why don't the US primaries system get challenged in court?

That’s true, although all of the states have chosen to appoint their presidential electors via some sort of public election, and where states have chosen to hold elections, there are Constitutional protections about who is eligible to participate. (See the 15th, 19th, and 26th amendments.)

But what about primaries or caucuses? Do they count as “voting” for which the above amendments apply? The Voting Rights Act says that primaries do, and this has been upheld under 15th amendment grounds by the Supreme Court: Although primary elections are internal contests for party nominees, because the state takes an active roll in administering them and setting their standards, the Supreme Court held in Smith v. Allwright that a whites-only primary for the Texas Democratic Party violated the 15th amendment’s protection against racial discrimination at the polls.

Caucuses are more of a gray area, because the state government is not directly involved in administering or regulating them.

Other way around, I think.

As I understand it, in the US you don’t have to be a member of a party to vote in the primaries to choose the party candidate. Some states may require you to register as a Republican or a Democrat in order to vote in the Republican or Democratic primary, but registering a political affiliation or preference is not the same thing as becoming an actual participating member of an actual organisation.

In other countries, parties choose their candidates (and it may be individual party members who get to vote on this, or it may be party officials who decide it, or some combination of the two). But only in the US are party candidates chose in public elections (or caucuses) in which anyone who is sufficiently interested to go through a registration procedure can participate.

I take your point, but I didn’t read Exapno to be saying that. The OP was criticizing the US system for not allowing enough participation by the general public, and Exapno seemed to be agreeing, noting that the primaries are private affairs of the parties, and saying that no one else does it this way.

Besides, the more closed systems that other countries use are even farther from the one-person one-vote ideal that the OP is going for, since most people don’t get to vote to select the candidate at all.

You’re right, in a Parliamentary system we don’t directly choose the leader of the parties at all. But at least those leaders have to win support from the majority of members of parliament of their party to become the party leader. 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.

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 could be wrong, but I understood Exapno to be making the opposite point. What is unusual about the US system is that the government intervenes in party affairs, and makes laws basically controlling how parties can select their candidates. The notion that political parties can be controlled and directed by the government in this way looks profoundly undemocratic, since those who control the levers of government could use their power to neuter opposition parties that are critical or unsupportive.

This strikes me, as a non-USonian, as one of those “it’s all very well in practice, but does it work in theory?” things. I thought that’s the point Exapno was making.

Of course it is. There are half a dozen women-only gyms in any major city in Australia.

Precise details of the law vary from state to state in Australia, natch, but in general it’s unlawful for anyone providing goods, services or facilities - like, say, oh, a company running a gym - to discriminate on the grounds of sex.

So it is, in general, unlawful to run a women-only gym. If you want to run one, you’ll need to seek an exemption from the general rule from the relevant authority in your state. All states have an authority which can grant exemptions permitting systemic discrimination that would otherwise be unlawful. You’ll need to offer a justification, such as showing that what you propose is an attempt to redress past or present discrimination, or that it will help to provide equal opportunity, or something of the kind. Presumably, commercial women-only gyms have obtained exemptions.

However, political parties as such aren’t covered by Australian equality legislation, so it would (as far as I can see) be perfectly lawful to establish a men-only, women-only, Chinese-only, black-only, over 50s-only, etc, political party.

Or to put it another way, in Australia, private clubs can ban women from membership, etc. and it is perfectly legal.

Yep, I was quite shocked to find out this is true.

The political parties are not the government. They are associations of people who assemble in a group to gain power in the government. But they are not the government. Therefore, what someone in general public thinks about how the parties are run is largely irrelevant.

It’s not quite that simple. In my earlier post I mentioned that those providing goods, services and facilities were generally barred from discriminating, because that group includes the providers of public gyms.

But that’s not the only group that is barred from discriminating. Clubs are generally also prohibited from discriminating, “clubs” being defined in a way that only includes mutual clubs that run a members bar. So if you run a social club whose facilities include a members’ bar, you may not (generally) discriminate on the grounds of sex, marital status, pregnancy or breastfeeding.

