The Parties in Court : American Political Parties under the Constitution 9780739189689, 9780739189672

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The Parties in Court

The Parties in Court American Political Parties under the Constitution Robert C. Wigton

LEXINGTON BOOKS Lanham • Boulder • New York • Toronto • Plymouth, UK

Published by Lexington Books A wholly owned subsidiary of Rowman & Littlefield 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com 10 Thornbury Road, Plymouth PL6 7PP, United Kingdom Copyright © 2014 by Lexington Books All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Wigton, Robert C., 1955- author. The parties in court : American political parties under the Constitution / Robert C. Wigton. p. cm. Includes bibliographical references and index. ISBN 978-0-7391-8967-2 (cloth : alk. paper) -- ISBN 978-0-7391-8968-9 (electronic) 1. Political parties--Law and legislation--United States. 2. Constitutional law--United States. 3. United States--Politics and government. I. Title. KF4788.W54 2014 342.73'07--dc23 2013041709 TM The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.

Printed in the United States of America

Contents

1 2 3 4 5

American Political Parties, Government Regulation, and Constitutional Law Judicial Regulation of the Internal Activities of Political Parties The Regulation of Political Parties in the Electoral Process The Regulation of Incumbent Political Parties Summary and Recommendations

1 71 133 255 341

Bibliography

357

Cases Cited

371

Index

381

About the Author

385

v

Chapter One

American Political Parties, Government Regulation, and Constitutional Law

I. THE CONSTITUTIONAL SETTING Political parties have long occupied an uncertain place in American constitutional law. Parties were not mentioned in the Constitution and developed largely outside the constitutional system. As a consequence, they have grown to possess attributes of both public and private organizations and undertake activities associated with both types of organizations. This hybrid quality of parties has made it difficult for the courts to apply constitutional standards to parties and the state laws that govern them. The vague legal status of parties has helped fuel the debate over the proper role of parties in a democracy. Some favor treating parties as private entities largely beyond state regulation. Others favor nearly complete state regulation of parties as public organizations. The problems, issues, and potential solutions to this dilemma are the subject of this book. The debate over the status and role of political parties can be traced to the earliest years of American history. 1 Many of the Founding Fathers manifested a deep suspicion of such organized interests and believed that they were detrimental to a political system. 2 The constitutional silence on political parties was part of a calculated effort to frustrate the emergence of political “factions.” James Madison is perhaps the most famous early opponent of political party formation, stating in Federalist Number 10: The latent causes of faction are thus sown in the nature of man; and we see them every where brought into different degrees of activity, according to the 1

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Chapter 1 different circumstances of civil society. A zeal for different opinions concerning religion, concerning Government and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other passions, have in turn divided mankind into parties, inflamed them with mutual animosity, and rendered them more disposed to vex and oppress each other, than to co-operate for their common good. 3

Despite this antipathy towards parties Madison did eventually come to view the development of parties as inevitable, concluding that they had to be tolerated rather than prohibited in a democracy. Instead, Madison favored controlling factions through the structural features of the federal government. 4 Madison’s early views were apparently shared by George Washington who registered a famous objection to parties in his Farewell Address to the nation: There is an opinion that parties in free countries are useful checks upon the Administration of Government and serve to keep alive the spirit of Liberty. This within certain limits is probably true, and in Governments of a Monarchical case Patriotism may look with indulgence, if not favour, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being in constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched; it demands a uniform vigilance to prevent its bursting into a flame, lest instead of warming it should consume. 5

Compounding the constitutional silence on political parties has been the dearth of congressional legislation directed at the parties. True to the Founders’ intent, Congress appears to have considered party regulation as a matter best left to the individual states. 6 There seems to be little doubt that Congress could legislate extensively on political parties if it chose to do so. 7 However, the only major national legislation to date regulating political parties deals with matters of campaign finance. 8 Most laws affecting the parties have been enacted by state legislatures, often in pursuit of goals other than regulating political parties. The constitutionally ambiguous status of political parties has deep historical roots but it did not take on serious dimensions until the states began regulating their parties. The growth in state regulation began in the nineteenth century but has increased significantly in recent decades. This expansion of state power over parties has increasingly forced the question of how far the states can go in this process without infringing on the constitutional rights of parties, voters, and candidates. These challenges to state laws have

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resulted in many state and federal court opinions where judges have wrestled anew with the old issue of how parties should fit into American democracy. The complexity of the constitutional issues raised and the great variety of legal scenarios in which they arise has made the resolution of these issues particularly difficult for the courts. State regulation of parties routinely implicates fundamental rights of speech, association, and voting. State laws regulating almost any aspect of elections have some impact on the parties. This means that the issue of the parties’ legal status has come up in an amazing range of situations, from state ballot access laws to limitations on the campaign speech of judicial candidates. As the web of state regulation over parties and elections has grown, the venerable question of the status of parties has become more pressing. This chapter describes the theoretical dilemma that has confronted the courts as they have considered legislation regulating political parties. The dilemma grows in large part out of the various competing political ideals which are raised when the government attempts to regulate some aspect of party behavior or internal party functions. Subsequent chapters will trace the evolution of judicial efforts to strike a balance among these ideals through the development of various guidelines setting the parameters for appropriate regulation of parties. As would be expected, judges have differed considerably over how to strike the balance between government regulation and party independence. Some have emphasized the importance of independent parties for a healthy political process. Others have struck the balance in favor of government maintenance of a fair electoral system. This chapter is an investigation of the government regulation of American political parties. In particular, the focus will be on the growing role of the federal courts in searching for a satisfactory balance among the various competing political values found in this area. With increasing frequency the federal courts have found themselves faced with important and far-reaching questions concerning the degree of independence which political parties should enjoy within our democratic system. The question of the degree of party independence from government regulation has become more pressing in recent years with the rise in efforts by the government (primarily state legislatures) to regulate the expanding array of activities undertaken by modern political parties. Three somewhat related trends have converged in this area that have sharpened the issues associated with the constitutional status of political parties. The first of these has been the steady rise in state efforts to regulate their parties and electoral processes. This trend has meant that parties have increasingly been treated as public entities subject to pervasive state regulation. The second trend has been the increasing diversity of activities that American political parties have undertaken as they have adapted to modern campaign practices. These two trends necessarily create a situation where

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there will be more state-party collisions over how far states can go in regulating party behavior. A third trend paralleling the other two is the major changes in constitutional law doctrines over several decades that have facilitated greater judicial involvement in these disputes between parties and states over the formers’ constitutional standing. Together, these three trends have created an environment where the courts are now equipped with multiple constitutional tools for resolving the dilemma that increasing asserts itself. II. A TRADITION OF STATE REGULATION For the first century of our nation’s history the parties enjoyed an extra-legal existence and nearly complete autonomy from government control. During these early decades the parties were almost completely free to control their own membership, nominate candidates for public office, adopt party platforms, and manage election campaigns. Parties were considered to be private organizations at this time by both courts and legislatures. However, this situation began to change rapidly as parties became more powerful and visible in the latter half of the nineteenth century. 9 The first states to enact regulatory legislation of political parties were California and New York in 1866. California’s Porter Law was a permissive statute which set forth model by-laws for parties operating in that state. New York took a different approach by outlawing fraud, bribery, and voter intimidation in party affairs. Other states quickly followed these two leads as the extent of party corruption became more widely condemned with some states going so far as to regulate the internal structure and organization of political parties at this time. The efforts of the Progressive Movement in the late nineteenth century would eventually prove to have the greatest effect in converting American political parties from private organizations to public entities. 10 The first of these major reforms was the adoption of the Australian ballot which provided for the secret casting of votes. Before this time, ballots had been prepared by each party and were often color-coded, making it clear which party one was supporting at an election. In order to preserve secrecy in the casting of votes and prevent voter intimidation at the polls, the states rapidly began adopting the Australian ballot after 1888. In taking over this party function, the states successfully injected themselves into the mechanics of the election process at the expense of the party machinery. The long-term impact created by the adoption of the Australian ballot was that it gave the states the power to determine which parties and candidates should have access to the now-official ballot. This, in turn, required that the states define what a “political party” was and what renders a person eligible for candidacy for specific offices. Thus, while this important reform may have curbed party corruption,

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it also accelerated the pace of state regulation of parties. The two major parties were often given special status under these laws, but with official recognition came significant and expanding state regulation. This process of gradually expanding state regulation of parties continued and soon effectively domesticated the previously autonomous American political parties. 11 The other great catalyst in the evolution of parties from private to quasipublic entities was the adoption of the direct primary by the states. Spurred by the reformers of the Progressive Era, the direct primary was seen as a device for limiting corruption of political parties through greater voter participation in the electoral process. The primary was seen by its advocates as a means for breaking the power of state and local party bosses and generally furthering the goals of good government. Before this time, the parties tightly controlled the nomination process through the caucus system, where party regulars and activists dominated the proceedings. Under this system there was very limited participation in the nomination of candidates by the general public. The Reformers hoped that the institution of the direct primary would both widen public participation in the selection process and diminish the power of party committees. 12 Wisconsin adopted the first complete primary law in 1903, and by 1917 a majority of the states made some use of the direct primary. 13 The loss of the vital and arguably most basic function of candidate nomination was a serious blow to the parties. The parties had also lost some control over their party label and even part of their identity. With the rise of the primaries, outsiders and political novices could run and secure the nomination of a party with which they had had minimal previous contact or with which they shared little ideological compatibility. Other Progressive Era reforms facilitated state control over party membership. These reforms signaled another area of state encroachment on operations previously left to the parties themselves. These state laws often took the form of requirements that voters register for a particular party in order to participate in that party’s primaries. The states thus began performing the unusual service of maintaining membership lists for what were nominally private organizations. These early reforms gradually but inexorably increased the degree of overlap between the private and public sides of American political parties. Through these means, the parties were first recognized, then regulated, and ultimately made virtual agents of the states in many instances. 14 It should be noted that many state laws “regulating” parties were in fact thought to actually protect or benefit political parties. 15 Many states gave parties special mention in their constitutions as a means of “recognizing” the existence of political parties, or at least the two major parties. A few states gave parties some official roles in the state’s political process such as serving on bipartisan elections boards or helping to fill legislative vacancies. 16 The

