Does Arkansas's funding of party primaries change the constitutional analysis of closed primaries that exclude non-members?
Plain-English summary
This opinion is a short follow-up to Ark. AG Op. 2023-030, which had concluded that under A.C.A. § 7-7-307 a political party in Arkansas can set its own rules for who may vote in its primary, including holding a closed primary. Senator Hammer's follow-up question: does it change anything that the state pays for the primary?
No. The conclusions in Op. 2023-030 stand, for two reasons.
First, First Amendment associational rights still cut the same way. A political party has a First Amendment right to choose how to nominate its candidates, including who may vote. Federal courts have routinely upheld closed-primary regimes against challenges from non-party members claiming they have a constitutional right to vote in any party's primary. State funding does not flip that analysis.
Second, the public-purpose doctrine doesn't bar state funding of closed primaries. Arkansas's public-purpose doctrine prohibits state appropriations to private purposes. The argument would be: if a party closes its primary to outsiders, isn't the state using public money for a private purpose? The Arkansas Supreme Court answered no in Moorman v. Pulaski County Democratic Party (1981): primary elections are "part of the state's election machinery," and that machinery serves a public purpose whether the primary is open, closed, or somewhere in between. The U.S. Supreme Court reached the same conclusion in Bullock v. Carter: it is legitimate for taxpayers to bear the costs of both primary and general elections.
The deeper logic is that a primary serves the public not only by letting voters express a preference but by structuring the general election: avoiding "unrestrained factionalism" and keeping the general election ballot from being cluttered with frivolous candidacies. Those are public purposes the state has chosen to pay for, regardless of how each party defines its electorate.
What this means for you
State legislators considering primary structure
If you are weighing whether to authorize closed or semi-closed primaries in Arkansas, this opinion confirms that state funding does not constrain your options. The party can set the rules under existing § 7-7-307, and the state can fund either an open or closed primary as a public purpose. The constitutional risk is on the other side: a state requirement of an open primary in the face of a party's preference for a closed primary can run into the party's First Amendment associational rights (per California Democratic Party v. Jones).
If you want a closed primary, the AG's prior opinion (2023-030) suggests a party rule may be sufficient, but legislation is the cleaner route. Legislation also avoids ambiguity about earlier party-registration deadlines.
Political parties
You have substantial control over your nominating process. You can close your primary to non-members by party rule. You can move to a semi-closed model. You can set party-registration deadlines (though earlier-than-state-deadline rules are cleaner if codified by statute). State funding of your primary does not give the public a right to vote in it.
What you cannot do is structure your nominating process in a way that runs into the Voting Rights Act, federal anti-discrimination law, or the U.S. Constitution's equal-protection clause if applied in a discriminatory way. Closed primaries are constitutional; closed primaries that operate as a racial gatekeeping mechanism are not.
Independent and unaffiliated voters
If a party closes its primary, you do not have a constitutional right to vote in it. Multiple federal courts have rejected exactly that argument. Your remedy is to register with a party (if your state allows late registration), vote in the general election, or organize for legislation that requires open primaries. The First Amendment does not give you access to a party's primary against the party's wishes.
Election commissioners and election officials
When you administer a closed primary that the party has chosen to hold, you are still administering a public election under state election law. The fact that one party has restricted participation does not change the public character of the election. Standard election-administration rules apply: voter rolls, polling locations, ballot security, post-election audits.
Constitutional and election attorneys
Note the Moorman v. Pulaski County Democratic Party analysis: it predates the modern state-funded primary system (which Arkansas adopted in 1995, Acts 1995, No. 901, § 2). At the time of Moorman, parties ran their own primaries and counties contributed to the cost; the Moorman Court upheld county contributions as serving a public purpose. The AG extends that reasoning to fully state-funded primaries, drawing support from Bullock v. Carter. The argument is sound: state funding of an election that is part of the public election machinery serves a public purpose, and the form of the party's voter-eligibility rule does not change that.
Common questions
Did Op. 2023-030 say a party can close its primary by rule alone?
Op. 2023-030 said it was possible under A.C.A. § 7-7-307, but recommended legislation as the cleaner route, especially for early party-registration deadlines. The follow-up here (2023-063) confirms state funding does not change that analysis.
Has the U.S. Supreme Court ever struck down a state's open-primary rule?
Yes. In California Democratic Party v. Jones (2000), the Court struck down California's blanket primary as a violation of the parties' First Amendment associational rights. That case involved a state-mandated open primary, which the parties did not want. The reverse pattern (state-mandated closed primary, party that wants open) generally has not been litigated successfully because parties usually want closed primaries when courts get involved.
What about the public-purpose doctrine in other contexts?
The public-purpose doctrine still applies broadly to public spending. A state cannot, for instance, appropriate public money to a private business with no public benefit. The doctrine just doesn't apply here because primary elections, regardless of voter-eligibility rules, are public election machinery.
If I disagree with a closed primary, what can I do?
Vote in the general election. Or organize for legislation that mandates open or semi-open primaries. Or join the party whose primary matters to you. The constitutional route (a federal lawsuit claiming a right to vote in a closed primary) has been tried and lost.
Does this opinion bind the Arkansas legislature?
No. AG opinions are persuasive authority, not binding precedent. The legislature can disagree and enact different rules. A federal court would also reach its own conclusions if a particular Arkansas statute were challenged. But the AG's analysis follows U.S. Supreme Court and Eighth Circuit precedent closely, so a different conclusion would be hard to sustain.
