By Daniel Horwitz:
It’s election season! In addition to junk mail and jingles, if there’s anything that’s absolutely guaranteed to take place in Tennessee this time of year, it’s an unresolved dispute over whether or not it’s illegal to vote in another party’s primary election. So is it?
According to the Bernie Sanders campaign, whether you’re a Democrat or not, voting in the Democratic primary is legal. “Tennessee has open primaries. Tennesseans can vote for Bernie Sanders regardless of their registered party,” his website declares. In sharp contrast, however, during several past election cycles, others have taken a markedly different view. In May 2014, for example, Maury County’s Election Commission formally censured one of its Democratic members for voting in the local Republican Primary. “Contrary to many public pronouncements by various people, a party primary is not open to anyone to come and essentially make a mockery of the process,” proclaimed Commission member Jason Whatley. “People who disagree with that are disagreeing with the law and they’re demonstrating a gross misunderstanding of what the law says.”[1]
Despite protestations from many in Commissioner Whatley’s camp, however, the reality of Tennessee law is quite different. Specifically, unless your party membership has been formally challenged under an obscure procedure that is virtually never utilized, voting in the primary election of a party with which you are not typically affiliated is not illegal at all. The reasons why, however, require considerable explanation.
In the election law world, the practice of voting in the primary election of a party with which a voter is not traditionally affiliated is known as “crossover voting.” Alternately considered insidious or a laudable expansion of democracy depending on who is benefiting from it, voters frequently engage in crossover voting for any number of reasons. For example, a Republican voter might be so disgusted with her party’s candidates in a particular election that she decides to affiliate with the Democratic Party for a single election cycle instead. Other voters—particularly those who live in highly gerrymandered districts—might vote in an opposing party’s primary in order to exert meaningful influence (called “hedging”) in the ultimate selection of their representatives, given that the winner of the opposing party’s primary is likely—or, in many cases, guaranteed—to win the general election down the road.[2] Alternatively, a Democratic voter might try to bolster his party’s chances of winning a general election by crossing over and voting for a weak Republican primary candidate who is comparatively less likely to prevail against his Democratic candidate of choice—a tactic known as “raiding.”[3]
With respect to this latter tactic, it’s worth noting that supporters of both parties have a rich history of organizing “crossover raiding” drives in an attempt to sabotage their opponents’ chances of winning a general election victory. In 2012, for example, in an effort to bolster Rick Santorum’s chances of becoming the Republican nominee for President over Mitt Romney, liberal activist Markos Moulitsas generated national media attention by encouraging Democrats to crossover to the Republican Primary and vote for Santorum.[4] Similarly, in 2008, conservative talk radio host Rush Limbaugh encouraged Republicans to crossover and vote for Hillary Clinton in their respective states’ Democratic primaries when then-Senator Barack Obama began surging ahead in the polls.[5] Although neither of these efforts turned out to be effective, successful crossover raiding has been blamed for primary victories of candidates in any number of elections, including Presidential primary victories in Michigan by George Wallace, Jesse Jackson and John McCain.[6] A successful crossover voting campaign was also given credit, in part, for the controversial 2008 primary victory of former Tennessee State Senator Rosalind Kurita over challenger Tim Barnes,[7] which was ultimately vacated under internal party procedures by the Tennessee Democratic Party.[8]
Unsurprisingly, in the roughly fifteen states where voters are not required to declare their party affiliation in order to vote in a particular party’s primary, crossover voting is simple, and it is unquestionably legal. To crossover, a voter in such an “open primary” state need only show up on election day and ask to vote in her primary of choice. The voter will then be given the opportunity to cast her vote in that party’s primary with no questions asked.
In other states, however, voters are prevented (or, at least, hindered) from engaging in crossover voting because the states hold “closed primaries.” In closed primaries, only voters who are expressly affiliated with a particular party may vote in that party’s primary elections. In several jurisdictions—Kentucky, for example—this affiliation requirement effectively eliminates crossover voting because in order to vote in a party’s primary, a voter must be pre-registered with the party long before voting begins.[9] In other closed primary states, however—Iowa, for instance—the affiliation requirement is effectively meaningless, because voters are permitted to change their party affiliation up until and even on election day itself.[10]
Tennessee falls into the latter category—a technically closed primary state, but one in which the party affiliation requirement exists only in theory. To start, Tennessee law does not impose any registration requirement on voters whatsoever. In fact, there is no such thing as party registration in Tennessee. Instead, the only affiliation requirement contained in Tennessee law is found in Tenn. Code Ann. § 2-7-115(b), which provides that:
“A registered voter is entitled to vote in a primary election . . . if:
(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or
(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.”