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common requirement that a voter pre-register with a party before voting in its primary was, in part, aimed at helping preserve the ideological coherence and integrity of the parties. This sort of “protective legislation” for the parties continued into the twentieth century. Many states eventually adopted “closed” primary laws whereby only those persons registered with a party for a prescribed time were able to vote in its primaries. These laws were aimed at preventing the “raiding” of primaries by persons affiliated with another party. Some states also adopted anti-fusion statutes which disallowed candidates from running with multiple party nominations and appearing more than once on a ballot. 17 These statutes were meant, in part, to ensure that the parties’ ideological integrity was protected and that party labels could serve as reliable guides to voters. But these laws also signaled more state control over party behavior in areas vital to their existence and autonomy. A. The Early Judicial Response State legislatures led the charge in extending government regulation to political parties but these early efforts were soon tested in the courts. Initial judicial reaction to state efforts to control the parties varied considerably among the states. Many judges were often skeptical of legislative attempts to curb party corruption through regulatory means. 18 These early challenges usually attacked state primary laws by claiming that they infringed the political parties’ right of association or the voting rights of party members. 19 There were also early challenges to state adoption of the first Australian ballot laws. These latter cases generally sustained the Australian ballot as within legislative power “so long as it merely regulates the exercise of the elective franchise and does not deny the franchise itself either directly or by rendering its exercise so difficult and inconvenient as to amount to a denial.” 20 The California Supreme Court made the connection between voting and political parties explicit when it struck down that state’s primary law in 1900. Justice Henshaw, for the court in Britton v. Board of Elections Commissioners, 21 explained the link between parties and the right to vote thusly: No expression is needed in the declaration of rights to the effect that electors holding certain political principles in common may freely assemble, organize themselves into a political party, and use all legitimate means to carry their principles of government into active operation through the suffrages of their fellows. Such a right is fundamental. It is inherent in the very form and substance of our government, and needs no expression in its constitution. 22

Other state courts seemed to place the emphasis on the people’s right of assembly. 23 However, most early decisions did not find that the new primary laws infringed on the association rights of political parties or their members. 24 Typical of the judicial treatment of association claims raised against

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state primary laws was this 1908 statement from the Louisiana Supreme Court: The next ground is that the statute . . . deprives the people of their reserved right to “meet and choose and name their candidates as they please.” The answer is that the people have no such reserved right, but that the Legislature has the perfect and undoubted right to prescribe rules and regulations for the conduct of elections, primaries included. 25

The courts soon found that the regulation of elections was well within the states’ police powers. A representative view of the prevailing position was expressed by the Ohio Supreme Court in State v. Felton which upheld that state’s primary law that required a showing of 10 percent at the last election for a political party to secure automatic ballot access. 26 State courts quickly came to accept the anti-raiding justification for primary laws, 27 and also recognized the “evils and abuses” of political parties that motivated legislatures during this period. 28 Only a few early courts raised the possibility that government regulation might infringe on the parties’ rights to govern themselves internally. 29 The Colorado Supreme Court in adjudicating a dispute between rival delegations to a party convention in 1898 ruled that, “the courts have no control over questions of party policy, but those must be determined by the party itself in its regularly called and organized conventions.” 30 Most early judicial comments noting the importance of a party’s ability to control its internal affairs arose in similar contexts of delegate certification. 31 But broader judicial concerns over the possibility of regulatory schemes taking over internal party governance had to await the later enactment of state laws that would go beyond the direct primary and Australian ballot laws. B. Modern Regulatory Schemes Since the Progressive Era the states have, with great diversity, continued to expand their regulation of the structure and behavior of political parties within their boundaries. This trend has given rise to complex statutory schemes in many states. Some states, such as California, are well known for their pervasive regulation of parties. Other states are comparatively lax in their regulation. State regulations pertaining to political parties fall broadly into two categories: those concerned primarily with “internal” party structures and behavior, and those dealing with the “external” or electoral functions of parties. 32 Nearly every state controls by law some aspect of the organizational structure, composition, or internal procedures of its parties’ state central committees. Typical regulations of internal party matters include laws governing: the election and composition of state and local party central commit-

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tees, committee meeting dates, and internal party rules. State laws regulating the selection of the party state central committee usually mandate that these party officials be chosen either by voters or by other party officials. 33 Those states which regulate the composition of the party state central committee often require that the committees have a certain number of elected officials or maintain a gender balance. 34 State regulation of state central committee meeting times and places is less common, and only a few states regulate both time and place of these meetings. 35 A more intrusive form of state regulation of parties is the specification of various internal rules and procedures which must be followed by the state central committees. 36 There is a wide range of internal matters which the states have chosen to regulate, including: how committee vacancies are to be filled, the use of proxy votes, quorum size, powers and duties of committee chairs, use of executive committees, pre-meeting notification procedures, voting strength and rights of members, method of selection and terms of office for committee officers, unit rules in voting, and the party affiliation of committee members. The regulation of local party organizations has also been popular with state legislatures. These regulations mirror those directed at the internal governance of the state-level party committees, and deal with voting procedures, party affiliation and residency requirements, and time and place of meetings. 37 State legislative efforts to regulate the “external” or electoral side of political parties have been much more extensive. 38 These state laws tend to impact the parties more indirectly than those that are aimed at the party organizations themselves. These state laws limit and control modern American parties in what has become their most important function: the selection and running of candidates for public office. Most states have an array of regulations that controls both primaries and general elections. These laws deal with such matters as ballot access, the format of election ballots themselves, the size of the vote needed to win, the possibility of run-off elections, the frequency of elections, the size, number, and configuration of electoral districts, voter eligibility requirements, and campaign finances. These state laws often make distinctions among the major parties, third parties, and independent candidates. Many states, however, have gone further and regulate such things as pre-primary endorsements by party leaders and the campaign activities of the parties. In those states where primaries are held for state offices, further statutory controls are common. The most basic of these is whether the party primary may be “open” to non-party voters, or “closed” in which only registered party members may vote. This requirement is usually seen as a voter eligibility issue, but it also directly affects the parties by controlling who participates in their primary elections. The open primary originated as an electoral reform during the Progressive Era in U.S. history as a means for fostering greater

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voter participation. However, most party regulars prefer the closed form which curtails the number of crossover voters who are not strongly affiliated with the party. It can also lead to the practice of “raiding” where members of one party systematically vote in the opposing party’s primary and select the weakest candidate. It is generally believed that the closed form of the primary favors stronger parties by increasing the influence of party activists over the election outcome. In recent years, most states have chosen to move toward the closed form of primary elections. 39 Closely related to the method by which statewide nominations are made is the matter of party endorsement of candidates. Of course, such endorsements typically come from the party organization itself, dominated by party activists. Thus, state limitations on party endorsements can affect the organizational strength of a party in state politics. Some states that have adopted the direct primary as the method for statewide nominations have preserved the party’s right to a pre-primary endorsement as a kind of compromise, ensuring some input from the party organization into the nomination process. As of the mid-1980s, most states had no law regulating pre-primary endorsements, two states barred them, and eight either required or expressly permitted some form of pre-primary endorsement. 40 Most states also regulate the process by which their state parties choose their delegates for the national party conventions. Like the state laws regulating state and local nominations, these laws are usually regarded as primarily “electoral” laws designed to ensure that the selection process is fair and democratic. However, these laws regulate the relationship between individual state parties and their national counterparts are different and pose more intrusive limitations on the parties. While the interests of each state in preserving certain features of the nominations process for state and local offices is undeniably great, the interest of the individual states in controlling (even indirectly) the internal operations of the national parties is much more tenuous. This latter set of statutory guidelines raises more serious issues of party independence and freedom from government control. 41 Another popular type of state electoral regulation that directly affects the vitality of political parties are so-called “sore loser” statutes which have been enacted in a majority of states. These laws prevent a candidate from running in the general election as an independent who has lost in a party primary election for that office. The effect of these laws is to foster post-primary unity in the parties. Some would argue that they also serve the larger political system by helping to limit the number of candidates for office. 42 Even state control over ballot formulation and the balloting mechanism can be relevant to political parties. For instance, the use of “party column” ballots where all candidates from each party are conveniently listed in a single column on the ballot can facilitate straight-ticket voting and be helpful to the parties by encouraging party solidarity at the polls. 43

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A final area where state laws have had an impact on political parties has been in the area of campaign finance laws. 44 State legislation regulating campaign finances has tended to mirror that used by the federal government. Thus, many states have sought to simultaneously place limits on contributions to candidates and expenditures by candidates. Some states have also instituted various forms of public funding for office-seekers and requirements that candidates make a public disclosure of campaign finances through filing. 45 Although most of these laws are directed towards candidates and their campaign organizations, some of them touch parties and party organization as well. One of the most common of state financial laws is that of a filing requirement. Virtually every state imposes some sort of filing requirement on candidates and political committees. However, only twenty-three states expressly require a filing statement from the parties themselves. 46 In their effort to control financial contributions to political campaigns, the states have set limits on contributions by corporations, labor unions, and state-regulated industries (e.g., state lotteries, public utilities). However, of the forty-two states that place some limits on financial contributions to candidates, only fifteen of these also limit what party organizations may give to candidates. 47 The public funding of state elections began in 1973 and today about half of the states provide for some form of public assistance for candidates. This assistance usually comes in the form of tax provisions relating to political donations such as tax credits, tax deductions, check off provisions, or a surcharge. Many of these state public finance laws also specify where the money collected is to go. Most states give the funds directly to the candidates, but fifteen of them distribute some or all of the money directly to the parties. 48 This is significant as an indicator that these states are attempting to use their tax laws to reinforce the strength of the parties in their state. Under the federal scheme, most public funding goes directly to the campaign organizations of the major party nominees, with only a relatively small sum going to the national parties to operate their conventions. 49 Many state regulations have had the effect of strengthening political parties. For instance, the closed primary, bans on “sore losers” candidacies, and provisions for straight-ticket voting all arguably help the party organizations. Nonetheless, even these forms of state regulation represent some infringement on party independence and set the precedent for less salutary state regulations touching political parties. The concern of this work will be primarily with those state regulations which are commonly regarded as “infringing” party independence or strength and which have resulted in litigation. Most of the other regulations mentioned above fall into this latter category.

