ROBERT G. NATELSON: The Slippery Constitutionality of Open Primaries.

Open and semi-closed primary laws have been around for some time. However, in recent years they have proliferated, promoted mostly by center-left organizations.

The most salient stated goal for promoting these laws is to favor “moderate” candidates who “appeal to a wider portion of the electorate” over more “extreme” and “partisan” candidates. The promoting organizations contend that parties must accept such restrictions in exchange for state financing of primary elections. Constitutional wonks may recognize that the latter argument disregards the Supreme Court’s unconstitutional conditions doctrine: A state may not force you to give up a constitutional right in order to receive a government benefit.

I suspect that the sponsors’ primary goal is to affect GOP primaries. Outside a few regions where socialists can win intra-Democratic Party races, most Democrat primaries display few real policy differences. It is in Republican contests where the real debate happens. The goal of the promoters seems to be to prevent strongly conservative or government-cutting candidates from getting to the general election ballot—or, if they cannot prevent that, to force those candidates to temper their message.

An instance of the latter effect recently came to light in the Colorado lawsuit, where several Republican candidates asked the court not to mandate an immediate change back to a closed primary because they had fashioned their nomination campaigns for an electorate that included liberal independents as well as Republicans.

In a November 6, 2025 Law & Liberty essay—written well before the new SCOTUS decision in National Republican—I contended that open and semi-open primary laws were likely unconstitutional.

Fascinating article on a topic that doesn’t get much attention.

I’ve never understood what a party is supposed to be, if just anybody can select its candidates.