“A bona fide member” of a political party? “Declares allegiance”? What do these things even mean? Additionally, who decides whether someone is a bona fide member of a political party or not? And how are these requirements even enforced, anyway?
The broad answer to each of these questions is that it’s entirely up to the parties themselves. Political parties are private organizations. Accordingly, they enjoy an unquestioned First Amendment right to decide their own membership criteria and to exclude or include anyone they see fit. See, e.g., Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1188 (2008) (“a party’s right to exclude is central to its freedom of association.”); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981) (“the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.”) (internal quotation omitted); California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (“our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer . . . .”) (internal quotations and alterations omitted). As such, the definition of a “bona fide” member of a particular political party is left exclusively to political parties themselves.[11]
Notably, given this framework, it is also possible to be a bona fide member of both the Democratic Party and the Republican Party (or any other political party) at the same time. In fact, although Tennessee law prohibits candidates from appearing on the ballot under two separate parties, history offers multiple examples of the same candidate being selected as the nominee of more than one party in the same election—a practice known as “electoral fusion.” For example, in 1946, future U.S. Supreme Court Justice Earl Warren—who was then the incumbent Governor of California—became the only gubernatorial candidate in California’s history to win both the Republican and Democratic nominations for the state’s governorship.[12] As such, the fact that a person is considered a “bona fide” Republican by the Tennessee Republican Party does not necessarily foreclose that person from being considered a “bona fide” Democrat by the Tennessee Democratic Party as well. For precisely the same reason, there would be nothing untoward about a traditionally Republican voter seeking to vote in the Conservative Party’s primary, or a traditionally Democratic voter seeking to vote in the Green Party’s primary.
It is for these reasons that several public officials have erred so substantially in concluding that an individual who traditionally affiliates with one party cannot lawfully attempt to affiliate with another by voting in its primary.[13] For one thing, public officials have absolutely no authority to determine party membership—only parties do. For another, affiliating with one political party does not categorically preclude a voter from affiliating with another, since political parties are not necessarily incompatible with one another. All contrary conclusions reflect a fundamental misunderstanding of the First Amendment as it applies to political parties’ freedom of association.
Enforcement of Bona Fide Party Membership
As noted, however, the Supreme Court has recognized that the First Amendment’s right to freedom of association affords political parties the right to exclude voters from voting in their primaries as well. See, e.g., La Follette, 450 U.S. at 122 (“the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party’s essential functions—and [] political parties may accordingly protect themselves from intrusion by those with adverse political principles.”) (internal quotation omitted). Accordingly, any political party is well within its rights to exclude a voter from its membership, thus rendering the voter ineligible to participate in the party’s primary.
Under Tennessee law, however, the only mechanism for enforcing political parties’ right to exclude voters from participating in their primaries is found in Tenn. Code Ann. § 2-7-126, which provides that:
“A person offering to vote in a primary may . . . be challenged on the ground that the person is not qualified under § 2-7-115(b). Such a challenge shall be disposed of under the procedure of §§ 2-7-123 — 2-7-125 by the judge or judges and the other election officials of the party in whose primary the voter applied to vote, with a total of three (3) to decide the challenge.”
In turn, the highly complicated (and practically useless[14]) procedure found in §§ 2-7-123 — 2-7-125 provides that:
“If any person’s right to vote is challenged by any other person present at the polling place, the judges shall present the challenge to the person and decide the challenge after administering the following oath to the challenged voter: “I swear (affirm) that I will give true answers to questions asked about my right to vote in the election I have applied to vote in.” A person who refuses to take the oath may not vote.
. . . .
The judges may ask any question which is material to deciding the challenge and may put under oath and ask questions of such persons as they deem necessary to their decision. The judges shall ask the administrator of elections to check the original permanent registration records if the voter claims to be registered but has no duplicate permanent registration record.
