- Elections
Election Laws – As introduced, CAPTION BILL with a posted amendment which seeks to mandate that political parties nominate their candidates for office by primary election only. Would remove the current ability for a local party to hold a nominating convention for partisan county races like county commissions and school boards.
Amends TCA Title 2.
This bill proposes significant changes to Tennessee’s election laws by mandating primary elections for nominating all partisan candidates at the county level, removing the current flexibility that allows local parties to choose between primaries and nominating conventions. While the state legislature’s aim may be to standardize election processes, this bill raises serious constitutional concerns. By eliminating nominating conventions, local parties lose the critical safeguard against crossover voting inherent in Tennessee’s open primary system, thereby compromising their fundamental First Amendment associational rights to ensure nominees represent genuine party interests and ideological alignment.
Moreover, it creates a troubling equal protection issue through its arbitrary grandfathering clause, allowing some counties to continue using nominating conventions temporarily based solely on historical practices, while immediately forcing others into compulsory primaries. This arbitrary distinction lacks rational justification and imposes disparate treatment upon similarly situated local parties, creating constitutional vulnerability under the Fourteenth Amendment. Such unequal burdens weaken public trust and fairness in the electoral process, potentially affecting election outcomes unevenly across the state.
In conclusion, while the legislature simultaneously considers adopting closed primaries (HB 886)—a measure supportive of strengthening party associational rights—this potential reform should not be seen as permission to remove local parties’ autonomy to choose their nomination method. Protecting local discretion to use conventions remains essential regardless of the primary system adopted, preserving constitutional rights, ensuring ideological consistency, and providing fairness across all counties. This legislation, by mandating primaries and arbitrarily dividing counties, undermines these principles and should therefore be opposed.
Tennessee House Bill 855 (HB 855) seeks to change the state’s election process by requiring local political parties to nominate all partisan candidates exclusively through primary elections. Currently, parties have the option to choose between primaries and nominating conventions, a system that provides local flexibility and protects their constitutional rights to freedom of association. HB 855’s mandate raises significant constitutional issues, particularly regarding First Amendment associational rights and the Equal Protection Clause of the Fourteenth Amendment, due to the unequal treatment it imposes among counties. These legal and practical concerns indicate that HB 855 should not be adopted.
I. Background on Tennessee Election Law and HB 855
Under existing Tennessee law, local county political parties may nominate candidates either by primary elections or by nominating conventions, providing flexibility and protection of associational rights. HB 855 would revoke this local autonomy by requiring primary elections universally, albeit with a controversial grandfathering provision allowing counties that used conventions in the years 2022 or 2024 to continue the practice temporarily, except for major offices such as Governor, General Assembly members, U.S. Senate, and U.S. House of Representatives, which would always require primaries thereafter.[1]
II. Legal Framework: Associational Rights and Election Law
Political parties enjoy substantial protections under the First Amendment’s right to freedom of association, a cornerstone of American constitutional law reaffirmed repeatedly by the Supreme Court. This right extends explicitly to the candidate nomination process, considered integral to a party’s ideological coherence and political identity.[2] The U.S. Supreme Court, notably in California Democratic Party v. Jones (2000), underscored the necessity of safeguarding parties from forced associations with voters not ideologically aligned or affiliated with the party.[3]
III. The Constitutional Problems of HB 855
A. Violation of First Amendment Associational Rights
Tennessee’s existing open primary system permits voters, without any formal party affiliation, to choose in which party’s primary to vote. This openness can lead to substantial crossover voting, where voters from one party strategically vote in another party’s primary, potentially distorting the nominee selection process. Conventions currently serve as a critical safeguard allowing local parties to limit participation strictly to party members, thus ensuring that their nominees genuinely represent the party’s ideological platform.[4]
HB 855 would strip local parties of this critical protection, forcing them into open primaries vulnerable to crossover manipulation. Such mandated openness significantly burdens the parties’ associational rights. The U.S. Supreme Court’s rationale in Jones applies directly here, indicating that states cannot compel parties to accept non-member participation in their candidate nomination processes without a compelling justification.[5] Tennessee, however, has articulated no compelling interest that necessitates compulsory primaries at the local level sufficient to outweigh the burden imposed on associational freedoms.
Indeed, in Jones, Justice Scalia stated clearly that the “moment of choosing the party’s nominee is ‘the crucial juncture at which the appeal to common principles may be translated into concerted action.'”[6] By mandating open primaries, HB 855 threatens precisely this principle, diluting the ideological consistency of political parties and thus risking their foundational purpose and message integrity.
