California Democratic Party v. Jones
California Democratic Party v. Jones
Opinion of the Court
delivered the opinion of the Court.
This ease presents the question whether the State of California may, consistent with the First Amendment to the United States Constitution, use a so-called “blanket” primary to determine a political party’s nominee for the general election.
I
Under California law, a candidate for public office has two routes to gain access to the general ballot for most state and federal elective offices. He may receive the nomination of a qualified political party by winning its primary,
Until 1996, to determine the nominees of qualified parties California held what is known as a “closed” partisan primary, in which only persons who are members of the political party — i. e., who have declared affiliation with that party when they register to vote, see Cal. Elec. Code Ann. §§2150, 2151 (West 1996 and Supp. 2000) — can vote on its nominee, see Cal. Elec. Code Ann. §2151 (West 1996). In 1996 the citizens of California adopted by initiative Proposition 198. Promoted largely as a measure that would “weaken” party “hard-liners” and ease the way for “moderate problem-solvers,” App. 89-90 (reproducing ballot pamphlet distributed to voters), Proposition 198 changed California’s partisan primary from a closed primary to a blanket primary. Under the new system, “[a]ll persons entitled to vote, including those not affiliated with any political party, shall have the right to vote ... for any candidate regardless of the candidate’s political affiliation.” Cal. Elec. Code Ann. §2001 (West Supp. 2000); see also §2151. Whereas under the closed primary each voter received a ballot limited to candidates of his own party, as a result of Proposition 198 each voter’s primary ballot now lists every candidate regardless of party affiliation and allows the voter to choose freely among them. It remains the case, however, that the candidate of each party who wins the greatest number of votes “is the nominee of that party at the ensuing general election.” Cal. Elec. Code Ann. § 15451 (West 1996).
Respondents rest their defense of the blanket primary upon the proposition that primaries play an integral role in citizens’ selection of public officials. As a consequence, they contend, primaries are public rather than private proceedings, and the States may and must play a role in ensuring that they serve the public interest. Proposition 198, respondents conclude, is simply a rather pedestrian example of a State’s regulating its system of elections.
We have recognized, of course, that States have a major role to play in structuring and monitoring the election process, including primaries. See Burdick v. Takushi, 504 U. S. 428, 433 (1992); Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986). We have considered it “too plain for argument,” for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion. American Party of Tex. v. White, 415 U. S. 767, 781 (1974); see also Tashjian, supra, at 237 (Scalia, J., dissenting). Similarly, in order to avoid burdening the general election ballot with frivolous candidacies, a State may require parties to demonstrate “a significant modicum of support” before allowing their candidates a place on that ballot. See Jenness v. Fortson, 403 U. S. 431, 442 (1971). Finally, in order to prevent “party raiding” — a process in which dedicated members of one party formally switch to another party to alter the outcome of that party’s primary — a State may require party registration a reasonable period of time before a primary election. See Rosario v. Rockefeller, 410 U. S. 752 (1973). Cf. Kusper v. Pontikes, 414 U. S. 51 (1973) (23-month waiting period unreasonable).
What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States
In no area is the political association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views. See Timmons v. Twin Cities Area New Party, 520 U. S. 351, 372 (1997) (Stevens, J., dissenting) (“But a party’s choice of a candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interest and support”). Some political parties — such as President Theodore Roosevelt’s Bull Moose Party, the La Follette Progressives of 1924, the Henry Wallace Progressives of 1948, and the George Wallace American Independent Party of 1968 — are virtually inseparable from their nominees (and tend not to outlast them). See generally E. Kruschke, Encyclopedia of Third Parties in the United States (1991).
Unsurprisingly, our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party “seleet[s] a standard bearer who best represents the party’s ideologies and preferences.” Eu, swpra, at 224 (internal quotation marks omitted). The moment of choosing the party’s nominee, we have said, 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.” Tashjian, 479 U. S., at 216; see also id., at 235-236 (Scalia, J., dissenting) (“The ability of the members of the Republican Party to select their own candidate . . . unquestionably implicates an assoeiational freedom”); Timmons, 520 U. S., at 359 (“[T]he New Party, and not some
In La Follette, the State of Wisconsin conducted an open presidential preference primary.
