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4. Conclusions and Implications

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15. The Blanket Primary in the Courts

The Precedent and Implications of California Democratic Party v. Jones

Nathaniel Persily

In addition to the lessons it has taught political scientists about voting behavior, partisanship, and the effect of electoral rules, California's experiment with the blanket primary provided the courts with an opportunity to define the constitutional character of political parties and primary elections. In the case of California Democratic Party v. Jones, 120 S. Ct. 2402 (2000), California's political parties successfully challenged the blanket primary as unconstitutional under the First Amendment. Overruling the District Court and Court of Appeals that had upheld the initiative as a reasonable exercise of the state's power to increase participation and enhance the representativeness of elected officials, the Supreme Court of the United States, in a 7–2 decision, found Proposition 198 to be a "severe and unnecessary" (and therefore unconstitutional) burden on the political parties'protected freedom of association.

Both because of what they reveal about how judges and lawyers characterize political parties in the process of constitutional litigation and because of the questions they leave unanswered, the courts'decisions in the blanket primary case provide a rare colloquy on the proper role of the judiciary in the regulation of elections and political parties. The "legal" story of the blanket primary is, after all, one pitting the ultrademocracy of California's initiative process against the ultimate antidemocracy of the unelected federal judiciary, with the political parties (at times exhibiting both oligarchic and democratic tendencies) caught somewhere in between. The task thus confronting the courts became how to reconcile political party autonomy—which all agree is indispensable, at some level, to American democracy—with the democratic mandate announced by the majority of California's voters to rein in that autonomy at the critical stage of candidate nomination. As it had so frequently done in the past, the Supreme Court sided

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with the right of the parties to determine the content of their message and the identity of their standard bearer.

THE CONSTITUTIONAL STATUS OF POLITICAL PARTIES AND PRIMARY ELECTIONS BEFORE JONES

The blanket primary case was hardly the first opportunity for the Supreme Court to draw a line between the state's authority to organize the selection processes leading up to a general election and the parties'autonomy to decide the character of their membership and nomination procedures. Indeed, for those who have watched closely the Court's jurisprudence in this area, the Jones decision was the natural consequence of a series of "proparty" decisions emanating from the Court over the last half-century.

At the time Jones came before the U.S. District Court for the Eastern District of California in 1997, a few issues regarding the legal regulation of party nomination methods had become settled. First, in Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.), summarily aff'd, 429 U.S. 989 (1976), the Supreme Court summarily affirmed a lower court ruling rejecting voters' claims that closed primaries violated their First and Fourteenth Amendment rights. Because Connecticut required party membership as a precondition for participating in a party's primary, Ralph Nader and the other plaintiffs argued that the state "coerced" voters into becoming party members in order to vote for their preferred candidate. The Constitution, they maintained, both prohibits such compelled associations and guarantees each voter's right to participate in any state-sponsored elections that can have the effect of selecting government officials. The Court rejected this novel claim by emphasizing the importance of the party's associational right to exclude nonmembers from its primary and the minimal intrusion that party registration imposes on would-be primary voters.

The case is an interesting one, even if rarely cited and not too difficult to resolve, because it highlights the constitutionally relevant actors in cases challenging rules governing a primary. Three actors exist in every party regulation case: a party organization, a voter, and the state. In most of these cases, either a party or an individual argues that the state law violates its First Amendment right of expressive association. When an individual makes such a claim, as in Nader, he alleges that by depriving him of the opportunity to express his candidate preference in the primary, the state prevents him from "associating" with others who support a given candidate. When a party challenges an identical state law, as in Tashjian v. Connecticut, discussed below, it makes a somewhat different claim on associational freedom. The party argues that state regulation of its primary undermines the ability of the party association to define itself and select its membership, leaders, and message. The same state law establishing primary voter qualifications, as we

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will see, might be vulnerable to a party's, but immune from an individual's, associational rights claim. Moreover, the associational rights claims of individuals (i.e., to associate with a given candidate and his supporters) naturally run up against a party's right to define its association as including some people but not others.

The seeds for the Tashjian decision were sown with the Court's decision in Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981). The LaFollette Court adjudicated a challenge brought by the state of Wisconsin to the rules governing the seating of delegates at the 1980 Democratic National Convention. Those rules, in effect, prohibited the seating of delegates selected through primary systems that allowed the participation of non–party members. Wisconsin employed an open primary, meaning that any voter, regardless of party affiliation, could vote in the state's presidential preference primary. Because state law bound Wisconsin's delegates to vote in conformity with the results of the open primary, the delegates were not qualified to sit at the Democratic Convention.^[1] In this conflict between national party rules and state law, the Court sided once again with the party, holding that the party had a First Amendment right to specify the credentials necessary for participation in the national convention.

Much of the language of the LaFollette opinion has become standard for party autonomy cases. Although the case itself had a federalism spin—that is, it presented a unique conflict between an individual state law and national party rules—the Court exploited the opportunity to shore up a party's robust First Amendment right of association, which included the right to exclude outsiders from participating in its nomination processes. "The freedom to associate for the ‘common advancement of political beliefs,'" the Court held, "necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only" (LaFollette, 450 U.S. at 122, quoting Kusper v. Pontikes, 414 U.S. 51, 56 (1973)). "The inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party's essential functions—and … political parties may accordingly protect themselves ‘from intrusion by those with adverse political principles'" (id., quoting Ray v. Blair, 343 U.S. 214, 221–22 (1952)). After LaFollette it appeared that a national party convention enjoyed a degree of First Amendment protection from state regulation similar to that accorded to other meetings of private groups and associations. However, at the quadrennial national convention, a party takes on a momentary, even if heightened, associational form. Like a large Rotary Club, members assemble together to meet and discuss issues of collective concern; they craft the party's platform, choose its leaders, and stage a media event to broadcast the party's message to a larger audience. Whether the heightened associational protection

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for the convention would apply to a run-of-the-mill primary remained for the Court to decide in Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1996).

The law at issue in Tashjian was the same closed primary law upheld in Nader. This time, however, Connecticut's Republican Party, rather than an individual voter, brought a First Amendment challenge. Because the Republicans wanted to open their primary to independent voters and the Democratic legislature refused to change the law to allow them to do so, the party argued that the "state" violated its freedom to define the contours of its association. The state articulated interests typical for election laws: "administrability of the primary system, preventing raiding, avoiding voter confusion, and protecting the responsibility of party government" (id. at 217). As weighty and determinative as these concerns often are in the context of electoral regulation, the Court found them to be paternalistic in this particular context, a subterfuge for the state, which was dominated by one party (the Democrats), determining what was best for the party out of power (the Republicans). For, as Justice Thurgood Marshall's majority opinion explained,

Under these circumstances, the views of the State, which to some extent represent the views of the one political party transiently enjoying majority power, as to the optimum methods for preserving party integrity lose much of their force. The State argues that its statute is well designed to save the Republican Party from undertaking a course of conduct destructive of its own interests. But on this point "even if the State were correct, a State, or a court, may not constitutionally substitute its own judgment for that of the Party." The Party's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution. (Id. at 224)

Thus, after Tashjian, it was clear that the state could not force a party to restrict participation in its primary to party members. The precise question in Jones, however—whether a state could force a party to expand participation in its primary—remained unanswered.

The Supreme Court's final pre-Jones confrontation with state laws regulating party primaries came in Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989). Unlike these other cases that challenged state qualifications for voter participation in primary elections, Eu involved a law that barred political parties from endorsing candidates in primary elections and regulated parties'internal organizational structure. The Court considered the ban on endorsements as a clear violation of the party's freedom of expression: it regulated what the organization could say and print. The laws regulating party organizational structure—limiting the term of office to two years for state central committee chairs and requiring that the chair rotate between residents of northern and southern California—also

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infringed the party's First Amendment rights, in this case (as in Tashjian and LaFollette), the party's freedom of expressive association. "By regulating the identity of the parties'leaders," the Court held, "the challenged statutes may also color the parties'message and interfere with the parties'decisions as to the best means to promote that message" (id. at 231 n. 21).

Given the law's clear restriction on the party organization's speech and core associational decisions, Eu did not appear to be a difficult case in the abstract. What made the case interesting was the state's allegation that the parties had consented to the law by urging its earlier passage in the legislature. Thus, the Court was confronted with the question: Who speaks for and constitutes the party? Is it the party-in-the-electorate, whose main act of affiliation is voting in primary elections (Key 1964, 163–65)? Is it the party-in-the-legislature, which, under favorable conditions of majority control or acquiescence, can enact its internal regulations into state law? Or is it the professional party organizations and governing bodies, which, although frequently defined and regulated by state electoral law, most closely resemble the leaders of a private association? Indeed, as the very existence of the named plaintiff, San Francisco County Democratic Central Committee, suggested, even these traditional categories needed to be disaggregated to account for the different, geographically specific components of the party organization, for example. In a rare opinion that paid attention to this multidimensionality of political parties, Justice Marshall detached incumbent party legislators from local party organizations and average members. "We have never held that a political party's consent will cure a statute that otherwise violates the First Amendment." He wrote for the Court, "Simply because a legislator belongs to a political party does not make her at all times a representative of party interest. In supporting the endorsement ban, an individual legislator may be acting on her understanding of the public good or her interest in reelection" (489 U.S. at 226). Even bipartisan legislative consent to an election law, it appeared after Eu, could intrude on the "party's" rights—meaning that party members and officials outside of government would be forced to operate under a rule they did not choose. Even a subdivision of the party organization could now seek court protection from a law passed with the party's consent.

Of course, the Court does not side with party organizations in every case. When a party organization seeks to discriminate on the basis of race, the Court has been especially vigilant in protecting voters'rights at the expense of party autonomy. Moreover, when a minor party asserts its First Amendment rights, the Court has given greater weight to the state's interests in avoiding ballot confusion and preserving the integrity of elections.

The "race" cases begin with the so-called White Primary Cases, in which the Court scrutinized the electoral laws of Southern states, the rules of the

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state Democratic Party, and even the practices of informal subdivisions of the party under the Equal Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment's guarantee that voting rights not be abridged on account of race. Alongside poll taxes, grandfather clauses, literacy tests, and other more coercive tactics of disenfranchisement, white primaries were used by Southern states and state parties to prevent blacks from voting in what turned out to be the critical and determinative election in those one-party states.^[2] Between 1927 and 1953, the Court overruled its previous precedents and struck down a state statute that forbade the participation of blacks in the Democratic primary (Nixon v. Herndon, 273 U.S. 536 (1927)) and a statute that delegated to the party executive committee the power to determine qualifications to vote in a party primary, which it then exercised to ban blacks from primary voting (Nixon v. Condon, 286 U.S. 73 (1932)). Moreover, drawing on its decision in United States v. Classic, 313 U.S. 299 (1941), a case that upheld the prosecution under federal law of those stuffing primary ballot boxes because the primary was "an integral part of the election machinery," the Court struck down the Democratic Party's practice (apart from state law) of excluding blacks from primaries (Smith v. Allwright, 321 U.S. 649 (1944)). The Court held that "the recognition of the place of the primary in the electoral scheme makes clear that state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the State" (id. at 660). Considering the primary in this way, the Court interpreted the Fifteenth Amendment as preventing a state "from casting its electoral process in a form which permits a private organization to practice racial discrimination in an election" (id. at 664). Then, in a highly fractured decision in the last of the White Primary Cases, Terry v. Adams, 345 U.S. 461 (1953), the Court extended this reasoning even to the conduct of an unofficial subdivision (or alter ego) of the party, whose candidate selection mechanism effectively determined the Democratic nominee that appeared on the ballot.

There are at least two ways to view the White Primary Cases. The first is to dismiss them as sui generis holdings limited to the unique party monopolistic conditions of the South and the fundamental importance of race to the post–Civil War amendments. After all, the Democratic primary in various Southern states constituted, for all practical purposes, the general election. The incumbent officeholders, party functionaries in the cloak of state law, or individuals with power equal to that of official state actors used the primaries to disenfranchise the voters whom the Fourteenth and Fifteenth Amendments were enacted to protect.

A second way to view the White Primary Cases, however, is to consider them definitive interpretations of the constitutional status of party primaries. Much of the language in those cases suggests that when the primary

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forms an integral part of the electoral machinery used to select governing officials, constitutional restrictions applicable to general elections would similarly apply. A short step away from that rule is a corollary maintaining that state or federal laws seeking to preserve those constitutional rights are also valid, meaning that the party (viewed more as a state actor than as a private association) cannot assert its First Amendment rights as a barrier to the enforcement of such a law. For example, when the Virginia Republican Party required the payment of a registration fee as a precondition to participation in the convention used to nominate the party's candidate for United States Senator, the Court held that the Voting Rights Act of 1964 applied (Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)).^[3] One of the questions confronting the Court in Jones was whether the blanket primary law—to the degree that it, like the Voting Rights Act, was expanding the franchise and enriching the constitutional protection of the right to vote—was similarly immune to the party's associational rights claims.

