Topic:
VOTING; PRIMARIES; CONSTITUTIONAL LAW; ELECTIONS (GENERAL);
Location:
PRIMARIES; VOTING;

OLR Research Report


February 28, 2008

 

2008-R-0177

UNAFFILIATED VOTERS ALLOWED TO VOTE IN PRIMARIES

By: Mary M. Janicki, Director

You asked for information on how and when unaffiliated voters in Connecticut have been allowed to vote in a primary election. You are interested in the Republican Party's lawsuit challenging Connecticut's previously “closed” primary system.

CASE LAW

Enacted in 1955, a Connecticut statute (CGS 9-431) permitted only enrolled party members to vote in a primary. In 1984, the Republican Party of Connecticut adopted a party rule change to permit unaffiliated voters to vote in primary elections for federal and statewide offices. A Hartford Courant article (September 8, 1991, copy attached) attributes the rule change to efforts by then-U.S. Senator Lowell P. Weicker Jr. to broaden his support in a potential challenge to his 1988 bid for renomination. Since the new rule conflicted with the state's closed primary law, the party filed suit in federal district court on May 10, 1984, to prohibit enforcement of the law.

Judge Jose A. Cabranes held that the party's decision to permit unaffiliated voters to participate in its primaries is constitutionally protected under the First and Fourteenth Amendments (Republican Party of the State of Connecticut, et al. v. Julia H. Tashjian, Secretary of the State of Connecticut (599 F. Supp. 1228, Conn. 1984). The court ruled that the state's interest in regulating primary elections did not justify the law's burden on the right of association guaranteed by the First Amendment.

The state appealed that decision to the Second Circuit Court of Appeals, arguing that the state has a legitimate and compelling interest in regulating primary elections. The state maintained that permitting independents to vote in primaries would hamper the orderly administration of elections, lead to one party “raiding” another's primary, create voter confusion, and undermine the two-party system. It also argued that the state legislature is authorized to regulate the manner of electing members of Congress, not political parties. The appeals court affirmed the lower court ruling in a unanimous decision (770 F. Supp. 265).

The case was appealed to the U.S. Supreme Court, which issued its ruling on December 10, 1986 (479 U.S. 208, 107 S. Ct. 544). In a 5-4 decision written by Justice Thurgood Marshall, the Court affirmed the lower courts' findings in favor of the Republican Party. The Supreme Court held in the Tashjian case:

● The First and Fourteenth Amendments' protections extend freedom of association rights to partisan political organizations and the Connecticut law imposed unconstitutional limits.

● The state's justifications for the statute were insubstantial.

● Implementation of the party rule would not violate the Qualifications Clause of the Constitution or the Seventeenth Amendment since it does not disenfranchise any voter in a federal election who was qualified to vote in a primary or general election for the more numerous house of the state legislature.

STATUTORY CHANGE

An attempt to open the primary process to unaffiliated voters was made while the Tashjian case was on appeal. But An Act Permitting Unaffiliated Voters to Vote in Certain Primary Elections (SB 5, PA 85-320) was vetoed by Governor O'Neil and the General Assembly sustained his veto.

After the Supreme Court's Tashjian ruling, the closed primary law was unenforceable and a primary conducted under its provisions could have subjected the state to charges of contempt. At the least, primary results would have been in doubt. In 1987, the legislature amended the law subject to the dispute (CGS 9-431) by passing An Act Concerning the Participation of Unaffiliated Voters in Primary Elections. The act, effective June 24, 1987, opened primaries to unaffiliated voters if and only if a party's rules authorized such participation. In doing so, the legislation also made conforming changes to establish the procedures whereby unaffiliated voters can vote in a primary when authorized by a political party's rules. The act, which is current law, modified election procedures related to compiling voter lists, checking voters at the polling place, setting up ballot labels and voting machines, and designating election officials to accommodate the participation of unaffiliated voters.

POLITICAL PARTY RULES

Current Republican and Democratic state party rules do not allow independent voters to participate in their primary elections. The Republican Party rule change that allowed unaffiliated voters to vote in a Republican primary was in effect from 1984 until a convention repealed the rule on September 7, 1991. During that time, two GOP primaries were held when unaffiliated voters could vote: a 4th Congressional district primary in 1987 and a 3rd Congressional district primary in 1990.

A Connecticut Party permitted unaffiliated voters to vote in all of its primaries (A Connecticut Party Rules, as amended 1/28/92, Art. V, 1), but the party no longer enjoys status as a major party. Minor party nominations are not covered under the primary statutes ( 9-431 et al.), but are made pursuant to their rules ( 9-451 et seq.)

MJ:ts