The record also supports the obvious proposition that these substantial numbers of voters who help select the nominees of parties they have chosen not to join often have policy views that diverge from those of the party faithful. The 1997 survey of California voters revealed significantly different policy preferences between party members and primary voters who “crossed over” from another party. PI. Exh. 8
In concluding that the burden Proposition 198 imposes on petitioners’ rights of association is not severe, the Ninth Circuit cited testimony that the prospect of malicious crossover voting, or raiding, is slight, and that even though the numbers of “benevolent” crossover voters were significant, they would be determinative in only a small number of races.
In any event, the deleterious effects of Proposition 198 are not limited to altering the identity of the nominee. Even
Nor can we accept the Court of Appeals’ contention that the burden imposed by Proposition 198 is minor because petitioners are free to endorse and financially support the candidate of their choice in the primary. 169 F. 3d, at 659. The ability of the party leadership to endorse a candidate is simply no substitute for the party members’ ability to choose their own nominee. In Eu, we recognized that party-leadership endorsements are not always effective— for instance, in New York’s 1982 gubernatorial primary, Edward Koch, the Democratic Party leadership’s choice, lost out to Mario Cuomo. 489 U. S., at 228, n. 18. One study has concluded, moreover, that even when the leadership-endorsed candidate has won, the effect of the endorsement has been negligible. Ibid, (citing App. in Eu v. San Francisco County Democratic Central Comm., O. T. 1988, No. ST-1269, pp. 97-98). New York’s was a closed primary; one
We are similarly unconvinced by respondents’ claim that the burden is not severe because Proposition 198 does not limit the parties from engaging fully in other traditional party behavior, such as ensuring orderly internal party governance, maintaining party discipline in the legislature, and conducting campaigns. The accuracy of this assertion is highly questionable, at least as to the first two activities. That party nominees will be equally observant of internal party procedures and equally respectful of party discipline when their nomination depends on the general electorate rather than on the party faithful seems to us improbable. Respondents themselves suggest as much when they assert that the blanket primary system “ ‘will lead to the election of more representative “problem solvers” who are less beholden to party officials.’” Brief for Respondents 41 (emphasis added) (quoting 169 P. 3d, at 661). In the end, however, the effect of Proposition 198 on these other activities is beside the point. We have consistently refused to overlook an unconstitutional restriction upon some First Amendment activity simply because it leaves other First Amendment activity unimpaired. See, e. g., Spence v. Washington, 418 U. S. 405, 411, n. 4 (1974) (per curiam); Kusper, 414 U. S., at 58. There is simply no substitute for a party’s selecting its own candidates.
In sum, Proposition 198 forces petitioners to adulterate their candidate-selection process — the “basic function of a political party,” ibid. — by opening it up to persons wholly unafifiliated with the party. Such forced association has the likely outcome — indeed, in this ease the intended outcome—
Ill
Respondents proffer seven state interests they claim are compelling. Two of them — producing elected officials who better represent the electorate and expanding candidate debate beyond the scope of partisan concerns — are simply circumlocution for producing nominees and nominee positions other than those the parties would choose if left to their own devices. Indeed, respondents admit as much. For instance, in substantiating their interest in “representativeness,” respondents point to the fact that “officials elected under blanket primaries stand closer to the median policy positions of their districts” than do those selected only by party members. Brief for Respondents 40. And in explaining their desire to increase debate, respondents claim that a blanket primary forces parties to reconsider long standing positions since it “compels [their] candidates to appeal to a larger segment of the electorate.” Id., at 46. Both of these supposed interests, therefore, reduce to nothing more than a stark repudiation of freedom of political association: Parties should not be free to select their own nominees because those nominees, and the positions taken by those nominees, will not be congenial to the majority.