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III. PARTIES: AN EVOLVING ROLE Judicial efforts to define an appropriate level of government regulation over political parties in our political system have been complicated by the everchanging role played by American parties. 50 Over the course of U.S. history, the major parties have undertaken many different activities and have seen their influence over parts of the political process vary considerably. Before 1838, American parties were “incompletely developed and seen as foreign, unwelcome, and one hoped, temporary intrusions into public affairs.” 51 During these early decades parties were essentially elite organizations with little in the way of subnational structure. At this time, the contribution of parties to American politics was necessarily limited. The early parties functioned more as “factions” giving politicians at the national level a means to organize themselves. Even during this early time, however, the parties served as political guideposts that helped the average citizen comprehend politics and elections. From the late 1830s to the 1890s, political parties in this country took on a much more central role in the nation’s politics. At the beginning of this period there were strong forces which favored the development of new political organizations, including the rapid growth in the size of the American electorate and the emergence of divisive national issues. Parties at this time shifted from being intermittent organizations composed of volunteers to professional entities with structure, organization and continuity. It was during this period that parties also took on many of the important functions commonly associated with modern parties: the recruitment and nomination of candidates, the development of party positions on issues, the operation of campaigns, the mobilization of voters, and the holding of caucuses and conventions. The major parties of this period sought vigorously to distinguish themselves from one another. Voters responded to these changes by developing strong party allegiances, further heightening the competition between the parties. This period is often regarded as the golden era of American political parties because of their organizational strength and near dominance over the political process. During their heyday parties even began to resemble the responsible party model by attempting to implement their campaign promises once in office. This was an era characterized by sharp ideological debate through partisan newspapers, the frequent emergence of third political parties, and finally the emergence of urban political machines. 52 The period in American history from 1890s to the 1950s is referred to as a “post-party” or nonpartisan era by a leading party historian. 53 During this half century, American parties grew beyond simple partisan confrontations. The 1890s saw a major realignment of American parties and the emergence of a fourth party system. This upheaval was brought on by agrarian unrest and the economic panic of 1893. 54 Parties at the turn of the century continued

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many of their traditional operations, both internally and in the electoral realm. However, partisan debate declined significantly with the emergence of many one-party regions in the nation. 55 Parties began to lose their monopoly over politics as new avenues for influencing government opened up. The process of party decline was accelerated considerably by the legislative successes of the Progressive movement, which began in the 1880s but continued for decades thereafter. This movement’s nonpartisan reforms of the electoral system had the effect of splitting parties from the voters. This was achieved gradually through reforms of the ballot preparation process, the institution of voter registration, and the arrival of the direct primary. 56 The first decades of the twentieth century witnessed a series of developments which further disengaged parties from the political mainstream. Growth in government’s role in society through public programs led to a greater need for technical experts in government jobs rather than the political generalists who were usually supplied by the parties. The gradual growth of the civil service system for government employees further reinforced this trend disfavoring parties by limiting patronage opportunities. Finally, the enactment of various welfare functions by the government deprived parties of their “social service” function and their links to certain groups of voters. The cumulative effect of these developments before and after 1900 was to radically change the role of parties in and their contribution to American politics. Ever after parties would have to compete with aggressive, often nonpartisan, interest groups. Partisanship among voters survived this period, but the parties’ dominance of political discourse, candidate recruitment, and policy-making were all sharply limited. The contributions of parties to American politics began to shift again in the 1950s. In many ways this period was a continuation of the previous fifty years in that parties continued to decline in relative importance on the American political scene. Nonparty political elements, particularly the mass media and interest groups, became more firmly entrenched after a brief party revival during the New Deal Era. Media influence over politics grew on the heels of greater diversity of media modes and greater access to American homes. 57 Interest group popularity and power grew as the federal government expanded its regulatory powers and social programs. In this new environment, parties and partisan discussion of issues became less important. Leaner, more efficient interest groups began picking up many traditional party functions. 58 Since 1950 we have also seen something of a renewal of the distrust of political parties which has appeared periodically over U.S. history. Parties were subjected to significant criticism in the media during this time, eroding much of their legitimacy as a political institution. 59 Individual voters during this period moved away from the strong party allegiances and straight-ticket voting patterns of their parents. 60 The modern American voter was becoming

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oriented more towards issues and individual candidates, relying less on party label as a voting cue and less on party propaganda for political information on candidates and issues. 61 All of these forces combined in the last half century to substantially undercut the role of parties in the recruitment and selection of candidates for office. The new politics of this modern era are characterized by candidates who are largely self-selected and who are supported by non-party organizations in their quest for office. Although parties continued to dominate conventions and campaign rallies into the 1960s, they were already in “a prolonged state of decay and became increasingly irrelevant to the country’s political business.” 62 In the modern period parties continue to face strong competition from a variety of other political actors, particularly in the provision of electionrelated services. The mass media has largely replaced parties in their role of evaluating candidates for office. Communication with voters which was once a party-dominated function is now largely undertaken by the media and candidates’ own campaign organizations. The actual selection of candidates has shifted to rank-and-file voters themselves thanks to the spread of the direct primary and the reformed caucus system. 63 Since the late 1970s political parties have faced considerable competition form political action committees (PACs) in the realm of campaign finance. 64 The evolving nature of party contributions to American politics has greatly complicated judicial efforts to confidently set the boundaries of government regulation of parties and their activities. What “proper” role parties should play in one era might not be appropriate for another. If the parties’ role continues to decline it could be argued that the parties need special judicial protection from excessive government regulation. If government regulation of parties cripples their ability to compete with new political actors like PACs, the courts may have to equalize the playing field by curbing state regulation of parties. The challenge for judges reviewing state regulatory schemes has become one of defining the role of parties in the wider political system. It is my belief that this task can be best undertaken through a careful identification of the basic contribution of parties to U.S. politics and a thoughtful appraisal of those contributions relative to other broad political values which the courts are charged with upholding. IV. TRENDS FACILITATING JUDICIAL INTERVENTION IN PARTY AFFAIRS There have been a number of important developments in American constitutional law since the early 1900s which have increased greatly the likelihood that the judiciary will hear cases implicating the parties. These developments

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deal with issues which do not involve the parties exclusively but rather reflect larger developments in constitutional law. Several of these trends have converged in recent years with the result that both state and federal courts have become much more deeply involved with the issues raised by government regulation of political parties and elections. 65 This section will briefly trace the evolution of several of the key constitutional doctrines which have most frequently been raised in litigation involving the parties. The purpose here is to illuminate a number of the important and complex constitutional questions that are routinely involved in this area of adjudication. Government regulation of political parties implicates several important constitutional rights and principles. This is due in part to the fact that the parties stand at the crossroads of our political system, being involved in candidate recruitment and selection, both primary and general elections, and if successful, in the operation of government itself. Since political parties are the major vehicles for political participation in the U.S., their regulation by government touches on fundamental constitutional rights and freedoms. A leading commentator has described the rights of political participation as being “poised between procedural due process and the freedoms of expression and association.” 66 In addition to these rights, judicial adjudication of party-related matters has also raised questions of individual versus group rights, equal protection, and to what extent the courts should become involved in such matters. A. Political Question Doctrine Perhaps the most basic constitutional development that has brought the courts into the debate over public control of political parties has been the shift in judicial attitudes towards what the courts have traditionally labeled “political questions.” This doctrine has existed since the earliest decades of American history. In its barest form it simply holds that the courts should not become involved in certain types of “political” disputes. 67 One of the earliest of these cases involved a political crisis in mid-19th century Rhode Island where, at that time, there existed two competing state governments. In its decision in Luther v. Borden, the Court avoided ruling in the case because they felt that a federal court was not capable of independently deciding which state government was the proper government of the state. The doctrine is largely judge-made and remains discretionary to the courts. Although the doctrine possesses a lengthy lineage, its application and scope remain unclear and controversial. 68 Over a number of Supreme Court decisions a variety of rationales have been advanced for this doctrine. 69 Primary among these justifications has been that the subject matter of the dispute is “committed to a coordinate political department.” 70 Under this thinking, the judiciary defers

