The right of association of political parties and the legal regulation of primary elections

Abstract

The possibility of a future legal reform that mandates political parties to chose its candidates by primaries may challenge the Constitution. This article tries to clarify if the right to freedom of association of political parties —concretely, to internal self-organization— could be affected by this legal reform. Assuming that the constitutional mandate of respecting the democratic principle in the structure of political parties implies to protect the rights of affiliates, among which you can find the right to participate, a law that imposes closed primaries on political parties —meaning primaries where only affiliates are allowed to vote— is fully constitutional. Nevertheless, to respect the right to internal self-organization, the legal reform must leave the regulation of the concrete procedure of election to the Statutes of the party. Furthermore, infractions must be punished by cuts in public financing, not excluding the parties from the elections.