We have recognized the inadmissibility of this sort of “interest” before. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), the South Boston Allied War Veterans Council refused to allow an organization of openly gay, lesbian, and bisexual persons (GLIB) to participate in the council’s annual
Respondents’ third asserted compelling interest is that the blanket primary is the only way to ensure that disenfranchised persons enjoy the right to an effective vote. By “disenfranchised,” respondents do not mean those who cannot vote; they mean simply independents and members of the minority parly in “safe” districts. These persons are disenfranchised, according to respondents, because under a closed primary they are unable to participate in what amounts to the determinative election — the majority party’s primary; the only way to ensure they have an “effective” vote is to force the party to open its primary to them. This also appears to be nothing more than reformulation of an asserted state interest we have already rejected — recharacterizing nonparty members’ keen desire to participate in selection of the party’s nominee as “disenfranchisement” if that desire is not fulfilled. We have said, however, that a “nonmember’s desire to participate in the party’s affairs is overborne by the countervailing and legitimate right of the party to determine its own membership qualifications.” Tashjian, 479 U. S., at 215-216, n. 6 (citing Rosario v. Rockefeller, 410 U. S. 752 (1973), and Nader v. Schajfer, 417 F. Supp. 837 (Conn.), summarily aff’d, 429 U. S. 989 (1976)). The voter’s desire to
Respondents’ remaining four asserted state interests— promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy — are not, like the others, automatically out of the running; but neither are they, in the circumstances of this case, compelling. That determination is not to be made in the abstract, by asking whether fairness, privacy, etc., are highly significant values; but rather by asking whether the aspect of fairness, privacy, etc., addressed by the law at issue is highly significant. And for all four of these asserted interests, we find it not to be.
The aspect of fairness addressed by Proposition 198 is presumably the supposed inequity of not permitting nonparty members in “safe” districts to determine the party nominee. If that is unfair at all (rather than merely a consequence of the eminently democratic principle that — except where constitutional imperatives intervene — the majority rules), it seems to us less unfair than permitting nonparty members to hijack the party. As for affording voters greater choice, it is obvious that the net effect of this scheme — indeed, its avowed purpose — is to reduce the scope of choice, by assuring a range of candidates who are all more “centrist.” This may well be described as broadening the range of choices favored by the majority — but that is hardly a compelling state interest, if indeed it is even a legitimate one. The interest in increasing voter participation is just a variation on the same theme (more choices favored by the majority will
Finally, we may observe that even if all these state interests were compelling ones, Proposition 198 is not a narrowly tailored means of furthering them. Respondents could protect them all by resorting to a nonpartisan blanket primary. Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot — which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket primary, save the
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Respondents’ legitimate state interests and petitioners’ First Amendment rights are not inherently incompatible. To the extent they are in this case, the State of California has made them so by forcing political parties to associate with those who do not share their beliefs. And it has done this at the “crucial juncture” at which party members traditionally find their collective voice and select their spokesman. Tashjian, 479 U. S., at 216. The burden Proposition 198 places on petitioners’ rights of political association is both severe and unnecessary. The judgment for the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
A party is qualified if it meets one of three conditions: (1) in the last gubernatorial election, one of its statewide candidates polled at least two percent of the statewide vote; (2) the party’s membership is at least one percent of the statewide vote at the last preceding gubernatorial election; or (3) voters numbering at least 10 percent of the statewide vote at the last gubernatorial election sign a petition stating that they intend to form a new party. See Cal. Elec. Code Ann. § 5100 (West 1996 and Supp. 2000).
California’s new blanket primary system does not apply directly to the apportionment of Presidential delegates. See Cal. Elec. Code Ann. §§15151, 15375, 15500 (West Supp. 2000). Instead, the State tabulates the Presidential primary in two ways: according to the number of votes
Each of the four parties was qualified under California law when they filed this suit. Since that time, the Peace and Freedom Party has apparently lost its qualified status. See Brief for Petitioners 16 (citing Child of the ’60s Slips, Los Angeles Times, Feb. 17,1999, p. B-6).
