Tuesday, February 12, 2008

Open Primaries and Duverger's Law

In an amusing piece on DailyKos yesterday, Kos notes how the Clinton campaign has an account of why each of the states that Obama has won doesn't count. Caucuses (that Obama wins) don't count because they're not really representative. States where Obama lived don't count. And states with large African-American populations don't count (because, you know, uhm, you can't count the votes of people who are your own race). Anyway, this is obvious self-serving nonsense (as would be a similar effort to disqualify Clinton's victories), but it does raise an interesting question: What are we to make of victories in open primary states?

Both Obama and McCain have benefited from the participation of independents in some of their respective party primaries, which is more or less the point of having open primaries. The danger of a closed primary is that the party faithful will pick a candidate that they like but who lacks appeal to the swing voters needed to win the general election. Permitting independents to vote moderates this effect, as the independents are turned off by party stalwart ideologues. This has worked almost exactly as predicted on both sides, with independents helping each party to pick the most electable candidate (assuming, as opinion polls have shown, that McCain and Obama are, respectively, the two parties' strongest candidates).

One complaint about open primaries is the possibility of spoilers. A conservative independent who plans to vote for the Republican nominee in the general can vote in the Democratic primary of the weaker candidate---or whichever candidate is trailing, so as to prolong the Democratic contest---in the hope of sabotaging the Democratic ticket. There is some evidence of this sort of thing happening (to and for Republicans and Democrats alike), but it is hard to say that this is a serious threat to the integrity of party primaries.

The more serious question is one of party self-definition. Recent Supreme Court precedents have treated political parties as expressive associations that have a right to control who gets a say in determining the party's standard bearers. If one wants to run with this principle, one could say that open primaries, even though constitutionally permissible, nonetheless violate the spirit of the parties' expressive association rights. Given the low barriers to joining a political party, why should people who aren't even willing to call themselves Democrats or Republicans get a say in picking the parties' candidates?

The answer, in my view, is Duverger's Law, which states that first-past-the-post elections lead almost inexorably (though not, apparently in Canada) to a two-party system. If it were very easy to find or start a party to one's liking, then it would be a sufficient answer to independents to tell them to buzz off during candidate selection time. But independents can't start their own party (yes, I know, the Whigs replaced the Federalists, and the Republicans replaced the Whigs, but that was a LONG time ago), so giving them a say in determining the shape of the general election choice will typically require that they be given a role in the major-party nominating process. Accordingly, the argument that the parties have rights of expressive association just like any other civil society organization seems quite wrong.

Posted by Mike Dorf

11 comments:

Paul said...

It is, yet again, another reason to really like Obama. I really have not felt strongly about a Democratic candidate since Paul Tsongus, but I really appreciate all that Obama represents even though I have some fairly serious policy divergences from him (though even where I do diverge - health care mostly - his approach is so clearly more intelligent than his rivals that I find it at least palatable).

I don't think there has been in my lifetime (possibly Dole) a candidate with his strength of character. He could have had some windbag dismiss Hillary's victory in CA as being the product of Latino anti-black racism. It would have been as true or more true than Bill's racist remarks. But he hasn't.

In fact, I don't hear him complaining even against things for which he has a legitimate complaint - namely the MI and FLA elections and the anti-democratic super-delegates that are the only reason Hillary (as a supreme party hack) can claim a lead at all.

I hope this comes through to people and pays dividends because a 100% positive campaign is exactly what this country needs to reward.

When he does face McCain in the general election I hope he keeps this up and focuses on the policy and leadership differences that make him the better candidate.

egarber said...

Hey Mike,

I'm wondering if there's a potential inference within your analysis.

Suppose all voting in the U.S. was proportional, not based on the SMDP system (winner takes all).

Would parties then have an actual constitutional argument for keeping primaries, etc. closed? If even 10% might result in a third or fourth party obtaining seats in a legislative body, does that mitigate the barrier to entry burden enough for parties to become expressive associations in the voting booth?

MK said...

Prof. Dorf,

The issue of spoilers from the other party affecting a party's vote in open primaries is not so much a concern in presidential elections as it is in smaller contests. E.g. the way Cynthia McKinney was kicked out of contests for the House of Representatives by Republicans crossing over to vote in the Democratic primary in Georgia not once but twice, in 2002 and 2006.

MK

sammy2 said...

I am suspicious of these so-called "Obamacans". These cross over republicans voting for obama in open primaries. I feel they are voting for the weaker candidate. Why not? They have done this before. They have nothing to lose. Their republican candidate is locked in. In the Virginia open primary MSM gave us the breakdown of voter race, gender, class etc. What about % of republicans that voted for Obama? I do not agree with open primaries.

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