Background and statutory framework
A.C.A. § 7-7-307 authorizes political parties to set qualifications for participating in their own primary elections. The combination of state-funded election administration plus party-set voter eligibility creates the legal question this opinion addresses.
The Arkansas public-purpose doctrine derives from due process: the state cannot appropriate public funds for a private purpose. Chandler v. Bd. of Trs. of Teacher Ret. Sys., 236 Ark. 256, 365 S.W.2d 447 (1963). The doctrine has been applied to invalidate state spending on truly private endeavors, but it does not apply to state spending on the election machinery itself.
Moorman v. Pulaski County Democratic Party, 271 Ark. 908, 611 S.W.2d 519 (1981), upheld a state statute authorizing counties to contribute to the cost of party primaries. The case predates Arkansas's switch to fully state-funded primaries (Acts 1995, No. 901, § 2), but the public-purpose reasoning extends naturally.
The First Amendment associational analysis traces to New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008), which affirmed that "a political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform." Federal courts in Nader v. Schaffer, Rosario v. Rockefeller, Balsam v. Secretary of New Jersey, and Ziskis v. Symington have rejected non-member challenges to closed primaries.
The U.S. Supreme Court's broader view of primaries as part of the public election machinery comes from Bullock v. Carter, 405 U.S. 134, 148 (1972), and Storer v. Brown, 415 U.S. 724, 735 (1974).
Citations
- A.C.A. § 7-7-307 (party rules for primary participation)
- New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008)
- Nader v. Schaffer, 417 F. Supp. 837 (D. Conn. 1976), aff'd, 429 U.S. 989 (1976)
- Rosario v. Rockefeller, 410 U.S. 752 (1973)
- Balsam v. Secretary of New Jersey, 607 Fed. Appx. 177 (3d Cir. 2015)
- Ziskis v. Symington, 47 F.3d 1004 (9th Cir. 1995)
- Chandler v. Bd. of Trs. of Teacher Ret. Sys., 236 Ark. 256, 365 S.W.2d 447 (1963)
- Moorman v. Pulaski County Democratic Party, 271 Ark. 908, 611 S.W.2d 519 (1981)
- Adams v. Whittaker, 210 Ark. 298, 195 S.W.2d 634 (1946)
- Bullock v. Carter, 405 U.S. 134 (1972)
- Storer v. Brown, 415 U.S. 724 (1974)
- Munro v. Socialist Workers Party, 479 U.S. 189 (1986)
- California Democratic Party v. Jones, 530 U.S. 567 (2000)
- Jenness v. Fortson, 403 U.S. 431 (1971)
- Ark. Att'y Gen. Op. 2023-030 (predecessor opinion on closed primaries)
Source
Original opinion text
Opinion No. 2023-063
August 16, 2023
The Honorable Kim Hammer
State Senator
1201 Military Road PMB 285
Benton, Arkansas 72015
Dear Senator Hammer:
I am writing in response to your request for an opinion on the following question, which you say is a follow-up to Attorney General Opinion 2023-030. In that opinion, I explained that state law allows a political party's rules to prescribe qualifications for voting in that party's primary. Consequently, no additional legislation is required for a party to hold a closed primary. If a political party wishes to set a party registration deadline earlier than the voter registration deadline, it might be able to do so by party rule, but such a change would ideally be accomplished through legislation. As a follow-up, you have asked whether "the fact that the state funds the party primary" would have "any effect on" those conclusions "if a party chooses to limit who can participate in the primary."
RESPONSE
No, my conclusions in Attorney General Opinion 2023-030 remain the same.
DISCUSSION
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Constitutionality of closed primaries. Just as individuals have a First Amendment right to associate with others to form a political party, "[a] political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform." As explained in Attorney General Opinion 2023-030, these rights are not absolute. In a situation where state law either permits or requires closed or semi-closed primaries and the political party wishes to limit who may vote in its primary, courts have consistently rejected constitutional challenges brought by nonparty members who argue that such voting regimes violate their associational rights and rights to equal protection.
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The public-purpose doctrine. Your question may be prompted by a concern that the use of state funds in a closed party primary would violate the "public-purpose doctrine." This doctrine, which the Arkansas Supreme Court has rooted in due process, requires that the appropriation and expenditure of public funds be for a public purpose. Given the Arkansas Supreme Court's reasoning in Moorman v. Pulaski County Democratic Party, I believe a court is unlikely to find that the scenario you describe violates the public-purpose doctrine. The Moorman Court upheld a statute authorizing a county to contribute to the cost of a party's primary election. The Court found that because "primary elections are part of the state's election machinery," they serve a public purpose and may "be paid for with public money." This reasoning echoes the U.S. Supreme Court's decision in Bullock v. Carter, which concluded that it was legitimate for taxpayers to bear the costs of both primary and general elections.
Even if a party chooses to hold a closed primary, I do not believe a court would find that the state funds used to administer the closed primary serve a "private purpose." Primaries, regardless of the manner in which they are conducted, form "an integral part of the entire election process." And the U.S. Supreme Court has recognized that primaries accomplish important goals that benefit the public, such as "avoid[ing] the possibility of unrestrained factionalism at the general election" and "avoid[ing] burdening the general election ballot with frivolous candidacies." Furthermore, the Court has recognized that the costs associated with conducting a primary "do not arise because … the parties decide to conduct one, but because the State has, as a matter of legislative choice, directed that party primaries be held." In other words, a party primary can still serve a public purpose, even if voting is restricted to those affiliated with the party.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General