On this point, the dissent shares respondents’ view, at least where the selection process is a state-run election. The right not to associate, it says, “is simply inapplicable to participation in a state election.” “[A]n election, unlike a convention or caucus, is a public affair.” Post, at 595 (opinion of Stevens, J.). Of course it is, but when the election determines a party’s nominee it is a party affair as well, and, as the cases to be discussed in text demonstrate, the constitutional rights of those composing the parly cannot be disregarded.
The dissent is therefore wrong to conclude that Allwright and Terry demonstrate that “[t]he protections that the First Amendment affords
An open primary differs from a blanket primary in that, although as in the blanket primary any person, regardless of party affiliation, may vote for a party’s nominee, his choice is limited to that party’s nominees for all offices. He may not, for example, support a Republican nominee for Governor and a Democratic nominee for attorney general.
The dissent, in attempting to fashion its new rule — that the light not to associate does not exist with respect to primary elections, see post, at 594-595 — rewrites Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107 (1981), to stand merely for the proposition that a political party has a First Amendment right to “defin[e] the organization and composition of its governing units,” post, at 592. In fact, however, the state-imposed burden at issue in La Follette was the “‘intrusion by those with adverse political principles’ ” upon the selection of the party’s nominee (in that case its presidential nominee). 450 U. S., at 122 (quoting Ray v. Blair, 343 U. S. 214, 221-222 (1952)). See also 450 U. S., at 125 (comparing asserted state interests with burden created by the “imposition of voting requirements upon” delegates). Of course La Follette involved the burden a state regulation imposed on a national party, but that factor affected only the weight of the State’s interest, and had no bearing upon the existence vel non of a party’s First Amendment right to exclude. Id., at 121-122,125-126. Although Justice Stevens now considers this interpretation of La Follette “specious,” see post, at 592, n. 3, he once
Not only does the dissent’s principle of no right to exclude conflict with our precedents, but it also leads to nonsensical results. In Tashjian v. Republican Party of Conn., 479 U. S. 208 (1986), we held that the First Amendment protects a party’s right to invite independents to participate in the primary. Combining Tashjian with the dissent’s rule affirms a party’s constitutional right to allow outsiders to select its candidates, but denies a party’s constitutional right to reserve candidate selection to its own members. The First Amendment would thus guarantee a party’s right to lose its identity, but not to preserve it.
In this sense, the blanket primary also may be constitutionally distinct from the open primary, see n. 6, supra, in which the voter is limited to one party’s ballot. See La Follette, supra, at 130, n. 2 (Powell, J., dissenting) (“[T]he act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party.... The situation might be different in those States -with ‘blanket’ primaries — i. e., those where voters are allowed to participate in the primaries of more than one
The Ninth Circuit defined a crossover voter as one “who votes for a candidate of a party in which the voter is not registered. Thus, the cross-over voter could be an independent voter or one who is registered to a competing political party.” 169 F. 3d 646, 656 (1999).
Concurring Opinion
concurring.
Proposition 198, the product of a statewide popular initiative, is a strong and recent expression of the will of California’s electorate. It is designed, in part, to further the object of widening the base of voter participation in California elections. Until a few weeks or even days before an election, many voters pay little attention to campaigns and even less to the details of party politics. Fewer still participate in the direction and control of party affairs, for most voters consider the internal dynamics of party organization remote, partisan, and of slight interest. Under these conditions voters tend to become disinterested, and so they refrain from voting altogether. To correct this, California seeks to make primary voting more responsive to the views and preferences of the electorate as a whole. The results of California’s blanket primary system may demonstrate the efficacy
Encouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process. In short, there is much to be said in favor of California’s law; and I might find this to be a close ease if it were simply a way to make elections more fair and open or addressed matters purely of party structure.
