Following upon on my previous post A Rational Two-Party System?, which was prompted by a N.Y. Times story on one of Ohio’s GOP primaries last week, this post is prompted by a N.Y. Times account of Nebraska’s upcoming GOP gubernatorial primary.
It’s another three-way race that is likely to have a plurality, rather than majority, winner: “Polling in the final days before Tuesday’s vote shows the race is a three-way dead heat.”
This raises the question whether it would be constitutionally permissible, consistent with the First Amendment doctrine reflected in California Democratic Party v. Jones, for a state to require a political party to use a majority-winner rather than plurality-winner procedure to have its winning candidate listed on the state’s general election ballot as the party’s nominee.
I would think that this kind of state law should be considered constitutionally principle under the First Amendment as long as the rule is sufficiently flexible and, most importantly, is tied to the requirements for appearing on the general-election ballot rather than the requirements for being the political party’s officially endorsed choice for the elective office in question. In other words, the state would be saying to the political party: “you can use whatever procedures you want to endorse a candidate, but for purposes of having the party’s endorsement appear on the general election ballot in November, here’s the options you have.”
For purpose of giving a political party maximum flexibility for how it could comply with a majority-winner requirement in order for a candidate to appear on the general-election ballot as the party’s officially endorsed nominee, I can imagine offering the party three options: (1) use ranked-choice voting, which the state makes available as part of the state-operated primary election; (2) use a conventional second-round runoff election, which the state is also willing to make available at the state’s expense; or (3) bypass the state’s run primary election as the method of determining which candidate wins the party’s nomination, as long as the party’s own procedure requires the winning candidate to receive a majority of votes from whatever body, like the state party’s central committee or nominating convention, is authorized to make this choice.
I would imagine a political party would want to exercise this kind of majority-based control over which candidate gets its coveted official endorsement as the party’s nominee, rather than permitting its nominee to be selected in a fractured plurality-based determination of the kind we are seeing this year (in Ohio, Nebraska, and likely elsewhere as well). But even if a political party did not willingly embrace this kind of majority-winner requirement, I would think it is (or at least should be) consistent with the interpretation of the First Amendment as reflected in California Democratic Party v. Jones that compliance with this kind of multi-option majority-winner requirement is what the state requires solely for purpose of a party’s nomination of a candidate appearing next to the candidate’s name on the state’s general-election ballot.
If others have different views on this First Amendment issue in light of California Democratic Party v. Jones and related precedents, I would welcome hearing those views.