. . . .
(a) If the judges determine unanimously that the person is not entitled to vote, the person shall vote by paper ballot and the person’s ballot shall be deposited in a sealed envelope marked “Rejected” with the person’s name, the reason for rejection, and the signatures of the judges written on it.
(b) If the judges do not agree unanimously to rejection, the person shall be permitted to vote as if unchallenged.”
Thus, in order to prevent a prospective voter from voting in a party’s primary, the voter must:
- Be recognized by a Party “challenger” before casting a vote;
- Be challenged on the spot; and
- Have that challenge adjudicated unanimously by three previously-appointed Party judges.[15]
Then—but only then—could it conceivably become illegal for a voter to attempt to vote in a particular party’s primary.[16] For obvious reasons, however—namely, that it is impossible and economically infeasible to carry out party purity challenges across the state in primary elections during which several hundred thousand (or more) votes are often cast—this process simply does not occur in nature. As such, in practice, nothing prevents a traditionally Democratic voter from voting in the Republican Party’s primary or vice versa. Under Tennessee law, such a practice—whether pursued for nefarious reasons or otherwise—is perfectly legal unless and until the voter’s right to participate has specifically been challenged by a party official and formally adjudicated against her.
Questions about this article? Email Daniel Horwitz at [email protected].
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[1] This particular incident also prompted State Election Coordinator Mark Goins to send a threatening letter – illegally, in the author’s view – to all 475 county Election Commissioners indicating that “they will be subject to removal by the State Election Commission” if they vote in another party’s primary. See Andy Sher, Tennessee’s county election commissioners can only vote in their party’s primary, Times Free Press (Jul. 28, 2014), http://www.timesfreepress.com/news/local/story/2014/jul/28/county-election-commissioners-can-only-vote-in/262916/. At the time, at least one attorney spoke out against the policy to note – correctly, in the author’s view – that such a threat violated the First Amendment. Id. (“the state’s new directive is already coming under fire from Chattanooga attorney Jerry Summers, a Democratic member on the Hamilton County Election Commission. Summers said Saturday in an interview that he doesn’t believe the state’s order passes muster under federal guarantees of free speech and assembly under the U.S. Constitution.”).
[2] See, e.g., Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (“In northeast Tennessee, Republicans are all but guaranteed a victory come November, meaning that it is very often the case that the primary election is, for all intents and purposes, “the race,” as Lt. Governor Ramsey himself noted when asked for his stance on the primary question. For that reason, liberal voters who want to actually have some say in the election may do well to cross over in late summer to nominate a Republican candidate whose views align closer to their own.”).
[3] See, e.g., Seok-ju Cho and Insun Kang, Open primaries and crossover voting, Journal of Theoretical Politics (2014).
[4] Joseph B. White, Michigan: Inviting Crossover Voting?, The Wall Street Journal (Feb. 23, 2012), available at http://blogs.wsj.com/washwire/2012/02/23/michigan-inviting-crossover-voting.
[5] Aaron Blake, Michigan Democratic Party encourages crossover voting in GOP presidential primary, The Washington Post (Feb. 22, 2012), available at https://www.washingtonpost.com/blogs/the-fix/post/michigan-democratic-party-encourages-crossover-voting-in-gop-presidential-primary/2012/02/22/gIQA1qjoTR_print.html.
[6] Id.
[7] Jeff Woods, Devil Woman: Scorned by her own political party, Rosalind Kurita is defiant and determined, The Nashville Scene (Oct. 23, 2008), http://www.nashvillescene.com/nashville/devil-woman/Content?oid=1198631 (“Barnes contested the results, charging essentially that Republicans commandeered the Democratic primary by organizing a crossover campaign”); David J. Luciano, The flip side of the 9/13 Kurita/Barnes Executive Committee hearing, Clarksville Online (Sep. 17, 2008), http://www.clarksvilleonline.com/2008/09/17/the-flip-side-of-the-913-kuritabarnes-executive-committee-hearing/ (“It was proven that a significant [sic] higher number of voters who historically vote in Republican primaries switched over to vote in the Democratic primary in this election. The suggestion is that Rosalind Kurita used her ties to Ron Ramsey, who had pledged openly to “help her in any way [he] could” to turn out Republican voters to vote for her in an attempt to maintain Republican leadership of the Senate.”).