In the second class of "anti-party" opinions, the Court upholds state laws against First Amendment and Equal Protection challenges brought by minor parties. In such cases the Court has applied a balancing test, weighing the severity of the rights deprivation against the importance of the state interests and then determining whether the law is properly tailored toward the achievement of those interests. Such a test applies not only to minorparty cases, but also to most widely applied electoral rules, such as signature requirements for candidate petitions for ballot access. In the most recent case on point, the Court rejected a claim brought by the Minnesota New Party challenging the state's ban on "fusion" candidacies, which prohibited a candidate from appearing on the ballot as the candidate of more than one party (Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)). The New Party wanted to nominate the same candidate whom the Democrats had nominated. Although it reemphasized its holdings in Eu and Tashjian that the party has the right to choose its own "standard bearer," the Court did not consider the fusion ban a severe burden on the party's rights. Although the law prevented the party's preferred candidate from appearing alongside the party's name on the general election ballot, the party's members still had an opportunity to vote for that candidate on another party's line. Thus, the Court found that the state's interests in the fusion ban—preserving the integrity of the ballot and stabilizing the twoparty system—justified this minor intrusion on the party's rights.

THE DISTRICT COURT DECISION IN JONES

The U.S. District Court that initially heard the challenge to California's blanket primary law relied heavily on Timmons. Performing the balancing test familiar to election law cases, Judge David Levi found that the blanket

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primary imposed "a significant but not severe burden on the [parties'] associational rights," and that the state's interest in "enhanc[ing] the democratic nature of the election process and the representativeness of elected officials" was "substantial, indeed compelling" (California Democratic Party v. Jones, 984 F. Supp. 1288, 1300–1301, 1303 (E.D. Cal. 1997)). On the constitutional scales, as Judge Levi viewed them, the balance appeared to tip just slightly in favor of the state, and thus the blanket primary was constitutional.

The District Court opinion in Jones is revealing both because, on the one hand, it appears to be the most honest attempt yet to perform the balancing test typical of election law cases, and, on the other, it shows why such "balancing" inevitably masks a threshold determination on the importance of party autonomy under the First Amendment. After pointing out that neither Tashjian nor LaFollette dealt with the precise question at issue and that the Alaska and Washington Supreme Courts had already upheld the blanket primaries against these precise constitutional challenges (see O'Callaghan v. Alaska, 914 P. 2d 1250 (Alaska 1996); Heavey v. Chapman, 93 Wash.2d 700 (1980)), the District Court proceeded to state the Timmons balancing test:

When deciding whether a state election law violated First and Fourteenth Amendment associational rights, we weigh the "character and magnitude" of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs'rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less-exacting review, and a State's "important regulatory interests" will usually be enough to justify "reasonable nondiscriminatory restrictions." (Jones, 984 F. Supp. at 1294, quoting Timmons, 520 U.S. at 358)

En route to characterizing the rights deprivation at issue, the Court then spent several pages distinguishing parties'associational rights from those of other private clubs and associations. Emphasizing the distinctive tripartite nature of the party (government-electorate-organization),^[4] the Court pointed out that states have substantial regulatory authority over parties that they could not exercise over other private associations: they define the qualifications for membership (i.e., you need only be a registered voter) and can specify the form of the selection process (i.e., mandate primary elections). And the majority of states have laws that allow non–party members to choose any party's ballot on primary election day. Thus, parties' associational rights are neither absolute nor of the same character as "true," out-of-government, private associations.

While not absolute, the rights at issue were not to be dismissed out of hand by the Court. Judge Levi therefore engaged in a detailed factual inquiry—of

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both the probable consequences of the blanket primary for California and the experience of Washington and Alaska—to determine the severity of the burden on the parties'First Amendment rights. He found concerted party raiding to be unlikely and "benevolent cross-over voting" to hover on average at around 15 percent and rarely to change the outcome of an election. While admitting that the purpose of the blanket primary was to "wrest control" from the party and its members and thus impose a "significant" burden on their First Amendment rights, the Court found that the evidence from strong parties in Washington and the open primary states suggested that inclusion of nonmembers in the primary "will not diminish the efficacy or strength of the political parties in California by any substantial degree" (Jones, 984 F. Supp. at 1300).

Placing on one side of the scales this "significant," though "not severe," burden, Judge Levi then turned toward weighing the state's interest to discover whether it was sufficiently "important." He viewed the blanket primary as akin to other Progressive Era reforms (e.g., direct election of senators, the innovation of the primary itself, and the referendum and initiative) that sought to open up the electoral process and restore popular accountability to a system plagued by party bosses and machines. The blanket primary "enfranchised" independent voters and members of minority parties in safe districts by allowing them, without affiliating with a particular party, to participate in the critical election that determined the identity of the officeholder. An intended side-benefit of this enfranchisement would be the election of more moderate candidates who would be more representative of their districts and less beholden to party members and activists. Thus, as in Timmons and various ballot access cases, the state articulated an interest deeply rooted in the American constitutional tradition: the prevention of factionalism. Like those measures that enhanced the stabilizing forces of America's two-party system (e.g., heightened ballot access requirements for third parties and independent candidates, prohibitions on "sore loser" and fusion candidacies), so too the blanket primary sought to mute the divisive forces of even the two-party system—organizing the electorate in such a way as to produce the candidate most likely to be representative of the median voter in a given constituency. These interests in expanding participation and enhancing representation, combined with the significant and unique fact that a majority of the members of both political parties (i.e., the parties in the electorate) supported Proposition 198, were sufficiently "important," "substantial," and even "compelling" that parties could not use the First Amendment as a veto to strike down the popular will.

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THE SUPREME COURT DECISION IN JONES

Observers may look at the lopsided (7–2) Supreme Court decision in Jones as somehow suggesting that this was an easy case. But not only did Judge Levi sustain the blanket primary, as did the three-judge appellate panel that adopted his opinion as their own, but four justices on Alaska's Supreme Court and nine on Washington's had also found the blanket primary constitutional within the previous five years.^[5] Moreover, an eclectic group of amici curiae filed briefs on both sides in the case.^[6] Given the Supreme Court precedents in Tashjian, LaFollette, and Eu, though, the trend in the law seemed pretty clear, and Justice Scalia's opinion for the seven-member majority treated it as such.

The Supreme Court's decision was striking for a number of reasons, however. First, its author, Justice Scalia, along with Justice O'Connor and Chief Justice Rehnquist, dissented in Tashjian; that is, they believed that a state had the right to close off its primary even when a party demanded the right to open it up to independents. Second, the mode of inquiry differs substantially from the obsessive balancing and hand-wringing engaged in by Judge Levi. The Timmons balancing test barely presents itself, reduced to a blurb that says, "[R]egulations imposing severe burdens … must be narrowly tailored and advance a compelling state interest" (Jones, 120 S. Ct. at 2412), and implying that no interest could justify the type of intrusion on party rights portended by the blanket primary.

The Supreme Court considered the same evidence of the threat to party autonomy as did the District Court; it just came to a different conclusion. Whereas the District Court focused on the primary as a highly regulated activity, the Supreme Court viewed the "candidate-selection process" as the " ‘basic function of a political party'" that was "adulterated" "by opening it up to persons wholly unaffiliated with the party." Whereas the District Court saw the blanket primary as causing the infrequent scenario of non–party members casting decisive primary votes, the Supreme Court viewed the blanket primary as having the intended effect of "changing the parties' message," "hijack[ing] the party," and presenting a "clear and present danger" of "having a party's nominee determined by adherents of an opposing party." The Court "could think of no heavier burden on a political party's associational freedom." "There is simply no substitute for a party's selecting its own candidates," the Court concluded (id. at 2412).

The Supreme Court found the state's interests in the blanket primary insufficiently compelling to justify the law's intrusion on the parties' associational freedoms. Those interests included: (1) producing elected officials who better represent the electorate; (2) expanding candidate debate beyond the scope of partisan concerns; (3) enfranchising independents and voters in "safe" districts; (4) promoting fairness by allowing any voter,

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regardless of party affiliation, the equal choice at the ballot box; (5) expanding choices by allowing any voter to vote from an array of candidates; (6) increasing voter participation; and (7) protecting their privacy by not forcing them to reveal their party affiliation. All of these interests depended on a characterization of the primary election as a public, government sponsored, first-stage general election, a characterization the Court rejected at the outset. After all, how could increasing debate, representation, choice, or participation be a state interest when that increase would occur wholly within a selection process the Court (and therefore the Constitution) considers a "private" decision? Indeed, not only was there no state interest in changing the character of a primary election to produce a particular result, but it was that very feature of the blanket primary that made the law unconstitutional.

The real nail in the coffin of the blanket primary, though, came when the Court considered whether the means used by the state were appropriately tailored to achieve the ends the state listed. Given the rigor of its analysis in executing the balancing test, one cannot help but be mystified by the District Court's suggestion that "the fundamental goal of enhancing representativeness by providing all voters with a choice that is not predetermined by party members alone can only be advanced by the blanket primary" (Jones, 984 F. Supp at 1303). Justice Scalia prepared the appropriate response: a nonpartisan primary could achieve all of the alleged state interests without the concomitant hijacking of the party's candidate selection process. Such a primary allows voters to choose from the entire field of candidates and winnow them down for the general election, but not "force the political parties to associate with those who do not share their political beliefs" (Jones, 120 S. Ct. at 2414). For the Supreme Court majority, then, the blanket primary cut out the heart of the party where the First Amendment was supposed to be its shield. Or, as Justice O'Connor put it at oral argument, the primary is "precisely the point at which the associational interest of the party is at its zenith. … What's left [of any associational rights], if this can stand?" (California Democratic Party v. Jones, No. 99–401, 2000 WL 486738 at *26; oral argument transcript).

Justice Stevens's dissent, joined by Justice Ginsburg, relied on a wholly different interpretation of the constitutional character of a party primary. Drawing on the White Primary Cases, the dissent considered California's primary, funded as it is by public money and conducted by state officials, the "quintessential [form] of state action" and "an election, unlike a convention or a caucus, … a public affair" (Jones, 120 S. Ct. at 2418, Stevens, J., dissenting). Party associational rights thus take on a completely different character in this context, as opposed to a case, such as Eu, where the parties' core First Amendment right to expression was at stake.

Moreover, for the dissent, the motivation behind the law—to encourage

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electoral participation—distinguished this case from Tashjian, where the law sought to restrict participation. "When a State acts not to limit democratic participation but to expand the ability of individuals to participate in the democratic process," the dissent argued, "it is acting not as a foe of the First Amendment but as a friend and ally" (id.). First Amendment interests fell on both scales of the constitutional balance, according to the dissent. Although it may have limited the power of party activists to control primary outcomes, the blanket primary expanded expression by allowing all voters the opportunity to pledge their support to the candidate of their choice. That same pro-participation justification underlies virtually every state's decision to intrude on party autonomy by mandating the primary as the form of nomination method or allowing some nonmembers to choose the ballot of the party of their choice on election day. Justice Stevens therefore warned, "The Court's reliance on a political party's ‘right not to associate'as a basis for limiting a State's power to conduct primary elections will inevitably require it either to draw unprincipled distinctions among various primary configurations or to alter voting practices throughout the Nation in fundamental ways" (id. at 2420).

THE AFTERMATH OF JONES

The Supreme Court's decision in Jones was, in one sense, unsurprising, as it did follow a long string of decisions, such as LaFollette, Tashjian, and Eu, bolstering party associational rights. So long as the issue is neither race nor a third party's assertion of rights that might destabilize the two-party system or confuse the ballot, the Court will generally side with the political party against either a state law trying to rein it in or an individual claiming the party rules, as in Nader, violate his First or Fourteenth Amendment rights. But Jones represents the most emphatic defense yet of a robust First Amendment right of party autonomy, and in the coming years state governments may reconfigure their electoral laws to comply with it.

The Implications for Other Types of Primaries

The first question states will ask is the one Justice Stevens announced in his dissent: What about open primaries? While stating quite specifically that Jones "does not require us to determine the constitutionality of open primaries," Justice Scalia tried to distinguish them from blanket primaries by saying that at least under the open primary voters "affiliate" with a party—that is, confine themselves to a single party's primary ballot for the time they spend in the voting booth. That distinction may have been necessary to avoid calling into question the primary systems in most states, but when

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juxtaposed alongside the broad declarations of the party's First Amendment right not to associate with those who share different beliefs, it loses much of its force.