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to another branch of government that is supposed to be better equipped to find a resolution to the policy in dispute. This justification is most understandable when the courts defer to the executive in disputes involving foreign affairs decisions of the government. 71 Other commonly advanced justifications for the political question doctrine include those situations where the judiciary is unable to fashion a remedy to the dispute or when there is a need for uniform governmental response to a problem. Whatever the justification offered, when a court finds that a case involves a political question then the matter is deemed “nonjusticiable” and the merits of the case are not reached by the Court. Thus justiciability, like jurisdiction, is a threshold inquiry and if it is lacking further judicial activity in the matter is foreclosed. Since the landmark Luther decision, the Supreme Court has used the doctrine to avoid similar constitutional issues in only a limited number of cases. 72 A major decision touching political parties came in 1946 when the Court refused to hear a challenge to a state’s malapportionment of electoral districts because the issue involved a “political question.” 73 In his decision for the Court in Colegrove v. Green, Justice Frankfurter labeled such electoral issues a “political thicket” into which the Court would not venture. 74 However, this reluctance to become involved in overtly “political” disputes changed abruptly with the Supreme Court’s overruling of Colegrove in 1962 in Baker v. Carr. 75 Since Baker v. Carr, the doctrine has been invoked only twice by the Supreme Court. 76 In recent decades the Court has refused to invoke the doctrine in cases involving: foreign affairs matters, 77 partisan gerrymandering, 78 disputes internal to the executive branch, 79 vote-counting methods used in the states, 80 and matters internal to the House of Representatives. 81 The decline of the political question doctrine since the early 1960s has removed what could have been a major constitutional hurdle to judicial interpretation of state laws regulating parties. The modern judicial attitude on political questions gives the federal judiciary an entrée into this sensitive corner of constitutional law and has opened the door to greater judicial oversight of parties and their activities. This involvement has meant that they have had more opportunities to rule on matters that touch on political parties, including the application of invigorated constitutional rights and freedoms. B. The Freedom of Association Coupled with changes in the Political Question Doctrine allowing greater judicial involvement in cases involving political parties have been several other developments in constitutional law. These have provided the courts with additional powerful tools for handling these sorts of disputes. Foremost among these has been the expansion in the definition and applicability of First Amendment freedoms of assembly and association. 82 While much of

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the case law which enlarged the scope of these rights have related to individuals rather than political parties, the latter have nonetheless been greatly affected by the developments in this area of constitutional law. The original “right of the people peaceably to assemble” is guaranteed by the First Amendment and has long been seen as implicit in the First Amendment freedom of speech, press, and petition. 83 The freedom is widely recognized as a vital component in a democracy since it preserves the right of the people to organize themselves to bring about political change. This freedom is usually taken to mean the basic right of individuals to join together in order to share ideas and to take collective action. The motivation for such associations can be political (interest groups, political parties), economic (labor unions), or religious (churches). The freedom is not explicit in the Bill of Rights but has emerged gradually since the 1920s from the freedoms of speech and assembly. The freedom of assembly originally applied rather narrowly to gatherings of people in public places. Beginning in the 1930s the Supreme Court formally recognized this freedom as “equally fundamental” with the freedoms of speech and press. 84 In early cases adjudicating state syndicalism statutes, the Supreme Court recognized the freedom of association as a distinct and “fundamental” right that the states could not infringe without first demonstrating a “compelling government interest.” 85 By the 1950s the Court had started to recognize a broader freedom of association. It was also during this time the Court applied the concept of associational freedom to a wider range of groups, including political parties. 86 The freedom was also applied to more types of situations during this time, including dismissals and exclusions from groups. 87 Throughout the 1950s and 1960s the Court remained divided over the scope and application of the freedom of association as it wrestled with cases growing out of the Red Scare Era and the Civil Rights Movement. Nonetheless, by the late 1960s the right had been expanded to protect most lawful groups and organizations. 88 In the 1975 landmark decision of Cousins v. Wigoda, the Supreme Court ruled that the national party organizations and their members have a constitutionally protected right of association that a state cannot infringe without showing a compelling state interest. 89 Prior to 1981, the Court resolved questions of free association by looking to the goals being pursued by the particular group. 90 Thus, those groups which sought objectives closer to the political freedoms protected by the First Amendment were more successful in exercising their freedom of association than those groups pursuing non-political ends. 91 In its 1981 decision in Citizens Against Rent Control v. Berkeley, 92 the Supreme Court for the first time suggested that individuals acting in concert have an associational right to pursue lawful goals which they could have pursued individually. Thus the Court in Berkeley struck a state law that penalized a group for undertaking an

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activity which members of the group could have pursued individually. 93 Speaking for eight members of the Court, Chief Justice Burger noted that, “There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them.” 94 The Court continues to be most opposed to those statutes which give disparate treatment to individuals and groups where political expression is concerned. As groups and organized interests have continued to grow in importance and number in this country, the Court has continued to refine and expand the freedom of association. Collective activities during the Cold War provided additional opportunities for the Court to address the issues raised by a broadened freedom of association. 95 The identification of a constitutional right of privacy in the mid-1960s added further momentum to the growth in the freedom of association. 96 The Court has recognized that the freedom of association includes the right to form new political parties and scrutinizes closely attempts to limit this activity. 97 The Court has usually found that the association rights of parties and their members are coterminous. 98 The Court has broadened the concept of the freedom of association to include the right of voters to “associate” with candidates by voting for them. 99 As the federal courts began to accord greater breadth to this freedom they also became more entangled in the difficulties inherent in setting the parameters of the freedom. Common questions that have been raised by a broadened concept of free association have included such things as: when may a group exclude certain persons from membership, who should speak authoritatively for a given organization, when can nonmembers successfully assert the right to join a group, and when can individuals avoid being forced to join a dominant organization. These issues and others go to the heart of the freedom of association and show that it is both a collective right and an individual freedom. In the 1980s and 1990s, the Supreme Court faced a number of important association issues involving political parties. In most of these cases the Court upheld or expanded the associational rights of parties in the face of various state regulations. 100 The problems in delimiting the freedom of association are exacerbated in the context of political organizations such as parties because of their quasipublic status and the types of services they perform. If parties were purely private entities then the freedom to define their membership would presumably be quite broad. But since parties are quasi-public organizations performing important governmental services, their right of association has necessarily been curtailed. In addition, since parties are quasi-public organizations there has long been an expectation that they should be operated in a democratic manner internally. 101 The most important government service undertaken by American political parties is their recruitment and selection of candidates for public office. In

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performing this public function, parties often exercise considerable political power of interest to both party members and nonmembers. In recognition of this situation, the courts have often looked more closely at the activities of political parties than they have those of purely private organizations. Perhaps the best example of this closer judicial scrutiny is the White Primary cases from the 1940s. 102 In those cases, the parties sought to exclude Black voters from participating in party primaries. The issues were sharpened in these cases because at that time those states were dominated by a single political party making its primary election tantamount to the general election. Thus exclusion from the party primary essentially disenfranchised the excluded voters. This fact, coupled with the racist motives, presents an extreme example of the unique power of parties and the need for public regulation of them. While the White Primary cases settled the question of the exclusion of voters from a party primary on the basis of race, more difficult questions remain. Foremost among these are the questions raised by the participation of independent voters and even members of the opposing party in another party’s primary. Participation by nonpartisans raises the fundamental question of control over the party’s ideological soul. Indeed, one could argue that control over any group’s membership requirements goes to the very essence of the group’s existence and identity. 103 In the context of political parties this matter takes on added significance because of the desire of parties to preserve ideological purity and to aggregate and mobilize like-minded voters. Free association claims rapidly become blurred in these struggles as hardcore, long-time party activists often square off against insurgents or a wing of the party. In such contests, claims of free association are typically, and often convincingly, made by both sides. An interesting twist on the use of free association claims came in the 1986 case of Tashjian v. Republican Party of Connecticut. 104 Prior to this case, the freedom had typically been asserted by groups or individuals outside the party who wished to participate in party governance or primary elections. But in Tashjian, a state party argued that free association gave it the right to open its primary to nonmembers despite state law to the contrary. The party’s free association arguments prevailed before the Supreme Court which ruled that the party had a right of “potential association with nonmembers.” 105 Free association claims have not been limited to voters seeking to participate in party primaries and party governance. In several instances candidates for political office have also relied on free association arguments to press their claims for a spot on the party’s primary ballot. 106 These would-be candidates are often outsiders attempting to secure a place on the primary ballot as a means of furthering their campaigns. Generally, their claims of free association are met with similar assertions by party leaders that “a private party has the right to associate with whomever it desires,” 107 including placement of names on the party’s ballot.

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The rise and evolution of free association has also occasionally given rise to a kind of parallel freedom not to associate with a given group. This right of “disassociation” has arisen in the party context in recent years. 108 The right of an individual not to be forced to join a dominant organization or group is perhaps a uniquely political phenomenon. This situation has arisen most commonly when state or local incumbent parties attempt to purge the government of nonmembers through firings or harassment or coerce nonmembers to join or support the ruling party. 109 Issues of free association have also become more common in recent years due to a number of related political developments. The most important of these has been the greater reliance by parties on the direct primary as a means of candidate selection. The direct primary began to replace party caucuses and conventions in this country from the early 1900s. This development is important because it changed the number and nature of persons participating in the nomination process. The older caucus method tended to be dominated by the party activists or insiders. The direct primary method typically brings out larger numbers of voters but many of these persons are only nominally affiliated with the party. 110 The result has been more uncertainty in the nomination process, a less important role for party activists, and an increased likelihood of intraparty factionalism. 111 Greater use of the direct primary has thus helped to blur party membership making it less clear exactly who is a bona fide member of the party. The direct primary has succeeded in democratizing the nomination process but has also spawned membership problems for the parties that have resulted in more internal disputes and hence court cases. The involvement of the courts in these heretofore internal disputes was also made easier by the fact that the shift to primaries was achieved through state legislation. This state takeover of the nomination process from party-led caucuses and conventions meant that there are now state statutes open to judicial interpretation. Instead of meddling in internal party affairs, courts can now simply engage in the familiar activity of statutory interpretation. The problems of defining party membership caused by the rise of the direct primary have been further exacerbated by the greater use of “open” primaries in recent years. Traditionally, party primaries were “closed,” that is, only registered party members could vote. However, there has been a growth in the use of the “open” primary where nonpartisans, independents, and even persons registered with a different party, can vote in a party’s primary. 112 The use of open primaries adds yet another complicating factor to identifying exactly who represents a given party at any time. The rising number of independent voters in the American electorate has also created more questions implicating free association. 113 With about onethird of the electorate identifying themselves as independents, the parties have been tempted to open their primaries to nonmembers as a means of

