Imposing necessary boundaries on judicial discretion in ballot access cases.

• Author: Schiller, Lowell J.
• Position: Twenty-Fourth Federalist Society Student Symposium, Law and Freedom - Case Note

In recent years, when the Supreme Court has reviewed a state's regulation of political parties' ability to define their membership, it has done so under the framework of the First Amendment right to freedom of association. (1) Although the Constitution grants state legislatures broad power to regulate the manner in which elections are conducted, (2) the Court has held that regulations imposing severe burdens on associational rights are subject to strict judicial scrutiny. (3) Lesser burdens, however, are upheld as long as they advance important state interests in a reasonable, nondiscriminatory manner. (4) Some academics have criticized this approach, arguing that when the Court analyzes the validity of electoral regulations through the lens of associational rights, it will grapple inadequately with underlying issues of democratic openness and competition. (5)

Last Term, in Clingman v. Beaver, (6) the Supreme Court, again gazing through the lens of associational freedom, upheld an Oklahoma statute that prevented a political party from allowing voters registered with other parties to vote in its primary, dismissing arguments that the statute burdened the associational freedoms of both the party and the voters. (7) In upholding the statute, the Court rightly declined to use the First Amendment to impose upon Oklahoma its own ideas of democracy, and thus avoided the precarious conclusion that voters may be constitutionally entitled to simultaneously associate with multiple political parties. Clingman therefore supports the notion of a limited role for the First Amendment in judicial enforcement of political competition.

Under section 1-104 of Oklahoma's election laws, a political party can open its primary only to its registered members (8) and, if it chooses, registered independents. (9) In May 2000, the Libertarian Party of Oklahoma (LPO) made public its intent to open its primary to all registered voters in Oklahoma, including registered members of other parties. (10) Oklahoma's secretary of state denied the LPO's request for members of other parties, (11) and the LPO, along with several Republican and Democratic voters, filed suit in the United States District Court for the Western District of Oklahoma. (12) The plaintiffs sought declaratory and injunctive relief, alleging that section 1-104 unconstitutionally burdened their First Amendment freedoms of political association and speech. (13) They argued that Oklahoma's "semi-closed" primary system should be replaced by a "party-option open primary" system in which each political party could elect to open its primary to voters registered with other parties. (14)

The district court declined to offer relief, finding that section 1-104 did not severely burden the plaintiffs' associational rights, and that any burden it did impose was justified by Oklahoma's important regulatory interest in "matters of structure, stability and party integrity." (15) The court noted that a party-option open primary system would directly impose on the state's other parties by placing them "in the position of contributing voters to the [LPO] while maintaining a home for them on their registration rolls"; (16) such "poaching" by the LPO would diminish the meaning of all political party designations within the state (17) and likely would affect the results of a number of primary elections. (18) The court notably rejected as paternalistic and unfounded justifications based on preventing harms such as "electoral raiding," (19) "swamping," (20) voter confusion, administrative convenience, and poor electoral strategies by the parties. (21)

A unanimous panel of the Court of Appeals for the Tenth Circuit reversed. (22) The court advanced the principle that "a state generally may not restrict the ability of a political party to define the group of citizens that will choose its standard-bearer"; (23) accordingly, it found that section 1-104 imposed a severe burden on the plaintiffs' associational rights and demanded strict scrutiny. (24) Employing that standard, the court rejected the state interests that the district court had found determinative. It was unconvinced by the argument that section 1-104 was necessary to promote stability in the political process, noting that both Utah and Alaska use party-option open primaries without suffering political instability. (25) Neither was the court persuaded that Oklahoma had a compelling interest in preventing electoral "poaching." (26) Indeed, the court argued that by finding that a party had a right to not have its members poached, the district court had invented a new right: "the ability of a group to harness and control the associational opportunities of its members." (27)

The Supreme Court reversed. (28) Writing for the Court, Justice Thomas (29) concluded that any burden imposed by section 1-104 was minor and justified by legitimate state interests. (30) First, in a section joined only by a plurality, Justice Thomas expressed a skepticism regarding the existence of a right to associate with one party by voting in its primary, while associating with another party as a registered member. (31) Moreover, he maintained that even if section 1-104 did burden an associational right, the burden imposed was less severe than the burden imposed by the law upheld in Timmons v. Twin Cities Area New Party. (32) Next, writing for the Court, Justice Thomas distinguished the case at hand from Tashjian v. Republican Party of Connecticut, (33) where the Court held that a law requiring voters to register with a party before voting in the party's primary imposed a severe burden on the rights of both the Republican Party and the Independent voters who wished to associate with it. (34) Justice Thomas argued that the Oklahoma statute imposed a less severe burden than the Connecticut statute, (35) noting that, whereas the law in Tashjian burdened Independent voters by requiring them to affiliate publicly with a party to vote in any primary election, section 1-104 allowed parties to open their primaries to Independent voters. Thus, the voters at issue did not face the burden of having to affiliate publicly with a party, since they had already done 80. (36) Justice Thomas therefore concluded that strict scrutiny did not apply. (37)

Justice Thomas next determined that section 1-104 advanced three important state interests. (38) First, it "preserv[ed] [political] parties as viable and identifiable interest groups." (39) Second, it aided parties in their electioneering and party-building efforts by preserving the integrity of party membership lists as indicators of who will vote in their primaries. (40) Third, it helped prevent parties from raiding voters of other parties. (41) As a final matter, Justice Thomas declined to respond to the argument that section 1-104, when taken together with several other of the state's election laws, severely burdened the respondents' associational rights by effectively preventing voters from changing their party affiliations before a primary election. (42) Respondents raised the argument for the first time before the Supreme Court, and Justice Thomas found no reason to depart from the Court's ordinary practice of not considering arguments so raised. (43)

Justice O'Connor issued a concurring opinion. (44) She argued that although the burden imposed by section 1-104 was not sufficiently severe to trigger strict scrutiny, (45) it was not as trivial as Justice Thomas suggested. (46) She argued that a voter may form a cognizable association with a political party merely by voting in its primary (47) and that a voter may form "dual associations" with two different political parties. (48) A voter may wish to associate with one party by voting in its primary, yet retain his or her affiliation with another party, because of an abiding partisan commitment or the objective costs of switching parties. (49) Justice O'Connor would therefore have set forth a rule that "where a party invites a voter to participate in its primary and the voter seeks to do so, we should begin with the premise that there are significant associational interests at stake." (50) Finally writing only...