by By Charles McGonigal*
Political parties play strong roles in our government, but they should never be confused with actual parts of the government (e.g., Congress, agencies, officeholders). Current election processes, however, risk encouraging this confusion. State governments run parties’ candidate selection processes (primary elections), and general election ballots list the party affiliation of each candidate. While the actual impact of this entanglement on individual elections is negligible, the implied endorsement undermines the government’s neutrality in elections.
Our country’s founders, anticipating that factions would coalesce into parties, imbued the government itself with checks and balances. The original presidential election process awarded the Vice Presidency to the second-highest recipient of Presidential votes, ensuring that the top of the executive branch would be split between factions.[1] The process of selecting national candidates naturally led to parties as early as 1796, although the modern Republican-Democrat duopoly was not established until Lincoln’s election in 1860.
Progressivism eventually encouraged the parties to allow all members, rather than secret meetings of party elites, to select nominees, but used the government to do so within the framework of the two dominant parties. Today every ballot includes party names – primary ballots are just party documents, and general ballots list party names (or a code like R or D).
State governments should extricate themselves from primaries. In addition to an implied endorsement of parties by running their selection process, the government has to set standards for which groups can make use of this government operation. These standards in effect decide which groups are suitable to produce candidates. The Constitution does not require specific selection processes for candidates, and the primaries serve as an unnecessary official approval to the parties.[2]
General election ballots that indicate party affiliation grant an even stronger imprimatur to the parties as a necessary part of the election process. Nine states even allow straight-ticket voting, which encourages voters to simply vote for a party rather than consider any individual candidates. The bias against new parties is stronger on the general ballot (even without straight-ticket voting) as candidates not belonging to an approved party are labeled Independent. While the Republican and Democrat labels communicate the party’s platform or at least its reputation, the Independent label only communicates nonaffiliation, which means the ballot is offering different levels of candidate information based on party membership. Voters certainly have the right to select candidates based exclusively on party affiliation, and the parties can communicate that affiliation with all of their Citizens United might. The government, however, should remain neutral towards all candidates by not including that affiliation on the ballot itself.
Elections are a state concern, so these changes require either a constitutional amendment or state-by-state statutes. As an amendment seems unlikely from the current federal gridlock, states need to consider how best to maintain the government’s neutrality in the elections that form the basis of American politics. States have been moving away from straight-ticket voting, so there is reason to hope progress can be made at that level in this area as well.
* Charles McGonigal is a 2L at Harvard Law School.
[1] After the in-hindsight-inevitable unsustainability of this system was amply demonstrated by President Adams and Vice President Jefferson, the 12th Amendment separated the elections to consolidate a President’s power over the executive branch.
[2] Although Smith v. Allwright established a 15th Amendment protection against racial discrimination in primary voting, that finding was based on state administration of the primary elections, making the discrimination a state action. Even if the parties or other groups ran primary elections, that protection from discrimination could be enforced just like it is against private employers in the workplace.