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attracting new members. In one famous case this pitted a party against a state law mandating closed primaries. 114 The party prevailed in that case using the freedom of association to argue that the party should be able to “associate” with nonpartisans in a party primary. Thus the parties have come full circle on using the freedom of association: from a device used to exclude groups in the 1940s to one used to include groups in the 1980s. The evolution of the freedom of association has intersected the expanded electoral role of the parties in many areas. The claims of free association are most easily recognized in disputes over party membership and participation in party primaries. However, free association claims have also been raised in the context of internal party leadership elections, 115 financial contribution to parties, 116 and the selection of party delegates to state and national conventions. 117 Free association claims have even been asserted in disputes over the right of the party leadership to make pre-primary endorsements of candidates. 118 The freedom of association has thus become a sort of all-purpose doctrine for the courts to adjudicate disputes within parties as well as most party challenges to statutory regulation. C. The Fourteenth Amendment: Equal Protection and Nationalization of the Bill of Rights Another trend in constitutional law which has had an important impact on the constitutional status of political parties has been the invigoration of the equal protection clause of the Fourteenth Amendment. While the ideal of equality may have been present ab initio in the United States, it was not confirmed until ratification of the Fourteenth Amendment in 1868, which directs that, “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” 119 In its modern formulation, the equal protection clause broadly commands government to not treat classes of citizens differently. The origin and history of this clause has been closely linked to the civil rights struggle of Black Americans. 120 The origin of the Fourteenth Amendment’s equal protection clause was intimately connected to the end of the Civil War and the status of Blacks in the Reconstruction South. Indeed, early Supreme Court cases in the decades following the Civil War initially refused to extend the clause’s application beyond Blacks. 121 However, the scope and versatility of the clause began to grow rapidly in the hands of the federal judges from the early 1950s. 122 With the decline of substantive due process in early years of the twentieth century, the Court increasingly came to apply equal protection principles to political as well as economic rights. The Supreme Court planted the seed for modern equal protection in a footnote to its 1938 landmark decision in U.S. v. Carolene Products Co. 123 The Court in that case hinted that there was the possible existence of “discrete and insular

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minorities,” other than Blacks, who might benefit from equal protection. From this decision grew the modern or “new” equal protection which has come to include legal protection for a host of other groups in America society including women, indigents, aliens, and religious minorities. 124 As was the case with the freedom of association, equal protection clause was first applied to electoral disputes where race was involved. 125 Early equal protection cases involving racial discrimination in the electoral process revealed a Supreme Court that was unsure how far equal protection could be used to regulate electoral activities in general. In two early landmark cases the Supreme Court used equal protection to strike racial discrimination by political parties. 126 But several years later the Court allowed a party to discriminate on racial grounds in its party primary since “the Democratic party . . . is a voluntary political association and, by its representatives assembled in convention, has the power to determine who shall be eligible for membership and, as such, eligible to participate in the party’s primary.” 127 However, by the 1940s, the Court had overcome its early inhibitions of regulating the “private” aspects of political parties where racial discrimination was involved. 128 The battle against race discrimination became more serious when Congress enacted major civil rights legislation in the 1960s and 1970s. While much of this new legislative activity was based on the federal government’s commerce power, it also helped invigorate the equal protection clause. The 1965 Voting Rights Act in particular encouraged greater judicial oversight of the electoral process. 129 This statutory reliance on equal protection was paralleled by increasing use of the Fifteenth Amendment’s guarantee of the right to vote. Thus, the federal courts gradually came to apply more equal protection analysis to electoral related matters, advancing into the area from their earlier protection of Black voters from racial discrimination. The federal judiciary gradually extended the constitutional guarantees of equal protection and the right to vote into what it had previously deemed “private” stages of the electoral process. 130 Inevitably, this use of equal protection would bring the courts into greater contact with the parties and traditional areas of party activity. As is so often the case, once the Court has entered a new policy area, it tends to be drawn repeatedly back into the area in order to clarify and refine earlier decisions. This continues to be the case today where many issues still remain unsettled in judicial regulation of political parties. The latest wave in the expansion of the equal protection clause has been its application to disputes involving reapportionment and vote dilution. 131 This trend has brought the courts even closer to regulating political parties and their activities. Rooted in the 1960s, the reapportionment revolution in American law has quickly drawn the courts into a complex and deep political quagmire. 132 Modern applications of the equal protection clause have also gotten the courts more involved in cases concerning the role of political

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parties in state politics. In particular, disputes over partisan gerrymandering have frequently implicated equal protection principles. 133 Today, it is often third (“minor”) political parties and independent candidates who invoke the equal protection clause to challenge state laws giving preferential treatment to the two major political parties. Through its lengthy history the equal protection clause has grown from a tool to help Blacks in the Reconstruction South to the major vehicle for challenging inequities in general in various phases of the electoral process. This broadened concept of equal protection, in conjunction with other statutory and constitutional developments, has provided the courts with many opportunities to adjudicate matters close to the parties. 134 D. The Right to Political Participation The right to political participation, including the right to vote, has been recognized as an important freedom since the founding of the nation. 135 The Framers of the Constitution viewed political participation as a vital component in the new democracy. However, fears of excessive democracy and the ability of demagogues to mislead the masses convinced them that the new government must be founded on the principle of representative government. In the words of James Madison from the Federalist Papers: The two great points of difference between a [direct] Democracy and a [representative] Republic are, first, the delegation of the Government, in the latter, to a small number of citizens elected by the rest. . . . The effect of the first difference is, on the one hand to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose. 136

The Founders saw representative government as a sort of compromise between direct democracy and tyranny. An important underpinning for representative government is a broad franchise. The Anti-Federalists in particular were anxious to see that the franchise was as broad as possible in the new nation to ensure adequate representation of their rural supporters. Likewise, representatives from the smaller states were interested in preserving a place for themselves in the new Union. 137 As a result of these early concerns, the Constitution that emerged from the Philadelphia Convention was full of provisions relating to the election of federal officials and the franchise. 138 Much was also explicitly left to the

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states, including the “times, places and manner” of elections. 139 The franchise in the original Constitution was narrow by modern standards, being limited essentially to adult white males. But since the adoption of the Constitution there have been many amendments that have further broadened the franchise. 140 The most important of these for our purposes was the Fifteenth Amendment’s grant of the vote to Black males in 1870. This constitutional provision was enforced briefly after its enactment during the Reconstruction Era, but Blacks soon found themselves effectively disenfranchised in many states. By the 1940s, however, the battle over the voting rights of Blacks in Southern states had shifted to the federal courts. 141 It was also during this time that the Court affirmed that the right to vote, as enshrined in the Fifteenth Amendment, was an important political right for all citizens whose infringement would trigger close judicial scrutiny. 142 Since the mid-twentieth century, the federal courts have interpreted broadly the Fifteenth Amendment’s ban on racial discrimination in the right to vote. In the mid-1960s the Congress passed major legislation aimed at giving vitality to the guarantee of the Fifteenth Amendment. An expanded interpretation of the Fifteenth Amendment was one of the principal foundations on which Congress was able to enact federal legislation ensuring Blacks the opportunity to vote. The federal courts were quick to seize upon the new legislation as a tool for greater judicial involvement in electoral matters at the state level. 143 Today the Fifteenth Amendment is regarded as the primary constitutional pronouncement that the right to vote and, more generally, the right to participate meaningfully in politics, is a vital right for all citizens. 144 Justice Black eloquently described the importance of this right in his 1964 opinion for the Court in Wesberry v. Sanders, where he wrote: “No right is more precious than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” 145 This modern resurrection of the Fifteenth Amendment dovetails with other important developments in this area, particularly the broadening of the equal protection clause and the weakening of the state action doctrine. Together these trends in American constitutional law all support greater judicial activity in elections and related political matters. They give the courts potent tools with which they have intervened in matters heretofore largely within the purview of political parties. Another related trend in constitutional law which has broadened the judiciary’s ability to adjudicate disputes involving political parties has been the nationalization of the Bill of Rights. 146 This has been the gradual process whereby the guarantees of the Bill of Rights, which were originally limitations only on the national government, were made applicable to the actions and legislation of state and local governments as well. This process began in

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the 1890s and included the nationalization of most of the freedoms discussed above which implicate political parties. 147 The significance of this nationalization process for the parties is that it provides the federal courts with a whole new set of tools for applying federal standards to state legislation which seeks to regulate the parties. Since most legislation regulating parties is state law, this nationalization of fundamental guarantees provides the theoretical justification for federal courts to become active in the process of evaluating such state efforts. While the nationalization of federal rights has not always supported greater state regulation of political parties, it certainly has opened the door for greater judicial oversight of state efforts to regular parties. Inevitably, this has forced the courts in recent years to more frequently consider questions relating to the public versus private aspects of party regulation. E. State Action Doctrine The state action doctrine is another important judicial principle whose evolution has altered the position of political parties in American law. The state action principle grew out of the language and early court interpretations of the Fourteenth Amendment’s equal protection clause and the voting provisions of the Fifteenth Amendment. Both of these amendments place limitations on the states in the treatment of their citizens. Taken literally, neither of these amendments is a limit on private activity that deprives a person of the equal protection of the law or the right to vote. Early decisions of the Supreme Court furthered the notion that some form of governmental (“state”) action was required before the guarantees of the Fourteenth or Fifteenth Amendments would apply. 148 A similar state action issue is raised by the terms of the First Amendment. This constitutional provision bars Congress from abridging the rights of free assembly and free speech. Infringement of these political freedoms by nongovernmental entities such as political parties was not initially deemed to be within the purview of the First Amendment. 149 The early literal requirement of some state action in order to invoke the fundamental political freedoms contained in the First, Fourteenth, and Fifteenth Amendments sharply limited their application to political parties and their electoral behavior. When it is recalled that parties were frequently considered to be “private” entities in early court decisions, it becomes clear that the rigid application of this doctrine would virtually foreclose judicial supervision of political parties. Congress’ enactment of major civil rights legislation in the 1960s forced the courts to reconsider the basic state action issue: could Congress regulate private racial discrimination in the absence of direct state action? This question came up most pointedly in court challenges to the 1964 Civil Rights Act which sought to eradicate private racial discrimination in public accommoda-

