Tennessee House Bill 855 (and its companion SB 799) is a prime example of a political “solution” in search of a problem. This bill would force every partisan election in our state – even down to local county offices like school board or county commission – to use state-run primary elections for selecting party nominees, outlawing the option of local party nominating conventions. The proposal might be pitched as “standardizing” elections, but don’t be fooled. It is an unnecessary state overreach that violates the First Amendment rights of political parties and grassroots conservatives. In truth, HB 855 stomps on the very freedoms that make our party system vibrant: the right of people to freely associate and decide for themselves how to choose their standard-bearers. And for what compelling reason? There isn’t one. No widespread problem with local conventions has been demonstrated – no crisis of voter disenfranchisement or election chaos crying out for Nashville’s intervention. Absent such justification, this mandate looks less like good governance and more like a power grab by political elites who don’t trust local voters. As we’ll see, forcing open primaries on local parties is not only bad policy; it’s flat-out unconstitutional.
The First Amendment doesn’t just protect our right to speak; it protects our right to associate with others who share our beliefs – and that includes political parties. The U.S. Supreme Court has repeatedly affirmed that a political party’s selection of its candidates is at the core of its associational freedoms. After all, choosing a nominee is how a party defines what it stands for in an election. As Justice Antonin Scalia wrote, “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, and hence to political power in the community.” California Democratic Party v Jones 530 U.S. 567 (2000) In other words, the nominee-selection process is where a party turns its ideas into an actionable campaign. It’s fundamental to what a party is.
Because of this, the Supreme Court has held that states generally cannot force political parties to open up their nominating process to those who don’t share their beliefs. In the landmark California Democratic Party v. Jones (2000) case, the Court struck down California’s state-mandated “blanket primary” – a system even more intrusive than Tennessee’s open primaries – precisely because it forced parties to let non-members help pick the party nominee, diluting the party’s message and identity. The Court found that a blanket primary “forces political parties to associate with – to have their nominees, and hence their positions, determined by – those who… have refused to affiliate with the party (or) have expressly affiliated with a rival.” That was an unacceptable invasion of the party’s rights of association. While Tennessee’s current system isn’t a blanket primary, it is an open primary system – any voter can choose to vote in either party’s primary without any binding party registration. This means a party has no way to stop people who are not loyal party members (or even outright opponents) from influencing its choice of candidates. It’s the very scenario Jones warned against, just in a slightly different outfit. The Court in Jones and related cases (like Tashjian and LaFollette)1 made clear that party members have a constitutional right to select their own nominees without interference from non-members. For the state to compel a party to accept outsider participation is a “substantial intrusion” into the party’s affairs that must meet the highest constitutional scrutiny.2
Under current Tennessee law, local parties have a choice when it comes to nominating their local candidates: they can hold a primary if they want, or they can opt for a caucus or convention to nominate their candidates. This flexibility respects the fact that political parties are private voluntary organizations, not creatures of the state. HB 855 would obliterate that freedom of choice. By eliminating nominating conventions entirely, it would force every county party to conduct state-run primaries – even if the party believes a convention is the better way to ensure a nominee who represents the party’s principles. This isn’t just a bad idea; it’s a direct affront to the First Amendment. Our party’s right to assemble and decide how to conduct our own business would be trampled by a one-size-fits-all government mandate.
Open Primaries Invite “Raiding” and Undermine Grassroots Conservatism
Why are so many local Republican parties up in arms about this bill? Because forcing open primaries on us exposes our nomination process to manipulation by non-Republicans, a tactic often called “party raiding.” Party raiding is when voters who have no real allegiance to a party (or who even oppose it) decide to vote in that party’s primary to skew the results – usually by picking the weakest candidate or a candidate who doesn’t actually reflect the party’s values. It’s a real concern anytime you have open primaries. Political strategists of all stripes know this. Even the Marquette University Law School noted that “party raiding is only feasible in states with open primaries” and is often cited as a key argument in favor of closed primaries3. States like Tennessee (and our neighbor Virginia) that do not register voters by party are especially vulnerable, because anyone can show up on primary day and request, say, a Republican ballot – no questions asked.
