Party on: the right to voluntary blanket primaries.

• Author: Aisenbrey, Margaret P.

TABLE OF CONTENTS INTRODUCTION I. STATE COMPELLED ASSOCIATIONS: BURDENS ON POLITICAL PARTIES IN PRIMARIES A. Forced Associations: Imposing a Primary B. When Forced Associations Over-Burden the Party: Party Raiding II. COMPELLED ASSOCIATIONS OF VOTERS AND POLITICAL PARTIES: BROADENING THE PRIMARY A. The State Interest in Protecting Political Parties' Associational Rights from Voters B. The State Interest of Protecting Parties: Saving the Party from Other Political Parties 1. Clingman v. Beaver and Reverse Party Raiding 2. Deference to Legislatures Where There Is Danger of Reverse Party Raiding 3. No State Interest in Protecting the Party from Itself C. Voters' Right to Form Dual Associations III. PARTY AND VOTER ASSOCIATIONAL INTERESTS IN A BLANKET BALLOT: VOLUNTARY BLANKET PRIMARIES A. Preventing Voluntary Blanket Primaries Significantly Burdens the Rights of Parties and Voters B. No Important or Compelling State Interest Prevents a Voluntary Blanket Primary CONCLUSION INTRODUCTION

Political parties have unique associational rights. (1) In party primaries, party members associate to further their common political beliefs, and more importantly, to nominate candidates. These candidate are the "standard bearer[s]" for the political party--the people who "best represent[ ] the party's ideologies and preferences." (2) The primary represents a "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." (3) Because the primary is such a critical moment for the political party, the party's associational rights are most important at this time. (4)

In 2004, the Green Party of Alaska and the Republican Moderate Party of Alaska filed suit in Alaska state court, arguing that a primary statute that banned parties from joining together to voluntarily issue a single blanket primary ballot violated their associational rights. In State v. Green Party of Alaska, the Alaska Supreme Court agreed, holding that the Alaska Constitution protected the right of political parties to participate in voluntary blanket primaries and that the statute impermissibly burdened the parties' associational rights. (5) The court's analysis drew substantially from federal constitutional precedent, and in particular, the Supreme Court's decision in California Democratic Party v. Jones, which recognized broad associational rights for political parties. (6) Only a few months prior to the Alaska court's decision, however, the U.S. Supreme Court had decided Clingman v. Beaver, (7) which had interpreted political parties' associational rights more narrowly than had California Democratic Party. Because Clingman stood in tension with California Democratic Party, the Alaska court chose to leave open the issue of whether a prohibition on a voluntary blanket primary ballot would violate the federal constitution. (8) This Note addresses that question.

In a blanket primary, the voter receives only one ballot, listing all of the candidates from all of the parties. The voter can vote for one candidate for each position, regardless of the candidate's or the voter's party affiliation. For instance, a voter can nominate a Republican for state legislature, a Democrat for governor, and a Libertarian for the United States House of Representatives.

There are three types of blanket primaries: 1) partisan, which are unconstitutional; 2) non-partisan; and 3) voluntary. In a partisan blanket primary, the state requires the parties to participate, and the top vote-getters from each party win that party's nomination. (9) In 2000, the Supreme Court held this type of primary unconstitutional in California Democratic Party, invalidating primary schemes in California, Alaska, and Washington. (10) In a nonpartisan blanket primary, the top two vote-getters, regardless of party affiliation, move on to the general election. These candidates are not technically any party's nominees, since both candidates can be from the same party. (11) Louisiana currently has a non-partisan blanket primary, which remains unchallenged in that state. (12) Finally, a voluntary blanket primary, by definition, is instituted by the parties rather than the state. In a voluntary blanket primary, the parties jointly agree to issue a blanket primary ballot and consent to the top vote-getter winning their individual nominations.

Clingman and California Democratic Party are reconcilable in a way that favors voluntary blanket primaries. When one reads Clingman and California Democratic Party in the way this Note suggests, the First and Fourteenth Amendments compel the state to allow parties to issue voluntary blanket primary ballots. This Note argues that, essentially, a voluntary blanket primary is the unconstitutional partisan blanket primary without the unconstitutional element--state-mandated party participation. Part I considers the manner in which a state may compel association between a political party and a voter. Part II argues that while the state has broad regulatory power in the primary context, it may not prevent a political party from choosing to associate with voters who wish to associate with it unless doing so protects some other associational right, such as that of a second political party. Finally, Part III argues that if two parties support a voluntary blanket primary for their registered voters, then the state has no compelling interest in protecting these parties from themselves. State interference in this context would severely burden a core associational right of voters and political parties and would not satisfy strict scrutiny. Therefore, when parties wish to issue a voluntary blanket primary ballot, the federal constitution compels states to allow them to do so.

1. STATE COMPELLED ASSOCIATIONS: BURDENS ON POLITICAL PARTIES IN PRIMARIES

   State regulation of elections often implicates the rights guaranteed by the First and Fourteenth Amendments, but in ways that rarely cause a court to hold a regulation unconstitutional. "Election laws will invariably impose some burden upon individual voters," (13) and a burden on the associational rights of parties or voters does not necessarily compel strict scrutiny. Instead, "a more flexible standard applies" (14):

   A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its role, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights. (15) For instance, a state may force certain associations upon a political party by imposing a primary, even though mandating these associations burdens the party's associational rights.

   This Part considers the various types of primaries that states have historically imposed, and how these primaries implicate the associational interests of political parties. Section I.A discusses states' imposition of primaries on political parties, despite the resulting interference with those parties' associational rights. Section I.B considers the party's core associational right to identify and associate only with the class of voters of its choosing in the selection of its candidates. Certain state-mandated primaries, such as the partisan blanket primary, impose too great a burden on this right.

   1. Forced Associations: Imposing a Primary

      A primary is an association between the political party and the voter. Most primaries are mandated by the state, and such a mandated association burdens the party's associational rights. (16) These primary systems strip party activists of their power to define the party's candidates. These activists may favor a system that allows them either to choose who will be the party's nominees or to decide what is necessary for someone to qualify as a member of their party. Instead, voters, who may not have invested time and energy in the party, choose the candidates, and the state decides what qualifies a voter to become a member of the party. (17) At the turn of the nineteenth century, when states began adopting primaries and other political procedures for parties to nominate candidates, parties challenged the regulations as infringing on their associational rights. (18) State courts repeatedly upheld laws that regulated political parties, often refusing to consider parties as voluntary associations. (19) Today, it remains "too plain for argument" that states may require political parties to participate in primaries. (20)

      A state has great flexibility in mandating associations between the party and the voters--even in defining the association's limits. Although political parties have the right to choose their own candidates, (21) states control a party's ability to exclude or include voters during the party's exercise of that right. (22) States currently mandate a variety of primaries: closed, (23) semi-closed, (24) open, (25) and nonpartisan blanket. (26) In these ways, the state can compel the party to affiliate with all voters registered with the party in a closed primary, with registered voters and independents in a semi-closed primary, with all voters who select the party's ballot on the day of the primary in an open primary, or with all voters in a non-partisan blanket primary. All of these primary schemes burden the associational rights of the party faithful to some extent because, at the very least, the party may not exclude voters registered with it even though such voters may not be loyal to the party. Moreover, state legislatures, not parties, govern party membership through registration laws. (27) Even the waiting period--the amount of time a voter must wait after registering with a party before he or she is eligible to vote in its primary--is within the province of the legislature...