The true purpose of this law, however, is to force a political party to accept a candidate it may not want and, by so doing, to change the party’s doctrinal position on major issues. Ante, at 581-582. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of its law. See, e. g., Brief for Respondents 40, 46. It may be that organized parties, controlled— in fact or perception — by activists seeking to promote their self-interest rather than enhance the party’s long-term support, are shortsighted and insensitive to the views of even their own members. A political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment’s guarantee of speech through free association, however, this is an issue for the party to resolve, not for the State. Political parties advance a shared political belief, but to do so they often must speak through their candidates. When the State seeks to direct changes in a political party’s philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the party’s associational freedom is subject to careful scrutiny under the First Amendment. For these reasons I agree with the Court’s opinion.
I add this separate concurrence to say that Proposition 198 is doubtful for a further reason. In justification of its stat
Federal campaign finance laws place strict limits on the manner and amount of speech parties may undertake in aid of candidates. Of particular relevance are limits on coordinated party expenditures, which the Federal Election Campaign Act of 1971 deems to be contributions subject to specific monetary restrictions. See 90 Stat. 488, 2 U. S. C. § 441a(a)(7)(B)(i) (“[Expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”). Though we invalidated limits on independent party expenditures in Colorado Republican, the principal opinion did not question federal limits placed on coordinated expenditures. See 518 U. S., at 624-625 (opinion of Breyer, J.). Two Justices in dissent said that “all money spent by a political party to secure the election of its candidate” would constitute coordinated expenditures and would have upheld the statute as applied in that case. See id., at 648 (opinion of Stevens, J.). Thus, five Justices of the Court subscribe to the position that Congress or a State may limit the amount a political party spends in direct collaboration with its preferred candidate for elected office.
Were the views of those who would uphold both California’s blanket primary system and limitations on coordinated party expenditures to become prevailing law, the State could control political parties at two vital points in the election process. First, it could mandate a blanket primary to weaken the party’s ability to defend and maintain its doctrinal positions by allowing nonparty members to vote in the primary. Second, it could impose severe restrictions on the amount of funds and resources the party could spend in efforts to counteract the State’s doctrinal intervention. In other words, the First Amendment injury done by the Court’s ruling in Colorado Republican would be compounded were California to prevail in the instant ease.
Dissenting Opinion
with whom Justice Ginsburg joins as to Part I, dissenting.
Today the Court construes the First Amendment as a limitation on a State’s power to broaden voter participation in elections conducted by the State. The Court’s holding is novel and, in my judgment, plainly wrong. I am convinced that California’s adoption of a blanket primary pursuant to Proposition 198 does not violate the First Amendment, and that its use in primary elections for state offices is therefore valid. The application of Proposition 198 to elections for United States Senators and Representatives, however, raises a more difficult question under the Elections Clause of the United States Constitution, Art. I, §4, cl. 1. I shall first explain my disagreement with the Court’s resolution of the First Amendment issue and then comment on the Elections Clause issue.
I
A State’s power to determine how its officials are to be elected is a quintessential attribute of sovereignty. This ease is about the State of California’s power to decide who may vote in an election conducted, and paid for, by the State.
The blanket primary system instituted by Proposition 198 does not abridge “the ability of citizens to band together in promoting among the electorate candidates who espouse their political views.” Ante, at 574.
When a political party defines the organization and composition of its governing units, when it decides what candidates to endorse, and when it decides whether and how to communicate those endorsements to the public, it is engaged in the kind of private expressive associational activity that the First Amendment protects. Timmons v. Twin Cities Area New Party, 520 U. S. 351, 354-355, n. 4, 359 (1997) (recognizing party’s right to select its own standard-bearer in context of minor party that selected its candidate through means other than a primary); id., at 371 (Stevens, J., dissenting); Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 (1989); Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) (“A political party’s choice among the various ways of determining the makeup of a State’s delegation to the party’s national convention is protected by the Constitution”); Cousins v. Wigoda, 419 U. S. 477, 491 (1975) (“Illinois’ interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention” (emphasis added)).
