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Although the McGovern-Fraser reforms opened the nomination process to ordinary voters in both parties, the democratization of the process proved to be incomplete. State laws and party rules often excluded many voters, such as independent voters in states that used a closed primary restricted only to party members. Restrictive party reenrollment rules also disabled many voters from changing parties in the weeks or months leading up to the presidential primary election, thereby preventing them from voting for the candidate they supported. Moreover, voters in some states found that they possessed less influence in the process than voters in other states. Voters in smaller states were allotted more national convention delegates (and therefore influence in the process) than their populations warranted, and, by the end of the twentieth century, it was apparent that voters in states that held their primary or caucuses early in the calendar had more influence than voters in later states.
The Constitution says nothing about the presidential nominating process and has had little direct role in the evolution of that process from congressional caucuses to party national conventions to our current primary-dominated system of selecting convention delegates. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.
The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the electoral process—which may include the primary elections that determine the nominees of the political parties—and the right of the parties to determine how to pick their nominees. This government-party axis affects all nominations of candidates for state and federal office.
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