# why don't the US primaries system get challenged in court? **URL:** \ **Category:** Factual Questions\ **Created:** [February 2, 2016, 2:20am UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906 "2016-02-02T02:20:33Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![GiantRat](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@GiantRat](https://boards.straightdope.com/u/GiantRat)\ **Post date:** [February 2, 2016, 3:35pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/41 "2016-02-02T15:35:01Z")
> [@Blake](#): > > Of course it is. There are half a dozen women-only gyms in any major city in Australia. And on the other side of the coin, Freemasonry exists in Australia. It’s a fraternity - not a “co-fraternity” and not a sorority. Men only. Them’s the rules. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [February 2, 2016, 3:50pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/42 "2016-02-02T15:50:13Z")
Ref the question of early or late primaries and the difference in voting impact … Back in the 1970s-80s there was a movement by several states to move their primaries earlier in the season. Their goal was to increase their influence. Much wailing and gnashing of teeth ensued. A couple late-voting states leapfrogged ahead of the pack, albeit not ahead of IA & NH. As more states decided to try the same move next time a groundswell of opposition came up. IA & NH both said they’d move up as far as necessary to keep themselves first, even if it had to be a year or more before the general election. :eek: Although it’s unimaginable under today’s conditions, sanity prevailed at the time and a multi-state dual-party compromise was reached. The parties ended up coalescing around fewer and earlier dates, with one effect being the creation of “Super Tuesday” (or occasionally Tusedays) where a large chunk of the country holds primaries / causcuses on one day. This equalizes the voting power of different state’s voters at the expense of greatly amplifying the impact of money on the outcome. It’s much more expensive to campaign in several large states at once than the same effort spread over a couple months. It also favors the establishment candidates with the better organization or the fat-cat’s chosen candidates with the better funded PACs & so-called “Swift boat” attack groups. So the system is not in fact utterly cast in stone & unchangeable. But at the same time the entities empowered to change it are by and large the ones who’ve already succeeded under the current system. There’s a lot of “If it ain’t broke (_for me_), don’t fix it. ('cuz that might break it _for me_).” ---
**Author:** ![WF\_Tomba](https://avatars.discourse-cdn.com/v4/letter/w/d9b06d/32.png) [@WF\_Tomba](https://boards.straightdope.com/u/WF_Tomba)\ **Post date:** [February 2, 2016, 3:52pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/43 "2016-02-02T15:52:15Z")
> [@Hari\_Seldon](#): > > If I were reforming the system, I would prefer a two-stage election or even an instant run-off ballot, but this is inconsistent with the usual American election that elects everyone from judges to magistrates on the same ballot. But any such change would require a constitutional amendment, which is certainly not in the cards. I don’t believe it would take a Constitutional amendment to make those changes in an individual state. It would only take a Constitutional amendment to force all states to do it. What really keeps us locked into the current system is a sort of game-theory problem. Most states are dominated by one party or the other, so if a state made a reform that tended to favor centrism, it would weaken that state’s dominant party, which would weaken the national party. Therefore, the parties effectively conspire to keep polarizing systems in place. An interesting idea would be to identify complementary pairs of states, with similar population but opposite partisan orientation, and try to have those states agree to adopt centrist reforms in parallel, thus maintaining the national balance of power. Vermont could pair with Wyoming, Rhode Island with Montana, etc. ---
**Author:** ![robby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/robby/32/11048_2.png) [@robby](https://boards.straightdope.com/u/robby)\ **Post date:** [February 2, 2016, 4:40pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/44 "2016-02-02T16:40:10Z")
> [@Ravenman](#): > > **coremelt** , you may be shocked to learn that there are towns in New England where legislation is basically considered by whomever it is that shows up at the town hall for a meeting, as opposed to investing that power in elected representatives. [Link.](https://en.wikipedia.org/wiki/Open_town_meeting) > > The justification for the town meeting form of local government is that it is essentially direct democracy. The New England town that I live in has this type of government. In practice, a town meeting is only called for major issues. The most common reason to call a meeting is to discuss and then vote (by a simple voice vote) on whether or not the town budget should be sent to referendum or not. That’s correct: every year, there is at least one town meeting and one budget referendum (with ballots, etc.). The referendum is run just like any other election. The budget referendum always has two questions: [ul] [li]Should the town budget for the upcoming year in the amount of $xx,xxx,xxx.xx, as recommended by the Board of Selectmen, be approved?