Independents are crashing the parties, illegally

Allowing independent voters to cast ballots in primaries of Arizona’s major parties has been a modest success over the past seven years. It also happens to be unconstitutional.

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That’s the only fair reading of a ruling earlier this month by U.S. District Judge Raner Collins in a lawsuit by the small Libertarian Party. Arizona officials argue that admitting independents enhances primaries by encouraging more voters to engage in elections. Collins rejected that, saying the Libertarians are guaranteed a First Amendment right to have only registered members decide the party’s destiny.

This month’s decision repeats Collins’ opinion from 2002, when he actually invalidated the inclusion of independents in any election primary. But the 9th Circuit Court of Appeals intervened, saying Collins couldn’t adopt such a sweeping rejection when the Democratic and Republican parties didn’t join the case. The appellate court told Collins to focus solely on the status of the Libertarians.

So Collins held a trial and heard about the 2002 primary in which a Libertarian candidate for Congress lost only narrowly while advocating nationalized health care, a position normally considered anathema to his party’s limited-government platform.

“…  Arizona’s primary system has created a clear and present danger of a party’s candidate being chosen by people other than party members … Under the current Arizona primary system it is impossible to identify whether the party is actually changing its position and not invaders changing the party’s position,” the judge wrote.

Secretary of State Jan Brewer and Attorney General Terry Goddard are considering another appeal. But even if Collins’ decision stands, state officials insist that it applies only to the Libertarian Party, and independents are still welcome to vote in Republican and Democratic primaries.

“In order to hold it unconstitutional, the Libertarians had to meet a specific burden,” state election director Joe Kanefield said. “This burden is arguably easier to meet than for the Republican and Democratic parties (because of their size).”

The issue is critical because independent voters are the fastest-growing segment of registrations and now make up nearly 28 percent of all eligible voters. The term “independent” refers to truly unaffiliated voters as well as members of parties too small to qualify for state-funded primaries and automatic spots on general election ballots.

At one time, the two major parties were just as opposed to independents in primaries as the Libertarian Party. But now the two major parties accept the practice with little concern about the loss of their constitutional rights.

“We want independents to vote in Democratic primaries. We want them to feel welcome in the Democratic Party,” party spokeswoman Emily Bittner said.

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Le Templar is senior opinion writer for the Tribune. He can be reached at (480) 898-6474 or ltemplar@evtrib.com.