Local nominating conventions have been a crucial safeguard against crossover voting in our open-primary state. When a county GOP chooses to hold a convention or caucus, it can require participants to be bona fide Republicans – often by simple measures like requiring that they be recognized party members or have a history of voting in Republican primaries. That keeps Democrat mischief-makers from sneaking into a GOP meeting to influence the nominee (and vice versa for Democratic conventions). Conventions also tend to engage the most dedicated grassroots party members – the folks who knock on doors, pay dues, and actually want the party to stand for something. The dedicated Republican volunteer and the casual Democrat who feels like meddling each get an equal vote in deciding the Republican nominee. Does that sound fair or wise? Of course not – it’s absurd. Yet HB 855 would mandate this very scenario in every local race.
We don’t have to theorize about the dangers; just look at Virginia. In 2021, Virginia enacted a law very similar in spirit to HB 855 (which became effective in 2024) – effectively banning conventions and forcing open primaries on local parties. Now it’s facing a constitutional challenge from Republican committees who rightly feel their associational rights are being violated. The Lynchburg Republican City Committee filed a federal lawsuit this April arguing that Virginia’s forced-primary law “is a direct affront to our freedom of association as a party.” (Lynchburg Republican City Committee v Virginia State Board of Elections) The Lynchburg GOP chair explained that, until this law, they could hold a party-run process to “keep opponents of our party from participating in helping choose our candidate, or even being that candidate.” (Virginia Mercury) Now the state is requiring them “to allow Democrats, or even people who ran against our nominees, to choose our nominees, or even be our nominees.” Think about that – a law that could literally let a Democrat-leaning voter or a recently anti-GOP candidate waltz in and help pick the Republican ticket. If HB 855 passes, Tennessee will be mandating the exact same madness. As Lynchburg’s attorney put it, such laws force one party to “allow its political opponents to help choose its candidates, watering down its message and weakening its chances for victory at the polls.” When non-Republicans can influence GOP primaries (and vice versa), the inevitable result is a muddled party identity and nominees who don’t truly represent the base. In short, open primaries undercut the very concept of a political party – which is to offer voters a distinct set of principles and policies. If anyone off the street can pick the nominee, what guarantee do we have that the nominee will uphold our conservative platform? Grassroots conservatives could spend months organizing for a convention to back a true constitutional conservative, only to have that work overridden by a swarm of outside voters in a government-run primary. It’s demoralizing to volunteers, and it blurs the clear contrast that elections should provide.
Let’s also be clear: “Open” primaries are not truly open to all – they’re just open to interference. An independent or opposition voter has every right to switch parties if they genuinely adopt that party’s values. But Tennessee’s system doesn’t ask for any real commitment – not even changing one’s registration – so it enables mischief. Long-time Republican activists across the state have stories of Democratic crossover voting in GOP primaries (and yes, Republicans have done the same in Democratic primaries). It might not happen in every race, but it happens enough to be a concern – especially in close local elections, where just a few hundred crossover votes could change the outcome. HB 855 would permanently remove the one tool local parties have to guard against this: the ability to close the doors and pick our nominee among our own. Instead, it would impose the very scenario our Founders warned about – the tyranny of a majority (or motivated minority) outsider group overruling the will of the party faithful.
No Compelling State Interest, Especially at the Local Level
Proponents of HB 855 claim that primaries are more “democratic” or more convenient, and thus the state is justified in requiring them. They might trot out an old Supreme Court case, American Party of Texas v. White (1974), suggesting that states have broad authority to regulate party nominations. Don’t buy it. Yes, American Party v. White upheld parts of Texas’s election system, but that case dealt with ensuring ballot integrity and adequate voter support for candidates, primarily in statewide elections with large electorates – it did not give Tennessee or any state a blank check to micromanage local party contests. In fact, the Supreme Court in White actually acknowledged that using a party convention to nominate candidates is not some inferior or unlawful method. The Court noted that Texas’s convention process for smaller parties had “not been shown… to be invidiously more burdensome than the primary election” method. American Party of Texas v White, 415 U.S. 767 (1974) In other words, conventions work just fine and don’t inherently disadvantage voters. That completely undermines any argument that Tennessee has a compelling reason to abolish conventions. If anything, American Party v. White supports the idea that different scales of elections can justify different methods – Texas required primaries for its largest parties but allowed conventions for others. Why? Because the state’s interest in a uniform primary was only strong where voter numbers were huge, and even then it wasn’t about squashing party rights, it was about managing ballot access logistics. At the local level, where a county party might have a relatively small pool of voters, the rationale for mandating a state-run primary evaporates.
