Are closed primaries unconstitutional?

The answer to that question is…maybe

NOTE: The author of this post is not a licensed attorney and does not claim to be one.

As New York state Democrats and Republicans go to the polls to vote for major-party presidential nominees, a group of voters are suing the State of New York in an effort to open up the presidential primaries to voters who are not registered with a political party. It is possible that a ruling may be issued in that case while voters are at the polls in New York state.

While I’m not sure if the lawsuit is trying to get closed primaries invalidated on constitutional grounds, there is an (at least theoretical) argument that closed primaries are unconstitutional.

Before I detail the pro-closed primary and anti-closed primary arguments, I’ll give a primer about how elections and voting are dealt with in the U.S. Constitution. Article I, Section 4, Clause 1 requires that laws regarding electing members of Congress be set by the states, and Article II, Section 1, Clauses 2–4 establish the original Electoral College method for presidential general elections. Clause 3 of Article II, Section 1 was superseded by the 12th Amendment to the U.S. Constitution, which outlines the current Electoral College method for presidential general elections. Additionally, the 14th (reduction of U.S. House representation for states that completely disenfranchise voters), 15th (right of ethnic minorities to vote), 17th (direct election of U.S. Senators), 19th (right of women to vote), 20th (provision allowing Congress to allow a special election for president, although no such law currently exists), 23rd (Electoral College representation for the District of Columbia), 24th (ban on poll taxes), and 26th (right of citizens at least 18 years of age to vote) amendments to the constitution deal with electoral matters in some form.

In addition to the never-invoked provision in the 14th Amendment that allows for Congress to reduce representation in the U.S. House of Representatives for states that flagrantly disenfranchise voters from the electoral process altogether, there’s also an “equal protection” clause within Section 1 of the 14th Amendment. One could argue that the State of New York, by mandating primaries for the Democratic and Republican presidential primaries to be closed to anyone not officially registered with either the Democratic Party or the Republican Party, is essentially creating three classes of voters (registered Democrats, registered Republicans, and voters not registered with a major political party), and disenfranchising one of the three classes of voters (those not registered with a major political party) from participation in either party’s presidential primary. Because of that, one could argue that the State of New York is denying equal protection of the law to registered voters who are not registered with a major political party.

However, political parties are never mentioned in the U.S. Constitution (although, if I’m not mistaken, the State of New York, not the political parties, have mandated closed presidential primaries for the two major parties in that state), and provisions for presidential elections appear to apply only to the general election, and, in the case of the 20th Amendment, a theoretical special general election for president, although Congress has never authorized such an election. In fact, the U.S. Constitution does not require states to hold public general elections for Electoral College members in any form. The pro-closed primary side’s argument is to argue that states have very wide latitude to set their own election laws, and that no provision of the U.S. Constitution prohibits a state from mandating closed primaries to select delegates to major-party national conventions. Because of the 14th Amendment’s “equal protection” provision and the fact that a state, not a political party, is mandating closed primaries, that is an argument that may not be a valid interpretation of the Constitution.

There is a potentially valid constitutional argument that closed primaries, such as the one New York state is holding today, violate the U.S. Constitution.