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tions (hotels, motels, restaurants). The courts quickly upheld these early civil rights laws and Congress’ power to legislate in this field primarily on the basis of the commerce clause. 150 At the same time, however, the Court also curtailed the state action doctrine as a barrier to congressional activity in this field. 151 Today, the state action doctrine presents very little in the way of a significant barrier to congressional action. 152 Court decisions that have addressed the question of when there is sufficient state action in various political party activities reveal some of the deepest judicial thinking on the role of parties in our democracy. Cases involving political parties that attempt to determine if state action is present often end up grappling with fundamental questions such as at which stages of the electoral process are the parties performing governmental functions or acting as arms of the state. In two famous Texas cases from the early twentieth century, the Supreme Court showed that it was willing to find sufficient state action in a variety of party election activities. In 1927, in Nixon v. Herndon, the Court struck a Texas statute which barred Blacks from participation in party primaries. 153 When Texas tried to circumvent this ruling five years later by delegating the power to bar primary participation to the parties the Court struck that effort too. 154 Thus, the Court demonstrated that it was willing to reach technically “private” party activities, at least in instances of racial discrimination. The issue of state action in cases involving race discrimination by parties has been well settled since the White Primary cases of the 1940s. However, the issue is still very unsettled in those instances where the parties engage in some form of non-racial discrimination. Thus, for example, may a party choose to discriminate on ideological grounds in deciding who may participate in party primaries or internal leadership elections? The Supreme Court first grappled seriously with this issue of state action by political parties in situations other than race discrimination in Gray v. Sanders in 1963. There the Court found that a party primary was tantamount to state action and applied equal protection analysis. 155 However, the unconstitutional vote-counting method employed by the parties in Gray was one mandated by a state statute making it easy to find state action. A more difficult scenario arose five years later in the Minnesota case of Irish v. Democratic-Farmer-Labor Party where delegates to the party convention were chosen through a system of malapportioned caucuses. The Minnesota Supreme Court found that this involved “state action” but nonetheless upheld the party’s selection process. While conceding that the precincts where malapportioned the court found that the discrimination was not “invidious” and that the “one-man, one-vote” principle had been satisfied because any qualified voter could participate in the process. 156 The court in Irish also relied heavily on the common law principles of party independence and judicial non-intervention in internal party affairs. 157 Other federal cases from the

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1960s and 1970s echoed this case by either finding that a party’s conduct did not amount to “state action” or, if state action were found, ruling in the party’s favor on some other grounds such as free association. 158 The current majority judicial position on state action and political parties appears to depend greatly on whether racial or other “invidious” discrimination is present. Ironically, while the concept of state action has gradually expanded for many years to include much of what parties do, the concept has not led to a flood of cases finding parties in violation of equal protection or civil rights laws. Instead, the concomitant growth in other legal doctrines, particularly free association, has limited the effect of the extension of state action to many party activities. 159 It should be noted that most of the foregoing constitutional trends overlap one another and are in fact mutually reinforcing in creating greater opportunities for courts to rule on issues implicating political parties. The decline of the political question doctrine as a barrier to judicial consideration of electoral matters was an early prerequisite to judicial review of political parties and elections generally. The liberalization of the state action requirement eliminated another conceptual barrier to the application of constitutional rights to political parties. Once these legal barriers between courts and parties had been breached, it was inevitable that the invigorated rights of association, speech, and equal protection would come to be applicable to the parties. These political rights were first applied to parties in cases involving racial discrimination usually in the operation of elections. In many of these early cases, party claims of “privacy” and “party independence” seemed hollow and were usually unsuccessful. As government regulation of the parties has expanded beyond the context of race discrimination in the election process, the question of how far this regulation should extend has re-surfaced with greater urgency. Much of the remainder of this work will be devoted to an effort to identify limits to government regulation of parties in order to preserve the contributions that parties make to our democracy. V. THE COMPETING VALUES This section will set forth the major arguments that have been most often advanced in the debate over the government regulation of political parties. 160 As is so often the case in constitutional law, courts adjudicating disputes involving political parties have sought to find a balance among a variety of competing political values. Some of these values are the usual practical concerns that the courts face when they try to fashion new standards for lower courts and legislatures. But in cases concerning the role of political parties in the political process, a host of larger and more complex issues are also typically present. The field of party litigation has long raised fundamental

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questions of democracy and the role that political parties can and should play in our political system. 161 There exists an inherent tension in our political system concerning what role political parties should play. This tension grows out of the ambiguous constitutional status of political parties as well as the wide range of roles that parties have played and continue to play in our political system. The basic collision of political values here is between the desire for the benefits of having independent political parties and the public interest in maintaining a fair, open and democratic political system. Advocates on both sides can muster arguments grounded in democratic ideals. Freely operating political parties are an important component in any democracy, providing a vital link between voters and their government. 162 Government-controlled parties appear anathema to our style of democracy. However, advocates of party regulation point to broader public concerns requiring that parties be firmly regulated to ensure that they operate democratically in their internal organization and decision-making processes. Arguments based on this fundamental division of opinion concerning government regulation of political parties have appeared in countless court opinions for decades. Some courts have envisioned the competition of interests in this area to be three-way, where the courts must balance the party interests in autonomy, the states interests in fair elections, and the individual rights to political expression and participation. 163 In some case scenarios, particularly those dealing with efforts to regulate internal party matters, all three sets of interests are present. The most fundamental and elusive political value in this area is that of “party autonomy,” or perhaps more precisely, the degree of party freedom from government regulation. Many consider independent parties as hallmarks of a healthy and democratic political system. Major scholars of political parties and their role as linkage entities in democratic forms of government often stress the need for inter-party competition in a democracy. 164 Vigorous party competition would seem to imply or even demand that parties enjoy a certain level of freedom from government regulation. The independence of political parties is also linked to other important political ideals such as vigorous political debate, an organized opposition, broad participation in politics, and the open selection of new political leaders. The independent party argument gains strength when it is considered how different our political system would be if the incumbent government were able to completely control traditional party functions. The concept of party independence can perhaps be illuminated by considering how political parties contribute to the fundamental separation of powers principle which divides our formal political institutions. 165 Of course, parties are not considered political institutions in the same sense as the Congress, the Supreme Court, or the Presidency. However, their early appearance and growth have arguably elevated the party system to the status of a “quasi-

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institution” of government. 166 Few would deny that parties, like the formal institutions of government, have long provided important services to the larger political system. At various times in our history parties have dominated or contributed significantly to the recruitment of nominees, the operation of elections, the political education of the public, the aggregation and mobilization of voters, the sharpening of public debate on issues, and the organization of legislatures. 167 If one takes a larger view of the separation of powers, vigorous parties can be easily seen as providing an important limitation on government power. By providing an organizing forum for the “opposition,” the party that is out of power routinely criticizes and challenges its incumbent rival. The importance of this role cannot be overemphasized in a democracy where such partisan debate serves to sharpen the issues, inform and educate the public on matters of public policy, and ultimately place limits on the power of the incumbent political party. The traditional functions of our political parties in the electoral arena similarly act to limit government power in an indirect fashion. The role of parties in recruiting, training and running candidates for public office curbs official power by insuring that there is an open, nongovernmental process providing for broad public participation in the early stages of the political process. 168 While independent political parties can be seen as supportive of a separation of powers system of government, that doctrine itself has come under increasing scrutiny in recent years. Critics of American government often lament the inability of presidents and congresses to work together. 169 For these critics Madison’s separation of powers scheme has perhaps worked too well and pitted our two elected branches against one another too much of the time. Some argue that in the modern era we need less “gridlock” and more positive concerted action by government to address a wider range of national problems. Many of these reformers have looked to the parliamentary party model of government as an alternative. 170 In such systems political parties may serve as “bridges” linking legislative and executive branches of government thereby fostering greater policy cooperation. Advocates of the parliamentary solution usually end up favoring stronger and more “responsible” political parties that are able to link executive and legislative branches by taking coherent and distinct policy positions. 171 Strong and independent parties appear to remain vital components whether one favors the classic decentralized separation of powers system or the parliamentary alternative where government power is more centralized. The importance of maintaining party independence can perhaps be better appreciated by drawing some comparisons with judicial independence. 172 A separate and independent judiciary has been a vital part of our constitutional separation of powers scheme since the earliest years. 173 This separateness has been deemed necessary “to preclude the commingling of . . . essentially

