As the dust of the election settles, it’s easy for Oregonians to pat themselves on the back for a relatively high turnout and a fairly smooth process of receiving and tallying votes. But Oregon’s democracy isn’t just broken, it’s unconstitutional.
The Equal Protection Clause of the 14th Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws” nor make or enforce “any law which shall abridge the privileges or immunities of citizens of the United States.” Under Oregon’s closed primary system, “free” voters — those untethered to a major party — are denied equal protection of the law by being separated and shut out from the party primary process.
Historically, the Equal Protection Clause has been used to strike down “separate but equal” facilities and processes created by laws that include classifications and categorizations of individuals. Where the classification involves a discrete and insular minority, the Supreme Court has required the state to show that the questioned law is narrowly tailored to address a compelling state interest.
For instance, segregated schools were declared unconstitutional in Brown v. Board of Education based on the following logic: Race is an immutable characteristic, African Americans had been subjected to a history of subordination, and that subordination included being “fenced out” of political processes.
Based on that logic, the Supreme Court set a high threshold for the state to uphold its racist laws. Recognizing that public education lies at the “very foundation of good citizenship,” the court declared the segregationist laws unconstitutional for exposing children to bad values, stigmatizing minority children, and inhibiting the ability of those children to reach their full potential. The court has likewise struck down laws that deny access to fundamental rights, like the right to travel, to all Americans.
Free voters have been denied a fundamental right and represent a discrete and insular minority that is being denied the right to fully participate, something that is also at the “very foundation of good citizenship.” These voters are discrete in that they are very easily distinguishable from those that are tethered to a party.
These voters are insular in that their independence makes their ability to collectively organize against the majority parties very difficult. As each election passes, it becomes clearer the state is subordinating these voters to a greater and greater extent. Consider that nearly one million Oregonians were denied the chance to participate in either party’s primary in the 2020 election cycle; yet, those same voters paid taxes that made those primaries happen, and were then left to select between the primary winners in the general election.
Clearly, free voters have been “fenced out” of the level of participation they deserve. It’s true that, unlike race, political affiliation is not immutable. Nevertheless, it’s contrary to the very liberty and freedom that spurred our democracy to think that a voter should have to subject themselves to a major party just to attain full political rights. The end result is that free voters are separated from their partisan counterparts and denied an equal chance to participate.
Parties may argue that the state has a compelling interest in keeping primaries closed. Perhaps they’ll claim that opening the primaries will result in cross-ideology voting that will undermine the will of the people. In other words, they spark fears that somehow enough voters from the other side will want to undermine the other party by voting for the less competitive candidate.
Though the results of open primaries in Washington and California suggests that’s not a valid concern, even if it were, it is not a state interest. The state is not responsible for advancing partisan goals. The state’s obligation is banned from abridging “the privileges or immunities of citizens of the United States.” Nothing in the Constitution requires states to use the tax dollars of free voters to help parties continue their control of our democracy.
The case law on the privileges or immunities that a state must refrain from limiting suggests that some rights represent “the very idea of a government republican in form.” In the 21st century, we have come to recognize that the opportunity for all to shape their government is such a right — a right that must transcend income inequality, partisanship, and social strife. Oregon must end its closed primary system and ensure all voters have an equal opportunity to express their voice in our democratic processes.
The 2020 election at the state level may have gone smoothly, but that’s only from the perspective of those who had the ability to participate in each stage of the process. Oregonians need to make fixing their democracy a priority. Soon Oregon Open Primaries will formally launch its initiative effort to place a form of an open primary system on the ballot in 2022.
Receiving the requisite number of signatures, educating Oregonians about the need for this reform, and rallying an inclusive and expansive coalition to pass this effort will not be easy. So, despite the dust of the last election just beginning to settle, now is not the time for rest. Instead, it’s a time to resolve to double down on engaging in our political system. You can join me by volunteering with this group, working to make Oregon’s democracy more fair and inclusive.