In the United States of America, an open primary is a primary election in which voters do not need to be a member of a particular political party in order to vote for partisan candidates in the primary election. The earliest Open Primaries in the United States were held in Nebraska and Wisconsin . There are two general categories in the United States -- partisan and non-partisan. In the Wisconsin (non-partisan) model, voters were permitted to vote for candidates of any political party, in any race, regardless of party affiliation. This version of the open primary was recently found Constitutional by the US Supreme Court. . In the Nebraska(partisan) model, voters were restricted to one and only one party ballot. Current partisan versions of the open primary are held in Virginia and other states.
The open primary could be seen as good for voter participation. First, the open primary allows nonpartisan or independent voters to participate in the nominating process. If these voters are allowed to help select the nominees then they may be more likely to vote in the general election, since one of the candidates could be someone the non-partisan voter voted for. Also, a moderate member of one party may agree more with a candidate for the nomination of another party. This voter will have more of an incentive to participate in the general election if there is a nominee whom he or she agrees with.
The open primary could also be viewed as bad for voter participation. Statistics show that voter participation in the United States was higher when people could only vote in the primary for their own party. In Hawaii, primary voter turnout fell from 74.6% in 1978 to 42.2% in 2006 after changing to open primaries. The closed primary system had more of an incentive for people to join one of the major parties. This led to people being more involved in the voting process. With the open primary, some argue, more voters become independent and are less likely to participate in the nominating or election processes.
Opponents of the open primary believe that the open primary leaves the party nominations vulnerable to manipulation and dilution. First, one party could organize its voters to vote in the other party's primary and choose the candidate that they most agree with or that they think their party could most easily defeat. Secondly, in the open primary moderates and independent voters can vote in either party. This occurrence may dilute the vote of a particular party and lead to a nominee who does not represent the views of his particular party.
For example, in the 2008 presidential primaries, exit polls say John McCain failed to win a single race among registered Republican voters, up to Super Tuesday, yet during that same period he went from also-ran to front runner, because most non-Republicans who crossed over voted for him. In New Hampshire, Mit Romney won among registered Republicans, but John McCain won overall Likewise, in South Carolina, Mike Huckabee won among registered Republicans, but John McCain won the state
Similarly, some Republican advocates called for Republicans to cross over and vote in the Democratic race, to help Hillary Clinton win, on the premise that Obama had a better chance of beating their candidate. The Rush Limbaugh Show's "Operation Chaos" is the best known of these movements.
Freedom of association has been recognized by the United States Supreme Court. First, in NAACP v. Alabama, the court said that “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fifth and Fourteenth Amendment, which embraces freedom of speech.”
In other words, the freedom of association is part of the freedom of speech. The freedom of speech, which is found in the First Amendment to the United States Constitution, is applied to the states through the fourteenth amendment. In Gitlow v. New York, Justice Sanford states that “[f]or present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
This constitutionality raises a problem. The most popular alternative to the open primary is the closed primary. However, the closed primary can also be construed as unconstitutional. In Tashjian v. Republican Party of Connecticut, the United States Supreme Court determined that Connecticut’s closed primary law was unconstitutional. The Connecticut closed primary law “[required] voters in any political party primary to be registered members of that party.” The Republican Party of Connecticut, however, wanted to allow independents to vote in the Republican primary if they so chose. The problem with this closed primary law was that it prevented the Republican Party from allowing independent “registered voters not affiliated with any party-to vote in Republican primaries for federal and statewide offices.” Since the Republican Party of Connecticut was not able to choose who it wanted to vote in the primary, the United States Supreme Court, in a 6-3 decision, stated that the closed primary law in Connecticut “impermissibly burdens the right of the Party and its members protected by the First and Fourteenth Amendments.”
On 1 October 2007, the U.S. Court of Appeals for the Fourth Circuit ruled that the Virginia open primary statute was unconstitutional as applied to the Republicans because it imposed a burden on their freedom to associate under the First Amendment.
A third alternative is the "modified closed primary", as has been in effect in California since 2001. In California's primary, each political party may decide whether or not they wish to allow unaffiliated voters to vote in their party's primary. This appears to avoid the constitutional flaws of both the "open" and the "closed" primary as discussed above. In the 2004 and 2006 primary elections, the Republican, Democratic, and American Independent parties all opted to allow unaffiliated voters to request their party's ballot. However, for the 2008 presidential primary election, only the Democratic and American Independent parties took this option, while the Republican party did not.
A similar system, known as a nonpartisan blanket primary has been used in Louisiana for state and local elections since 1976, and began to be used in Washington, after numerous court challenges, in 2008.