Creating a National Primary

The Republican and Democratic parties have been through a brutalizing primary season where accusations of unfairness and impropriety have been thick on the ground. In part, this stems from the chaotic and ad-hoc system of primaries, caucuses, and conventions in each state, where every state seems to have different rules about who can vote, how to vote, and how delegates are allocated.

It is within the power of the parties to fix this system by taking over their own nominating processes and removing them from the hands of state politicians who may structure them to suit one party over another. All they need to do is administer the primaries themselves.

How to take over the primary system? Run it yourself.

States exert huge leverage over the parties because the parties depend on state governments to do the legwork of opening polling places and counting ballots. But it would be quite possible for the parties to steal that power back by running the elections themselves.

Obviously it would be impractical for the DNC and RNC to set up polling locations around the country, but they could quite easily administer a mail-in ballot election. They could allow voters to register with them, and receive a paper ballot and a return envelope to send it back with. This is a tried and true method which every state does for at least some voters, and which Oregon does for all voters.

By sending out and collecting ballots independently, the parties would be able to circumvent the state legislatures which keep moving primary dates earlier, front-loading the calendar. In 2008, this front-loading effectively disenfranchised Democratic primary voters in Michigan who saw only Hillary Clinton’s name on the ballot, and got 1/2 the delegates they should have.

National primaries would allow for more voting options.

Once the parties have taken over the administration of their primaries, they would have a lot more options in terms of how to conduct them. They could use instant runoff voting, or have a series of winnowing elections over the course of several months.

Almost any conceivable single system would be better than the what we have today. The current primary system is deeply confusing even to well informed voters, and allows candidates who are not as adept at playing it to argue that they’re being cheated.

There’s precedent for mail in primaries as well. Smaller parties which can’t get onto state-run primary ballots sometimes do them, such as the Green Party in Maryland this year.

With one body writing the rules and administering the election, they would only be constrained by what the party membership wanted and what the law says.

Is this even legal?

Although political parties are private affairs, the courts have found that the government does have a role in regulating them. That said, it would be possible for the parties to administer a primary themselves within the bounds of the law.

The principal case on point is the landmark civil rights case of Smith v. Allwright. The Allwright case came from an odious attempt by the Texas Democratic Party to exclude blacks from primary elections and conventions by the use of private party rules, after a prior attempt to do so through state law had been struck down. The Court held that political party conventions, while privately run, are so integrally tied into the electoral process that they are subject to the electoral provisions of the US Constitution as effectively a delegated state action.

It is likely that similar scrutiny would be applied to the privately run primaries which would subject them to the various constitutional provisions on voting rights, as well as the Voting Rights Act.

Fortunately, complying with those laws is quite easy, and just about any fairly administered election would do so. The main thing to avoid would be tying the election to fundraising (in violation of the 24th amendment), as the parties have been known to bend the law in their fundraising solicitations. I’m looking at you Reince Priebus.

What about security?

By far the biggest challenge to a mail-in primary is security. Right now, primaries are secured by the various state boards of elections who run them. Caucuses are not secured except by the state parties, but generally have votes counted in the open.

Open counting of the ballots is probably the most straightforward security measure that can be taken, at least to ensure fair counting. Beyond that, the Federal government has detailed guidelines for states to use for mail-in ballots.

What’s in it for the parties?

Running their own vote-by-mail election would be moderately expensive, but would also give the parties gobs of voter data for turnout as well as fundraising, since the need to contact the party to get a ballot would be an enormous opportunity for them to get contact data from supporters.

That data is hugely valuable to a political party. Right now, the data that’s available is a patchwork quilt that differs hugely from state to state. By running the primary and registration themselves, the parties would get much more granular data on their supporters and be able to run much more effective turnout operations, not just for Presidential elections, but for Congressional and State elections as well.

What’s in it for the states?

Most states get screwed by the primary system as it stands. Candidates spend 10 months in Iowa and New Hampshire, and then maybe a week in other states as they progress through the calendar. And if the election isn’t too close, later states get ignored entirely. A national primary would end the zero sum fighting for relevance by states moving their primaries up, and give voters in every state a meaningful say in the process. Since the vast majority of states lose out under the current scheme, this would be a net benefit for almost every state, which would help keep state politicians and party leaders on board.

What’s needed to do this?

All that’s needed is for the Republican or Democratic party to decide to do it. They don’t need to act in concert. They don’t need to get a law passed. They just need to decide how they want to do it.

In the aftermath of the 1968 Democratic convention, the party set about to radically reform how it chose its nominee. After this election, we might see a reprise.