Even the Supreme Court is ignoring this key question

Every legal scholar on the planet is trying to guess how the Supreme Court will rule on Donald Trump’s eligibility for primary election ballots, but I have yet to see anyone ask the most fundamental question of all.

Why are state and local governments involved in primary elections in the first place?

Political parties are private businesses that have no force of law behind them, much like Amazon and the NFL. Governments don’t run the annual meetings for corporations or officiate at football games, so why are they sticking their noses in this particular corner of free enterprise? There's no basis for it in the Constitution and the Founders hated the idea of political parties as a divisive force.

Yes, political primaries were considered an improvement over the smoke-filled rooms of the late 19th Century, a mechanism to give citizens a chance to take control from the corrupt power brokers among the corrupt politicians. Like many reforms, though, the whole idea looked good on paper, but…

Let’s face it, the primary system has not exactly earned a place on the calendar through merit. When it comes to the political parties, as a former president might say, they’re not sending their best. They‘re sending people with lots of problems. And those problematic people become our choice every November.

We all know the shortcomings of the primary system. A minority of a minority of voters determine the choices we’ll face, which leads to exactly the kind of extremism the Founders feared. Notably, that super-minority of partisans is well protected in many states that have closed primary systems of one sort or another. With gerrymandering the norm and not the exception, purity dominates and competence isn’t even an issue in many races.

The smoke-filled rooms and back-office horse trading are looking better all the time. The rule of party bosses delivered some heavy-duty clunkers, but its tough to imagine them doing worse than the system we’re using today.  Even if they screwed up just as badly, at least we’d save a few taxpayer dollars by making them pay for their own cigars and brandy.

Instead, all this craziness is backed by the government’s seal of approval. Whether it’s local or state, elected officials are happy to use taxpayer money to provide support, facilities, staff, and a whiff of legitimacy to the whole thing. No matter how militant a candidate is about government overreach, the idea of reimbursing anyone for the party’s rightful burden is off the table.

The Supreme Court can fix all of it, right now, taking a lesson from John Marshall’s brilliant maneuvering in Marbury v. Madison. When they hear the appeal of Colorado’s rejection of Trump as a candidate, they can simply rule that state-sponsored primaries are an unconstitutional encroachment on private business. Done and done.

Yes, the court will simply be punting until later this year if Trump is the Republican nominee and his eligibility is challenged in one state or another. That’s a different issue, though, because November’s elections will determine who takes office, not which person represents the brand.

If the Supreme Court takes the reasonable approach and cancels government support of primaries, the parties will need to do a bit of scrambling to work it out on their own. Like every other private business that has survived on subsidies, it’s time they learned how to do things for themselves.

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