On the Constitutional Legitimacy of the Primary Process

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This is Party business. We're not doing
democracy here.

Despite the nature of the endless, breathless coverage, Bernie Sanders, Donald Trump, Hillary Clinton and Ted Cruz are not participating in an 'election'. What we're seeing unfold over all these months is merely the latest iteration of the political parties' nominating process. The fact that in recent years there have been efforts to better democratize that process - people go to their neighborhood polling places and cast official government-issued ballots under a process that feels identical to the election - that effort notwithstanding, people are struggling to understand that there is no constitutional or electoral underpinnings for the nominating process. The parties are unconstrained by constitutional provisions or even basic democratic norms, free to define the process and make the rules that leads, ultimately, to choosing their nominee in the general election. No amount of complaining about 'superdelegates', caucuses, proportional delegate allocation or obscure provisions governing the convention will change anything, because it is the party, not the constitutional or the judiciary that defines the functional nuts and bolts of the process.

Primary elections are mostly a new thing. The first was held in 1912 in Oregon, but it was a rare thing indeed. As late as 1968, only 13 states held primary elections. It was the entire point and purpose of a national party convention to bring the party's delegates together to choose their Presidential nominee. But, of course, we all remember the bloody and chaotic Democratic Party convention in 1968 in Chicago. The assassination of Robert Kennedy splintered the anti-war vote, Hubert Humphrey won the nomination, and while he only lost the popular vote by 0.7%, he was crushed in the electoral college by Richard Nixon. After that, the writing was on the wall. Both parties immediately began implementing changes to the selection process that would bring public sentiment into the process, while still retaining the ultimate nominating power within the party structure itself.

After the debacle in Chicago in 1968, where a viciously divided party in chaos ended up nominating a candidate who hadn't entered even a single primary, the party announced the creation of what became know as the McGovern-Fraser Commission. The commission announced a set of guidelines that would govern the nominating process in 1972 - both at the state level and at the national convention. Over the next several cycles, the party leadership became concerned that the commission rules had in essence "over democratized" the nominating process, allowing the voters too much control over what they viewed - properly - as an internal party function. So in the 1984 cycle, the Democratic party created a pool of unpledged so-called 'superdelegates' that could offset what they viewed as particularly tactically egregious voter selections. Over time, the Democrats have also adopted a proportional delegate allocation scheme that makes it incredibly difficult for an upstart challenger to overtake a party favorite.

Are these kinds of party rules undemocratic? Of course they are - the party has an interest in eliminating guesswork or randomness from the nominating process, and making sure they are fielding the candidate they feel gives them the best chance to win. Are they somehow dishonest or unconstitutional? Of course not. Those aren't descriptions that even have applicability to questions about the process. In the end, it is strictly an internal party process, the outcome of which the party leadership has a profound interest in. If you don't like the system, tough. You don't get a vote.
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