This line-drawing problem is both familiar to constitutional law (particularly in the election law context) and was probably unavoidable irrespective of the holding in Jones. Although Jones took one issue off the table by affirming the right of states to mandate primaries as the format for selecting party nominees,^[7] every type of state-mandated primary still burdens a party's associational rights to some degree. Even a closed primary, which requires voters to declare their affiliation some time in advance of the primary in order to vote in it, forces parties to accept voters with whom they might not want to affiliate. For example, a law that allows voters to change parties up until a week before the primary election infringes on the party's right to require more than an ephemeral, one-election commitment for membership. A judicial foray into the esoterica of the amount of time the Constitution allows states to require for a demonstration of "authentic" membership may be unlikely, but courts will soon need to decide whether laws that force parties to include independents and / or non–party members in their primaries are constitutional.

The only real difference between an open primary and a blanket primary, after all, is that under a blanket primary, voters can change their "party affiliation" as they go down the ballot, whereas the open primary forces voters to commit to one party's entire ballot. Given the variety of open primary systems, however, characterizing a voter's commitment to a party's primary ballot as an "act of affiliation" presents some difficulties. Some open primary states allow voters to change their party affiliation up until election day; others just don't ask (or even keep records of) voters' party affiliation and allow voters to choose whichever ballot they wish; still others give voters all parties'ballots when they enter the voting booth and allow them to privately cast votes on the party's ballot of their choosing.

The current stopping point—allowing a state to require open primaries, but not blanket ones—may be arbitrary but easier to specify than others. In addition to the Court's contention that open primaries require at least a day's worth of affiliation, one possible rationale for choosing this stopping point could be an empirical argument that blanket primaries make crossover voting much more likely.^[8] Therefore, according to the Court's logic, blanket primaries present a more "clear and present danger" of "having a party's nominee determined by adherents of an opposing party" (Jones, S. Ct. 120 at 2410). A stronger case might even be made for those states that allow only independents to "cross over" on election day: One could argue that such a system is the best marriage between the state's interest in increasing participation (i.e., allowing everyone to cast a ballot on primary

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day) with the party's interests in preventing as few "outsiders" as possible from casting what might be decisive votes. Nevertheless, the language of Jones will be nearly impossible to get around:

A "nonmember's desire to participate in the party's affairs is overborne by the countervailing and legitimate right of the party to determine its own membership qualifications." … The voter's desire to participate does not become more weighty simply because the State supports it. … The voter who feels himself disenfranchised should simply join the party. (Id. at 2413, quoting Tashjian, 479 U.S. at 215–16 n. 6)

These same arguments will apply with equal force to open primaries.

Party Consent and Initiative versus Legislative Lawmaking

Because California's voters passed the blanket primary law by popular initiative, Jones presented a unique opportunity for the Court to address fundamental questions regarding the relevance of the source of a party regulation and the proper entity that enjoys a party's rights. By treating this case like the state-legislated restrictions on party autonomy in Tashjian, LaFollette, and Eu, the Court chose not to take advantage of this opportunity.

The alignment of the litigants in Jones was perhaps as interesting as the result. All political parties (both major and minor) joined together to sue the state, with the citizen group that proposed Proposition 198, "Californians for an Open Primary," intervening on the state's behalf. Thus, the facts were quite different than in Tashjian, for example, where the "state" meant the party controlling the legislature and preventing the party out-of-power from organizing itself in the way it preferred. Here, the party organizations litigating the case appeared at odds with their membership, the majority of whom voted in favor of the restriction on party autonomy. The "state" meant the parties'membership, and the party organizations sought vindication of their own right of expressive association at the expense of the preference already expressed by the parties-in-the-electorate. Unlike the dissent or the District Court, the Supreme Court majority found it unimportant that a majority of voters in each party supported the blanket primary initiative. Unfortunately for the state, so did its attorney, who admitted at oral argument that "it should not make any constitutional difference whether this was passed by initiative or by the legislature" (oral argument transcript at *35).

The Court has never drawn a constitutional distinction based on the source (i.e., popular or legislative) of a restriction on First Amendment or other rights,^[9] nor has it adopted a rigorous definition of what exactly the "party" is whose associational rights rise to First Amendment protection. The opinion in Eu, discussed above, came the closest. It, combined with

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Jones, appears to stand for the proposition that the party organization, representing that aspect of the party most like a "pure" First Amendment association, is the entity that "speaks" (and therefore litigates) on behalf of the party. Unanimous support for a law, either in the legislature or at the ballot, can still be constitutionally suspect if the party organization objects.

These questions of "who" can vindicate the party's associational rights and how to know when the party has given its consent may become important in the litigation spawned by Jones. The shadow that Jones cast over the open primary systems in most states may be somewhat illusory because, like the Republican Party in Tashjian, many state parties actually want to open up their primaries to outsiders in order to elect more competitive candidates, and they have enacted bylaws and internal rules to that effect. The Democratic and Republican Parties rarely need judicial protection to implement their preferred nomination method. Only when its opponents or a segment of the party itself use state power to impose an undesired nomination method does a political party go to court.

State Interests in Expanding Participation and Enhancing Representation

"Political participation" is a tricky and elastic concept. For the state, the District Court, and the dissent in Jones, the blanket primary, quite obviously, expanded participation; that is, it maximized the opportunity for influence of every voter. After all, blanket primary voters, regardless of party affiliation, can cast two ballots to express their candidate preferences: one for their top choice among all candidates in the primary and another for their preferred candidate in the general election. But there are many different ways to define as well as increase participation. Had the Court taken the invitation of the state and found such an interest compelling, there is no reason to believe that it could only justify elements of the Progressive program such as the blanket primary.^[10]

The Progressive argument overlooks the fundamental, indeed irreplaceable, role that strong parties have played as the principal institutions fostering participation not only in American democracy, but throughout the world. In particular, when parties are more easily identified with other social groupings—what political scientists call "party-group linkages" (Powell 1982)—voter turnout tends to be higher. When party differences are blurred, parties less relevant as electoral institutions, and voters less connected to parties—in other words, the intended effects of the blanket primary—participation both at the polls and in other aspects of the democracy tends to decline. The same counterintuitive effects are found in other aspects of the Progressive program, such as direct democracy. The longer the ballot, the more propositions and offices placed to a popular vote, the less likely that a given voter will actually complete the entire ballot. Indeed,

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the mere existence of primary elections has contributed, some argue, to lower voter turnout at the general election (Boyd 1989).

These contentions about the role of parties in fostering turnout are not uncontroversial. But neither are the Progressive arguments about the seemingly obvious pro-participation consequences of certain institutional reforms. In the constitutional balance, then, the state interest in "expanding participation" could be offered in support of all types of primary systems.

Similar arguments can be made with regard to representation. Why is a system that channels elections toward the choice of the median voter in each district necessarily more representative than one that represents the diversity and extremes of opinion throughout the state? Are "Tweedle-dee" and "Tweedle-dum" parties—that is, those that straddle the ideological middle ground instead of seeking some differentiation—more representative than ones catering to more divergent interests? Political theorists could advance good arguments for both sides. Had the Court deemed "fostering representativeness" a compelling state interest, however, a law seeking party differentiation, such as that at issue in Tashjian, could just as easily have latched onto that justification.

Minor and Major Parties

One of the traditionally unspoken secrets in the cases adjudicating party associational rights is that major and minor parties have a different constitutional character. Quoting Justice Powell's dissent in LaFollette, the District Court in Jones explained, "The major political parties lack the unity of purpose and cohesive membership characteristic of most private organizations. The major political parties ‘have been characterized by a fluidity and overlap of philosophy and membership.'It can hardly be denied that [the parties] generally [have] been composed of various elements reflecting most of the American political spectrum" (Jones, 984 F. Supp. at 1296, quoting LaFollette, 450 U.S. at 133 (Powell, J., dissenting)). Although they recognize the differences between major and minor parties, courts have not yet assigned to them different constitutional values^[11]—admitted that one is less a state actor than the other or that one has a greater or lesser claim to First or Fourteenth Amendment protection.

Along the constitutional continuum between state actors and private associations, most would agree that minor parties, clinging as they do to more narrow ideologies or group affiliations, would be closer to the association pole than would the Democrats and Republicans (although the Democrats and Republicans of today would appear more ideologically cohesive than the major parties of thirty years ago (Rohde 1991)). Historically, minor parties'role in American democracy has been to elevate issues on the national agenda that the major parties later co-opt (Rosenstone,

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Behr, and Lazarus 1996, 8–9). They are, in a sense, pure First Amendment creations, existing less to gain elective office than to "express" a particular point of view, sometimes only on a single or limited number of issues. And as Christian Collet's earlier chapter (chapter 11) in this volume demonstrated, to the degree that crossover voting constitutes a threat to a party's First Amendment associational rights, that threat was orders of magnitude greater for California's minor parties, whose primaries sometimes gained twenty times more voters than under the previous closed system.

Although the Court has failed to develop a more textured constitutional analysis that accounts for the differences between major and minor parties, the cases the Jones opinions used in their respective arguments helped point in some directions. First, the majority opinion in Jones, by virtually ignoring Timmons and the other cases where minor parties sought ballot access or other rights, suggests quite strongly that the familiar election law balancing test rarely applies when major-party associational rights are involved. Stated a bit differently, if a court concludes that a law constitutes a "severe" intrusion on a major party's freedom of association—and after Jones, a severe intrusion exists whenever the law allows outsiders to "adulterate" the party's message—the inquiry ends, the law is unconstitutional. Had only the Libertarian and Peace and Freedom Parties—that is, truly ideological and "expressive" parties—challenged the blanket primary, we can only wonder whether the same result would have followed. Second, because Timmons reaffirms that preserving a stable two-party system is a "strong" and probably "compelling" state interest, interesting questions might arise in situations where only minor parties consider their associational rights in jeopardy. That concern should not be overblown, however. Several of the minorparty-friendly ballot access cases probably provide a ceiling on how far the state can go in intruding uniquely on minor-party rights; see, for example, Anderson v. Celebrezze, 460 U.S. 780, 793–94 (1983): "A burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment. It discriminates against those candidates and—of particular importance—against those voters whose political preferences lie outside the existing political parties" (citing Clements v. Fashion, 457 U.S. 957, 963–64 (1982); plurality opinion).

CONCLUSION

This chapter has attempted to highlight the constitutional causes and consequences of the Supreme Court's decision to strike down California's blanket primary. Elsewhere one editor of this book and I have set forth the schools of thought underlying the judicial opinions in cases involving political parties more generally, and the normative concerns we think judges

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ought to take into account in their decisions assessing the constitutionality of laws that intrude on party autonomy specifically (Persily and Cain 2000). The U.S. Constitution, properly described by some scholars as "a constitution against parties" (Hofstadter 1969, chap. 5), is not terribly helpful when it comes to adjudicating party autonomy cases such as California Democratic Party v. Jones. Given their unique position and role among America's democratic institutions, the political parties do not fall neatly into the analytical boxes developed for other constitutional controversies regarding state action, equal protection, or the freedoms of expression and association. The Supreme Court's decision in Jones, while representing an "interpretation" of the First Amendment, also stands as the latest chapter in the chronicle of judicial development of the concept of party autonomy. Like those that preceded it, this newest one may create more questions than it answers. In upcoming decisions, we will learn whether the primary systems currently governing the majority of states are also constitutionally suspect.

NOTES

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REFERENCES

Boyd, Richard. 1989. “The Effects of Primaries and Statewide Races on Voter Turnout.” Journal of Politics51: 730–39. California Democratic Party v. Jones, No. 99–401, 2000 WL 486738 at *26 (oral argument transcript).

Hofstadter, Richard. 1969. The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840. Berkeley: University of California Press.

Issacharoff, Samuel; Pamela S. Karlan; and Richard H. Pildes. 1998. The Law of Democracy: Legal Structure of the Political Process.New York: Foundation Press.

Key, V. O., Jr. 1964. Politics, Parties, and Pressure Groups. New York: Thomas Y. Crowell.

Persily, Nathaniel. 1997. “The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum, and Recall Developed in the American West.” Michigan Law and Policy Review2:11–41.

Persily, Nathaniel, and Bruce E. Cain. 2000. “The Legal Status of Political Parties: A Reassessment of Competing Paradigms.” Columbia Law Review100: 775–812.

Powell, G. Bingham, Jr. 1982. Contemporary Democracies: Participation, Stability, and Violence. Cambridge, MA: Harvard University Press.

Rohde, David W. 1991. Parties and Leaders in the Postreform House. Chicago: University of Chicago Press.

Rosenstone, Steven J.; Roy L. Behr; and Edward H. Lazarus. 1996. Third Parties in America: Citizen Response to Major Party Failure. Princeton, NJ: Princeton University Press.

CASES CITED

American Party of Texas v. White, 415 U.S. 767, 781 (1974).

Anderson v. Celebrezze, 460 U.S. 780 (1983).

Bullock v. Carter, 405 U.S. 134 (1972).