As District Judge Levi correctly observed in an opinion adopted by the Ninth Circuit, however, the associational rights of political parties are neither absolute nor as comprehensive as the rights enjoyed by wholly private associations. 169 P. 3d 646, 654-655 (1999); cf Timmons, 520 U. S., at 360 (concluding that while regulation of endorsements implicates political parties’ internal affairs and core associational ae-
The so-called “right not to associate” that the Court relies upon, then, is simply inapplicable to participation in a state election. A political party, like any other association, may refuse to allow nonmembers to participate in the party’s decisions when it is conducting its own affairs;
Although I would not endorse it, I could at least understand a constitutional rule that protected a party’s associational rights by allowing it to refuse to select its candidates through state-regulated primary elections. See Marchioro v. Chaney, 442 U. S. 191, 199 (1979) (“There can be no complaint that [a] party’s [First Amendment] right to govern itself has been substantially burdened by [state regulation] when the source of the complaint is the party’s own decision to confer critical authority on the [party governing unit being regulated]”); cf. Tashjian, 479 U. S., at 237 (Scalia, J., dissenting) (“It is beyond my understanding why the Republican Party’s delegation of its democratic choice [of candidates] to a Republican Convention [rather than a primary] can be proscribed [by the State], but its delegation of that choice to nonmembers of the Party cannot”). A meaningful “right not to associate,” if there is such a right in the context of limiting an electorate, ought to enable a party to insist on choosing its nominees at a convention or caucus where nonmembers could be excluded. In the real world, however, anyone can “join” a political party merely by asking for the appropriate ballot at the appropriate time or (at most) by registering within a state-defined reasonable period of time before an election; neither past voting history nor the voter’s race, religion, or gender can provide a basis for the party’s refusal to “associate” with an unwelcome new member. See 169 F. 3d, at 655, and n. 20. There is an obvious mismatch between a supposed constitutional right “not to associate” and a rule that turns on nothing more than the state-defined timing of the new associate’s application for membership. See La Follette, 450 U. S., at 133 (Powell, J., dissenting) (“As Party affiliation becomes . . . easy for a voter to change [shortly before a particular primary election] in order to participate in [that] election, the difference between open and closed primaries loses its practical significance”).
“The . . . voter who, while steadfastly refusing to register as a Republican, casts a vote in [a nonclosed] Republican primary, forms no more meaningful an ‘association’ with the Party than does the independent or the registered Democrat who responds to questions by a Republican Party pollster. If the concept of freedom of association is extended to such casual contacts, it ceases to be of any analytic use.” 479 U. S., at 235.
It is noteworthy that the bylaws of each of the political. parties that are petitioners in this case unequivocally state that participation in partisan primary elections is to be limited to registered members of the party only. App. 7, 15, 16,18. Under the Court’s reasoning, it would seem to follow that conducting anything but a closed partisan primary in the face of such bylaws would necessarily burden the parties’ “ ‘freedom to identify the people who constitute the association.’” Ante, at 574. Given that open primaries are supported by essentially the same state interests that the Court disparages today and are not as “narrow” as nonpartisan pri
By the District Court’s count, 8 States presently have blanket primaries, while an additional 21 States have open primaries and 8 States have semiclosed primaries in which independents may participate. 169 F. 3d, at 650. This Court’s willingness to invalidate the primary schemes of 3 States and cast serious constitutional doubt on the schemes of 29 others at the parties’ behest is, as the District Court rightly observed, “an extraordinary intrusion into the complex and changing election laws of the States [that]. . . remove[s] from the American political system a method for candidate selection that many States consider beneficial and which in the uncertain future could take on new appeal and importance.” Id., at 654.