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different powers of government in the same hands.” 174 Thus, an independent judiciary provides important “checks” on excessive executive and legislative powers. Judicial independence was built into our constitutional system through provisions mandating life tenure, joint executive-legislative selection, salary protection, and a cumbersome removal procedure. 175 Both state and federal judges are also typically given near-absolute immunity for their actions on the bench. 176 The independent nature of American courts was cemented early in our history by the landmark decision of Marbury v. Madison in 1803 when Justice Marshall declared that, “It is emphatically the province and duty of the judicial department to say what the law is.” 177 Preserving an independent judiciary is based on a desire to preserve the courts’ impartiality and accountability while simultaneously limiting the influence of the overtly political branches of government over judicial decision-making. It was assumed that an independent judiciary would take a longer view of policy problems and issues which might be more hastily decided by the other elected branches of government. A strong and independent judiciary allows the courts to play an effective role as a “co-equal” branch of government that can limit excessive legislative or executive power. The rationale for party independence rests on similar concerns. Like the judiciary, political parties can be seen as political institutions whose strength lies in their independence from direct executive or legislative control. 178 Like the courts, the parties perform a limited set of specialized tasks for the political system that should not be subject to the control of the elected branches of government. The federal judiciary brings a perspective to national government that complements (and occasionally “checks”) that of the executive and legislative branches. Political parties’ special contribution has traditionally been in the recruitment and fielding of candidates for political office. This function would seem to be one best left to a quasi-private side of the political system, beyond absolute control of the government or its incumbent party. The need for political parties to be free from direct government supervision can also be compared to the theoretical arguments advanced to support bureaucratic independence in the modern state. The federal bureaucracy, like political parties, is an “extra-constitutional” part of the government, having gotten very little attention in the original constitutional scheme. 179 However, with the rise of bureaucracy since the 1930s this “fourth branch” of government has been accommodated within the separation of powers system. Bureaucratic independence is based on the notion that a professional and apolitical bureaucracy can perform certain modern governmental functions better than elected politicians. This is most persuasive in the case of independent regulatory commissions which oversee important sectors of the economy. These independent bodies are expected to operate in the “public interest” and with a minimum of interference from partisan, elected officials. 180 The independence of bureaucracy in a democracy is often justified in part by a belief

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in the ability to separate “politics” from “administration.” 181 The political independence of some parts of the federal bureaucracy has been reinforced through such things as the civil service system, joint executive-legislative selection and supervision, and other legal controls on bureaucratic actions. 182 The specialized contributions of the parties to American government are comparable to those made by an independent bureaucracy. An independent bureaucracy essentially removes certain decisions from direct control of the elected parts of government. This is the case with the regulation of the banking system which is overseen by the Federal Reserve Bank, and the approval of new drugs which is a function of the Food and Drug Administration. Similarly, certain party functions are arguably best performed when not directly or completely controlled by the elected parts of government. In the same way we might not want elected politicians making decisions as to which new drugs may be marketed to the public, so we might want various party functions to not be dominated by legislatures or executives. While it might seem anomalous to attempt to remove “politics” from party activities, it is probably salutary to prevent government control of all party activities. Independent parties with some private organizational attributes are able to provide a more open system of political recruitment and nomination than if they were simply government agencies. In order to best carry out these services for the larger political system, parties need to enjoy a significant degree of freedom from government regulation. Closely tied to the amorphous goal of party independence are the well defined rights of free association, free speech, and meaningful participation in the political system. As indicated earlier, all three of these freedoms are vital prerequisites to healthy political parties. Government regulation of parties inevitably infringes on these rights to some degree. Party advocates predictably favor maximization of these rights in order to ensure that our parties operate as freely as possible. In opposition to the foregoing policy arguments in favor of minimal government regulation of political parties is a broad set of arguments to the contrary. These arguments have been asserted by the states for years in defense of a wide range of statutory regulations dealing with elections and parties. As indicated earlier, most state regulations had their genesis in the Progressive Movement and were part of a larger effort to clean up politics generally. 183 One of the primary goals of this movement was to democratize party politics by opening up the process. The federal courts have frequently recognized that there are important state interests implicated in the electoral process which can justify state regulation of general elections, parties, candidates, and even primaries. 184 There is general agreement that the states enjoy broad powers under the Constitution to regulate the “times, places and manner of holding elections” for federal officers. 185 But in exercising this power the courts have consistently required that the states show some “state inter-

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est” before they burden the First Amendment rights of parties, candidates, or voters. In response to challenges to their regulatory statutes the states have identified a wide range of interests which they claim are served through their regulation of elections, parties and candidates. The most popular state interest that has been invoked to defend state laws regulating elections has been the state’s right to protect the “integrity of the electoral system.” 186 This is usually taken to mean the state’s interest in ensuring that its elections are “fair and honest,” or that they are conducted in an orderly fashion. 187 The states have also defended regulatory statutes of this type as necessary to further the “stability of the political process.” 188 These general interests have been accepted by the courts as sufficient to justify state laws regulating a variety of state election laws, including: voter residency requirements, 189 minimum voting age laws, 190 citizenship requirement as a prerequisite to voting, 191 limiting voters to participation in only one primary per election cycle, 192 imposing time limits on voters changing party affiliation, 193 and the charging of reasonable filing fees for access to the ballot. 194 Even some requirements which cut more closely to political parties themselves have been upheld primarily on the state’s claim of preservation of the integrity of the electoral process. This was the case in American Party of Texas v. White where the Court sustained a state law requiring major political parties to nominate through primaries but permitting minor parties to use conventions. 195 Another basic justification for government regulation of parties is founded on the idea that parties are an integral part of the political process and should therefore be subject to a considerable degree of public control. This rationale has allowed many states to justify their regulation of parties on the grounds that the parties are agents of the state that have been delegated public duties such as the operation of primary elections. This position has ironically gained strength as states have imposed more responsibilities on the parties. The argument here is that more public duties bring with them greater public interest and therefore greater ability of the government to regulate party activities. The growth of state regulation of parties and party-related phenomena has therefore made it easier for states to claim an increasing right to regulate party activities. The cumulative effect of decades of state laws has effectively converted a number of party functions into public duties. 196 The liberalization of the constitutional doctrine of “state action” has also helped the courts make this link between party rights and responsibilities. The “party agency” justification seems to carry its greatest weight in regulating parties in the performance of clearly electoral duties. However, this argument has been less successful when used to justify government regulation of matters deemed “internal” to parties. This view became clear in the lengthy litigation over California’s election code in the late 1980s. 197 In

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the course of that litigation the federal courts rejected California’s assertion that the state legislation transformed party committees “from voluntary political associations into public entities.” 198 In addition to asserting broad interests in protecting the integrity of their electoral processes, the states have marshaled a variety of more specific justifications. The richest source of these justifications has emerged in litigation challenging state ballot access laws. The states have long curbed unlimited access to the official election ballot. These restrictions have included such things as requiring that each candidate demonstrate a minimum prior vote-getting ability at a primary or otherwise before being given a spot on the general election ballot. Understandably, third parties and independent candidates have frequently challenged these laws. In defense of such provisions the states have argued that candidates must demonstrate some “modicum of support” in order to “avoid confusion, deception and even frustration of the democratic process.” 199 Sore loser provisions—which bar candidates from the general election after losing a primary election—have been justified as necessary to “reserve the ballot for major struggles,” and to ensure that only “genuine party candidates” appear on the ballot. 200 Some states have also claimed that they are trying to avoid “voter confusion” by limiting the number of candidates on the ballot. This justification has been used to defend laws giving ballot preference to the two major parties or placing special burdens on third parties or independent candidates seeking a spot on the ballot. 201 Other devices regulating ballot access have generated additional “state interests.” The popular petition requirement for independent candidates to get on the ballot has been defended as necessary to “avoid voter confusion,” minimize the size of the ballot, 202 eliminate “frivolous” or “fraudulent” candidates, ensure that the general election ballot candidates are “representative of the ideas of the party,” and to minimize “fragmentation of voter choice.” 203 Another common state regulatory device is the so-called “disaffiliation” statute. 204 These laws require that candidates, and sometimes voters, have a single partisan registration for a prescribed period of time before they can participate in an election. Such statutes have occasionally been defended as necessary to prevent “raiding”—a situation where persons hostile to a party will vote in its primary for the weakest candidate—as well as the more common claims of preserving the integrity of the political system. 205 Closely related to disaffiliation statutes are the “enrollment laws” of some states which require that a voter must be registered with a party in order to participate in its primary elections. These laws are supposedly enacted to protect the integrity of the parties themselves rather than that of the electoral system at large. When challenged, states have typically claimed that these laws “protect the associational rights of party members by preventing intrusion of those with adverse political principles,” and that they ensure “that the results

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of primary elections, in a broad sense, accurately reflect the voting of [genuine] party members.” 206 When a state has sought to place restrictions on matters closer to political parties’ internal operations the Court has typically demanded more from them than a generalized interest in electoral integrity. 207 In regulating internal party activities, the state usually argues that it must control various internal party activities because they impact significantly on the electoral process itself. However, the Supreme Court has applied a demanding “compelling interest” test to these regulations in the leading case in this area. 208 Under this test, the law is sustained only if the state bears the burden of showing such a powerful interest and the inability to further its stated goals through other less burdensome means. Another set of arguments often advanced in support of maintaining party independence is that the existing two-party system is itself inherently desirable. Under this interpretation, there is a public interest in maintaining two and only two political parties in this country. This argument is usually coupled with one asserting a public interest in preventing party factionalism or intra-party disputes. The major benefit cited in favor of such a system is that it tends to produce more stable majorities. Of course, the quasi-permanence of two large political parties also ensures a certain level of political competition and its attendant benefits. 209 A final set of political values that has arisen tangentially in this area derive from the federated nature of our political system. As will be noted from the previous discussion, most of the judicial intervention has been by federal courts applying federal constitutional standards. Most of the targets of these federal court decisions have been state and local parties, elections, and laws. This situation has given rise to some concerns that a federal regulatory framework is being imposed on what are essentially sub-national political activities. For some this raises the specter of a gradual erosion of the federated quality of our political system. The tide of history in this country has clearly favored increasing government regulation of party activities. 210 Much of the remainder of this work will attempt to determine if this increasing government regulation has gone beyond what is necessary to prevent party abuses. Clearly, excessive government regulation of parties would raise serious questions of government control over vital segments of the political process which might be best left unrestrained. As the role of political parties evolves in our system their need for independence from government regulation may also change. Given their vital role in American politics, parties appear to be deserving of considerable freedom from government control. Most observers would probably agree that complete government control of party activities would result in undemocratic tendencies including government control over the nomination process. However, the other extreme—completely privatized parties—would also raise the