[/li] [li]Should the school budget for the upcoming year in the amount of $xx,xxx,xxx.xx, as recommended by the Board of Education, be approved?[/li][/ul] The town is required to pass both of these budgets every year. The approved budgets set the property tax mill rate for the upcoming year. If a budget is not approved, the whole process starts over again, with another town meeting and another referendum. During contentious years, we might have to go to referendum three or four times before a budget is passed. By the way, the members of the Board of Selectmen and Board of Education are elected, but as indicated above, they can only recommend a budget. The voters of the town have to approve it, every year. It truly is direct democracy at its finest, and I think it gives the residents of the town a strong voice in how the town is run. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [February 2, 2016, 5:20pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/45 "2016-02-02T17:20:48Z")
> [@coremelt](#): > > But at least those leaders have to win support from the majority of members of parliament of their party to become the party leader. I don’t think this is always true. The UK’s Jeremy Corbyn, for instance, was selected by some sort of electorate that extended far beyond just Labour MPs. > [@coremelt](#): > > And for their parties MP’s to win re-election the party leader has to appeal to a broad cross section of voters in their MP’s electorates. Presumably you don’t mean to suggest, though, that candidate selection among the smaller parties in Australia is less fair because those parties don’t win as many elections. And taking your point more broadly, it’s always going to be true for any democratic system that validation of a party’s candidate choices ultimately comes via the result of the elections. > [@coremelt](#): > > Its by no means a perfect system, but it doesn’t have the problem of putting a disproportionate amount of influence on the election cycle to two overwhelmingly white and low population states. I don’t think this is necessarily true either. Because parties in parliamentary systems typically form coalitions after the election (as opposed to US parties forming as coalitions in themselves), control of the government – i.e., the outcome of the election – can sometimes rest upon the preferences of one or two small parties that may be highly unrepresentative of the electorate as a whole. Also, I don’t know about Australia, but Canada and the UK have often had a high degree of regionalism among their political parties (much more so in some cases than the US). And given that presumably all of Australia’s states are overwhelmingly white, what steps are taken in the Australian process to see to it that the preferences of non-white voters are represented? ---
**Author:** ![Pixel\_Dent](https://avatars.discourse-cdn.com/v4/letter/p/bc8723/32.png) [@Pixel\_Dent](https://boards.straightdope.com/u/Pixel_Dent)\ **Post date:** [February 2, 2016, 5:40pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/46 "2016-02-02T17:40:46Z")
> [@robby](#): > > The New England town that I live in has this type of government. In practice, a town meeting is only called for major issues. The MA town I lived in a decade or so ago had two meetings a year where we hashed out all sorts of issues. I remember a debate over the speed limit of a specific road with two speakers doing their best fake polite “I’m sure the gentleman can’t really be so completely stupid as to think that… when all people with half a brain know that…” One of the police officers had to stop someone from throwing pretzels at the speaker at one point. ---
**Author:** ![Donnerwetter](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@Donnerwetter](https://boards.straightdope.com/u/Donnerwetter)\ **Post date:** [February 2, 2016, 5:49pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/47 "2016-02-02T17:49:12Z")
Is the primaries system only open to the Republican Party and the Democratic Party? What about smaller parties, for instance the Communist Party of the United States? ---
**Author:** ![Pixel\_Dent](https://avatars.discourse-cdn.com/v4/letter/p/bc8723/32.png) [@Pixel\_Dent](https://boards.straightdope.com/u/Pixel_Dent)\ **Post date:** [February 2, 2016, 5:51pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/48 "2016-02-02T17:51:43Z")
It’s also important to note that at least for the Presidential election the primaries don’t choose the candidate, they choose delegates to the convention. The relationship between the primary results and the number of delegates each candidate can send varies from state to state. Once the delegates arrive at the convention the nation party can decide which delegates will be allowed to vote and there have been fun legal fights over parties refusing to seat some of the delegates. In addition there are some delegates who are seated by the national party even though they weren’t elected in a primary at all. In addition, if you don’t like the results every state has a way of getting your favorite candidate’s slate of electors on the ballot via signature collection. I once again note that this applies to the Presidential election. For most state level elections the Primary election is all important and the winner of the primary goes on the ballot even if the state party convention selects a different candidate, which isn’t that uncommon. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 2, 2016, 5:53pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/49 "2016-02-02T17:53:52Z")
