The Montana Republican Party claims a First Amendment right to associate in a closed primary election where only registered Republican voters are allowed to cast a ballot. The Republicans can holler all they want, but if they don’t put it in writing – they have no such right. The U.S. Supreme Court said that political parties have a constitutionally protected right of political association under the First Amendment when the party states its associative rights in its rules [450 U.S. 107, 122(1981)].
So what do the Republican Party rules say? Right off the bat, the second sentence says that party rules “govern when not in conflict with state law.” State law requires an open primary conducted by the secretary of state and paid for by Montana taxpayers. The primary election does not belong to the political parties. Montana voters created the open primary in 1912 and next year, the primary will be open to all registered voters.
Why am I so sure? Because the 2015 Legislature didn’t pass a bill to close the primary. They didn’t even do something easy like letting political parties choose whether or not to participate in the open primary. The Republican-controlled Legislature did nothing to implement a closed primary. In fact, it passed a law making it very clear that Republican County Central Committee members can be elected in an open primary.
So, what happens if Republicans actually win their lawsuit? Will legislators squander tax dollars on a special session? And what if a special session fails to pass a closed primary law? The fallback position is a last-minute scramble to call county and statewide Republican conventions. (The Republican Party platform actually endorses this method to select candidates and choose their favorite for president.) It’ll be like deja vu all over again. It was the blatant corruption of corporate-controlled party conventions that spurred 79 percent of Montana voters to pass the Open Primary initiative over 100 years ago.
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