Does Arkansas's funding of party primaries change the constitutional analysis of closed primaries that exclude non-members?

Plain-English summary

Senator Kim Hammer asked whether state funding of a party primary changes the AG's earlier conclusions about a party limiting who may vote. The answer was no. The AG restated Opinion 2023-030: state law permits a party's rules to set voting qualifications, so no additional legislation is required to hold a closed primary. He distinguished an earlier party-registration deadline, which he said might be possible by party rule but ideally would be accomplished by legislation.

The AG addressed two constitutional issues. First, he said courts have rejected challenges by nonmembers when state law permits or requires a closed or semi-closed primary and the party wants to limit participation. Second, he considered whether public funding of a closed primary violates the public-purpose doctrine. He described Moorman v. Pulaski County Democratic Party as upholding county contributions to a party primary because primaries are part of the state's election machinery. Applying that reasoning to the state-funded closed-primary scenario, the AG said he believes a court is unlikely to find a public-purpose violation.

What this means for you

Political parties and election officials

The AG says state funding does not change his earlier conclusion that a party may hold a closed primary without additional legislation. His discussion of an earlier party-registration deadline is narrower: he says a party rule might accomplish it, but legislation would be ideal.

Voters and legislators

The opinion addresses constitutional challenges by nonmembers to a party's choice to limit its primary. It also gives the AG's prediction about a court's public-purpose analysis of state funding. Moorman itself upheld county contributions to a party primary; this opinion applies its reasoning to the later state-funded system and a closed primary.

Common questions

Does state funding require a party to let nonmembers vote in its primary? The AG says no. He states that funding does not change his prior conclusions and describes courts' rejection of nonmember constitutional challenges in the circumstances he identifies.

Does a party need a new law to hold a closed primary?
According to the AG's account of Opinion 2023-030, no additional legislation is required. An earlier party-registration deadline is a separate issue for which he preferred legislation.

Did the Arkansas Supreme Court decide that funding a closed primary is constitutional? The AG cites Moorman for its holding on county contributions to a party primary. His conclusion that a court is unlikely to reject state funding of a closed primary is an application of that reasoning to the question asked here.

Background and statutory framework

Footnote 1 cites A.C.A. § 7-7-307 for party rules on voting qualifications. The AG cites New York State Board of Elections v. Lopez Torres for a party's associational rights and describes the limits of those rights. He cites Chandler for the public-purpose doctrine and Moorman for the role of primaries in state election machinery. Footnote 6 explains that Moorman concerned a period when parties conducted their own primaries, before the General Assembly created a state-funded system in 1995.

Citations

• A.C.A. § 7-7-307
• Moorman v. Pulaski County Democratic Party, 271 Ark. 908, 611 S.W.2d 519 (1981)
• Bullock v. Carter, 405 U.S. 134, 148 (1972)
• Chandler v. Bd. of Trs. of Teacher Ret. Sys., 236 Ark. 256, 365 S.W.2d 447 (1963)
• Ark. Att’y Gen. Op. 2023-030

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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. 1 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

1. 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.” 2 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

1
See A.C.A. § 7-7-307.
2
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202–03 (2008) (internal citations omitted).
The Honorable Kim Hammer
State Senator
Opinion No. 2023-063
Page 2

constitutional challenges brought by nonparty members who argue that such voting regimes violate their associational rights and rights to equal protection. 3

2. 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. 4 Given the Arkansas Supreme Court’s reasoning in Moorman v. Pulaski County Democratic Party, 5 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. 6 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.” 7 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. 8

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.” 9 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” 10 and “avoid[ing] burdening the general election ballot

3
See, e.g., Nader v. Schaffer, 417 F. Supp. 837, 845 (D. Conn. 1976), aff’d, 429 U.S. 989 (1976) (holding that the state could legislate “to protect the party ‘from intrusion by those with adverse political principles’”) (internal citations omitted); Rosario v. Rockefeller, 410 U.S. 752 (1973) (upholding a state’s statutory deadline for party enrollment); Balsam v. Secretary of New Jersey, 607 Fed. Appx. 177, 181–83 (3rd Cir. 2015) (holding that voters do not “have a constitutional right to unqualified participation in primary elections”); Ziskis v. Symington, 47 F.3d 1004 (9th Cir. 1995) (upholding Arizona’s closed primary system in the face of a Fourteenth Amendment challenge by an independent voter). 4 See Chandler v. Bd. of Trs. of Teacher Ret. Sys., 236 Ark. 256, 258, 365 S.W.2d 447, 448 (1963) (“No principle of constitutional law is more fundamental or more firmly established than the rule that the State cannot, within the limits of due process, appropriate public funds to a private purpose.”). 5 271 Ark. 908, 611 S.W.2d 519 (1981).
6
At that time, political parties were responsible for conducting their own primaries. Not until 1995 did the General Assembly create a state-funded political primary system that made state and county boards of election commissioners responsible for conducting primary elections. See Acts 1995, No. 901, § 2. 7 Moorman, 701 Ark. at 909 (citing Adams v. Whittaker, 210 Ark. 298, 195 S.W.2d 634 (1946)).
8
405 U.S. 134, 148 (1972).
9
Storer v. Brown, 415 U.S. 724, 735 (1974).
10
Munro v. Socialist Workers Party, 479 U.S. 189, 196 (1986) (citing Storer, 415 U.S. at 736).
The Honorable Kim Hammer
State Senator
Opinion No. 2023-063
Page 3

with frivolous candidacies.” 11 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.” 12 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

11
California Democratic Party v. Jones, 530 U.S. 567, 572 (citing Jenness v. Fortson, 403 U.S. 431, 442 (1971)). 12 Bullock, 405 U.S. at 148.