> [@](#): > > Is the primaries system only open to the Republican Party and the Democratic Party? What about smaller parties, for instance the Communist Party of the United States? It’s theoretically open to other parties, but in practice it’s too expensive for them to bother. They officially nominate their candidates at conventions, like the major parties, but the delegates are selected by the state party rather than by voters. ---
**Author:** ![Donnerwetter](https://avatars.discourse-cdn.com/v4/letter/d/b2d939/32.png) [@Donnerwetter](https://boards.straightdope.com/u/Donnerwetter)\ **Post date:** [February 2, 2016, 6:07pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/50 "2016-02-02T18:07:22Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s theoretically open to other parties, but in practice it’s too expensive for them to bother. They officially nominate their candidates at conventions, like the major parties, but the delegates are selected by the state party rather than by voters. Are the party organizations required to reimburse the government/the state for making use of the public infrastructure (including the services of government employees)? ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [February 2, 2016, 6:09pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/51 "2016-02-02T18:09:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > In order to have “fairly” timed primaries you would need all the states to agree on the timing. It’s not New Hampshire’s fault that Florida and Michigan don’t hold primaries until April. Well yes it is in part. When several states tried to move their primaries earlier, NH said they would move theirs even earlier. They were not content with having even a simultaneous first primary. Then the parties “conspired” with NH and Iowa saying they’d discount any earlier results. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 2, 2016, 6:16pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/52 "2016-02-02T18:16:52Z")
That’s true. But there’s no law that says New Hampshire can’t do that. > [@Donnerwetter](#): > > Are the party organizations required to reimburse the government/the state for making use of the public infrastructure (including the services of government employees)? For the most part, they are publicly funded. The rationale is that the general election is cheaper because there will only be two major party candidates. The “expense” I was referring to is the cost of campaigning rather than the cost of the primary itself. ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [February 2, 2016, 6:18pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/53 "2016-02-02T18:18:39Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s theoretically open to other parties, but in practice it’s too expensive for them to bother. They officially nominate their candidates at conventions, like the major parties, but the delegates are selected by the state party rather than by voters. In the case of the minor parties, there are very few voters who aren’t also party activists. As such, the party convention is pretty much a caucus of all their potential voters nationwide. If we ever did get a mass-market third party going in this country the above would cease to be true and they’d probably need to invent their own version of the primary system. In fact the presence of third party primaries would pretty much be the proof that we finally have a meaningful third party. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [February 2, 2016, 6:26pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/54 "2016-02-02T18:26:04Z")
> [@Exapno\_Mapcase](#): > > No, no other country would do anything like this. In the UK candidates for MP at General Elections are chosen by the local constituency parties. Much the same thing, really. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 2, 2016, 6:49pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/55 "2016-02-02T18:49:56Z")
> [@bizerta](#): > > Disagree: > > A vote is a vote regardless of when it occurs. Whether my state is the last or whether my state moved their primary to the same as New Hampshire, it will have no effect on the outcome. As the last state to vote, I have the advantage of knowing where my vote counts the most. But it does have an effect on your vote. As a result of Iowa, you won’t even have the option of voting for O’Malley or Huckabee. The voters of Iowa have taken that off the table for you. ---
