Second Primaries makes First Primaries Secondary ?

Will Michigan and Florida do their primaries over again (see the "Mulligan" post below)? If they don't, it is not clear that the courts will not intervene because of the way in which the results of the primaries or caucuses are treated by the party. The Court has upheld the right of national political parties to refuse to seat at their conventions delegates chosen in state selection processes which did not conform to party rules. See Democratic Party of United States v. Wisconsin ex rel. La Follete, 450 U.S. 107 (1981); Cousins v. Wigoda, 419 U.S. 477 (1975). They could just have the determinations made by smoke filled rooms of pols, but we've grown accustomed to voting in primaries to tell our parties who the candidates should be. To do otherwise is to enshrine the smoke filled room of yore. How did primaries come to be, and is their a right to chose your party's nominee or have your choice counted?
Primaries emerged as a way of combating the smoke filled room image. Both the presidential primary and the direct primary came into widespread use in the early twentieth century. Progressives sponsored them to purify American politics, to destroy the power of party bosses and their machines, and restore the right of the people to govern themselves.

But the primaries were also used as a way of excluding minorities and employed such tactics as poll tax, literacy tests, and the grandfather clause. (The "grandfather clause" required literacy tests of new voters unless their grandfathers had been on the voting lists (i.e., going back to when slavery was legal and the grandfathers of most blacks could not vote.) One joke about the literacy test involves a black man who was turned away from the polls because he couldn't read. He taught himself to read quite well before the next election. Then he appeared and tried to register. When he said he could read, the registrars handed him a Yiddish newspaper employing Hebrew characters. They asked him to read it, and he replied, "I don't know what the small print says, but the headline is " No Blacks Going to be Voting Again this Year.") In Guinn v. United States, 238 U.S. 347 (1915) the grandfather clauses were struck down.

However,there is a series of cases that recognize that the political parties are not arms of the government, and are essentially private organizations or entities (like clubs) that can determine their own membership. You have no more right to determine officers of these private clubs or to participate in the private club elections than you do to select the president of a country club you don't belong to, or vote in the elections that select Oscar or Pulitzer Prize winners, nor to determine which girl gets five diamonds at the Emperor's Club. (Well, maybe not that club!)
The Supreme Court has held that the right to join or limit the participation in a political party comes within the ambit of the "freedom of association" language of the First Amendment.
A series of Supreme Court cases held that primaries could not be designated "Whites Only" or be structed in a way that excluded blacks. In Smith v. Allwright, 321 U.S. 649 (1944) the court wrestled with the problem that the democratic party had been held to be a private organization--i.e., a private club. Even though the Democratic Party was a voluntary organization, the fact that Texas statutes governed the selection of county-level party leaders, the party conducted primary,elections under state statutory authority, and state courts were given exclusive original jurisdiction over contested elections, guaranteed for blacks the right to vote in primaries. Allwright engaged in state action abridging Smith's right to vote because of his race. A state cannot "permit a private organization to practice racial discrimination" in elections, argued Justice Reed.
"There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group activity" protected by the First and Fourteenth Amendments. NAACP v. Button, 371 U. S. 415, 430; Bates v. Little Rock, 361 U. S. 516, 522-523; NAACP v. Alabama, 357 U. S. 449, 460-461. The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Williams v. Rhodes, 393 U. S. 23, 30. Cf. United States v. Robel, 389 U. S. 258." ....Kusper v. Pontikes, 414 US 51 (1973), 414 U. S. 57.
Following that reasoning the court has held that a state cannot force an open primary on a party that wants to hold a closed primary to make sure that only those voters who are committed to its principles votes to determine its candidates. California Democratic Party v. Jones, 530 U.S. 567 (2000).

There is a tension in these cases between the private organization/freedom of association line of reasoning, and the regulation of the constitutionally guaranteed right to vote as a centerpiece of representational democracy. The cases give little clues what would happen if the current party rules did or did not seat the current Florida and Michigan delegates.