Let’s examine the supposed justifications: “enhancing democracy” and “increasing voter access” are the buzzwords supporters use. But these are vague goals, not concrete state interests that override constitutional rights. Courts have held that a state can’t just wave a wand and yell “democracy!” to justify burdening First Amendment freedoms. In California Democratic Party v. Jones, California argued that forcing all voters into one primary would produce nominees with broader appeal (what they called a more “representative” process). The Supreme Court flatly rejected this argument – the supposed benefit of a more centrist nominee did not outweigh the party’s right to define itself. Similarly, in the earlier Democratic Party of the U.S. v. Wisconsin ex rel. La Follette case, the Court struck down Wisconsin’s attempt to force the national Democratic Party to honor an open-primary result in allocating convention delegates, despite the state claiming it was giving more voters a voice. The Court found that the state’s interest “could not justify this ‘substantial intrusion’ into the associational freedom” of the party’s members. The lesson is clear: if a state law substantially interferes with how a party associates and chooses its leaders, the state needs a really powerful reason – a compelling interest – and even then, the law must be narrowly tailored to achieve that interest. HB 855 fails that test spectacularly.
What compelling interest is served by forcing primaries in every county? Administrative convenience? That’s hardly compelling – our county election commissions are perfectly capable of running the occasional convention if needed, or simply stepping aside while the parties handle it. Higher voter turnout? There’s no evidence that a low-turnout primary is any more “legitimate” than a well-attended party caucus. In fact, a county nominating convention often attracts the most enthusiastic local voters. (Witness the Williamson County GOP convention earlier this year, which drew over 1,500 Republicans!4) Preventing voter exclusion? That’s the argument used in Virginia – that conventions might exclude people who can’t physically attend, like deployed military or disabled voters. But this is a solution in search of a problem. Parties can and have accommodated special circumstances when needed, and not being able to attend one evening’s meeting is no worse than, say, not being able to get to the polls on primary day (which we handle with absentee ballots). If the legislature were truly concerned about access, it could simply require parties to provide an absentee or proxy option for those voters – far less restrictive than banning conventions altogether. And tellingly, HB 855 doesn’t even mention accommodations for absent voters. Its blanket primary mandate isn’t a surgical fix for a rights problem; it’s a sledgehammer that obliterates local choice entirely.
We should also question why state-run primaries are being treated as inherently holier than party-run processes. A primary is just one method of nomination, not a constitutional requirement for all offices. Plenty of states allow local or minor party conventions. Even Tennessee already has different rules depending on the office – for example, we’ve long required primaries for governor and legislature, but not for every county office. That hybrid system has worked without issue. Suddenly declaring that every single partisan nomination must happen via a taxpayer-funded election – even when only a few hundred people might participate – is arbitrary and overbearing.
Misusing Supreme Court Precedent: Setting the Record Straight
Supporters of HB 855 have cited American Party of Texas v. White (1974) and California Democratic Party v. Jones (2000) as if these cases justify their position. That is a gross misreading. We’ve already touched on Jones, which actually hurts the pro-HB 855 argument far more than it helps it – Jones robustly champions party associational rights against state interference. It does not bless forcing primaries on unwilling parties; quite the opposite, it struck down a state’s attempt to do so.
Proponents might counter that Jones was about a blanket primary (where all voters get the same ballot) rather than an open primary. Yes, the blanket primary is more extreme, but the crux of Jones was the forced inclusion of non-members in the party’s decision-making. Tennessee’s open primaries have the same flaw: a Democrat can vote in a GOP primary without ever joining the GOP, and vice versa. The only difference is procedural (separate party ballots instead of one combined ballot), but the harm to associational rights is still present. Indeed, the Jones Court favorably cited the earlier Tashjian case, which held that a state couldn’t stop a party from opening its primaries to independents5. The common thread is party autonomy – whether a party wants to open up or close down its nominations, the choice belongs to the party, not the state. So Jones in no way condones what HB 855 does; if anything, it foretells a constitutional challenge if Tennessee enacts this bill.
