Imagine the Minnesota DFL Party adopting a rule that no people of color could participate in their caucuses, or the Republican Party adopting one barring women from attending. Could they do that? Proponents of the political parties seem to imply such a right when arguing against a law calling for primaries instead of caucuses for the selection of presidential and other candidates. While the courts have given broad deference to the First Amendment freedom of association rights of political parties, those rights are limited.

There is no question that political parties should generally be free to determine who can be a member and how they select their candidates. Over the last 20 years the Supreme Court has ruled that parties are free to associate with whomever they wish. This means, for example, that the Republican Party of Connecticut could invite independents to participate in their primaries even though a state law prohibited it. Conversely, the court also voided a California law permitting voters in primaries to select candidates in any party, citing the right of political parties to limit who can participate in their selection. Paraphrasing the Leslie Gore song, the reason for these decisions is that "It's my party and I'll invite whom I want to."

The 'White Primary' cases
While these cases significantly protect party rights, the Supreme Court has never held that they are free to discriminate. In a series of decisions from the 1930s through the 1950s known as the "White Primary" cases, the court struck down as unconstitutional party rules that excluded African-Americans from participating in the Texas Democratic Party primaries. The court ruled that primaries are not always private affairs immune from regulation. The government had an interest in ensuring political parties were free from discrimination, especially when their actions — such as the selection of candidates — would appear on the general election ballot. To say that individuals have a right to vote but to deny them the right to participate in party affairs effectively undermines that right. The courts have also endorsed rules limiting party access to the ballot, and the Supreme Court upheld a Minnesota law preventing one party from cross-endorsing candidates from another.

What became clear on caucus night in Minnesota is how exclusionary and discriminatory the process is. While there was no official policy stating that neither women nor African-Americans could participate, many people were disenfranchised. They included those who worked second shifts or who were working second jobs, the elderly afraid to go out at night, parents with child-rearing duties, and others, such as those serving in the military in places like Iraq. None of them could participate via an absentee ballot, as would be the case in a general election. While the discrimination that occurred might not rise to the level of that found in the White Primary cases, it was nonetheless no less exclusionary and limited in whom it effectively allowed to participate.

Deliberation vs. convenience
The caucus system does promote important values. It encourages deliberation and opens up the parties to many who can suggest issues for it consider. But these values must be balanced against those favoring convenience and greater opportunity for more individuals to participate. Perhaps a hybrid system of all-day voting, absentee ballots, and caucuses at the end of the day can harmonize these competing objectives.

Minnesota prides itself on its high voter turnout. Unfortunately a record-setting caucus turnout of 10 percent of the voting population is dismal. Such a rate, were it to occur in the south with its high minority populations, would be viewed with skepticism. The caucus system, while quaint, is a product of a Lake Wobegon era of Minnesota that is passing away and it may no longer be the most inclusive means of selecting candidates in the 21st century.

David Schultz is a Hamline University professor in the Graduate School of Management, where he teaches classes in government ethics, and at the University of Minnesota Law School, where he teaches election law and serves as a senior fellow at the Institute for Law and Politics. This article originally appeared on the Law and Politics Blog.

Want to add your voice?

If you're interested in joining the discussion by writing a Community Voices article, email Susan Albright at salbright [at] minnpost [dot] com.