B. Lack of Compelling State Interest
The Supreme Court in American Party of Texas v. White (1974) recognized the authority of states to regulate election processes, including candidate nomination methods, provided these regulations serve compelling state interests, such as ensuring electoral integrity or demonstrating sufficient voter support.[7] However, such interests must be explicitly and convincingly articulated, particularly when regulations significantly burden fundamental associational rights.
HB 855 provides no such compelling justification. While administrative convenience or electoral uniformity might be cited as rationales, such interests are typically insufficient to overcome constitutional protections afforded political parties’ associational rights, particularly at local levels where nominating conventions already function efficiently to reflect genuine voter sentiment and ideological alignment.[8]
C. Equal Protection Concerns Under the Fourteenth Amendment
HB 855’s grandfather clause presents an additional constitutional problem by establishing arbitrary distinctions between counties based on historical practices. Some counties would be allowed to retain conventions temporarily, while others would immediately lose this critical protective measure and be compelled into open primaries. This disparate treatment implicates equal protection principles, as it creates unequal burdens on similarly situated local parties without any clear or compelling rationale.
The Equal Protection Clause of the Fourteenth Amendment mandates that states must treat similarly situated entities similarly unless a substantial governmental interest justifies differential treatment. HB 855’s arbitrary division of counties based purely on past practices lacks rational justification and does not serve any clear, let alone compelling, governmental interest. This creates a significant constitutional vulnerability.
IV. Comparative Analysis: Open Primaries and Blanket Primaries
Although Tennessee’s open primary system differs from the blanket primary system invalidated in California in 2000, both systems share significant constitutional vulnerabilities concerning forced association. In California’s blanket primary, voters could select candidates across party lines on a single ballot. The Supreme Court condemned this forced association as violating First Amendment rights.[9] Tennessee’s system, though less intrusive, still shares the fundamental problem of allowing participation by voters unaffiliated with, or even hostile to, the party’s ideological principles, thus potentially violating associational rights.
V. Practical Implications and Risks
Practically, HB 855 increases the risk of political manipulation through crossover voting, distorting primary results, especially in small counties where elections may be decided by narrow vote margins. Without nominating conventions, local parties face significant threats to their ability to present authentically representative candidates aligned with party ideology, thus undermining public confidence in political processes and potentially reducing political engagement among party faithful who perceive the process as compromised.
Moreover, while the state of Tennessee covers the direct costs associated with primary elections, compulsory primaries could still introduce increased administrative complexities and indirect burdens for local parties. Currently, these burdens are mitigated by nominating conventions, which are more streamlined and offer greater control over the nomination process to local parties.
VI. Recommendations and Conclusion
Given the considerable constitutional vulnerabilities and practical implications identified, the Tennessee Legislature should reconsider HB 855. While a separate bill, HB 886, proposes transitioning to closed primaries with required party registration—a measure supportive of associational rights—such a positive development should not be viewed as a justification for removing local parties’ autonomy to select nomination methods. Even if primaries were to become closed, requiring formal party registration, the ability of local parties to select nomination methods remains essential. Maintaining local discretion to use nominating conventions not only preserves critical associational rights but also ensures electoral integrity, protects ideological coherence, reinforces local control over candidate selection, and provides essential safeguards against potential manipulations or crossover voting strategies that could otherwise distort primary outcomes.st crossover manipulation, regardless of the primary system in place. Moreover, HB 855’s arbitrary grandfather clause raises significant equal protection concerns by creating disparate treatment of counties without a clear, compelling, or even rational justification.
House Bill 855, as currently structured, significantly undermines fundamental First Amendment associational rights, introduces equal protection concerns, and fails to articulate compelling state interests sufficient to justify its significant burdens on local political parties. For these constitutional and practical reasons, the Tennessee Legislature should reject HB 855.
[1] Tennessee HB 855, Amendment No. 006387, 2025. 114th General Assembly.
[2] Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981).
[3] California Democratic Party v. Jones, 530 U.S. 567 (2000).
[4] Tennessee Code Annotated, Section 2-13-202.
[5] Jones, 530 U.S. at 572-586.
[6] Ibid., at 575.
[7] American Party of Texas v. White, 415 U.S. 767 (1974).
[8] Ibid., at 781-782.
[9] Jones, 530 U.S. at 577-578.
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