California Democratic Party v. Jones, 984 F. Supp. 1288 (E.D. Cal. 1997), aff'd 169 F. 3d 646 (9th Cir. 1999), rev'd 120 S. Ct. 2402 (2000).

Clements v. Fashion, 457 U.S. 957 (1982).

Cousins v. Wigoda, 418 U.S. 477 (1975).

Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981).

Duke v. Massey, 87 F. 3d 1226 (11th Cir. 1996).

Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989).

Heavey v. Chapman, 93 Wash. 2d 700 (1980).

Kusper v. Pontikes, 414 U.S. 51 (1973).

Morse v. Republican Party of Virginia, 517 U.S. 186 (1996).

Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.), summarily aff'd, 429 U.S. 989 (1976).

Nixon v. Condon, 286 U.S. 73 (1932).

Nixon v. Herndon, 273 U.S. 536 (1927).

O'Callaghan v. Alaska, 914 P. 2d 1250 (Alaska 1996).

Ray v. Blair, 343 U.S. 214 (1952).

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Smith v. Allwright, 321 U.S. 649 (1944).

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1996).

Terry v. Adams, 345 U.S. 461 (1953).

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

United States v. Classic, 313 U.S. 299 (1941).

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16. Strategies and Rules

Lessons from the 2000 Presidential Primary

Bruce E. Cain and Megan Mullin

In this chapter, we consider some similarities between California's blanket primary debate and the controversies caused by Senator John McCain's open primary strategy for winning the 2000 Republican presidential nomination. As we have indicated throughout this book, nomination rules dictate who gets to decide a party's nominee, and by inference, the candidate's ideological appeal. Allowing independents and members of other parties to cross over and vote in a primary election changes the strategic incentives and opportunities that candidates face. In the end, the question of who gets to choose a party's nominee critically determines the types of candidates who prevail and even the definition of what a party is.

Though few, if any, could have predicted it, the 2000 Republican presidential nomination turned out to be more competitive than the Democratic race. Throughout the fall of 1999, Republican leaders were working feverishly to ensure that Texas Governor George W. Bush would win early and decisively behind a united party, while Democrats seemed to be headed toward yet another divided primary featuring a serious challenge by former Senator Bill Bradley to Vice President Al Gore. But the slated anointment of Bush got seriously derailed in New Hampshire by the unlikely and unconventional candidacy of Senator John McCain. McCain's unexpected insurgency took off in New Hampshire, faltered in South Carolina, and then miraculously revived itself in Michigan despite—or perhaps because of—the efforts of Governor Engler to assist Bush. The Bush-McCain contest finally came to an abrupt halt with Bush's decisive victory on Super Tuesday, March 7.

Various personal and political factors help to explain the McCain challenge in retrospect. McCain is a charismatic war hero with a compelling story of imprisonment and torture. Bush's inexperience as a national can

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didate and his overconfidence following his caucus victory in Iowa led him to be unprepared for New Hampshire. McCain skillfully parlayed the campaign finance reform issue to create an image of moderation and independence, allowing him to appeal to crossover voters and to benefit from the growing schisms within the Republican ranks between moderates and conservatives over social policy and reform issues. Add to all of this McCain's courting of reporters on the Straight Talk Express, and one has a fairly complete explanation.

This story needs only to be tweaked slightly to account for McCain's ultimate demise. In addition to his strengths, McCain had some liabilities as a candidate that became more apparent as the campaign wore on (e.g., his temper and tendency to say politically incorrect and offensive things in the company of reporters). And while he made some smart strategic choices early on, he also made some bad tactical choices after Michigan (e.g., taking on Pat Robertson and comparing Bush to President Clinton). Although this account is quite persuasive by itself, the abruptness of the change in McCain's fortunes on Super Tuesday is hard to explain without also considering the structural parameters of the 2000 primary: that is, the way in which primary rules structured the opportunities for McCain's candidacy after the Iowa caucuses and then closed them off following the Michigan primary.

Simply put, McCain benefited in the early races from the prevalence of open primary rules, and also, in several instances, from the absence of a Democratic party primary on the same day. These factors allowed McCain to be a credible candidate even though Bush was preferred by selfidentified Republican voters in every primary after New Hampshire (except in McCain's home state of Arizona). By Super Tuesday, the primary rules became less favorable. The two largest states on Super Tuesday, California and New York, restricted participation to registered Republicans, creating an impossible strategic dilemma for McCain. In California, McCain's fate was sealed by the California legislature's decision to yield to pressure from the national parties and create an exception to the state's blanket primary rules for the presidential race. As a consequence, the California presidential primary proved to be a natural experiment on the differences between closed and blanket primary rules, illustrating that different rules can potentially yield different outcomes.

OPEN PRIMARIES AND THE McCAIN CANDIDACY

It would be claiming too much to say that the McCain candidacy was created by favorable nomination rules in some of the early contests, but it is not an exaggeration to say that the rules boosted his prospects considerably. To put the argument in the language of this study, McCain's candidacy was

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assisted by nomination rules that lowered the opportunity costs for independents and Democrats to participate in the Republican nomination process. As was discussed earlier, we can think of the rules as lying on a continuum with respect to the ease with which crossover voting can occur. As the opportunity costs increase, the level of crossover voting should diminish, and vice versa.

At the restrictive end of the continuum are the states that held closed primaries in 2000, such as New York, Connecticut, California, and Florida. In order to cast a ballot for John McCain, a Democrat or independent in these states would have had to change his or her registration before the state's deadline prior to the election (e.g., twenty-nine days in California). In addition, Democrats voting for McCain would in most closed primary states lose the opportunity to vote for Democratic candidates running for other offices down the ballot. California was a notable exception in 2000 since it retained the blanket primary rules for all races except the presidential one. Hence, a California Democrat could re-register as a Republican in order to vote for John McCain and still preserve the right to vote for any candidate for U.S. Senate, Congressional, and state offices. Perhaps for that reason (i.e., it did not preclude voters' down-ballot freedom), the McCain forces were fairly successful in getting independents and Democrats to re-register as Republicans just prior to Super Tuesday. According to registration reports prepared by the California Secretary of State, the Republican ranks in the state increased by nearly 24,000 in the month before the registration deadline for the primary election. During the same period, the overall number of registered voters in California declined by more than 44,000, due to ongoing efforts to eliminate duplicate and erroneous registrations from the voter rolls.

Next in the continuum are states that allowed the participation of independents and registered party members only—the so-called semi-open systems. These rules lowered the opportunity costs for independents but not for Democrats, thereby limiting the number of crossover Democrats. Examples of this type of system exist in Rhode Island, Utah, and Maryland.^[1] Because this type of primary voting system retained a fairly substantial barrier against potential Democratic crossovers, there was generally less concern about the possible "hijacking" of the Republican presidential nomination in the states using these rules.

The last category, occupying the farthest point toward the end of the continuum, are the open primaries, in which any voter could participate in any party's primary on election day. As we can see from table 16.1, the number of open primaries on the Republican side has gradually increased from thirteen in 1980 to seventeen in 2000. On the Democratic side, it has increased from ten to thirteen in the same time period. The number of semi-open primaries has almost doubled for both Democrats and Republicans

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TABLE 16.1 Voting Systems over Time (Number of Presidential Nominating Events)

	1980		1992		2000
Type of Nominating Event	Dem.	Rep.	Dem.	Rep.	Dem.	Rep.
SOURCE: Austin Ranney, ed., The American Elections of 1984 (Durham, NC: Duke University Press, 1985), 330–32; Rhodes Cook, The Race for the Presidency: Winning the 1992 Election (Washington, DC: Congressional Quarterly Press, 1991), 3; Rhodes Cook, The Race for the Presidency: Winning the 2000 Election (Washington, DC: Congressional Quarterly Press, 2000), viii–ix.
a Texas Democrats are double-counted because they selected delegates based on an open primary and a caucus.
b Washington Republicans are double-counted because they selected delegates based on an open primary and a caucus.
Open primary	10	13	13a	14	13a	17b
Semi-open primary	5	5	6	8	9	10
Closed primary	15	16	16	14	14	14
Caucus or convention	20	16	16	14	15	10

over this time. In short, the trend in recent years has been for the parties to adopt more open rules to allow the participation of the growing numbers of independents and weak partisans throughout the country.

In addition to this general categorization from closed to open, there are three additional distinctions that might have affected the opportunity costs facing potential crossover voters: whether there was a Democratic primary on the same day, whether voters were required to take a pledge to participate in the Republican primary only, and the timing of the state's registration deadline. In the first case, asymmetric opportunity situations arose where state parties chose different dates for their primary elections. In the states with an open Republican primary and no concurrent Democratic primary, such as South Carolina and Michigan, the absence of a Democratic primary lowered the opportunity costs for Democrats who wanted to vote in the Republican primary. Table 16.2 breaks down the distribution of states with concurrent and nonconcurrent Democratic contests. It shows clearly the accidental vulnerability of the Republicans to this problem in 2000. Five Republican primary states had the potentially lethal combination of open primaries that were not concurrent with Democratic contests. Delegates selected under these circumstances totaled more than 9 percent of the total delegates to the Republican convention. Four of these states, with nearly 8 percent of the national Republican delegate total, held their primaries during February, creating the possibility that a candidate with limited support from party members could lead the field going into Super Tuesday.

The asymmetric opportunities faced by the parties in the 2000 presidential

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16.2 Correspondence of 2000 Republican and Democratic Presidential Nominating Events

	Democratic Nominating Event Held on Different Day		Democratic Nominating Event Held on Same Day
Type of Republican Nominating Event	Events	Delegates	Events	Delegates
SOURCE: Rhodes Cook, The Race for the Presidency: Winning the 2000 Election (Washington, DC: Congressional Quarterly Press, 2000), viii–ix.
NOTE: Table reports number of Republican nominating events and number and percentage of delegates selected.
a Virginia Republicans required voters to sign a pledge not to participate in another party's nominating process.
b Washington Republicans are double-counted because they selected delegates based on an open primary and a caucus. Nominating events in the District of Columbia and the U.S. territories are not included here.
Open primary	5a	191 9.2%	12	598 29.0%
Semi-open primary	0	0 0.0%	10	316 15.3%
Closed primary	2	42 2.0%	12	640 31.0%
Caucus	4	90 4.4%	6	147 7.1%
TOTALSb	11	323 15.6%	40	1,701 82.4%

primary are strikingly similar to the asymmetric competition issue in the blanket primary. In both cases, the lack of a contest in one party creates an incentive for some voters to cross over and participate in the other party's primary. In the blanket primary case, there might formally be an election in the Democratic primary, but if in fact there is no real contest (i.e., one candidate is a sure winner), the race can amount to a nonelection, and Democrats have a reason to vote in the Republican contest. In the 2000 presidential primary, both types of asymmetry could be found: a general lack of competition in all Democratic primaries after New Hampshire due to the early collapse of the Bradley challenge, and also, in some states, the non-concurrence of the Democratic and Republican contests. The dual lack of a formal nominating event and of real competition between Bradley and Gore increased Democratic crossover voting into Republican primaries up until the Republican nomination race was finally decided on Super Tuesday.

The second potentially important distinction is whether voters were required to promise to participate in the Republican primary only. A pledge system raised the opportunity costs for would-be crossover Democrats and

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independents who might have wanted to influence both parties' nomination processes. Since participation in non-concurrent, privately run primaries cannot easily be monitored to prevent an individual voter from taking part in both parties' contests, Virginia's Republican party used a pledge to close its primary to potential Democratic voters. Virginia voters attempting to vote in the Republican contest had to sign a statement affirming, "I, the undersigned, state that I do not intend to participate in the nominating process of any other party than the Republican Party." Going into the Virginia election, the media reported that McCain forces were expressing concern that the Republican pledge would "discourage the kind of voters—independents and Democrats—who have been voting for John McCain,"^[2] but it is hard to tell from the results how much of an impact the pledge might have had. The percentages of independents and Democrats participating in the Virginia Republican primary were 29 percent and 8 percent, respectively. This was comparable to the participation of these groups in South Carolina (30percent independent and 9 percent Democratic), but considerably less than in Michigan (35 percent independent and 17 percent Democratic). Like Virginia, both of these states had open primaries with no Democratic contests on the same day. Thus, without good polling data, we cannot estimate the impact of the Virginia pledge. The most we can say is that the pledge might have prevented a high Democratic crossover scenario in Virginia such as occurred in Michigan, but it is also quite possible that Virginia crossover voting would have occurred at a lower rate anyway, as it did in South Carolina.