[8] See Kurita v. State Primary Bd. of Tennessee Democratic Party, 2008 WL 4601574 (M.D. Tenn. Oct. 14, 2008) aff’d, 472 F. App’x 398 (6th Cir. 2012).
[9] Ky. Rev. Stat. Ann. § 116.055 (“Before a person shall be qualified to vote in a primary election, he shall possess all the qualifications required of voters in a regular election. In addition, he shall be a registered member of the party in whose primary election he seeks to vote, and shall have been registered as a member of that party on December 31 immediately preceding the primary election, or, in the case of new registrations made after December 31 immediately preceding the primary election, he shall have registered and remained registered as a member of that party. No person shall be allowed to vote for any party candidates or slates of candidates other than that of the party of which he is a registered member. The qualifications shall be determined as of the date of the primary, without regard to the qualifications or disqualifications as they may exist at the succeeding regular election, except that minors seventeen (17) years of age who will become eighteen (18) years of age on or before the day of the regular election shall be entitled to vote in the primary if otherwise qualified. However, any registered voter, whether registered as a member of a party, political organization, political group, or as an independent, shall be qualified to vote in primary elections for candidates listed in all nonpartisan races.”)
[10] Iowa Code Ann. § 43.42 (“Any registered voter may change or declare a party affiliation at the polls on election day and shall be entitled to vote at any primary election. Each voter doing so shall indicate the voter’s change or declaration of party affiliation on the voter’s declaration of eligibility affidavit.”).
[11] The Tennessee Democratic Party’s bylaws do not define a “bona fide” member, and they do not establish any affiliations requirements for prospective voters at all. However, the TNDP’s bylaws do expressly allow party members to bring a challenge to a candidate’s status as a bona fide Democrat on the basis that the candidate has “fail[ed] to vote in at least three of the immediate prior five Democratic primaries[.]” See Bylaws of the Tennessee Democratic Executive Committee 2010, Article III, Section 2(l) (“In the event that a county party, in compliance with its Bylaws, challenges a candidate for any office be it local, county, state or federal, against appearing on the ballot as a Democrat for failing to vote in at least three of the immediate prior five Democratic primaries, the challenge shall be referred to the County Party Development Committee which shall by a simple majority vote of the members make a recommendation to the State Party Chair.”) Similarly, the Tennessee Republican Party’s bylaws do not establish specific bona fide membership requirements for voters, but do include flexible affiliation standards for establishing the bona fide status of prospective Republican candidates. See Bylaws of the Tennessee Republican Party, Article IX, Section 1-2.
[12] Richard Rodda, The not-always-accurate memoirs of Earl Warren, California Journal 378 (Nov. 1977), available at http://www.unz.org/Pub/CalJournal-1977nov-00378.
[13] Of course, Tennessee law requires voters to choose a single party with which to affiliate in each election. See Tenn. Code Ann. § 2-19-107 (“A person commits a Class D felony who: . . . (2) Votes in the primary elections of more than one (1) political party on the same day.”).
[14] See Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959, 1004 (M.D. Tenn. 2012) (“[A]t the time of voting, the voter can simply declare affiliation with the party to vote in [a Party’s] primary election. Although a challenge to such a declaration is permitted under Tennessee law, given [Parties’] limited support and resources, . . . prospects for realistic challenges across the State at the time of the primary voting would be, at best, nominal.”); rev’d and remanded on mootness grounds, Green Party of Tennessee v. Hargett, 700 F.3d 816 (6th Cir. 2012). See also Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (observing that “election officials rarely enforce [the affiliation requirement] at the polls as it is not something they are prepared to deal with.”).
[15] Tenn. Code Ann. §§ 2-7-123 – 2-7-125.
[16] Tenn. Code Ann. § 2-19-107 provides that: “A person commits a Class D felony who: (1) Intentionally and knowing that such person is not entitled to, registers or votes in any manner or attempts to register or vote in any manner where or when such person is not entitled to under this title, including voting more than once in the same election.”