Resurrecting the White Primary

Authors

Ellen D. Katz, University of Michigan Law SchoolFollow

Document Type

Article

Publication Date

1-2004

Abstract

An unprecedented number of noncompetitive or "safe" electoral districts operate in the United States today. Noncompetitive districts elect officials with more extreme political views and foster more polarized legislatures than do competitive districts. More fundamentally, they inhibit meaningful political participation. That is because participating in an election that is decided before it begins is an empty exercise. Voting in a competitive election is not, even though a single vote will virtually never decide the outcome. What a competitive election offers to each voter is the opportunity to be the coveted swing voter, the one whose support candidates most seek, the one for whom they modify policy proposals and offer the political spoils that generate loyalty. Simply put, a competitive election offers every voter the potential to be this year's "NASCAR Dad. In safe electoral districts, candidates compete for votes, if at all, only in the majority party's primary. Such primaries accordingly function as the only juncture for meaningful political participation in these jurisdictions. Current law nevertheless permits the exclusion of a sizeable minority of the district's electorate from participating at this pivotal point. The Supreme Court has recently reinvigorated a political party's associational right to exclude nonmembers from participating in the party's primary. This right itself is not novel, as a generation's worth of precedent celebrates the associational rights of political parties to define racially inclusive membership qualifications. What is new is the Court's insistence that this associational right trumps the participatory interests of nonmembers even when the primary reliably determines the ultimate victor in the general election. This rule repudiates what this Article argues is the core holding of the White Primary Cases, namely that the Constitution requires that all voters have access to a jurisdiction's sole juncture of meaningful electoral decision making.

Recommended Citation

Katz, Ellen D. "Resurrecting the White Primary." U. Pa. L. Rev. 153, no. 1 (2004): 325-92.