| Primary election dates | The state party will set the date and hour that the polls will be open. |
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What You'll Learn
Open and semi-open systems
Semi-open, or semi-closed, systems are similar in that they also allow unaffiliated voters to participate. However, these voters must choose a party to vote for, either publicly by registering with a party on Election Day, or privately, inside the voting booth. Sixteen states in the US have semi-closed primaries, including Alaska, Arizona, California, Colorado, Illinois, and Iowa.
The laws governing primary elections can vary between states and even within states by locality and political party. States have considerable power in determining the rules for elections that occur within their borders, including primary elections. They can set the date of the election, decide if it will be open or closed, and determine other factors such as the method of voting and voter identification requirements. However, states do not have absolute power, and their laws can be challenged and struck down by higher courts, as seen in the case of California's "blanket" primary law.
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Closed primary systems
The laws governing primary elections differ between states and can even vary within states by locality and political party. In closed primary systems, only registered party members are allowed to vote. For instance, in Nevada, Federal/State Primary Elections are "closed", meaning that voters can only choose candidates from their own party and vote in nonpartisan contests. If a voter is not affiliated with either the Democratic or Republican parties, they may only vote in nonpartisan contests.
In 2024, the Republican Party of Texas approved an amendment to change its primary from an open primary to a closed primary. In 2011, the Idaho Legislature passed House Bill 351, implementing a closed primary system. In closed primary systems, true independents are effectively shut out of the process. This classification also affects the relationship between primary elections and election officials, as the more open the system, the greater the chance of raiding, which is when voters vote for the other party's primary to get a weaker opponent chosen to run against a strong candidate in the general election.
In Germany, top candidates for the federal election can be selected in primaries, but party leaders must be selected at delegate conferences by law. The SPD was the first party to use a closed primary to select its party leader at the federal level in 1993. The Greens also nominated their top candidates for the 2013 and 2017 federal elections in a closed primary election by all party members.
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Sore loser laws
The first sore loser law was enacted in Mississippi in 1906. The majority of states enacted these laws between 1970 and 1995, with the most recent enactment in Vermont in 2010. As of August 2014, all but three states—Connecticut, Iowa, and New York—had some form of sore loser law.
Supporters of sore loser laws argue that they contribute to the integrity of the election process and prevent polarization, voter confusion, and voter disenfranchisement. However, critics argue that these laws are an existential threat to American democracy, as they prevent the full expression of the views of minority groups within larger political parties.
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State election laws
In the early 20th century, some state primary rules were highly controversial and the subject of multiple Supreme Court decisions. For example, in 1923, Texas passed a law forbidding Black people from participating in the Texas Democratic Party primary. When Dr. L.A. Nixon was denied access to the polls based on his race, he sued the state of Texas, claiming this was a violation of his constitutional right to equal protection. The Supreme Court agreed and struck down the restriction.
In another case, the Court ruled that Texas statutes regarding gubernatorial primaries were unconstitutional under the First and Fourteenth Amendments. The Court found that states may place restrictions on a party's ballot access requirements, but only if they are not overly burdensome. Similarly, an Ohio statute that required independent candidates to file their paperwork earlier than members of established parties was found to be unconstitutional.
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Federal laws
One of the essential aspects of federal law in primary elections is upholding the Voting Rights Act. The federal government mandates that all federal elections, including primaries, must be conducted in accordance with the Voting Rights Act, ensuring that voting procedures are equitable and non-discriminatory. This federal oversight is vital in safeguarding the voting rights of all eligible citizens.
Federal court decisions have also played a pivotal role in shaping primary election laws. Notable examples include the 1923 case of Dr. L.A. Nixon, who successfully challenged Texas's law forbidding Black individuals from participating in the Texas Democratic Party primary. The U.S. Supreme Court struck down this restriction as a clear violation of the 14th Amendment, setting a precedent for equal protection under the law.
Additionally, federal laws address ballot access requirements and restrictions. States have some flexibility in setting these requirements but must ensure they do not impose invidiously burdensome conditions on minority parties, candidates, and supporters. Federal courts have intervened when state laws have been deemed overly restrictive, such as in the case of California's 5% petition signature requirement, which was ruled as too large a burden.
Moreover, federal laws also consider the role of political parties in primary elections. Courts have upheld the rights of parties to exercise rules that may conflict with state election codes, particularly regarding delegate assignments. The freedom of association is recognised, although it is not subject to strict scrutiny in every instance. For example, the Libertarian Party of Oklahoma's lawsuit over their exclusion from inviting other parties to participate was not considered a violation as it advanced the state's interest in keeping parties separate and identifiable.
In conclusion, federal laws governing primary elections in the United States aim to strike a balance between state authority and constitutional guarantees. They ensure that primary elections, as an integral component of the democratic process, are conducted fairly and equitably and in compliance with fundamental rights, including equal protection and freedom of association.
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Frequently asked questions
There are open primaries, in which all voters are allowed to vote, and closed primaries, in which only registered party members are allowed to vote. Semi-closed primaries are a mix of the two, in which registered party members and unaffiliated voters are allowed to vote.
Yes, states hold considerable power in determining the rules for all elections that happen within their borders. However, they do not have absolute power. For example, the U.S. Supreme Court struck down a voter-approved law requiring "blanket" primaries in California.
In California, Proposition 14 (Top Two Candidates Open Primary Act) allows all candidates running in a primary election, regardless of party, to appear on a single primary election ballot. In Texas, a law was passed in 2024 to change its primary from an open primary to a closed primary.
In California, a law required one year between disaffiliation with a prior party and filing as an independent. In Texas, a law passed in 1923 forbidding Blacks from participating in the Texas Democratic Party primary was struck down by the Supreme Court as a violation of the 14th Amendment.
The state party will set the date and hour that the polls will be open, though they must give 90 days' notice to the state election commission. The state parties run caucuses, but state governments conduct primaries.
