For a state that claims to lead the nation in voter rights, California’s presidential primary rules are a study in hypocrisy.

The California Constitution requires that all elections for partisan office be conducted in open nonpartisan primaries with the top two vote getters advancing to the general election. California’s presidential primary rules, however, are different. This is because, unlike races for governor, the legislature, and Congress, presidential primary voters are not selecting actual nominees.

In fact, even a first-place candidate in a California primary might not make the cut at the political party’s convention. Instead, voters are selecting delegates pledged to vote for a particular candidate.

Political parties have jealously guarded their “private right” to dictate who can and cannot have their votes counted in their “private” nomination process. In California, the Republican Party allows only registered Republicans to vote in the Republican presidential primary. The Democratic Party allows both registered Democrats and nonpartisan voters.

However, the rules adopted by California require that these nonpartisan voters make a separate “request” for a Democratic ballot to exercise this right.

This requirement caused widespread confusion in both 2016 and 2020 and will continue to cause problems again in 2024 unless California abandons this burdensome, expensive, and discriminatory practice. 

The fact that the requirement for requesting a party ballot negatively affects turnout, political discourse, and faith in the electoral process is well-documented. It has been criticized by candidates, election officials, and in particular, has confused nonpartisan voters.

The California Independent Voter Project filed a lawsuit on behalf of these voters. A state appellate court issued an opinion rejecting the IVP suit. The decision sidestepped the fundamental issue at stake; namely, a voter’s constitutional right to equal and meaningful access to the ballot box.

What the IVP plaintiff asked: Do voters, including no party preference voters, have an equal right to participate in a state-funded presidential primary? And, more specifically, are No Party Preference (NPP) voters already deemed eligible by a political party or parties to have their votes counted toward delegate selection entitled to the same ballot access protections as other voters?

What the Court answered: Do California voters who do not register with a major political party have the right to vote in a that primary? 

The distinction is both simple and important. The second question has to do with whether a private political party may exclude voters from their delegate selection process. For better or worse, the answer to that question is clearly “yes”.

The question IVP put in front of the court was whether an election scheme, developed and executed with public dollars, could exclude voters, or unnecessarily impair voter access to the ballot box when one or more political parties has deemed those voters to be eligible to participate in their delegate selection process.

The Court’s unpublished opinion simply ignores the question asked by the plaintiffs and restates the private right of association arguments established by the U.S. Supreme Court in California Democratic Party v. Jones.

Arguments, not only not contested, but actively embraced by the plaintiffs.

The Court asked that their holding not be published. In other words, the Court’s opinion cannot be looked to, cited, or otherwise relied upon in any other case. But their decision should concern us all.

Why discriminate so blatantly against the nearly 5 million voters in California who, according to Democratic (and other third party) rules are fully eligible to vote? Particularly when there are multiple alternative approaches that respect each political party’s private rights without infringing on the individual rights of eligible nonpartisan voters. Each of these options would eliminate universally-recognized voter confusion, increase voter turnout, and save taxpayers money.

Instead of addressing this key issue, the Court reframed the plaintiffs’ argument to twist the question presented to be one about the associational rights of political parties in primary elections. The court writes:

"In this case, we reject the plaintiffs’ assertion of a novel and peculiar constitutional right to vote in the presidential primary of a political party they have chosen not to join—without having their votes count for anything other than their expressive value."

A strange ruling indeed when the plaintiffs made it clear in multiple court documents that they were not challenging the parties’ right to exclude nonmembers from their nominating processes. The plaintiffs argued:

“… it is entirely possible for the State to administer a presidential-primary system that protects the rights of both political parties and individual voters.”

In a separate motion, plaintiffs explicitly state:

“Defendants spend considerable time discussing the associational rights of the political parties. [...] However, the existence of the associational rights of the private political parties is inapposite in this case. Those rights, as articulated in California Democratic Party v. Jones, 530 U.S. 567 (2000) ("Jones"), are not contested or at issue here and would not be affected by the relief requested.”

The consequence of the state’s convoluted system is a presidential primary that is both expensive and unfair to voters who do not choose to join a private organization. Unnecessary barriers make the process cumbersome and difficult to navigate for nearly 5 million No Party Preference voters even when, by private action, a political party (or parties) expressly allow their participation.

And, while the private political parties conduct their private nomination process at 100% public expense, no provision is made for nonpartisan voters to participate, with or without their voter preference being reflected in a delegate selection process.

Amongst the remedies offered by IVP is the "Public Ballot": A simple ballot provided to NPP voters (or for all voters). This ballot would include all political party candidate choices and a clear disclosure of which political parties will count the ballot toward delegate selection and which will not.

Just as today, each political party determines and discloses on the ballot whether that party will count the NPP votes in their delegate selection process. The voter may only vote for one candidate. Simple. Fair. And, easy.

The Court appears to address this option in its opinion stating that “when plaintiffs discuss a ‘right’ to cast an expressive ballot simply for the sake of doing so, rather than to affect the outcome of an election, they have ceased talking about voting.” 

Unfortunately, the Court either does not understand the current primary system or misconstrued the "Public Ballot" option. Every ballot cast in a primary election is “expressive”. In fact, even the party delegates selected have only tangential obligations to vote for the candidates listed on the ballot under party rules. These are rules that are adopted only AFTER the party delegates convene months following the election.

The primary election itself is, by definition, “expressive”. In fact, some states have primaries that have no connection at all to the actual delegate selection which occurs in caucuses. But these public votes are nevertheless “meaningful,” closely followed, and have very real impact upon the ultimate selection of candidates.

These are publicly-funded and publicly-administered elections. Elections that are discussed, analyzed, and nationally influential. Excluding the very voters that routinely tip the balance in general elections from the primary process distorts the results, the process, and ultimately destabilizes our democracy.

In fairness, the Court operates in the backdrop of a system dominated by two political parties with dramatically shrinking membership and waning public confidence. Both major parties increasingly rely upon tactics that are consciously designed to polarize the electorate as more and more voters abandon them in frustration.

Sometimes it’s surprisingly difficult to see a simple tree when you are tangled in the burning forest. The Independent Voter Project will appeal.