Federal Oversight of State Primaries: the Troubling Drift from Equal Protection to Association

• Publication year: 2020

Federal Oversight of State Primaries: The Troubling Drift from Equal Protection to Association

Jacob Eisler

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Federal Oversight of State Primaries: The Troubling Drift from Equal Protection to Association

by Jacob Eisler^*

I. Introduction

The latter half of the twentieth century saw a dramatic transformation in the degree and quality of federal judicial oversight of the voting process. With the one-person, one-vote jurisprudence, the Supreme Court of the United States imposed a basic requirement of personal equality in district line-drawing. In the context of race, Gomillion v. Lightfoot¹ became the beachhead in the premise that racial discrimination will not be tolerated in voting procedure.² A few decades later, Davis v. Bandemer³ suggested that fair district line-drawing could require non-discrimination on the grounds of party identification.⁴ In each of these domains of court-led intervention, one constitutional right emerged as the linchpin: the Equal Protection Clause.⁵

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Given the importance of party primaries in the process of voting, it is not surprising that they have been a subject of federal judicial oversight. Nor is the timing of the Supreme Court's entry into the area surprising; the topic was subject to broad judicial scrutiny shortly after its boldest entry into the realm of democratic design with Baker v. Carr.⁶ Yet the constitutional character of the intervention into primaries has deviated from the general trend in the oversight of voting process. As the modern jurisprudence of primary regulation has evolved over the past fifty years, the Supreme Court has come to focus almost exclusively on the right to associate as the activated constitutional interest. This has correlated with a focus on party integrity as the dominant locus of consideration. The Court's current approach has reinforced the stranglehold that parties have on the political process, as well as neglected a sufficiently broad analysis of the question at hand: what conditions create desirable (or at least sufficiently viable) primaries? This question in turn hangs upon the need for primaries described above: to serve as an initial step that can effectively winnow the slate of candidates, such that the final ballot and the intermediate steps that precede it give all voters a fair choice.

This piece begins by establishing the historical drift towards domination by associational rights. It observes that early jurisprudence applied both equal protection and associational reasoning to the constitutional review of primary design, but in the 1980s associational rights emerged as the sole basis for review. The piece then explores the substantive consequences and pathologies of the Court's reasoning. In particular the Court has come to protect parties, which are themselves well-entrenched quasi-public entities in scant need of judicial sympathy. It then culminates with the argument that a return to the (much-contested) principle underlying the entry into the political thicket itself, the Equal Protection Clause, provides a starting point for helpfully broadening and diversifying the interrogation of primary design. While far from a panacea (in particular because of the need to avoid judicial over-determination of democratic autonomy), renewed attentiveness to the Equal Protection Clause would push courts to

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consider the full breadth of possible legal interests invoked in primary design. The Article concludes by exploring the broader question of whether the Court best operates as another standard power player in political contestation (a role supported by the invocation of associational rights) or as a unique institution with a distinct capacity to transform the unfolding of politics.

II. The Drift Towards Association in the Law of Primary Party Affiliation

The narrowing of legal imagination by the Supreme Court to wholly focus on associational rights has occurred gradually. This reflects a progression away from the initial foray into the political thicket, which opened elections to broader judicial regulation on the basis of the equal right to the political franchise. However, the first limitations the Supreme Court imposed on primary design—like the first rules imposed on drawing of district boundaries—⁷ enforced the Fifteenth Amendment's⁸ prohibition against race-based discriminatory voting laws.⁹ In Smith v. Allwright,¹⁰ the Supreme Court held that the refusal of the state electoral apparatus to deny a Black citizen access to a primary ballot on account of race violated the Fifteenth Amendment;¹¹ in Terry v Adams,¹² where a dominant political association held a primary that determined official primary candidates (in effect, a shadow primary), that association's prohibition against black participation was likewise unconstitutional.¹³ Insofar as this line of cases simply expresses the indubitable proposition that racial voting restrictions are illegal, it does relatively little to inform the contemporary law of primaries, which is directed towards terms of partisan competition and appropriate conceptualization of political identity. Yet the race-and-primary cases did establish an initial judicial foray into the regulation of primaries, and Terry established the principle that political associations (including parties) that perform quasi-state functions can be subject to the same judicial scrutiny as states themselves.¹⁴

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Fifteen years after Terry and in the wake of the foray into the political thicket with the one-person, one-vote jurisprudence,¹⁵ the modern lineage¹⁶ of Supreme Court primary regulation began with Williams v. Rhodes.¹⁷ The state election laws at issue made it almost impossible for minor parties to gain access to the final state ballot for presidential elections, in large part because status as a new party with ballot access required a number of signatures equal to 15% of the number of ballots cast in the previous gubernatorial election, followed by the holding of a highly structured party primary. The Supreme Court deemed the regulations to infringe the right to an effective vote protected by the Equal Protection Clause as well as the right to realize political association protected by the First Amendment.¹⁸ The higher-order argument advanced by the state—that states have a constitutional remit to design elections as they choose—¹⁹ was categorically struck down, effectively a prerequisite for this type of judicial intervention. The more practical claim that the extensive restrictions on party formation were served by compelling interests—advancing the stability afforded by a two-party system, but also more generally ensuring administrability of the electoral system—²⁰ was also rejected. The Court refused to accept that two parties should have a monopoly on power, and concluded that general administrability failed to justify the extensiveness of the "burden on voting and associational rights" effected by the measures.²¹ In a case driven by similar substantive concerns, Bullock v. Carter,²² the Court likewise deemed prohibitively high filing fees for candidate access to the primary ballot to be a violation of equal liberty.²³ However, the Court would soon thereafter confirm in Jenness v. Fortson²⁴ that general administrability considerations can justify a rule that restricts the candidates on a ballot

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to a reasonable number, and that laws justified by such reasons will survive judicial review when the constitutional burden is not too great. In Jenness, a state law required a non-major-party candidate to submit a petition signed by 5% of eligible voters to gain access to a statewide general election ballot.²⁵ This effectively served as an alternative to winning a party primary as a mechanism for gaining general ballot access. The law was deemed to pass equal protection and associational muster, in part because the requirements were less onerous²⁶ than those at issue in Williams and in part because the regulations advanced other interests—such as maintaining a manageable general ballot—on reasonable terms.²⁷

These early cases on the opportunities of candidates to gain access to ballots could easily be understood as raising concerns that are fundamentally associational. Reasonable access to elections provides a critical mechanism by which groups of voters can realize their collective political potential; measures that unreasonably obstruct this are thus a clear violation of associational rights. Yet the Court relied on both the broader right to equal voting power as well as associational rights; indeed, in Bullock, it characterized deprivation of access to the ballot wholly as an equal protection wrong.²⁸ The predilection for invoking the Fourteenth Amendment²⁹ may be reflective of the historical proximity to judicial fashioning of the one-person, one-vote principle (which invoked the Equal Protection Clause to justify the court's entry into the political thicket), but regardless it is reflective of the character of the Court's reasoning during its early reviews of primary regulation. Such an approach tended to inspire the Court to make more systemically general enquiries. The question was not merely if voters were harmed specifically in their capacity as members of associations, but if the constraining effects of the legislation generally fit the political end it allegedly served; ensuring fair and legitimate access to the democratic process.³⁰

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Subsequent cases continued to balance constitutional rights against asserted state interests in administrability and political welfare, but began to subtly structure its queries around associational harms. This proclivity for associational analysis alone came at the cost of reducing the comprehensiveness of the Court's analysis, a point apparent in a pair of 1970s cases concerned with advance party registration requirements. In Rosario v. Rockefeller,³¹ the Court permitted a restriction that required party...