News & Analysis
Last week the Republican Party of Texas filed suit in federal court in Amarillo to have Texas’ open party primary system declared unconstitutional. You can read the full lawsuit here.
The lawsuit claims letting non-Republican voters vote in its primary violates the party’s First Amendment rights of free speech and free association.
In 2024 the Texas Republican Party changed its rules to require that only registered members of the Republican Party could vote in its primary.
The only problem was that the Texas Election Code requires an open primary system. Several bills were introduced in the last legislative session to change to a closed primary system. The legislature failed to act on any of them, which resulted in the lawsuit.
Texas Open Primary System
Major political parties in Texas are required by state law to choose their nominees for office in primary elections. The winners of those primary elections are the nominees for the general election in November.
Primary elections were a reform that started in the Progressive Era of the early 20th Century. Their purpose was to remove control of the nomination of candidates from the smoke-filled back rooms of party bosses and political machines.
President Theodore Roosevelt was instrumental in creating the primary the system after he was denied the Republican nomination for President in 1912.
Some states have closed primary systems. In those states voters have to register as a Democrat or Republican before they can vote in that party’s primary.
Texas open primary system does not require that. Every voter can choose which primary they will vote in on the primary election day. But once they have voted they cannot vote in the other party’s primary.
Once you vote in a Republican primary you have aligned yourself with the Republican Party for that election. If you vote in the Democratic Primary, you have declared you are a Democrat for that election.
But these affiliations are not binding on voters in the general election or the next primary election. Voters can switch back and forth from primary to primary.
This can result in what is called “cross-over voting,” where a member of one political party votes in the other party’s primary.
Stopping Cross-Over Voting
Texas Republicans want to stop this “cross-over voting” because they believe that moderate independents, non-Republicans and Democrats “cross-over” in large numbers to vote in the Republican primary.
They allege that because of this cross-over voting, non-Republicans are electing the Republican nominees in their primary elections.
In reality, this movement is an effort by the radical right wing of the Republican Party to pull the party further to the right.
Little Data To Support Concern
While the lawsuit claims that strategic cross-over voting may have impacted the outcome of recent primary elections for Dade Phelan and Gary VanDeaver, it does not provide any details or evidence.
There is little reliable data that shows cross-over voting, where it may happen, has much of an effect on election outcomes. Recent scholarship suggests that it has little impact.
Even the Texas Republican’s lawsuit does not bring forth any hard evidence or studies. It alleges only that “known Democrats” voted for Dade Phelan and Gary Van Deaver in their last primaries.
Local Primary Elections
Cross-over voting may be more likely to impact the outcome of a local election where the votes cast are fewer.
But even that is questionable in counties like Tom Green where there are not enough Democratic party voters to effect the outcome of a Republican Primary.
There is no scientific way to distinguish between voters who cross-over for strategic reasons from those who cross-over for some other reason, such as voting their conscience.
In almost all rural counties in Texas, including Tom Green County, the Republican Party is so dominant that its primary is the election.
Therefore, everyone runs as a Republican. Non-partisan and unaffiliated voters, and even some Democrats do vote in the Republican primary. It may not be for a strategic purpose. It may simply be because that is the election for all intents and purposes.
We do not know how a closed primary would impact local elections and party politics.
It could effectively disenfranchise every voter who does not want to register for either party in order to vote in local elections.
It could spell the continued decline or end of rural Democratic parties or at least the further polarization of local politics.
Moderate Democrats and independents will have to make a choice. Many may choose to register as Republicans so they can have a say in local elections.
This may have the unintended effect of returning control of the Texas Republican Party to its more traditional, conservative to moderate wing.
What About Joint Primaries?
What closed primaries mean for our current joint primary systems is also unknown–will joint primaries continue, or be eliminated?
Doing away with joint primaries could cost the county taxpayers tens of thousands of dollars. Running one primary election is cheaper than two. The lack of volunteers to run the elections, and lack of voting equipment, would also put a strain on the elections office and county budget.
The State of Texas has twenty-one days to file a response to this lawsuit. The Texas Democratic Party has made no comment on the lawsuit so far, or whether it supports closed primaries.