Finally, variation across states in the closing date for registering to vote before the primary may have affected the degree of crossover voting and hence had an impact on McCain's candidacy. Most states have a deadline for registering to vote and changing party affiliation that falls twenty to thirty days before the primary.^[3] In some states, however, the deadline is later—in Connecticut, for example, the cutoff date is one day before the election. Thus, while Connecticut has a closed primary, the opportunity costs for crossing over are considerably lower than in states with closed primaries and earlier registration deadlines. While voters can participate in only one party's primary, they can wait until the day before the election to decide which primary they prefer. In contrast with California or New York, Connecticut Democrats and independents who were inspired by McCain's Michigan victory were able to change their party registration in order to participate in their state's closed Republican contest. While changes in party affiliation are not tracked at the state level, reports indicate that thousands of voters crossed over to the Republican party in the final days before the primary (Keating and Daly 2000). And exit polls suggest that it might have made the difference for McCain: in his three-point victory over Bush, 26 percent of those who voted identified themselves as independents,

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and they overwhelmingly supported McCain (69 percent to 25 percent).

THE FORTUITY OF THE SCHEDULE

The full story of the structural factors behind McCain's strong challenge requires an appreciation of the sequencing of the primaries as well. In the period from January 24 (the date of the Alaska and Iowa caucuses) to March 7, 2000 (the date of Super Tuesday), there were twenty-four Republican presidential nominating events in the states. As we can see in table 16.3, almost half the delegates to the Republican national convention were selected during this period. By comparison, there were only eighteen Democratic state events including Super Tuesday, and only two (New Hampshire and Iowa) in the critical early period from January 24 to February 29. In a year when presidential primary elections were more front-loaded than ever, the Republicans were more front-loaded than the Democrats. That meant that they were more vulnerable to early strategic biases.

Also, since there were only two Democratic events in this early period, all but two of the Republican primaries and caucuses during this time were non-concurrent with a Democratic event. Of the seven Republican primaries held in the pre–Super Tuesday period, the only two with closed rules were Delaware and McCain's home state of Arizona, a state he was sure to win as the favorite son. All the other primaries used semi-open (i.e., New Hampshire) or open rules. This was ideally designed for McCain's crossover appeal. The better-organized candidate with support from the party establishment was likely to do better in the caucus states, but the candidate with crossover appeal was given a fortuitous break in the sense that four of the five Republican open primaries without concurrent Democratic events took place before Super Tuesday. The redeeming grace for George Bush in the first period was that there were four state caucuses as well.

However, with respect to the rules, John McCain was not so fortunate in the Super Tuesday events. First, all of the primaries featured formal contests for both party nominations. Hence, there was an election on the Democratic side that could potentially keep the Democrats home. In reality, of course, the Bradley campaign was all but finished at that point, and one might say that those contests therefore were informally asymmetric—in other words, they were formally contested on the Democratic side but not informally competitive. Secondly, three of the contests, including the two largest (California with 162 delegates and New York with 101), were closed. We will consider California in some detail later, but clearly the legislature's decision to switch from blanket to closed rules for the presidential primary made an enormous strategic difference for the McCain campaign. Had the state retained the blanket rules for the presidential primary, McCain could

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TABLE 16.3 2000 Republican Nominating Season

	Iowa to Michigan (January 24 to February 22)		Post-Michigan and Super Tuesday (February 29 to March 7)		Post-Super Tuesday (March 9 to June 6)		Totals
Type of Republican Nominating Event	Events	Delegates	Events	Delegates	Events	Delegates	Events	Delegates
SOURCE: Rhodes Cook, The Race for the Presidency: Winning the 2000 Election (Washington, DC: Congressional Quarterly Press, 2000), viii–ix.
NOTE: Table reports number of nominating events and number and percentage of delegates selected.
a Washington Republicans are double-counted because they selected delegates based on an open primary and a caucus. Nominating events in the District of Columbia and the U.S. territories are not included here.
Open primary	2	95 4.6%	6	238 11.5%	9	456 22.1%	17	789 38.2%
Semi-open primary	1	17 0.8%	4	96 4.6%	5	203 9.8%	10	316 15.3%
Closed primary	2	42 2.0%	3	288 13.9%	9	352 17.0%	14	682 33.0%
Caucus	3	62 3.0%	3	78 3.8%	4	97 4.7%	10	237 11.5%
TOTALSa	8	216 10.5	16	700 33.9%	27	1,108 53.7%	51	2,024 98.0%

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have concentrated on attracting Democrats and independent crossover votes, as he had done in the earlier primaries. But as we shall see shortly, the necessities of the rules dictated that McCain win registered Republicans if he wanted to stay in the hunt for the nomination. This presented him with a difficult and ultimately insoluble strategic dilemma. To appeal to the more moderate crossovers in the early primaries, he needed to continue to talk about campaign finance reform and to hedge his position on abortion. To win over the registered Republicans in the closed primaries that occurred later, he needed to put his conservative credentials forward.

Hence the combination of Bush's advantage among Republican registered voters and party identifiers and the shifting bias of the rules after the early primaries meant that McCain's "open arms" appeal was doomed. As table 16.4 indicates, McCain could not clearly win a majority of selfidentified Republicans in any pre–Super Tuesday primary outside his home state of Arizona (taking the GOP voters 56 percent to 41 percent despite the opposition of the state's Republican Governor). The New Hampshire result varies somewhat by poll, but none of the other states are even close. Bush took the GOP vote in Delaware, Michigan, Virginia, and South Carolina by margins of over forty points. By contrast, McCain took a majority of independents in all five states and of Democrats in the three where it was permitted. Going into Super Tuesday, the conservative columnist Bob Novak exclaimed, "I have never seen a front-runner [McCain] who starts off getting murdered in his own party two-to-one nationally in state after state. And usually you start off with your own support, and then you build the others. He has the other people's support."^[4]

The same pattern held in the Super Tuesday states. Bush won a majority of the GOP vote in every state, with the possible exception of Massachusetts, where exit polls indicate that Republicans were divided between Bush (49 percent) and McCain (48 percent). Even in Connecticut, where McCain won the closed primary, self-identified Republicans preferred Bush to McCain 56 percent to 39 percent. McCain won the majority of Democrats in the four states (Georgia, Missouri, Ohio, and Vermont) where the primary was open, and only in Georgia did he lose among self-identified independents.

In the pre–Super Tuesday contests, self-identified Democratic crossovers varied from a high of 17 percent in Michigan to 2 percent in Arizona and Delaware. The effect of the rules on Democratic crossovers is quite clear. In the closed states, a negligible 2 percent of voters identified themselves as Democrats, and in New Hampshire, with its dual contest, semi-open primary, the crossover vote was 4 percent. But in the open primary states that held only one contest, between 8 percent and 17 percent of primary voters crossed over from the Democratic party. On Super Tuesday, Democratic crossovers in the four open states, all of which held dual primaries,

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TABLE 16.4 Early and Mid-Season Republican Primary Vote Choice, by Party Self-Identification

		Republicans			Independents			Democrats
Republican Primary	Primary Type	Percentage of Voters	Bush	McCain	Percentage of Voters	Bush	McCain	Percentage of Voters	Bush	McCain
SOURCE: Exit polls conducted for various media, compiled by Hotline (March 1 and 9, 2000).
New Hampshire (January 24)	Semi-open	53%	42%	37%	41%	19%	61%	4%	10%	80%
Delaware (February 8)	Closed	80	56	20	18	28	42	2	—	—
South Carolina (February 19)	Open	61	69	26	30	34	60	9	18	79
Arizona (February 22)	Closed	80	41	56	18	20	72	2	—	—
Michigan (February 22)	Open	48	66	29	35	26	67	17	10	82
Virginia (February 29)	Open	63	69	28	29	31	64	8	11	87
California (March 7)	Closed	82	63	32	16	41	50	—	—	—
Connecticut (March 7)	Closed	72	56	39	26	25	69	—	—	—
Georgia (March 7)	Open	63	77	18	29	53	40	8	45	54
Maine (March 7)	Semi-open	66	56	39	31	33	62	—	—	—
Maryland (March 7)	Semi-open	69	66	27	28	33	59	—	—	—
Massachusetts (March 7)	Semi-open	38	49	48	62	21	76	—	—	—
Missouri (March 7)	Open	61	72	21	29	43	49	10	21	76
New York (March 7)	Closed	74	57	38	23	33	58	—	—	—
Ohio (March 7)	Open	69	68	28	24	36	56	7	28	68
Rhode Island (March 7)	Semi-open	38	55	42	62	24	73	—	—	—
Vermont (March 7)	Open	50	51	44	42	23	74	8	19	81

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ranged between 7 percent and 10percent. In several states during the early and mid-season, registered, self-identified Republican voters did not make up a majority of the Republican primary electorate. In Michigan, Massachusetts, and Rhode Island, independents and Democrats turned out in greater numbers than Republicans did, and in Vermont the electorate was evenly split between GOP and non-GOP voters.

No doubt many of the crossover voters were sincere (as defined in earlier chapters), while others, as we shall see shortly, may have been hedgers or raiders. However, the important point for the moment is not so much the distinction among the types of crossover voters as it is the following: in some states, the rules made it possible for a candidate to win the delegates of that state even though the candidate did not have the support of selfidentified party supporters. McCain supporters argued that this was a good thing, demonstrating that favorable rules allowed the selection of a candidate who could appeal to non–party members and win in November. By contrast, Bush loyalists and party regulars saw this a "hijacking" of the Republican nomination by non-party voters.

Clearly, this controversy is strongly related to the issues raised by the blanket primary case in California. Under blanket rules, it was theoretically possible, and empirically inevitable, that at some point non–party members would swamp the primary of the other side and make the selection for that party. Whether this is a good or bad thing depends upon how one views and defines a party (Cain and Persily 2000). If a party is a private association of like-minded individuals, then opening the selection to any and all is a violation of the party members' rights, and leads to the unsatisfactory possibility of the party being saddled with a candidate who is not majority preferred by party affiliates. On the other hand, if one views parties as statefunded vehicles for election purposes, then there is no violation of party member rights. It is simply a question of producing viable candidates on both sides who can run a competitive election in November.

MICHIGAN: THE CASE OF THE HIJACKED ELECTION?

The normative issues surrounding nomination rules and the definition of a political party are most dramatically illustrated by the 2000 Michigan primary contest. Even if all the allegations surrounding this remarkable contest were untrue, the fact that these suspicions arose at all raises important questions about the perceived legitimacy of rules that are vulnerable to strategic voting behavior. American constitutional law maintains a distinction between corruption and the appearance of corruption, and recognizes that states can have a compelling interest to prevent both. Perhaps there is a parallel distinction between the actual manipulability of an electoral system and its perceived vulnerability to manipulation that plays a role

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in determining the legitimacy of a party's nominee. The key question is, Perceived by whom: by party regulars or by the electorate as a whole? The answer to this question depends on one's view of the party. If it is a private association, its membership of party regulars should be able to have strong confidence that the party's nomination process is protected from manipulation by nonmembers. If the party is an instrument of the state, then the goal should be maximizing participation, even if the resulting process might be perceived as vulnerable to manipulation. The Michigan primary provides a good example of an electoral outcome that is widely perceived as illegitimate by party regulars yet accepted by the wider public, in reflection of their conflicting interpretations of the role of a political party.

The 2000 Michigan GOP primary fell three days following the bitter South Carolina primary held on February 19. Having lost in New Hampshire, Bush pulled out the stops and won an acrimonious battle with McCain 53 percent to 42 percent. McCain gave what was widely regarded as a bitter concession speech, angered by Bush's negative advertising and irritated by Bush's claim to be a reformer with a record. Said McCain, "If he's a reformer, I'm an astronaut" (Christoff and Montemurri 2000, 1A). One of the keys to Bush's success in South Carolina had been his strong support from the religious right, which, rightly or wrongly, was attributed in part to Bush's visit to Bob Jones University. For Bush, the visit had been intended to reassure the right that he stood with them on abortion and other social issues. But as the press uncovered more information about the university, it became apparent that being identified with a university that was associated with prohibitions on interracial dating and with anti-Semitic and anti-Catholic statements would be a liability. The implication of this for the Michigan primary was that Bush might have won South Carolina, but he simultaneously weakened his prospects in Michigan among the state's blue-collar, white ethnic voters. Crossovers from this group had formed the so-called Reagan Democrats in the eighties. Bush, when criticized for his visit to Bob Jones, responded, "Tell the people that are nervous about me to think about Ronald Reagan. He went to Bob Jones University, and he picked up huge ethnic Catholic votes, and I'm going to as well."^[5] However, Bush's ties with Bob Jones and the Christian right so bothered Representative Peter King of New York that less than twenty-four hours after the South Carolina primary, he announced that he was switching his allegiance from Bush to McCain (Archibold 2000).

