The Ninth Circuit has decided Arizona Libertarian Party v. Bayless. At issue is the constitutionality of Arizona’s primary system in which “voters who are unaffiliated, registered as independents or geistered as members of parties that are not on the primary ballot may vote in the party primary of their choice.” The Libertarian Party argued that the law violated its constitutional rights under a string of Supreme Court cases, most recently California Democratic Party v. Jones. In Jones, the Supreme Court held that California’s blanket primary (in which any voter could vote in any primary election for each office) violated the constitutional rights of the parties who objected to it. The Court left open the question whether this would apply to the open primary or other primary forms, but (as I and others have argued), the logic seems to apply to any form of primary.
In the new Ninth Circuit case, the court held that the Arizona system was unconstitutional as to choosing party officials, but the court remanded for further consideration of the larger issue as to the selection of candidates for regular elected office.
Here is the relevant analysis:
- The district court also erred in failing to consider separately whether the participation of nonmembers in the selection of candidates is constitutional under California Democratic Party v. Jones. See 530 U.S. 567. Although forcing the Libertarians to open their primary to nonmembers for the selection of party candidates raises serious constitutional concerns, we conclude that the resolution of the constitutional issue turns on factual questions not decided by the district court. We therefore remand so that the district court may consider the severity of the burden this aspect of the primary system imposes on the Libertarian Party