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Whatever Happened to "One Person, One Vote"?Why the crazy caucus and primary rules are legal.

By Richard L. Hasen
Posted Tuesday, Feb. 5, 2008, at 5:33 PM ET

In the Iowa Democratic caucuses last month, Democrats had no right to cast a secret ballot. In tonight's Super Tuesday primary, Republican Party rules dictate that the state of Georgia will send more delegates (72) than Illinois (70) to the party's presidential nominating convention. Illinois has a larger population than Georgia, but Georgia has more reliable Republican voters. In the Democratic Nevada caucuses, rural votes counted more than urban ones, and while Hillary Clinton got more popular votes in the state than Barack Obama, it appears Obama will capture 13 of Nevada's Democratic delegates compared to Clinton's 12. Orthodox Jews complained that they couldn't vote in the Saturday morning Nevada caucuses. In California tonight, if neither Clinton nor Obama gets more than 62 percent of the vote in a congressional district, the two are likely to split the district-based delegates evenly. On the Republican side in the California primary, Romney and McCain are targeting the few Republican voters in heavily Democratic districts, because some of California's Republican delegates are awarded based on the winner of each congressional district, not the statewide winner. And when the primaries are over, under the Democratic Party rules, "superdelegates" such as governors—who have not been chosen by voters—could hold the balance of power between Clinton and Obama in a brokered summer convention.*

What gives? Didn't the Supreme Court declare a "one person, one vote" principle back in the 1960s requiring the equal weighting of votes? And shouldn't this render most of these party rules unconstitutional? The short answer is no. Although most of the deviations from "one person, one vote" would be unconstitutional if a state put them to work in the general election for president, party primaries and caucuses are different. Aside from some really egregious no-nos, such as weighting candidate delegate strength according to the race of their supporters, courts are likely to stay out of disputes over the rules for choosing the parties' presidential nominees.

The reason for the different treatment is the hybrid nature of our electoral system. Party primaries and caucuses have elements that are public (the state often pays to run them, and they lead to choices on the public general election ballot) and elements that are private (political parties are not government entities, they are private associations). Private associations have a First Amendment right to exclude those who disagree with them, and to structure their internal affairs as they see fit. Presidential primaries straddle this public-private divide because presidential nominations are ultimately made at party-run conventions.

The Supreme Court has said "it is too plain for argument" that states can require parties to use primaries or conventions rather than caucuses or smoke-filled rooms to pick nominees who appear on the general election ballot. But beyond that lowest denominator, parties have a lot of autonomy. As Justice Antonin Scalia recently wrote for a seven-justice Supreme Court majority, "A political party has a First Amendment right to limit is 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."

So courts won't require a primary where a state hasn't required one. Parties can decide on a state-by-state basis whether independent voters get to vote in their party primaries; how to weight delegate votes; and even the racial and gender composition of delegates to the convention. The party can enact affirmative action rules for its delegates, for example, to send a televised message about inclusiveness to the rest of the party and the viewing public.

Rules over presidential delegates are especially hard to challenge in court. As a federal appellate court explained in 1987, in a case challenging the Democratic Party's requirement at the time of a roughly equal number of male and female delegates: A "vote for delegates is some steps removed from a vote for an actual candidate for public office. Delegates for practical purposes constitute the National Party—they make its rules, adopt its platform, provide for its governance, as well as nominate candidates." Courts are wary of interfering with the internal workings of the parties. Poking their noses into delegate selection could do just that.

Aside from accepting the idea that states can require parties to use primaries to choose their nominees, the Supreme Court has placed one important limit on party primary mechanisms. In a series of early 20th-century cases dubbed the "White Primary Cases," the court held that parties can't hold a "whites only" primary or otherwise exclude voters from voting on the basis of race. Presumably, a court could entertain some other challenge to party rules that tread on equal protection, such as a decision to schedule a party caucus in a way that disenfranchises members of a particular religion. But that may be it.

Nor are the courts too likely to get involved if there are disputes over the seating of delegates at this summer's Democratic Party convention. If Clinton and Obama keep things close as the primary season continues, the convention choice could well turn upon—oh no, don't say it!—another Florida dispute. When Florida set the date for its presidential primary on Jan. 29, in violation of Democratic Party rules, the penalty was no delegates. The candidates did not campaign in Florida (except, of course, to raise money), and Clinton was declared the winner. A similar scenario occurred in Michigan.

The position of the party was that Floridians should not worry, because the party's presumptive nominee would just dictate that the Florida delegates be seated. (By that point, of course, the dispute over Florida's rule-breaking would be moot.) But now it looks like there may not be a presumptive nominee. So, the status of the Florida and Michigan delegations could emerge in a fight on the floor, especially given the other big unknown: the eventual choices of the 796 "superdelegates," who were elected by no one and are not necessarily pledged to a candidate. Indeed, even elected delegates to the convention are allowed to change their minds as to which candidate to support, which is why the Democratic Party rules give the candidates the right to replace those delegates at the convention if they might be unreliable.

The Supreme Court has left such delegate fights to the political process before, and it is likely to do so again. That may be a blessing for the Democrats. They don't really want the court resolving whether Obama or Clinton will run in November, do they?

Correction, Feb. 7, 2008: The original sentence gave big-city mayors as an example of superdelegates. Mayors are not in fact automatically superdelegates. (Return to the corrected sentence.)

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Richard L. Hasen, the William H. Hannon distinguished professor at Loyola Law School, writes the Election Law Blog.
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