My recent post on the nascent political party Forward got me to thinking of the nature of political parties in our country. Although the existence of political parties could hardly have been a surprise to the framers, the Constitution does not expressly provide for them; they are extra-constitutional.((A digression on nomenclature. Without claiming to have coined the term, I have decided that extra-constitutional best describes a political institution for which the Constitution does not provide but which is not inconsistent with it. Other terms I considered were nonconstitutional and aconstitutional. I would use meta-constitutional to describe the nature of constitutions.
The term constitutional can be used in two similar, but distinct, senses. First, and most commonly, as the opposite of unconstitutional which connotes “contrary to;” and secondly as “based upon.”))
Fundamentally then, a political party is a more or less organized group of people seeking the election of candidates to public office under the party’s name. As such, political parties require no more legal recognition than any other private group. But in most states, some political parties are accorded a degree of recognition, most significantly in the form of a place on the general election ballot for the party’s nominees for public office.
In New Jersey such recognized political parties select their nominees by means of a partisan primary election. The members of the party (that is, those voters who have chosen to “affiliate” with the party by asking for that party’s ballot at the primary) choose the candidates who will run under the party name in the general election. (An alternative system, and what I believe Forward is advocating, is the use of primary elections to winnow the candidate field but not to award the party label to the winners, a non-partisan primary.) In addition to the party nominees the general election ballot will include independent candidates.
There is no inherent reason why a political party has to choose its candidates in this fashion; the party could hold a convention or authorize some committee to make the choice in the allegorical “smoke-filled room.”
Some years ago the idea was going around that the nominating process resulted in candidates who were considered to be on the “extreme” (that means bad) side of the party–I guess they were too partisan, so these people advocated open primaries, that is, a primary where anyone could choose to participate, whether affiliated with, or completely opposed to, the party’s principles. This was called an “open” primary. The constitutionality of such an open primary is tricky. In California Democratic Party v. Jones, 530 U.S. 567 (2000), a 7-2 majority held that California blanket primary system was an unconstitutional infringement on the rights of political parties’ to associate, while in Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), a somewhat different 7-2 majority upheld a “modified blanket primary” system.
Jay Bohn
August 18, 2022