The Supreme Court has refused to review a Ninth Circuit ruling denying political parties the right to exclude nonmembers from participation in their primaries. Hawaii law requires an open primary, and under the Ninth Circuit decision, parties would bear the burden of showing that this requirement severely burdens their rights of association. In other words when parties must open their candidate selection processes to non-members, the infringement of that associational right is not, apparently, self-evident.

The Ninth Circuit decided this incorrectly. It misconstrues the controlling Supreme Court authority, and it disregards its own entirely inconsistent decision in Washington State Democratic Party v. Reed. It is revealing that the Court’s panel’s denial of that inconsistency is tucked into a disingenuous footnote. Democratic Party of Hawaii v. Nago, 833 F.3d 1119, 1124 n.4 (2016)

So it goes nowadays for the parties. It is a sign of the times. A political party has to prove that it is harmed if forced to give nonmembers a full share of the authority to determine its nominees.

The other way to look at the party’s right of association is this:

Party adherents are entitled to associate to choose their party’s nominees for public office….

The First Amendment protects the right of freedom of association with respect to political parties, and this right includes “the right not to associate.”” In no area is the political association’s right to exclude more important than in the process of selecting its nominee….”

 Even “a single election in which the party nominee is selected by nonparty members could be enough to destroy the party,” as would have been the case had opponents been able to swamp the Republican Party in 1860 and force it to nominate a proslavery candidate rather than Abraham Lincoln. “Unsurprisingly, [the Supreme Court’s] cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer who best represents the party’s ideologies and preferences.”

 The source of this party-friendly analysis? The Ninth Circuit, in Democratic Party of Washington State v. Reed, 343 F. 3d 1198 (9^th Circ. 2003){citations omitted].

The weakening of parties under a decision such as this is not confined in effect to the conduct of primaries. Only last cycle, the two parties experienced runs at their presidential nominees by two individuals, Donald Trump and Bernie Sanders, who were not, historically, party members. Senator Sanders assumed the party label for the primary campaign, then set it aside when the campaign ended and returned to Independent affiliation. Mr. Trump, elected to the presidency, has made a habit during the primaries, and since, of assailing his own party leadership. This is because, a former Democrat, he is not a fully subscribing party member but seems himself, as he often says, as the leader of a “movement.”

The Ninth Circuit decision–and the Supreme Court’s refusal to review it– do not, of course, concern this set of issues. They do quite clearly add to the pressures on parties, undercutting their capacity more generally to govern themselves as associations with membership or affiliation requirements–with a clear identity and the power to control how they present themselves to the electorate.

The political pressures on parties to “open up” may well be greater, more decisive, than any adverse changes in the law of party association. The independent vote is crucially important: parties can no longer just assume that independents “leaning” in their favor are fully reliable, basically just like regular party adherents.  Millennials seem especially committed to the self-conscious embrace of independence and resent party-imposed barriers to independent participation in their primaries.

But whether in considering who is invited to, say, party-sponsored debates, or, as the Republicans had to decide, whether to adopt rules that would impede a candidate not clearly affiliated with the party from winning a first ballot nomination, the spirit of the times–and the direction of the law–has not been favorable to strong acts of party self-assertion. In time it may be clearer whether this is a development for the better, or an unstoppable change in electoral politics that could lead–may have already led–to strange and troubling places.