**Author:** ![Jim\_s\_Son](https://avatars.discourse-cdn.com/v4/letter/j/e19adc/32.png) [@Jim\_s\_Son](https://boards.straightdope.com/u/Jim_s_Son)\ **Post date:** [February 2, 2016, 7:00pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/56 "2016-02-02T19:00:39Z")
> [@Northern\_Piper](#): > > But it does have an effect on your vote. > > As a result of Iowa, you won’t even have the option of voting for O’Malley or Huckabee. The voters of Iowa have taken that off the table for you. Considering how low they were in the polls nationwide, few people would have bothered to vote for them in any state or DC. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 2, 2016, 7:07pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/57 "2016-02-02T19:07:50Z")
> [@Quartz](#): > > In the UK candidates for MP at General Elections are chosen by the local constituency parties. Much the same thing, really. I thought that parties choose their own candidates for MP. They don’t pick each others’ candidates. Isn’t that completely different from self-proclaimed Republicans or Independents being allowed to vote for Democratic candidates and vice versa? ---
**Author:** ![Carryon](https://avatars.discourse-cdn.com/v4/letter/c/9fc29f/32.png) [@Carryon](https://boards.straightdope.com/u/Carryon)\ **Post date:** [February 2, 2016, 9:15pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/58 "2016-02-02T21:15:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Not quite. Because the states cede authority to the parties to select candidates, the primaries are subject to oversight and [voters have standing to challenge primary processes](https://supreme.justia.com/cases/federal/us/321/649/) (under the 14th and 15th Amendments directly, as well as the Voting Rights Act). > > You don’t have to be a member of a suspect classification to challenge a law on equal protection grounds. You can argue that it discriminates against redheads, fat people, _Star Trek_ fans, or whatever. You don’t get the benefit of federal civil rights laws just for being a redhead but that’s neither here nor there. > > A voter would have standing to challenge an electoral process that required all-day attendance on the grounds that it discriminates against working people. He would just have to cope with a deferential (rational basis) standard of review. > > There is certainly a legitimate complaint to be made about the disproportionate influence that Iowa and New Hampshire voters have on the primary process, but the problem here is that our states are semi-sovereign political entities. The courts can order a state to treat people fairly. They can’t order a state to avoid looking out for its own citizens’ interests over those of other states, though (except in commerce). > > In order to have “fairly” timed primaries you would need all the states to agree on the timing. It’s not New Hampshire’s fault that Florida and Michigan don’t hold primaries until April. > > What the courts _could_ do is order the Democratic Party to count the votes of delegates from states which moved their primaries up to match Iowa and New Hampshire’s. And the same for the GOP. But establishing standing under those circumstances is a much trickier proposition. There is still an undecided legal issue though. When Florida moved up it’s primaries both the Democrats and Republicans said they would penalize the state its votes for doing so. If other states moved their primaries/caucuses ahead of NH and Iowa and the political parties denied their votes, it could cause issues and lawsuits. For now it hasn’t been a major issue because holding elections is a costly process and many states would rather hold them later when the primaries are long since decided that way they will face low voter turn out and cheaper costs to run it. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [February 2, 2016, 10:37pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/59 "2016-02-02T22:37:38Z")
> [@Carryon](#): > > For now it hasn’t been a major issue because holding elections is a costly process and many states would rather hold them later when the primaries are long since decided that way they will face low voter turn out and cheaper costs to run it. How do fewer voters make the cost cheaper? The state has to open exactly as many polling places for exactly the same number of hours and use exactly as many overseers for 10000 voters as for 100000. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [February 2, 2016, 11:48pm UTC](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906/60 "2016-02-02T23:48:32Z")
> [@Northern\_Piper](#): > > But it does have an effect on your vote. > > As a result of Iowa, you won’t even have the option of voting for O’Malley or Huckabee. The voters of Iowa have taken that off the table for you. No, O’Malley and Huckabee made that choice themselves. They had polling results in Iowa. They had polling results in other states. If something unexpected happened and they did better than the polls they had the option of staying in the race. If they were doing better in polls in other states with more representative demographics, they could stay in the race. Iowa was just a good excuse for them to face reality. [Previous page](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906.md?page=2) [Next page](https://boards.straightdope.com/t/why-dont-the-us-primaries-system-get-challenged-in-court/744906.md?page=4)