Now, American Party v. White has been trotted out, likely because it upheld a Texas law requiring major parties to use primaries. But context matters. In Texas, the major parties themselves were not protesting the primary mandate – that was already their norm. The challenges in White came mainly from minor parties and independents who felt the system (which required petition signatures and conventions for smaller parties) was too burdensome. The Supreme Court in White did say states have an interest in orderly elections and can require a showing of support (like a petition or a primary vote threshold) before putting a party’s candidate on the general ballot. No one disputes that. If Tennessee were dealing with a situation where a tiny fringe group wanted ballot access without demonstrating any public support, the state could insist on certain procedures. But that’s not our situation at all. HB 855 is not about ensuring only serious candidates get on the ballot – our existing laws on ballot access and the fact that these are major party nominations take care of that. Instead, this bill is about forbidding a popular, time-tested nomination method (conventions) and compelling a different method (primaries) even when the party prefers otherwise. American Party v. White simply did not consider such an intrusive requirement at the local level. In fact, as noted earlier, White upheld the use of conventions for smaller-scale nominations, explicitly finding them not unduly burdensome. It recognized that the state provided an alternative path (convention + petition) that was constitutionally adequate. If anything, Tennessee’s bill would remove the alternative path that White deemed acceptable.
It’s also crucial to distinguish scale and context. White and Jones were dealing with state-level election laws impacting millions of voters and the general election ballot. Courts might be more sympathetic to state regulations in those contexts because the potential impact (say, a chaotic ballot or a disenfranchised large segment) is greater. But when we’re talking about a single county’s GOP or Democratic committee choosing how to nominate a county commissioner candidate, the state’s interest is practically nil unless you can show some dire problem in need of fixing. Are voters being defrauded or excluded in local conventions? No. Are unqualified candidates flooding the ballot because of conventions? No. There’s simply no problem here except that some politicians in Nashville don’t like how certain local party fights turned out. And that is not a legitimate reason to rewrite election law for the whole state.
Consider what sparked this bill: By all appearances, it was the outcome of a Williamson County Republican convention that didn’t go the way the establishment wanted. Grassroots conservatives out-organized them and elected new leadership in a county party reorganization – much to the chagrin of certain power brokers who backed the losing side. (Jackson, Truthwire News) So, rather than accept defeat, those insiders turned to the legislature to change the rules of the game. It’s a classic case of sour grapes: if you can’t win with the current rules, just impose new ones from above. HB 855 is being viewed by many conservatives as a direct retaliation for that Williamson County upset, a way for Nashville elites to prevent future grassroots wins by eliminating the convention option altogether. That motive may be political, but it underscores why this bill is so wrong. It’s using state power to rig the system against the very party members and activists who are supposed to have a say. It’s as if the state GOP hierarchy wants to say: “Sorry local folks, you can’t be trusted to choose your nominees in a meeting – we’ll make that decision subject to a government-run process that we can more easily influence with big money and possibly even cross-over voters.”
Whether or not you buy into that specific narrative, the key point remains: there is no principled, legal justification for HB 855’s blanket mandate. Even if some in the legislature think primaries are “more fair,” that’s a value judgment, not a compelling state interest that can override constitutional rights. The courts have consistently favored the rights of association, especially when no substantial harm would come from letting parties decide their own nomination methods. And in Tennessee, we have zero evidence of harm from local parties doing things their way. Our conventions haven’t caused public unrest, discrimination, or any problem that the state can point to as an important governmental concern. Absent such concerns, this law is arbitrary and indefensible.
Resisting Arbitrary Power
Not only does HB 855 clash with the U.S. Constitution, it also offends our Tennessee State Constitution and the values it enshrines. Our state’s founders were deeply wary of government overreach. In Article I, Section 2 of the Tennessee Constitution – right there in our Declaration of Rights – they declared that
“government being instituted for the common benefit, the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.”
Think about those words. Tennesseans are actually called to resist when the government arbitrarily oversteps its bounds. If HB 855 isn’t an example of arbitrary power, what is? Here we have the state swooping in to dictate how private political associations conduct their internal business, without any solid justification, and in a manner that clearly oppresses the rights of those associations. It sure sounds arbitrary and oppressive to me, and I suspect to any fair-minded citizen. We have a duty, as free Tennesseans, not to just roll over and accept this kind of heavy-handed dictate. When the state legislature proposes to take away a freedom that local people have long enjoyed – especially a freedom as fundamental as how we band together politically – we shouldn’t just go along to get along. We should fight it with every tool at our disposal: public outcry, legal challenges, and the pressure of the ballot box if need be.
