Can the Political Parties Constitutionally Behave So Undemocratically? Why Yes, Yes They Can.

Professor Brendan BeeryBlog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery simplifies the complicated process for electing presidential nominees by the two major parties. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.

I have been asked more than once about the process for electing presidential nominees by the two major parties, Republicans and Democrats. Many are appalled that the process could be so undemocratic: indeed, it is possible that a political party could nominate a candidate who has lost both the popular vote within the party and the elected (or earned) delegates.  Both parties have rules that allow for multiple ballots that could result in the selection of a nominee who has less than the plurality of votes, and both parties also allow for delegates (especially “superdelagates”) to make their own decisions in certain circumstances.

Law books about the Constitution overflow with cases proclaiming the principle of “one person, one vote.” Indeed, in the 2000 case of Bush v Gore, the Supreme Court ruled that the Florida presidential recount had to stop because some counties were counting votes one way (by counting, for example, “hanging chads”) while other counties were counting votes another way (by counting, for example, “dimpled chads”). In a country where courts are that stingy about the one-person-one-vote principle, how is it possible that a candidate who receives 10 percent, 20 percent, or even 30 percent of the votes in a state primary election can receive no delegates from that state rather than the 10 percent, 20 percent, or 30 percent that he or she seems to have earned?

The simple answer is that the Democratic and Republican parties, unlike local or county governments, state governments, or the federal government, are private actors. The political parties, although they are tangled up with the government, are not governmental entities (or what lawyers usually call “state actors”). Political parties are better thought of as being akin to the Girl Scouts or the Jaycees: private clubs that play a public role.

The U.S. Constitution does not apply to private corporations, organizations, clubs, or political parties; it restrains only state and federal governments. The principle of one person, one vote is an equal-protection principle derived from the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Therefore, it is a principle that applies only to governments, not political parties (which, again, are not restrained by constitutional rules). So unlike governments that must comply with the one-person-one-vote principle, political parties may create whatever mechanisms they see fit for selecting candidates for office.

But as a discerning former student recently pointed out while asking me about this issue, federal courts have sometimes treated political parties as state actors even though they are technically private organizations.  In two cases, Smith v Allwright (1944) and Terry v Adams (1953), the Supreme Court ruled that the Democratic Party in Texas and then the Jaybird Party (a subgroup within the Democratic Party in Texas) violated the Equal Protection Clause of the U.S. Constitution’s 14th Amendment by discriminating against African Americans in their primary and pre-primary elections. In both cases, the Court reasoned that the political parties, although technically private, were so integral to selecting the government and then governing that they should be treated as state actors even though they weren’t.

If the Supreme Court treated political parties as state actors in those cases, then why can political parties get away with so flagrantly violating the one-person-one-vote principle contained in the Equal Protection Clause? The answer to that question lies in the cause of action. In Smith and Terry, the allegations were that the political parties in question were discriminating on the basis of ethnicity. Under the Equal Protection Clause, five groups are considered “suspect classifications” against whom discriminatory laws cannot stand without surviving exacting scrutiny: race, ethnicity, alienage, gender, and illegitimacy. Because the challengers to the Democrats in Smith and the Jaybirds in Terry alleged racial and ethnic discrimination, the Supreme Court found it necessary to decide whether such discrimination, which would have been unconstitutional were a government to have undertaken it, should also constitute a constitutional Equal Protection violation as applied to private political parties. The Court held that it did constitute a constitutional violation because those political parties, although not themselves the government, had so much power as to who would become the government.

The problem with any challenge to the modern-day mischief among the two political parties would be the failure of any challenger to allege a constitutional violation in the first place; a court will not hold that a private political party is a state actor in the absence of a constitutional claim because, to repeat, the Constitution is only addressed to state actors and only state actors can violate the Constitution. And unless there is some claim of purposeful discrimination on the basis of race, ethnicity, alienage, gender, or illegitimacy, there is no Equal-Protection (which is to say constitutional) claim.

The Supreme Court has held that an issue like partisan gerrymandering, even when undertaken by states, constitutes a non-justiciable political question that falls outside the purview of courts because it does not involve a suspect classification under the Equal Protection Clause. So political shenanigans by private political parties, absent some claim akin to racial or gender discrimination, will have to be resolved by the political parties themselves, not by courts.

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