Michigan was supposed to be a "firewall" for Bush that would contain the McCain insurrection. Governor John Engler, a strong Bush supporter, had supported making the primary open and early, thinking that the moderate crossover voters would protect Bush from challenges by more conservative candidates such as Gary Bauer, Alan Keyes, Steve Forbes, Orrin Hatch, and Dan Quayle. Illustrating the law of unintended consequences,

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Engler did not foresee that Bush would be outflanked by McCain on the left, and that the very conditions that he thought would favor Bush would in the end hurt him. A curious and distinctive aspect of the Michigan contest was that Engler himself had become a factor in at least some of the Democratic voters' minds. It was reported that ministers in Detroit's African-American churches were urging their congregations to vote for McCain as an act of "political revenge" against Engler (Dixon and Montemurri 2000). Geoffrey Fieger, the 1998 Democratic gubernatorial nominee and former attorney for assisted-suicide advocate Jack Kevorkian, ran a radio ad urging Democrats to "come out and vote against" Engler (Mayes 2000). And the Detroit chapter of the NAACP and state Representative LaMar Lemmons III helped to set up an unofficial campaign for McCain called "Detroiters Out to Get Even with Governor Engler." Said Lemmons, "In doing so, we can deliver the Governor a political spanking for the mischief he has wrought," such as the takeover of the Detroit schools (Martinez 2000, A1). McCain himself did not encourage this: "If someone is voting for me because of any personal vendetta and for any other reason than they think I'm going to be the best President, … I do not want their votes," he asserted (Dixon and Montemurri 2000, A1). These activities by Detroitarea Democrats amounted to an attempt to localize the presidential race and turn it into a referendum on the state's Governor.

Some of the voters may have responded to this effort. "I would drop my pants in the middle of Times Square if I thought it would hurt Engler," declared a Detroit private investigator and self-professed "old liberal" who said he voted for McCain (Flesher 2000a, n.p.). A retired teacher who planned to vote Democratic in the fall, even though he voted for McCain in the primary, said, "Number 1, I don't want to see George W. run away with it. Number 2, I don't like the fact that our Governor has been such a cheerleader for George W." (Martinez 2000, A1). In all, about 15 percent of voters said that Engler had a great deal of influence on their vote, and of those, 70 percent supported McCain (Flesher 2000a).

At the same time, other Democratic voters were clearly sincere McCain supporters. In the words of one unionist, "I'm a UAW. They tell us to vote for the Democrats. … But I like McCain. … I like how he fights in Congress and he doesn't back down … and I don't like the way things are going in politics" (Martinez 2000, A1). Asked to characterize the motives of the Democratic crossovers, Bill Ballenger, publisher of the Inside Michigan Politics newsletter, stated, "I don't think that they're a monolithic group. There was a diversity of motives, sometimes overlapping" (Flesher 2000b, n.p.).

The strategies of the Democratic groups gave rise to the counter strategies of the Bush campaign. Turning attack to advantage, Bush and his supporters prominently played up the possibility of a hostile takeover of the party, hoping that this would rally the troops on election day. Two days

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before the election, Governor Engler stated on national TV, "McCain has absolutely courted, fraternized with some of the worst people, politically speaking—they are sworn foes; he had tried to bring them in to influence the result."^[6] In a letter to Republicans, Engler wrote, "Your help is urgently needed because some of Al Gore's leading supporters here in Michigan … plan to interfere with our February 22 primary" (Hoffman 2000, n.p.). Ironically, the man who initially intended the open primary as a firewall for his friend George Bush told CNN that the key to the primary was "getting the Republican support that's so overwhelming for George Bush to the polls to make sure that nothing untoward happens on election day by the intervention of non-Republicans who cast votes in this open primary."^[7] Even for Democrats, the strategy of promoting Democratic crossovers for McCain was problematic. As several leaders pointed out, McCain could actually have been the harder candidate to defeat in a November election, so promoting his candidacy in order to stop Bush could have been risky in the long run.

As it turned out, exit polls suggested that about 17 percent of the vote in the GOP primary came from self-identified Democrats, and that McCain got over 80percent of their votes. After the dust settled, the question of whether the large crossover vote was a good thing for the Republican party was much discussed. Bush himself had to tread a fine line in post-election interviews since he had lost the election due to the Democratic and independent voters but planned to campaign for their votes in the fall: "I think when I am the nominee, you are going to find I attract a lot of new faces … alot of Democrats. There's a difference between attracting people who are going to stay with you throughout the entire race and people who come into our primary to make a statement and then intend to support Al Gore in the general election."^[8] But Bush and Engler aside, there were many observers who felt that party nominations should be made by party members, not outsiders, and should be less vulnerable to potential hijackings. In the words of a Detroit News editorial, "This ought to spell the end of the good-government idea that primaries should be open to all." Arguing that mischief was not the primary problem, the paper criticized the concept of open primaries: "While they demonstrate a candidate's ability to reach across party lines, they also dilute the meaning and value of political parties. Parties exist to organize voters around an identifiable philosophy, thus offering voters real choices in the general election. Open primaries weaken this important process" ("The Non-Primary Primary" 2000, A14).

The Michigan experience very much parallels the debate that Californians had in 1996 when Proposition 198, the blanket primary law, was placed on the ballot, and in 1997, when the blanket primary was challenged in court. Engler and the Republican-controlled legislature had changed the rules from closed to open in 1995, hoping that it would paint the GOP

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as the party of inclusion (Hornbeck and Cain 2000). Similarly, as we have seen, Tom Campbell and his supporters saw the blanket primary as the technical solution to the California Republican party's problem of nominating extremist candidates. The trouble in each instance is that one cannot always and accurately foresee who will benefit from rule changes, and vulnerability to mischief, even when it does not concern most voters, tends to undermine confidence in the party's choices. The Democrats added to Engler's troubles by deciding to hold a caucus on another date instead of a simultaneous primary, and by encouraging strategic behavior of various forms. In this way, the Michigan Republicans got more than they had bargained for when they changed the rules. On the other hand, Michigan had an election that was highly competitive and brought out many new voters. Said Ballenger, "I would argue that it's the most exciting primary we've seen in a long time in Michigan" (Hoffman 2000, n.p.). Once Bush was assured of the Republican nomination, even Engler expressed satisfaction with the large turnout in the Michigan primary and predicted that it would help the GOP in the fall (Weeks 2000a).

Again, the question we return to is whether the primary exists for the party or for the state. McCain embraced the open primary goals of inclusion and high turnout, urging "independents, Democrats, libertarians, vegetarians" all to exercise their opportunity to vote in open Republican primaries. In a campaign flyer, he reminded Michigan Democrats that they would still be able to participate in their party's caucuses even after voting in the Republican primary (Weeks 2000b). Many non-Republicans enjoyed the opportunity to participate in the tight race, and felt it was their right to cast a meaningful vote in this stage of the presidential selection process. Ironically, it was Engler who best expressed the weakness of the open primary. In accusing McCain of "renting Democrats" for the primary and "party-borrowing," not party-building (Weeks 2000c, A15), he pointed out the vulnerability of the system to manipulation by non–party members. In Michigan, the result was a primary outcome that was perceived as illegitimate by an individual who had been one of the system's strongest supporters.

CALIFORNIA IN 2000: A NEW EXPERIMENT

California added a new twist to the blanket primary story in 2000. With the passage of Proposition 198, the state found itself in violation of the national Democratic and Republican party rules that prohibited the seating of delegates chosen under the blanket primary system. Needing an exception to the state's blanket primary requirement, Governor Pete Wilson and the state legislature placed Proposition 3 on the November 1998 ballot, proposing that the presidential primary vote in California be conducted under

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the old, closed-primary rules. The Republican state party, in particular, made it clear in its public statements that it would have no choice if Proposition 3 failed but to adopt a caucus or convention system to select convention delegates (Purdum 1998). Despite the near absence of formal opposition to the initiative, little or no money or effort was spent that year to help Proposition 3, and it failed 46 percent to 54 percent.

This put the legislature back in the quandary it had tried to avoid. Two proposals emerged. One, favored by the Secretary of State Bill Jones, would code the ballots so that voters could still choose any candidate they wanted, but only the votes of party registrants would count toward the selection of delegates. In effect, there would be two counts: a blanket beauty contest and a closed delegate vote. The other proposal, put forward by Senate President Pro Tem John Burton, would have created two separate ballots, one closed and the other a blanket. The legislature voted out the Burton bill (on a 37–0vote in the Senate and a 66–5 vote in the Assembly), but Democratic Governor Gray Davis subsequently vetoed the bill, arguing that it invited a lawsuit that he "did not want to defend" ("Legislation on Primary" 1999, A21). The Senate came back with the Jones proposal, and the Governor signed that (Gunnison 1999, A22).

Returning the presidential race to closed rules had several implications. First, as suggested earlier, it altered the incentives for those running in the California primary. No longer did it make sense to court independent and crossover voters, since their votes would only be for show and not count toward the actual delegate choice. Second, the fact that there would be two counts raised the specter of two different outcomes: a winner under the closed rules might not necessarily be a winner under the blanket rules. In particular, if McCain won the blanket beauty contest and Bush the delegates, then it was possible that this might lead to a huge credentials fight at the Republican convention.

Early polling in February indicated that a split decision was possible. Virtually every poll had Bush leading McCain by wide, double-digit margins among the registered Republicans, but the two were in a very competitive race for the blanket beauty vote. For instance, a Zogby/Reuters/MSNBC poll conducted between February 29 and March 2 had Bush leading McCain 48 percent to 30percent in the closed poll, but only 26 percent to 24 percent in the blanket beauty vote. Even a week later, after McCain had changed strategies and moved to the right, Zogby/Reuters/MSNBC still had Bush leading among registered GOP voters 54 percent to 26 percent and the blanket race at 26 percent to 20percent.

Faced with the reality that the closed primary changed his prospects drastically, McCain altered his strategy after Michigan. Although his supporters undertook a hurried registration effort to convince Democrats and independents to re-register as Republicans in order to have their votes

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count, it was destined to be futile. In a state with over 14 million registered voters, their goal of 30,000 switches could only be a drop in the bucket. The McCain campaign fell short of its goal, but the 20,000-plus new voters it did recruit added to the ranks of Republicans measurably and strengthened McCain's case that the Republican party could fortify its position by reaching out to non-party voters. As Assembly Republican leader Scott Baugh explained, the GOP in the 1990s picked up only 10 percent of newly registered voters, but in the month before California registration closed for the 2000 primary, the party captured 43 percent (Bunis 2000). If California had allowed voter registrations in the month before the March primary, as Connecticut did, then perhaps this strategy would have been more rewarding for McCain.

In addition to re-registering Democrats and independents, the other possibility for McCain was to try to win over registered Republicans by emphasizing his conservative credentials. Evidence from the Field Poll indicates why this was important. According to a poll taken between February 22 and 27, 40percent of California Republicans called themselves strongly conservative, and they preferred Bush 64 percent to 16 percent. Another 23 percent regarded themselves as moderately conservative, and they favored Bush 44 percent to 33 percent. Only the middle-of-the-roaders (37 percent of the registered Republicans) went for McCain (36 percent to 33 percent). Clearly, he could only win the Republican primary by convincing conservatives that he was one of them, but how could he do this after fighting with the Christian right in South Carolina and Virginia, raising questions about his commitment to abortion in interviews, and differing from the tax-cut line that fiscal conservatives in Congress were espousing? Add to this the fact that members of the Christian right adamantly believed that campaign finance reform would hurt their political influence, and it was clear that winning back the right would be no easy task for John McCain.

Nonetheless, McCain did try. A day after the Michigan primary, which he won with heavy support from independents and Democrats, McCain declared in a speech to the Seattle Rotary Club, "I am a Reagan Republican. … Have no doubt about that" (Connelly 2000, A1). Unfortunately, the polls indicated that the right did have doubts. McCain did not help matters a few days later when he told California reporters on his bus that Pat Robertson and Jerry Falwell were "agents of intolerance" and "forces of evil." Among other things, the effect was to step on the message that he was a conservative. In addition, polling data revealed that McCain had better chances in New York than California, because of the presence of large numbers of ethnic white Catholics who were still angry at Bush for the Bob Jones University visit. This caused the McCain campaign to rethink its previous intention to spend a lot of time campaigning in California, almost to

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the point of canceling out on the one scheduled debate in Los Angeles. What time he did spend in the state was confined largely to the Central Valley and Southern California, trolling for conservative Republicans rather than for moderates in the Bay Area and coastal regions.

In other words, the shift in primary rules and opportunities caused a shift in strategies. No longer able to rely on crossover Democrats and independents, McCain was forced to try to prove his conservative credentials to registered Republicans. This caused him to adopt a politically schizophrenic approach, displaying his moderate reformist side in some moments and his conservative side in others. In the end, Bush won the beauty contest 53 percent to 43 percent and the closed race 60percent to 35 percent. McCain received 15 percent of the Democratic partisan vote as compared to 7 percent for Bush, and 28 percent of the independents as compared to 21 percent for Bush. In a Los Angeles Times exit poll, when asked whether everyone's vote should count in the blanket primary or only the votes of registered members, respondents favored the former 70percent to 30percent.^[9] As it turned out, had the public received its wish and nothing else changed, the blanket primary rule would have changed the margin but not the outcome. What we cannot know, however, is the likelihood of the counterfactual possibility that had the blanket vote been for real, there could have been enough crossover voting to alter the final vote as well.