In my view, the First Amendment does not mandate that a putatively private association be granted the power to dictate the organizational structure of state-run, state-financed primary elections. It is not this Court’s constitutional function to choose between the competing visions of what makes democracy work — party autonomy and discipline versus progressive inclusion of the entire electorate in
Even if the “right not to associate” did authorize the Court to review the State’s policy choice, its evaluation of the competing interests at stake is seriously flawed. For example, the Court’s conclusion that a blanket primary severely burdens the parties’ assoeiational interests in selecting their standard-bearers does not appear to be borne out by experience with blanket primaries in Alaska and Washington. See, e. g., 169 F. 3d, at 656-659, and n. 23. Moreover, that conclusion rests substantially upon the Court’s claim that “[t]he evidence [before the District Court]” disclosed a “clear and present danger” that a party’s nominee may be determined by adherents of an opposing party. Ante, at 578. This hyperbole is based upon the Court’s liberal view of its appellate role, not upon the record and the District Court’s factual findings. Following a bench trial and the receipt of expert witness reports, the District Court found that “there is little evidence that raiding [by members of an opposing party] will be a factor under the blanket primary. On this point there is almost unanimity among the political scientists who were called as experts by the plaintiffs and defendants.” 169 F. 3d, at 656. While the Court is entitled to test this finding by making an independent examination of the record, the evidence it cites — including the results of the June 1998 primaries, ante, at 578, which should not be considered because they are not in the record — does not come close to demonstrating that the District Court’s factual finding is clearly erroneous. Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 498-501 (1984).
As to the Court’s concern that benevolent crossover voting impinges on party assoeiational interests, ante, at 579, the
On the other side of the balance, I would rank as “substantial, indeed compelling,” jüst as the District Court did, California’s interest in fostering democratic government by “[ijnereasing the representativeness of elected officials, giving voters greater choice, and increasing voter turnout and participation in [electoral processes].” 169 F. 3d, at 662;
The California Constitution empowers the voters of the State to propose statutes and to adopt or reject them. Art. 2, §8. If approved by a majority vote, such “initiative statutes” generally take effect immediately and may not be amended or repealed by the California Legislature unless the voters consent. Art. 2, § 10. The amendments to the California Election Code that changed the state primary from a closed system to the blanket system presently at issue were the result of the voters’ March 1996 adoption of Proposition 198, an initiative statute.
The text of the Elections Clause suggests that such an initiative system, in which popular choices regarding the manner of state elections are unreviewable by independent legislative action, may not be a valid method of exercising the power that the Clause vests in state “Legislature^].” It could be argued that this reasoning does not apply in California, as the California Constitution further provides that “[t]he legislative power of this State is vested in the Cali-
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For the reasons stated in Part I of this opinion, as well as those stated more fully in the District Court’s excellent opinion, I respectfully dissent.
See Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986) (observing that the United States Constitution grants States a broad power to prescribe the manner of elections for certain federal offices, which power is matched by state control over the election process for state offices). In California, the Secretary of State administers the pro
Prominent members of the founding generation would have disagreed with the Court’s suggestion that representative democracy is “unimaginable” without political parties, ante, at 574, though their antiparty thought ultimately proved to be inconsistent with their partisan actions. See, e. g., R. Hofstadter, The Idea of a Party System 2-3 (1969) (noting that “the creators of the first American party system on both sides, Federalists and Republicans, were men who looked upon parties as sores on the body politic”). At best, some members of that generation viewed parties as an unavoidable product of a free state that were an evil to be endured, though most viewed them as an evil to be abolished or suppressed. Id., at 16-17, 24. Indeed, parties ranked high on the list of evils that the Constitution was designed to check. Id., at 53; see The Federalist No. 10 (J. Madison).
The Court’s disagreement with this interpretation of La Follette is specious. Ante, at 576-577, n. 7 (claiming that state-imposed burden actually at issue in La Follette was intrusion of those with adverse political principles into party’s primary). A more accurate characterization of the nature of La Follette’s reasoning is provided by Justice Powell: "In analyzing the burden imposed on associational freedoms in this case, the Court treats the Wisconsin law as the equivalent of one regulating delegate selection, and, relying on Cousins v. Wigoda, 419 U. S. 477 (1975), concludes that any interference with the National Party’s accepted delegate-selection procedures impinges on constitutionally protected rights.” Democratic Party of United States v. Wisconsin ex rel. La Fol-
La Follette and Cousins also stand for the proposition that a State’s interest in regulating at the national level the types of party activities mentioned in the text is outweighed by the burden that state regulation would impose on the parties’ associational rights. See Bellotti v. Connolly, 460 U. S. 1057, 1062-1063, and n. 3 (1983) (Stevens, J., dissenting) (quoted in part ante, at 577, n. 7). In this case, however, California does not seek to regulate such activities at all, much less to do so at the national level.