Let’s recall: Political parties are voluntary associations of citizens. The Republican and Democratic parties (and any others) are not government agencies; they are groups of people united by common political beliefs. They may participate in the election process, but they are not themselves the state. For the state to essentially commandeer the parties’ nominating process is an extraordinary assertion of power. It would be like the government telling a church whom it can ordain, or telling a private club how to elect its president. As conservatives, we would be rightly outraged at such interference. We should be just as outraged here, regardless of any short-term political calculations. Today it’s the convention option on the chopping block; tomorrow it could be something else that centralizes control at the expense of local grassroots voices. We must insist that our state government follow constitutional principles and respect the autonomy of citizen-led organizations. The Tennessee Constitution’s drafters put in that strong language about resisting arbitrary power for moments like this, when the politics of the day tempt those in power to forget first principles. Let’s not forget.
Empower the Grassroots, Not the Political Class
At its heart, the fight over HB 855 is about who controls the soul of our political parties – the grassroots or the political class. This bill comes down squarely on the side of the political class, tilting the scales in favor of those with the most resources to sway primaries, and against the local volunteers who have kept our parties running strong. It’s no wonder that county GOP organizations from Hamilton County to Williamson County have been loudly opposing the bill. Hamilton County’s Republican Chair, for example, warned that HB 855 “would negatively affect our ability to choose the best Republican candidate because it would take away local control”. (WDEF) Likewise, Williamson County’s GOP leaders testified that they are pushing back against the state’s attempt to usurp their role. These aren’t fringe voices; they are the party officials closest to the people. Nashville legislators ought to listen.
From a constitutional perspective, HB 855 is a loser. It tramples on the First Amendment by forcing parties into association with non-members. It lacks any compelling justification, especially in the context of small local elections. It even creates bizarre inequalities – a grandfather clause in the bill would let some counties that used conventions in recent years keep doing so temporarily, while forcing others to switch immediately. Such arbitrary distinctions could raise Equal Protection issues, adding yet another constitutional strike against the bill. And as we’ve discussed, it flies in the face of Tennessee’s own constitutional command to resist arbitrary power.
The conservative, constitutional stance on HB 855 is clear: oppose it wholeheartedly. Defending the right of local political parties to choose how they nominate candidates isn’t just about party rules – it’s about preserving the liberty of citizens to band together and self-govern. It’s about keeping elections close to the people rather than centralized in the state capitol. And yes, it’s about a little common-sense humility from our legislators, recognizing that just because something can be mandated by law doesn’t mean it should be. Our Republican supermajority in Tennessee should especially know better. We’ve spent years arguing that D.C. shouldn’t dictate everything to the states and locals; the same principle applies within Tennessee between the state and our counties and communities. Imposing state-run primaries on every local race is a Big Government move utterly antithetical to the cause of individual liberty and limited government.
- Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981) (invalidating Wisconsin’s law binding national convention delegates to vote according to an open primary result that included independent voters, as it violated the party’s associational rights)
- See Elrod v. Burns, 427 U.S. 347, 362 (1976) (laws that infringe First Amendment association rights must serve a compelling government interest and be narrowly tailored). In California Democratic Party v. Jones, the Court found no compelling interest to justify California’s blanket primary, rejecting claims of promoting moderation. Tennessee’s HB 855 similarly lacks a compelling justification at the local level.
- John D. Johnson, Do primary voters strategically vote in the opposition’s primary? Marquette Law School Faculty Blog (Feb. 20, 2019)
(defining “party raiding” as bad-faith crossover voting and noting it is only feasible in open primary states). While the incidence of successful raiding can be debated, the risk of it – and the perception of illegitimacy it creates – is undeniably higher under open primaries. Parties have a right to guard against even the threat of such interference. - Kelly Jackson, “SB799/HB855… Sore Losers and Sour Grapes,” TruthWire News (Mar. 29, 2025) https://www.truthwirenews.com/sb799-hb855-new-bill-seen-as-retaliation-for-williamson-county-gop-loss-sore-losers-and-sour-grapes/
The Williamson County GOP’s 2025 reorganization convention drew approximately 1,500 participants – a testament to grassroots engagement. The upset victory of conservative delegates in that convention is widely believed to have prompted the introduction of HB 855 as retaliation by those who lost. - Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). In Tashjian, the Republican Party wanted to open its primary to independent voters, but the state law mandated a closed primary. The Supreme Court sided with the party, emphasizing that the party’s determination of who is allowed to participate in its nomination process is an exercise of associational freedom protected by the First Amendment. This cuts both ways: a party can choose to include outsiders (as in Tashjian) or exclude them (as in Jones), but the choice must lie with the party, not the legislature.