CONCLUSION

The themes pursued in this book were echoed in the controversies of the 2000 presidential primary. As more states opened their primaries to non–party members, they discovered the mixed blessings such innovations can bring. The party that takes in large numbers of crossover voters can increase interest in its nominee and fashion appeals that might work in November. At the same time, there is the danger that a party can be swamped by crossover voters with very different preferences than the party regulars. To the Court, this is a constitutional question: should the party be required to give its party label to nominees who are not majority-preferred by party members? Writing for the majority in California Democratic Party v. Jones, Justice Scalia argued that this amounted to forced association. To the political scientist, vulnerability to strategic behavior is an important institutional design problem. The best system would be one that faithfully reflects the sincere preferences of voters. Systems that increase incentives to be insincere are problematic. While data from the blanket primary experience in California suggests that "raiders" (i.e., those who vote for the weakest candidate on the other side in order to improve the general election chances for their own party) make up less than 5 percent of the total electorate, the 2000 Michigan primary reminds us that we cannot always distinguish

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between raiding and hedging (i.e., crossing over to vote for one's favorite candidate in the opposing primary even while preferring a candidate in one's own party), and that both behaviors, if publicized, can undermine an election's legitimacy. Finally, California's experience with the two-count system in the March 7 primary demonstrates that different rules can yield very different results—if not changing the winner, then at least changing the margin of victory. If nothing else, California's experiment proves that rules do matter.

NOTES

REFERENCES

Archibold, Randal C. 2000. “New York Lawmaker Switches to McCain.” New York Times, February 21, A12.

Bunis, Dena. 2000. “Bradley, McCain Vie for O. C. Vote.” Orange County Register, February 29, A1.

Christoff, Chris, and Patricia Montemurri. 2000. “GOP Takes Brawl to Michigan Streets.” Detroit Free Press, February 21, 1A.

Connelly, Joel. 2000. “State Gives McCain Big Smile.” Seattle Post-Intelligencer, February 24, A1.

Dixon, Jennifer, and Patricia Montemurri. 2000 . “Preacher Calls for Spiteful Turnout.” Detroit Free Press, February 21, A1.

Flesher, John. 2000a. “Heavy Democratic, Independent Turnout Boosts McCain.” Associated Press wire, February 22, AM cycle.

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Flesher, John. 2000b. “Multiple Motives for Democrats, Independents Who Backed McCain.” Associated Press wire, February 23, BC (both cycles).

Gunnison, Robert B. 1999. “Davis Signs Bill to Permit Delegate Voting in Primary.” San Francisco Chronicle, May 5, A22.

Hoffman, Kathy Barks. 2000. “Michigan Primary a Vital Contest for GOP Candidates.” Associated Press wire, February 19, AM cycle.

Hornbeck, Mark, and Charlie Cain. 2000. “History: GOP Let Dems Crash Primary.” Detroit News, February 24, A4.

Keating, Christopher, and Matthew Daly. 2000 . “McCain Overcomes Bush, and the Odds, in State.” Hartford Courant, March 8, A1.

“Legislation on Primary Has Defect, Davis Says.” 1999. San Francisco Chronicle, April 9, A21.

Martinez, Gebe. 2000. “Blacks Use Vote to Go After Engler.” Detroit News, February 18, A1.

Mayes, Kris. 2000. “Candidates Sling Mud in Michigan.” Arizona Republic, February 21, A1.

Mayes, Kris. “The Non-Primary Primary.” 2000. Detroit News, February 24, A14.

Persily, Nathaniel, and Bruce E. Cain. 2000. “The Legal Status of Political Parties: A Reassessment of Competing Paradigms.” Columbia Law Review100, no. 3: 775–812.

Purdum, Todd S. 1998. “Quest for Presidential Primary Clout May Hinge on Passage of Obscure Ballot Measure.” New York Times, November 24, A12.

Weeks, George. 2000a. “In Hindsight, Primary Pleases Engler.” Detroit News, March 12, 10.

Weeks, George. 2000b. “Intensity Is Building for Michigan's Primary.” Detroit News, February 20, B1.

Weeks, George. 2000c. “Now McCain Camp Must Beware Mischief.” Detroit News, February 24, A15.

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17. Conclusion

Bruce E. Cain and Elisabeth R. Gerber

This volume has several purposes. One is to explain the background and motivation for the passage of the blanket primary reform in California. A second is to assess the impact of this election system change on numerous aspects of the electoral process, including voter participation and behavior, campaign strategy, election costs, the ideological makeup of the legislature, and the viability of women, minority, and minor-party candidates. However, there are important caveats to any generalizations we might derive from this exercise. To begin with, the authors do not agree on every point. But also, it is important to remember that the full impact of this experiment may not have been realized in California since candidates, strategists, and voters had only two primary elections (and one complete election cycle) of experience with the blanket system. Nevertheless, it is illuminating to identify the areas of scholarly consensus that emerged from the studies in this volume and to ponder the meaning of these findings.

IMPACT OF THE BLANKET PRIMARY

Did the imposition of the blanket primary accomplish what experts and advocates predicted that it would? The results are mixed. In several respects, such as the level of participation and the cost of running campaigns, California's first blanket primary had modest or nonexistent effects. But in two other important respects, namely the level of crossover voting and the moderation of candidate ideology, the effects were more significant. To start with the small or nonexistent impacts, the blanket primary did not dramatically increase turnout in the 1998 California primary. Cho and Gaines (chapter 9) claim that there was roughly a 2.4 percent surge in primary turnout over the decade average of 27.4 percent. The 1998 blanket

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primary turnout was lower than the 1996 closed primary turnout of 31.1 percent, but higher than the 1994 midterm election closed primary turnout of 26.2 percent. Further, it appears that among nonpartisans—the group that was presumably the biggest beneficiary of the rule change—turnout was roughly the same as among partisans (turnout among both groups is estimated at approximately 27 percent). Nor did the marginal increase in primary participation carry over into November, as the 1998 general election turnout was also average by the standards of the decade.

In retrospect, this finding is not too surprising, since political science research has already uncovered many other factors to explain turnout, such as registration rules (e.g., same-day versus thirty-day close), the demographic makeup of the electorate, the quality of the candidates, and the like (see Wolfinger and Rosenstone 1980). The blanket primary opened up new opportunities for independent voters, but it did not guarantee that they would be more motivated to take advantage of those choices. Given that the large number of initiatives and nonpartisan races on California's closed primary ballots has always provided a reason for nonpartisans to vote, the chance to participate in presidential nominations and other primary races may not have added much to the existing incentive for them to participate. This is not to imply that the new opportunities made no difference at all to independent voters. Those who turned out had more races to participate in. But judging from the data, the new system did not stimulate large numbers of previously nonvoting independents into voting.

Had the Supreme Court allowed California to continue using the blanket rules, Cho and Gaines suggest that there might have been an increase in nonpartisan voter registration, since the value of being a registered partisan was lessened by the new blanket rules. However, the possibility of an increase between 1998 and 2000 in the number of independents was probably undercut by the way in which the California state legislature handled the presidential primary question. In 1998, California voters rejected Proposition 3, a measure that would have created an exception to the blanket primary rules for presidential races. Subsequently, the California legislature passed an exemption to the blanket primary law that only counted the votes of registered partisans for the selection of official delegates to the national presidential nomination conventions. Since this in effect deprived independents and minor-party registrants of an opportunity to cast a meaningful vote for the most salient race, we cannot rule out the possibility that it discouraged voters from choosing nonpartisan status.

Cho and Gaines also find very modest changes in the level of electoral competitiveness and campaign spending before and after the introduction of the blanket primary. Asking whether the 1998 returns were more or less competitive than California's district normal votes (see chapter 9), they conclude that there was a small increase in competitiveness in California's

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congressional districts as measured by the normal vote. This small increase was offset by increases in incumbency and experience factors that tend to suppress competitiveness between incumbents and challengers. This conforms to findings in chapter 7 (Salvanto and Wattenberg) that show strong incumbency advantages under the blanket primary. In chapter 2, Gaines and Cho remind us that incumbency was also strong under the cross-filing system that California adopted several decades earlier, a system which allowed candidates to run under more than one party label simultaneously. The two systems are similar, except that in cross-filing, candidates can choose to cross party lines, whereas in the blanket system the voters do so. Several of the studies in this volume point out that many of the sincere and hedging voters were attracted to popular incumbents under the blanket system, just as voters were several decades ago under the cross-filing system.

While it appears that the blanket primary strengthened incumbents by giving them access to supporters in all parties, one should bear in mind Baldassare's important point (chapter 4) that the 1998 election was fought at a time when voters were relatively content with conditions in California. The economy had recovered from the difficulties of the mid-nineties, and voters were not looking to shake things up by voting for unproven outsiders. Experienced candidates and familiar faces did well up and down the ballot. Therefore, it is difficult to parse out how much of this apparent incumbency advantage was the result of the new rules per se, and how much was also a reflection of the tenor of the times.

Cho and Gaines (chapter 9) also find that the blanket primary did not dramatically increase campaign costs, as many opponents had predicted. The opponents argued that since candidates had to appeal to a larger electorate—essentially the same voters they would face in November, rather than strictly voters registered in their own parties—campaign costs would increase considerably. Using a model that pools Congressional spending data from 1992–1998, they conclude that the change to the blanket primary did not significantly alter the proportion of individual contributions that were earmarked for or spent during the primary election.

Another change that some experts predicted was that the blanket primary would open up new opportunities for women, minority, and minorparty candidates. Caul and Tate suggest in chapter 12 that, at least for women, the blanket primary created few new opportunities. Indeed, they predicted that if anything, movement away from stronger party control might actually set the progress of female candidates back, not forward. Looking at the evidence, however, they conclude that there was no change in terms of the absolute numbers of women running in statewide races under the blanket and closed primary systems. At the same time, they did find that the women who ran under the blanket rules tended to be better qualified; that is, they had substantial personal political resources such as

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wealth, experience as political officeholders, or name recognition due to family ties. They found no similar differences among male candidates and speculated that this may have to do with the interaction between gender differences and organizational structure. In other words, since women rely more heavily on organizational resources rather than personal political resources, the absence of strong party control under the blanket primary required women to compensate with better qualifications.

Segura and Woods (chapter 13) are more positive about the effects of the blanket primary on Latinos, but in a very particular sense. They find that moderate Latino Republican candidates were more viable under the blanket primary. Because the blanket primary encourages crossover voting from independents and moderate Democrats, it increases the chances of moderate Republicans being elected. Also, it allows Latino voters in districts with uncontested Democratic primaries to support Republican Latino candidates. Interestingly, they found no such effects on the Democratic side, suggesting the peculiarity of the California Republican Party and its "Latino problem." Further, by empowering moderate Latino candidates, the blanket primary also presumably undercuts the incentive of the Republican Party to undertake confrontational politics. We will return to the general point about moderation shortly.

Collet (chapter 11) similarly sees that minor parties benefited marginally from the new rules, although it is important to note that they "benefited" only if one thinks of minor parties as electoral rather than as expressive parties. By an electoral party, we mean one that is trying to win the election (or swing election outcomes) and therefore adapts to voter demands. By comparison, an expressive party cares less about trying to win (recognizing that this is usually not an option anyway) and gives voice to ideas that would otherwise be ignored by the major parties. Collet finds evidence that the vote for almost all minor parties increased dramatically in the 1998 election. This, he claims, offers the hope of broadening the otherwise narrow base of these parties and moderating their politics. This, as Collet acknowledges, can be defined as a benefit if the goal of minor parties is to become more electorally competitive, but not if their goal is to act as a voice of conscience, principle, and innovation. This illustrates an important point about electoral rules: namely, that the effects sometimes can be both subtle and profound. Changing the rules in this case may actually change the role that minor parties play from one of conscience to one of electoral competitor, something that was not predicted or discussed in the Prop 198 campaign.

The more dramatic effects caused by the introduction of the blanket primary center on two points: first, the incentives for voters to cross back and forth across party lines, and second, the effects this may have on candidate positioning. With regard to the first point, a number of the chapters

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in this volume have examined the rate of crossover voting using a variety of data and estimation strategies. Some looked at survey data (Sides, Cohen, and Citrin, chapter 5; Alvarezand Nagler, chapter 6), others at aggregate data (Kousser, chapter 8), and still others at actual ballot image information (Salvanto and Wattenberg, chapter 7). While they do not agree in all of their conclusions, there are some points of consensus.