Indeed, the primary serves an essential public function given that, “fa]s a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations [by the major political parties] have been made.” Morse v. Republican Party of Va., 517 U. S. 186, 205-206 (1996) (opinion of Stevens, J.) (internal quotation marks omitted); see also United, States v. Classic, 313 U. S. 299, 319 (1941).
Contrary to what the Court seems to think, I do not rely on Terry and Allwright as the basis for an argument that state accommodation of the parties’ desire to exclude nonmembers from primaries would necessarily violate an independent constitutional proscription such as the Equal Protection Clause (though I do not rule that out). Cf ante, at 573-574, n. 5. Rather, I cite them because our recognition that constitutional proscriptions apply to primaries illustrates that primaries — as integral parts
“The State asserts a compelling interest in preserving the overall integrity of the electoral process, providing secrecy of the ballot, increasing voter participation in primaries, and preventing harassment of voters. But all those interests go to the conduct of the Presidential preference primary — not to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates.” La Follette, 450 U. S., at 124-125.
See Timmons v. Twin Cities Area New Party, 520 U. S. 351, 370 (1997) (Stevens, J., dissenting) (general election ballot access restriction); Bullock v. Carter, 405 U. S. 134 (1972) (primary election ballot access restriction).
When coupled with our decision in Tashjian that a party may require a State to open up a closed primary, this intrusion has even broader implications. It is arguable that, under the Court’s reasoning combined with Tashjian, the only nominating options open for the States to choose without party consent are: (1) not to have primary elections, or (2) to have what the Court calls a “nonpartisan primary” — a system presently used in Louisiana — in which candidates previously nominated by the various political parties and independent candidates compete. Ante, at 585. These two options are the same in practice because the latter is not actually a “primary” in the common, partisan sense of that term at all. Rather, it is a general election with a runoff that has few of the benefits of democratizing the party nominating process that led the Court to declare the State’s ability to require nomination by primary “‘too plain for argument.’” Ante, at 572; see Lightfoot v. Eu, 964 F. 2d 865, 872-873 (CA91992) (explaining state interest in requiring direct partisan primary).
In his concurrence, Justice Kennedy argues that the State has no valid interest in changing party doctrine through an open primary, and suggests that the State’s assertion of this interest somehow irrevocably taints its blanket primary system. Ante, at 587. The Timmons balancing test relied upon by the Court, ante, at 582, however, does not support that analysis. Timmons and our myriad other constitutional eases that weigh burdens against state interests merely ask whether a state interest justifies the burden that the State is imposing on a constitutional right; the fact that one of the asserted state interests may not be valid or compelling under the circumstances does not end the analysis.
See La Follette, 450 U. S., at 135-136 (Powell, J., dissenting); cf. Tashjian, 479 U. S., at 215-216, n. 6 (discussing cases such as Rosario v. Rockefeller, 410 U. S. 752 (1973), in which nonmembers’ assoeiational interests were overborne by state interests that coincided with party interests); Bellotti v. Connolly, 460 U. S., at 1062 (Stevens, J., dissenting) (discussing assoeiational rights of voters).
Baldwin v. Trowbridge, 2 Bartlett Contested Election Cases, H. R. Misc. Doc. No. 152, 41st Cong., 2d Sess., 46, 47 (1866) (“[Under the Elections Clause,] power is conferred upon the legislature. But what is meant by ‘the legislature?’ Does it mean the legislative power of the State, which would include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country? The [CJommittee [of Elections for the U. S. House of Representatives] have adopted the latter construction”).
Reference
- Full Case Name
- CALIFORNIA DEMOCRATIC PARTY Et Al. v. JONES, SECRETARY OF STATE OF CALIFORNIA, Et Al.
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