But, and this is a big but, there is an exception for single-sex clubs. You can run a men-only or women-only club. But if you admit both men and women, then you must admit them on the same terms - you can’t have separate classes of membership, or differing subscription rates, or limits on the rights and privileges of members of one sex, or the like.

In Minnesota, right next to Iowa, you don’t have to be there for hours – you can show up, sign in, get your presidential cqndidqte ballot, vote it, and then leave. But you lose any chance to persuade your neighbors to vote for your candidate.

Caucuses start at 7pm, when most people are home from work. And if you happen to work night shift, Minnesota law requires your employer to give you time off (unpaid) to attend the caucus, if you give them advance notice.

And for some of the most important parts of the caucus (choosing Delegates to later Conventions that select candidates for local offices), you don’t even have to be present – you can send an ‘absentee letter’ to participate. (But not the Presidential Candidate voting – in Minnesota, you have to appear in person to vote on that.)

Yes I realise that, it would be up to the parties themselves to decide to reform the procedure. Nevertheless if the general public felt strongly enough about reform they’d be unlikely to vote for candidates from a party that didn’t reform.

Yes I realise its not going to happen…

Another thing to realize is that there is no single national party in the U.S.

Every state has their own state party and there are sharp differences between the states. Somehow those state parties have to reach a consensus on the national candidates.

Organization of American political parties (Wiki)

This (Michigan Delegates Excluded From Democratic Convention) was major news in the 2008 presidential cycle, when people wanted to do something about that “disproportionate amount of influence” and disagreement ensued.

You might be able to file a lawsuit but the court has to agree to hear it and decide if you have “standing”. They probably will tell you if you don’t like it, then move to Iowa or New Hampshire and get involved with a political party. Or be content with a write-in vote in November.

Back in the day (say, until the 1960s) the presidential candidate was chosen in the national conventions by delegates chosen in various ways, but mostly by pols in those “smoke-filled rooms”. Since they were primarily interested in winning the general election, this tended to result in centrist candidates. Modern Republicans now consider Eisenhower to have been practically a communist (a few have made that precise claim) because he didn’t abolish social security, unemployment insurance and other new deal programs. Gary Wills has an interesting article on this in the latest NY Review of Books, but it is behind a paywall.

Anyway, the rise of primaries over the last half century was a reform, as mentioned upthread, intended to improve government by making the choices more democratic. The reality has been quite different. Part of the problem is how few people vote in primaries (or caucuses) and they tend to be dominated by the most militant, and thereby extreme, members of the party. The virtual takeover of the Repbulican party, at least in the south, by the tea party, is one result. The popularity of Bernie Sanders is another. (Don’t get me wrong, I love the Bernie, but I recognize that he has virtually 0 chance of winning and actually 0 of getting his program through congress.)

So the reform is at least partly responsible for the current gridlock in the national government. Some people have called for a national primary on one day, essentially a nominating ballot. 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.

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.

The justification for the town meeting form of local government is that it is essentially direct democracy. I suppose one can view caucuses in a similar light: people are expected to show up for the process, including whatever debate, not just to vote.

Personally, I think the caucus system is completely nuts, but that doesn’t make it a violation of someone’s rights.

The first reforms were instituted as part of the Progressive movement, true. But in actuality, the conventions were dominated by state party bosses until the 1960s, as Hari Seldon said, with a rapid loss of power at the end. The last second ballot was the Republican convention in 1952. Today’s system has been in place only since the 1970s, after the Democrats rebelled against Mayor Daley controlling the 1968 convention. Jimmy Carter won a surprise victory in Iowa in 1976 and that is usually considered the start of the modern era. The rules have been tweaked every four years since without substantially changing the process.

No, it’s not. Just the opposite.


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. Say I want Trump, but I can’t stand Sanders. If Trump is winning (or losing) by a wide margin by the time my primary comes around, I’ll pick up a Democratic ballot and vote for Hillary. I can’t stand Hillary, but I have more disdain for Sanders. OTOH, if I know that the outcome has already been decided, I can stay home and save the 45 minutes I would waste going to the polls.

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 (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.