ELECT Blog Election Law Essays on Current Topics

Open Primaries, Good or Bad?

By Will Jordan

Open Primary Elections: Freedom of Association or Freedom to Party-Raid?

South Carolina provides for an open primary election system, meaning any qualified elector is allowed to vote in the party primary of his or her choice. Voters are, however, limited to voting in only one party primary during any single election cycle. (If you really want to read to relevant code sections, you can find them here.)

South Carolina’s open primary system has two main effects, one positive and one (arguably) negative. On the positive side, voters are free to support the candidate of their choice, even if that candidate is not a member of the political party with which the voter is registered. If you’re a registered Republican, but you’re “feelin’ the Bern,” you can vote for Bernie in the Democratic primary. On the (arguably) negative side, South Carolina’s open primary election system opens the gate for party raiding. If you’re a Democrat, and you plan to vote for the Democratic nominee, you are free to vote in the Republican primary in an effort to ensure divided support of two or more candidates or to bolster the candidate you believe the Democratic nominee will have the best chance of beating in the general election.

We’ve seen party raiding at work in past election cycles. In 2008, conservative pundit Rush Limbaugh announced “Operation Chaos,” in which he called for Republican voters to vote for Hillary Clinton in Democratic primaries in order to slow the roll of Barack Obama, who had beaten Clinton in several straight primary elections.

Similarly, in 2012, Democratic voters in Michigan backed Republican candidate Rick Santorum in an effort to attack the momentum of Mitt Romney, the eventual Republican candidate for President.

The concept of open primaries has been challenged in South Carolina, but has been held constitutional. In June of 2010, the Greenville County Republican Party and the South Carolina Republican Party filed a lawsuit against the State of South Carolina and the Chairman of the South Carolina State Election Commission arguing, in part, that South Carolina’s open primary system is unconstitutional because it substantially burdens the associational rights of political parties by denying them the option of holding closed primaries. In short, the Plaintiffs argued that freedom of association includes, by necessity, the right to not associate with certain individuals. The U.S. District Court rejected the Plaintiffs’ argument, finding that while “political parties may not be given the opportunity to conduct closed primaries, [they also are not] forced to associate with those individuals with whom they choose not to associate.” “Any party is free to elect a different method of nomination, either by convention or petition, which allows political parties to associate with only those people approved for membership in the party.” 824 F. Supp. 2d 655.

For now, open primaries are here to stay in South Carolina.