Louisiana's Blanket Primary after California Democratic Party V. Jones
Labbe, John R., Northwestern University Law Review
Political parties have become an integral part of American democracy.1 The chief function of political parties in the United States is the selection of nominees for public office.2 Through the nomination process, political parties select candidates the party will support in general elections.
Direct primary elections are used today in all fifty states to nominate candidates for state office.3 Direct primaries are a twentieth-century development. Before direct primaries, parties first used caucuses to nominate candidates. Caucuses are informal meetings of party members to select candidates for office. Those who attended these meetings were not necessarily representative of the whole party, and the caucuses tended to be dominated by party elites. During the nineteenth century, party conventions became the main method for nominating candidates. Although conventions allow for greater representation, the party conventions of the nineteenth century were nevertheless dominated by party elites who controlled selection of delegates and the operation of the conventions.'
In the early twentieth century, the Progressives successfully advocated the use of direct primaries to make the selection of party nominees more democratic. Eventually, almost every state passed laws adopting the use of direct primaries to nominate candidates for at least some statewide offices.6
In a direct primary, state law dictates the method by which candidates are nominated; the political parties therefore lose a certain amount of autonomy in the candidate selection process.7 By requiring the use of direct primaries, states are able to ensure that the selection of nominees is an open process in which many voters can participate.8 The Supreme Court has recognized the right of state governments to pass legislation regulating and structuring the primary election process.9 Since political parties serve a largely public function, namely, the nomination of candidates for public office, states are permitted to regulate many of their activities. 10
There are some limits, however, on a state's ability to regulate a political party's nomination process. This Comment addresses one such limitation: the right of free association. Political parties, like other private organizations, are protected by the right of free association established in the First Amendment to the Constitution and applied to the states through the Fourteenth Amendment.11 The United States Supreme Court has recently upheld a political party's right of free association in California Democratic Party v. Jones, where the Court invalidated California's blanket primary because it violated the right of free association of the political parties in California.12
This Comment analyzes the Court's decision in Jones and the right of free association as applied to political parties. With this background in mind, the Comment considers Louisiana's blanket primary, which differs from California's in that rather than selecting a nominee from each party to advance to the general election, Louisiana's general election is between the two candidates who receive the largest number of votes in the primary regardless of party affiliation.13 In dicta in Jones, the Supreme Court appears to have exempted the Louisiana version of the blanket primary from the holding that the blanket primary is unconstitutional.14 This Comment considers whether this dicta in Jones correctly evaluates the Louisiana system, and whether the dicta even describes the Louisiana system at all. Ultimately, the Comment concludes that Louisiana's blanket primary is more problematic for the right of free association then the Court suggests. Furthermore, the Court's proposed system would potentially give political parties the opportunity to once again nominate candidates via caucuses or conventions, exactly what the direct primary laws are intended to prevent.
Part II of this Comment discusses the origins of the right of free association and analyzes the application of the right of free association to political parties. …