Primaries: legality of selecting private organizations nomination with public resouces

Factual Questions
1

It continues to befuddle me how entrenched the two party system has become de facto required for our government.

Part of this I realized was the fact that we use public resources in a primary election to select nomination for private parties.

It’s apparently is perfectly legal, but has there been any kind of legal question or debate as to whether or not we should spend public money to select nominees from private organizations?

Maybe this is ‘great debates’ or IMHO, but I guess I’m looking for a factual answer as to if this question has ever been brought up or debated.

2

Someone can bring a lawsuit to test the legality and see what a court rules. It’s possible lawsuits have been tried and failed.

Here in NC it’s super hard for a 3rd part to get on the ballot. The green party has sued over that issue and lost. They did not appeal the ruling due to lack of money to pay lawyers.

Constitution says nothing about political parties.

3

Because the people who pass laws creating primaries are members of a political party?

More obviously, primaries were originally thought of as a better way to choose candidates. It removed power from the political machines and allowed the people to decide on a candidate directly. It was considered a civic good to have good candidates for public office so the voters put pressure on the legislatures to do it that way.

4

Every election cycle, many legislatures debate the question of paying for primaries vs. telling the parties to go hold caucuses. Here is an article. Some always do it one way, and some do it one way for a while then find that there are pressures to go the other way. Some change with almost every election.

5

One consequence of the primary system is that because public resources are used to administer the elections, the Voting Rights Act, FEC regulations, and state voting laws apply to what is essentially an internal political function of a private group. The southern Democrats found this out the hard way when all of a sudden a lot of black people started showing up to their primaries.

How much regulatory control states can exercise over caucuses remains a very murky question.

6

Yup. You can think of the government running primaries as a kind of “consumer protection” or “truth in electing” law for the private parties’ nominating processes.

7

Louisiana has 1 primary for all parties. The top 2 then move on to the general election. Jungle primary is the name.

8

There’s a lot about Louisiana that is very weird.

9

I’m sure the democrats and republicans were instrumental in making sure it was limited specifically to the top 2 only

10

Independents and third-party candidates actually make it through jungle primaries surprisingly often. It’s also common that the top two candidates are from the same party.

11

California uses that system too.

12

Does the Louisiana primary work that way for ALL offices – or just offices other than President/VP and Congress?

California primaries work that way now, EXCEPT for Pres/VP and Congress (if I’ve got the rules figured out right, I think). For state legislature, it’s a jungle primary like you’ve been saying. And yes, you can end up with two candidates on the November ballot from the same party.

13

It works that way for congress, but not for president. You can’t have a single state’s primary work that way for president and vice president. (Well, you could, but it would be really dumb, and it would increase the likelihood of throwing the election to the House of Representatives.)

14

Louisiana law has strong influence of Napoleonic Code which makes them different than other states law which are based on English common law

15

No. I’m not sure why you’ve chosen to frame this as a question of “legality”. Primaries are creatures of state law. How could a law be illegal? Perhaps you are thinking that primaries are unconstitutional. If so, why? What provision of state or federal constitutions do you think they might violate?

Governments spend money in thousands of different ways that benefit private individuals and organizations. Perhaps you think primaries violate equal protection guidelines, since the state holds primaries for some parties but not others. If so, be aware that the laws are always written such that a primary will be held for any party that attains a certain percentage of the vote, and states can and have held primaries for third parties after those parties surpassed the threshold in a particular race.

One might certainly question whether it is appropriate for states to conduct elections to determine party nominees. Indeed, I’ve done so myself. To address that question, it helps to understand why direct primaries were instituted. (The best book on the topic is The American Direct Primary, by Alan Ware.)

During the Nineteenth Century, parties nominated candidates at city, state, and district conventions. Some of the more local conventions were open to any party member that showed up, whereas at the larger (state) conventions, you had to get elected at a delegate from one of the local gatherings.

After nominations were made, the party would print up tickets, district by district, with the names of its candidates. You would vote any dropping your ticket into a ballot box on Election Day.

Disputes at conventions were frequent. Sometimes, the losing faction would print up its own tickets and claim they were the rightful nominees. There was nothing to prevent this.

Then between 1870 and 1890, American states adopted the Australian Ballot. Under the Australian Ballot, the state prints ballots which list all of the candidates from every party which meets ballot requirements, and voters place a check (or later, pull a lever or punch a hole) by the candidates for whom they vote.

And presto, every party dispute over a nomination became the responsibility of the state. The state had to decide who was the legitimate party nominee, and who belonged on the ballot. Rules multiplied, but disputes continued.

To many good-government types in the late 1800’s and early 1900’s–and even to many party professionals weary of convention wrangling–a state-run primary seemed like the cleanest and best solution. The state already knew how to conduct elections; why not do it for nominations as well? The cost was trivial, and little more than the cost of refereeing endless convention nomination disputes.

By 1920, virtually every state had adopted the direct primary for offices other than President.

Please forgive the length of my response but there is a lot of confusion over the origin of direct primaries and it’s hard to debate their efficacy without understanding how they came to be.