UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 5, No.2SPRING 1982
Political Parties Before the Bar: The Controversy Over Associational Rights
Gary L. Scott (fn*) and Craig L. Carr (fn**)
The Washington State Democratic Party recently filed suit against the state of Washington alleging that the state's blanket primary system(fn1) was unconstitutional because it was considered repugnant to the party's first and fourteenth amendment associational rights. The blanket primary system permits voters to decide from among all candidates for each office, regardless of party affiliation.(fn2) Because the Washington blanket primary permits interparty crossover voting during the primary election, the party argued that it was effectively denied the right to associate for the purpose of choosing its own party candidates for elective office. In a unanimous decision,(fn3) the Washington Supreme Court dismissed the suit on the grounds that the Democratic Party had failed to show a substantial burden on its associational rights,(fn4) and further, that there is a compelling state interest supportive of the blanket primary system.(fn5) The question the Democratic Party raised, however, continues to be of both legal and political interest. At issue is the scope and nature of constitutional protection to be afforded party autonomy by the first and fourteenth amendments. The purpose of the present discussion is to review both legal and political sides of this question. Once this is done it will become clear that a party right to protected autonomy during the candidate selection process is not only founded upon solid constitutional ground but is also in keeping with sound political wisdom.
I. Political Parties and the Constitution
A. Associational Rights in Historical Perspective
The right to free association is not explicitly mentioned in the Constitution. Its constitutional status, derived from the spirit of the first amendment, is a "by-product of many constitutional guarantees, such as the rights of petition and assembly, the rights of free speech and free press, and the right to vote."(fn6) Because it is regarded as a first amendment guarantee, the right of association enjoys the status of a fundamental right protected against state impairment by the fourteenth amendment. By the time the Supreme Court decided NAACP v. Alabama'(fn7)in 1958, the Court thought it "beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the due process clause of the Fourteenth Amendment."(fn8) While the right of association comprehends a variety of private associational activities, it is first and foremost a political right protecting the freedom of individuals to join efforts in pursuit of political goals and objectives.(fn9) As a political right, the right of free association constitutes an important and fundamental feature of the democratic process. Recognizing this fact, the Supreme Court has declared emphatically that "the National Democratic Party and its adherents enjoy a constitutionally protected right of political association."(fn10) Further, the right is indistinguishable between the individual and the group or association itself. "Once the organization is formed, the Constitution protects the self-perpetuation of the group as an institution as well as the right of individuals to seek realization of their aims through the group."(fn11)
Political scientists are reluctant to classify political parties as associations in the traditional sense. As one noted party scholar put it, a party "does not accept the application; it does not vote the applicant into the association; it may not reject the application; and, finally there is usually no recognized and authoritative procedure by which the party may expel a member."(fn12) Nevertheless, political parties consist of individuals who associate to advance their own political objectives and ideas. Historically, party activity, including the candidate selection process, was the purely private affair of party activists. But efforts to "democratize" the parties, by making the candidate selection process more open and accessible to all party identifiers, have thrown a shadow of uncertainty over the question of party privacy. The party caucus, long the private sanctuary of the party boss, initially gave way to the party convention-still a private party affair. But the convention system has in turn given way to the direct primary system as a means of combating the evils of the party machine.(fn13) At present, all fifty states have some version of the direct primary for choosing party candidates for statewide office.(fn14) The states, called upon to create primary systems, thus found themselves involved in what previously had been the purely internal affair of the party, and the courts, called upon to measure the constitutionality of state primary legislation, found themselves involved in what has become the associational rights controversy.
While the Supreme Court has made it clear that the right of free association protects party autonomy, it has never examined the extent and limitations of this protection. The most that can be inferred from Supreme Court decisions is that the right of free association protects party efforts to pursue its goals in a reasonable and orderly fashion.(fn15) The salient question thus becomes whether the blanket primary system poses a realistic threat to the ability of political parties to pursue their goals and objectives. To resolve this question, it is necessary to undertake a more specific inquiry into the nature and scope of party associational rights than the Supreme Court has thus far offered.
The Washington Supreme Court's decision in Heavey v. Chapman(fn16) provides an excellent vehicle for analysis of the unique constitutional question raised in the associational rights controversy. The court, however, apparently failed to appreciate this unique character.(fn17) Instead, it quite naturally made an effort to find a niche for Heavey under existing constitutional law. Thus, the Washington court considered itself bound by the precedent of Smith v. Allwright.(fn18) In Smith, the United States Supreme Court struck down the Texas "white primary" declaring that the Texas Party took on the character of a "state agency" by virtue of certain duties imposed upon it by state statute.(fn19) These "duties do not become matters of private law because they are performed by a political party."(fn20) Because political parties were thought to have a public character, the Court reasoned that the Texas Party could not establish itself as a private organization with the right to restrict or limit party membership as a means of excluding some from participation in important party activities. Because the Washington Democratic Party's claim to protected party autonomy asked the state to restrict participation in the Democratic primary to party identifiers only, the Washington court equated it with the claim to the right to control party membership advanced in Smith.(fn21)
The problem in Heavey is substantively different from the issue the Supreme Court decided in Smith, however, and it is important to see that the latter does not control the former. Even the narrowest reading of Smith makes it clear that an associational rights claim cannot be invoked to close party doors to any judicially recognized "suspect classes."(fn22) An associational rights claim cannot be advanced to avoid basic standards of American democracy. A somewhat broader reading of Smith suggests that an associational rights claim cannot be advanced to enable the party to rule upon or limit party membership. According to this reading of Smith, political parties should be open to all who choose to affiliate with the party, and those who do should be entitled to participate in all party activities, including the candidate selection process. Fortunately, it is not necessary to referee these two readings of Smith since neither is relevant to the associational rights challenge to the blanket primary system. This challenge does not claim that parties are entitled to control their membership or to prohibit party identifiers from participating in party activities. It involves only the claim that participation in party activities should be restricted to party identifiers. For example, only those individuals choosing to affiliate with the Democratic Party should be permitted to participate in the candidate selection process. The associational rights challenge, in effect, claims parties to be autonomous associations and not private associations. Since the Smith decision sheds light only on the question of privacy, and not the question of autonomy, it is not relevant to the associational rights challenge to blanket primary systems.
Other cases seem to provide precedent more relevant to this challenge. In Rosario v. Rockefeller(fn23) for example, the Supreme Court sustained a New York statute requiring a voter to register with a political party at least thirty days before the November general election to be eligible to vote in that party's primary the following year. The New York legislation was intended to discourage party raiding by requiring a voter to register with the party of his choice well before that party's upcoming primary. The statute permitted only those members registered with a party to participate in that party's...