First, it is clear that voters did use the opportunity to cross party lines. For instance, looking at absentee ballots in Los Angeles County, Salvanto and Wattenberg claim that only 45 percent of registered Democrats voted for Democrats only (i.e., a straight ticket), 40 percent of registered Republicans voted for Republicans only, and only 5 percent of minor-party registrants voted for minor-party candidates only. To put it another way, a majority of voters in Los Angeles County took the opportunity to split their ballots between parties. If doing something indicates liking it, clearly a majority of voters seem to like the new system. This might explain why Proposition 3, which sought to exempt the presidential primary from the blanket rules, failed in 1998.

Salvanto and Wattenberg also argue that voters behaved in the blanket primary very much as they do in general elections. So one conclusion we can draw is that the blanket primary allowed voters two rounds of essentially general election behavior. However, as Kousser shows, this does not mean that voters will make the same choices twice, even when they have the opportunity to do so. A significant number of voters who cross over to vote for a particular candidate in the primary return to their own party in the general election, for reasons we will discuss shortly. Kousser reports that what he calls the "stickiness factor" (i.e., the likelihood that a crossover voter will support the same candidate in the general election) varies greatly depending on the electoral circumstances. When voters leave their own contested primary to vote in another race that is less competitive, the stickiness factor is very high, varying from 90 percent for Republicans to 82 percent for Democrats. But when voters leave their own uncontested primary to participate in a more competitive one, the stickiness factor is more like 44 percent. Because of this, Kousser takes some issue with Salvanto and Wattenberg in that he finds similar patterns but higher rates of crossover voting in the primary than the general election.

The second point of consensus is that the propensity for crossover voting varies according to the electoral circumstances of a race—for example, which race is competitive in the primary, and who is likely to win in the general. Controlling for different strategic situations, Alvarezand Nagler (chapter 6) find that the level of crossover voting in five 1998 Assembly district races varied from a little over 1 percent of Democrats in a heavily minority Democratic seat, Assembly District 49, to 85.9 percent of Republicans in the same seat. Presumably, Republicans in that seat understood

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that the "action" was in the Democratic primary in the sense that the winner of the Democratic primary was virtually assured election in November. In the other seats, the partisan crossover vote varied from 5 percent to 41 percent. Salvanto and Wattenberg find that Republican crossover into Democratic races varied from a high of approximately 27 percent in the Governor's and Controller's races to a low of 6 percent in the Secretary of State race. For Republican statewide candidates, the crossover appeal to Democratic registrants was less, ranging from a high of approximately 18 percent in the Secretary of State and Insurance Commissioner races to a low of 5 percent in the Controller's race. A similar point about the strategic context of crossover voting can be found in chapter 5, which uses Field Poll data at various points in the primary. It shows that by May 1998, 23 percent of Republican party identifiers intended to cross over into the highly contested Democratic gubernatorial race, but only 5 percent of Democrats were inclined to vote in the predetermined Republican gubernatorial contest. In the U.S. Senate race, where the action was on the Republican side, only 8.6 percent of Republican identifiers intended to cross over to vote in the Democratic race versus 15.8 percent of Democrats who planned to participate in the Republican primary.

This leads us to perhaps the greatest areas of scholarly disagreement in this volume—why did voters cross over, and why does the rate of crossover voting vary so much from race to race? One answer that each chapter rules out is widespread raiding. Only a small fraction of voters seems to be crossing over to vote for the weakest candidate in the other party in order to improve the chances of their preferred candidate. This can be inferred from the moderate ideology and partisanship of the cross-over voters (chapter 5), their pro-incumbency bias (chapter 7), the rank orderings that voters assigned to candidates (chapter 6), and the relatively high number of those who vote the same way in November and in the primary (chapter 8).

If mischief is not the primary reason, then what else motivates crossover voting? One answer seems to be the attraction of popular incumbents, as we mentioned earlier. But the deeper question, which is far more controversial and divides our authors, is the proportion of voters who are acting sincerely as compared to those who act strategically. Sincere voters are supporting their most preferred candidate, while strategic voters are choosing a candidate who is not their most preferred for various reasons. Since we have ruled out sabotage in most cases, the more common strategic motive is hedging or impact voting: voting for a second-choice candidate with a higher probability of winning, or picking the best of the candidates in the other party's primary so that if the preferred candidate does not win, the voter gets her second-best candidate. However, it is very hard to infer exactly how many voters fit into the sincere or hedging categories since they

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both end to reside in the same part of the ideological spectrum (i.e., the middle), and it is difficult to get voters to state their honest motives in a survey. Since, according to Kousser's calculations (chapter 8), a significant number of voters who supported the other party's candidate in the primary returned to their own party in November, we can infer that many of them must have voted strategically in the primary.^[1]

Does it matter whether voters act strategically in the primary? In terms of the effects on candidate strategies, the answer is that it requires some adjustments of expectations. Candidates need to discount their expectations of how much of the crossover vote they can expect to retain in November according to the strategic circumstances they find themselves in. But this, by itself, poses no vital threat to democracy. It does illustrate a point of principle about political parties, however. If enough voters are strategic, it means that races can be determined by fortuitous factors such as whether the other party has a contested primary or not. An important question that is as yet unanswered is whether this promotes perverse elite behavior, such as parties trying to prevent competitive races in order to keep the other party's supporters from interfering in their nominations. Systems that promote manipulative elite behavior tend to have a short life in American politics, as the U.S. experience with cumulative and limited voting suggests.

The other important effect of the blanket primary is on candidate ideology. It is clear from the official ballot pamphlet arguments and the known preferences of Proposition 198's backers that this was the main motivation behind the blanket primary reform. Representative Tom Campbell and other moderate Republicans believed that the closed primary system kept the California Republican party captive of the right wing. As both the Gerber and Petrocik essays explain (chapters 10 and 14), Campbell's fears in this regard comport with the logic and evidence of political science. Since registered partisans are both more motivated to vote in primary elections and more ideologically polarized than the general electorate, candidates are forced to play to the ends of the ideological spectrum in order to win in a closed primary and then trim to the middle to be competitive in the November contest. Campbell's hope was that this structurally induced schizophrenia could be lessened with the help of nonpartisans and moderate members of other parties.

Gerber finds that the moderating effect on candidate ideology was minimal in the top-of-the-ticket races, but substantial in the state legislative races. Her statistical model for predicting the probability of nominating a moderate candidate for the State Assembly in 1996 and 1998 suggests that the odds were significantly higher in 1998, even after controlling for other factors such as district ideology, the presence of an extreme challenger, race type, and party. The fact that the Republicans did not nominate moderates

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in the high-visibility U.S. Senate and Governor's races might have been the result of many years of closed primaries in the sense that there are not many prominent moderates who could have run for either seat. Presumably, the cumulative effect of several election cycles under the blanket primary might have created a deeper bench of moderates in the future. It is also fair to say that there was some confusion about the definition of a moderate Republican candidate. The 1998 Republican nominee for the U.S. Senate, Matt Fong, for instance, tried very hard to portray himself as a centrist candidate in his November race with Barbara Boxer and did receive a greater share of the crossover vote than his primary opponent (see chapters 6 and 7). In the end, however, Boxer was able to portray him as a noncentrist and minimized the November crossovers (see Baldassare's chapter 4).

Petrocik agrees with Gerber that the new blanket rules were designed to moderate the parties, but argues that the result will instead be greater programmatic heterogeneity and hence less party cohesion. Using a specially designed survey that gave information about the strategic circumstances of a hypothetical race to some respondents but not to others, Petrocik concludes that the perceived hopelessness of a seat (e.g., by a Republican voter in a safe Democratic seat) greatly increased the odds of crossover voting. He then produces evidence that the types of moderate voters who will cross over tend to have more diverse policy attitudes, which causes him to speculate that this could ultimately lead to less party cohesion.

MOTIVES AND THE ADOPTION OF THE BLANKET PRIMARY

Given what we know about the impact of the blanket primary, we can return to the question of whether it achieved its intended purposes. Bowler and Donovan in chapter 3 examine various hypotheses about which voters supported the blanket primary and why. They find that weak partisans and minor-party voters, the voters who were most likely to exercise the crossover voting options the blanket primary offered, were also the most likely to have voted for it. They conclude that many voters engaged in instrumental voting on Prop 198. Voters who were most likely to take advantage of the opportunities to cross over were also most likely to support Prop 198, and those least likely to cross over were most likely to oppose the reform.

It should come as no surprise to students of politics that people support changes in the political rules of the game when they expect to benefit from them, and oppose rules changes when they do not. It is unlikely that many of California's voters could have accurately and in any detail explained the operation of a blanket system in 1996, but they sensed that it offered them

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more freedom of choice and opportunities to split their ballot. Those who wanted to split their ballot sensed that they should vote yes, and those who normally voted a straight ticket opposed the measure on the grounds that they did not need the option. Since most opinion surveys in California suggest that a majority of voters are in the middle of the ideological spectrum, and since voters in the middle of the ideological spectrum are the most likely to split their ballots, it is easy to see in retrospect why Prop 198 passed in 1996 and Prop 3 failed in 1998. Indeed, as the Los Angeles County ballot image data analyzed in chapter 7 show, over half the voters in the state's most populous county did make use of the freedom of choice the blanket primary gave them.

Prop 198 was not a reform intended to make everyone better off. The intended winners were ballot splitters and the more moderate candidates they supported, and the intended losers were straight ticket partisans and their preferred, ideologically polar candidates. Unless the number of straight ticket partisans had come to exceed the number of centrist ballot splitters, it was unlikely Prop 198 would have been reversed by the voters. In the court case, California Democratic Party v. Jones, the political parties argued that they, not the state by legislation or initiative, had the right to determine the rules of nomination. As Persily explains in chapter 15, while the federal District court and Circuit Court of Appeals ruled otherwise, the Supreme Court was more sympathetic to this issue and reversed Prop 198. Based on public attitudes toward the blanket primary, the Court ended up doing what the voters refused to do.

In the meantime, stepping back from the questions of who won and who lost, we can ask what has been gained and what has been lost in more abstract terms. On the plus side, the blanket primary clearly gave voters more choices than they had before. They were essentially free to participate in the selection of candidates for all parties if they so desired. Their only constraint was that they could only participate in one party's primary per race. In the sense that the blanket primary's flexibility prevented votes from being pigeonholed into one party or another, this can be seen as an advantage.

Another gain, one could argue, was that the blanket primary gave more voters the chance to cast an effective vote, meaning a vote that might determine the election outcome. For voters trapped in seats dominated by a party other than the one they were registered with, this meant that they could abandon the primary in which their votes did not matter and vote in the primary in which they did. In theory, casting a vote that matters should enhance the incentive to participate and even encourage general feelings of voter efficacy. In reality, it produced no dramatic changes in California's voter participation rates. But even if it did not result in more electoral

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enthusiasm and participation, voters in noncompetitive seats might have gained some expressive value in acquiring the chance to cast a vote that mattered.

Against these gains are some problems. First, as a blanket primary system succeeds in moving candidates toward more centrist positions, it could lessen the distinctiveness of the choices voters are given in the November elections. In the extreme, the centrist logic pushes candidates to virtually identical positions at or near the middle of the ideological spectrum. This may lead to the perception that there are no real choices being offered by competing candidates.

Second, there is the problem of an enhanced incumbency effect. Several studies in this volume suggest that incumbents were quite successful in drawing votes from the ranks of nonpartisans and other party identifiers. At a time when the incumbency advantage is already considerable and over 90 percent of state legislative and Congressional incumbents win reelection, the added boost incumbents receive from the blanket rules may have been an unwelcome development and a setback for the cause of more competitive elections.

And finally, there is the question of where voices at the ends of the ideological spectrum will find expression. If the electoral incentives are strongly centrist, this will dampen the chances of more ideological voters to be represented. Is this a good development? Some will think not. In particular, there are some who think that the problem with American politics is the lack of choice rather than the extremity of the candidates who are nominated. For them, the added incentive for sameness only exacerbates an already bad problem.

So in the end, California's experiment with the blanket primary yielded a few empirical surprises, but demonstrated nonetheless that changing the rules does seem to change the incentives of voters and candidates. Given the parties' opposition to the blanket primary, it is not surprising to find that such changes do matter—political actors usually do not waste resources unless something is at stake. The other point to bear in mind is that different primary systems present different trade-offs in term of advantages and disadvantages. This frames the normative debate in relativistic terms. Moving from a closed to a blanket or an open system is not necessarily an improvement or a step backward. Rather, it changes the winners and losers, confers some improvements and some losses, and raises fundamentally political issues. This guarantees that although California's recent blanket experiment is over, there will be other experiments in the future.

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NOTES

REFERENCES

Wolfinger, Raymond E., and Steven J. Rosenstone. 1980. Who Votes?New Haven, CT: Yale University Press..