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potential for abuses through the exclusion of certain groups of voters from the process. The dilemma thus presented, for both theorists and jurists, is where and how to strike an ideal balance between these two extreme positions. VI. PLACING THE PARTIES IN AMERICAN DEMOCRACY For decades American courts have faced a wide range of disputes that have touched on the relationship between American political parties and the rest of our democratic system. These cases have covered a wide range of issues, including: how closely party organizations should be regulated by the states, the role that parties should play in the electoral process, and how parties should behave when in power. These central questions have been repeatedly presented to the courts for years through a bewildering range of fact situations involving ballot disputes, participation in party primaries, partisan gerrymandering, and political patronage. Many of these cases are reduced to highly technical legal questions through litigation. The scope of the problem of how political parties should be situated in our political system and the narrowness of the legal issues presented to the courts have hampered the development of a unified theoretical approach in this area. In handling disputes involving political parties, judges have typically fallen into one of two broad camps. One set of judges regard political parties as “facilitators of democracy,” pointing to their roles as aggregators of political majorities in both elections and government. 211 These judges tend to credit parties with important contributions to our political system, such as the recruitment of candidates, the education of voters on public issues, campaign fund-raising, the provision of voting cues, the mobilization of voters, and the framing of political issues. The opposing camp of judges generally takes a negative view of parties and their contribution to politics. 212 This latter group tends to see parties as corruptors of the political process and government. They attach little value to the role of partisanship in mobilizing voters or giving voters assistance in understanding political issues or candidates. These judicial observers emphasize the corruption infused by parties into government and elections, their monopolistic abuse of power once in office, their efforts to limit voter participation, and their tendency to edge out other forms of political activity and participation. While this dichotomy grossly oversimplifies the range of judicial positions on parties, it is a useful guide to understanding how individual judges begin their analysis of cases raising questions about the role of parties in politics. In many instances, a judge’s “world view” of politics seems to determine how that judge ultimately reaches a decision on often technical legal issues involving parties.

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The tendency of many judges to regard political parties as either very beneficial or very corrupting entities has also tended to hamper the ability of courts to consider how parties might be better “accommodated” within our political system. Judges in the pro-party camp tend to disfavor virtually any fetters on parties. They would leave parties largely unregulated and free to pursue their activities. Their brethren in the anti-party camp favor stringent limitations on parties and partisan activity in general. I believe that there remains a middle position that can be taken concerning the optimal positioning of parties in our political system. Some courts have tried to identify and encourage the “good” activities of parties while simultaneously trying to discourage the “bad” aspects of parties and partisanship. This is very difficult to do in the context of a single legal dispute. The problem is one that would be better settled by legislatures, but here the record has been rather disappointing to date. Both scholarly observers and judges have struggled with how to regulate quasi-public parties in a democratic system. Judges have typically had to deal with the problem in the context of individual cases where that are constrained by the facts of the dispute. The central problem for both groups has been how to balance the competing need to regulate the “public” aspects and activities of parties while permitting them to function freely in their “private” activities. Strong arguments can be raised in favor of both positions. In undertaking their public activities, parties take on responsibilities that are of general interest including the selection of nominees, the running of legislatures, and the hiring of public employees. As private entities parties perform many nongovernmental services, including: the articulation of party platforms, the mobilization of voters, and the recruitment and nomination of party candidates. In addition, broader political ideals complicate the process of placing parties in our political system. These ideals include the maintenance of independent parties which reinforces our system of checks and balances, traditions of “limited government,” and First Amendment freedoms of free speech and association. This debate has been largely one of degree, that is, how heavily should parties be regulated when performing various tasks. The debate has revolved around the question of which party responsibilities need regulation in order to preserve the public interest without losing the benefits of independent parties. Beyond this central dilemma lay many other larger questions and issues, including: what should be the respective roles of courts and legislatures in striking the balance, what should be the differing roles for state versus national government in this equation, and how should the various types of non-party political entities be regulated, if at all?

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A. Early Efforts to Place Political Parties Legal scholars have been free from the procedural constraints imposed on their judicial counterparts and have attempted to draw broader and more generalized theories reconciling parties to democracy. Scholars have wrestled with these issues for many years, trying to identify the proper balance by reference to broader goals for the political system, others seeking constitutional tools and doctrines which might provide answers to the puzzle of situating political parties in democracy. More recently, some observers have also tried to apply their models to actual areas of litigation in the field, trying to resolve issues such as ballot access and the state-supported party duopoly. The most difficult problems in this area appear to be centered on the parties’ role in the electoral process, particularly the primary stage, where the interests of party autonomy clash most sharply with interests of the public over such matters as voter participation and minor political parties. B. Economic Regulatory Models and the Public Utility Analogy The search for an appropriate model for government regulation of political parties often begins with consideration of the vast experience of government in the regulation of economic activity. Virtually all industries in this country are subject to some government regulation but the method of regulation and the degree of government intrusion vary widely. The extreme case of government regulation is outright government ownership or provision of the public service, such as is the case with national defense, fire protection, and police. These types of services are often described as indivisible and non-excludable meaning that their provision is to the public at large but individuals cannot be excluded from the benefits. Less extreme models of government control include antitrust legislation which seeks to restore or encourage competitive market conditions. Other forms of market control include comprehensive economic regulation that seeks to ensure a certain level of price and/or quality in the goods or services rendered to the public. Economic regulation can also be directed towards dealing with excessive (destructive) market completion as in the case of airline regulation. These forms of government regulation generally seek to supplement rather than replace the existing market competition among multiple companies. Other forms of government regulation that are less intrusive include restrictions on advertising and labeling by an economic sector. Government regulation can also be directed more narrowly at encouraging the provision of otherwise scarce goods or the prevention of undesirable spillovers such as pollution or predatory pricing by a service provider. The justification for such government action is typically that the market has somehow “failed” to provide a service, has not provide it at a reasonable price, or generates undesirable spillover effects (external-

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ities). Government intervention attempts to ensure that the service quality will be adequate and that the prices will be fair. 213 The public utility model of government regulation is perhaps the most apposite to the regulation of political parties. In this situation, the government seeks to displace the benefits of competition among multiple providers with a public service commission. In the economic realm this is often found with “natural monopolies” such as the provision of water or electric service to a community. 214 In some of these situations technology or other circumstances dictate that only one provider can exist. The government steps in and replaces competition in the delivery of the service with a government body that oversees the industry and seeks to control price and quality of services to the public. Rulemaking by government replaces the constraints on providers that would otherwise be provided by competition. Since the late nineteenth-century American political parties have been gradually converted from primarily private associations into quasi-public entities akin to public utilities. 215 The conversion of parties took place primarily through state legislation which gradually imposed ever greater restrictions on party organizations and the electoral behavior of political parties. This legal evolution of American parties was rooted in the long history of suspicion of parties in this country and was driven by the strong reactions to party abuses during the era of party machines and powerful party bosses. The suspicion of political parties grew into outright hostility during the Progressive Era when many states adopted the Australian ballot and instituted direct primary elections. Both of these reforms were directed at limiting the power of party organizations and rooting out political party corruption. 216 The conversion of political parties into quasi-public entities paralleled what was taking place in the economic sphere as the nation sought to control monopolistic enterprises through government regulation. Just as the Progressive Movement extended government control over railroads, telegraphs, and telephones, so they sought to do much the same with political parties. 217 The policy rationale behind the heavy regulation of parties in this country has traditionally been that the major parties enjoy certain privileges and in return they must be subjected to state regulation. In 1902, Justice Oliver Wendell Holmes famously noted that since the major parties are given certain “advantages” such as automatic access to the general election ballot, the state has a right to impose “reasonable conditions” upon the parties. 218 This rationale was reiterated in subsequent years as the states gradually came to impose greater limitations on party activities. The result has been that modern American political parties are generally regulated more heavily and in more detail than parties in most other Western nations. 219 Since American parties today are very much quasi-public institutions it is inevitable that they should be compared to other quasi-public institutions established by government. This comparison is informative for those who would attempt to assign

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a role for political parties within our legal and political traditions. Legal scholars still find that the analogy of political parties to public utilities to be a useful conceptualization of political parties. 220 Since both the government and courts in this country have a long history of dealing with public utilities, the comparison between parties and public utilities can prove useful for deciding how best to place parties within the American democratic context. In many ways the analogy between political parties and traditional public utilities is quite compelling. Both types of organizations provide some important services that affect the general public and both receive some government benefits that similar organizations do not. Both parties and public utilities operate in fields where there are typically significant barriers to entry, whether organizational or technological. In both situations the services provided could often be delivered by other purely private organizations. The granting of a public monopoly (or “duopoly” in the case of parties) to one or more organizations necessarily involves some curtailing of the forces of competition. This is the fundamental trade-off when the government decides to grant a charter to a limited number of providers of a public service. The question then becomes whether the benefits to the public of the monopoly (or duopoly) outweigh the costs of reduced competition. The creation of quasipublic entities, whether they are political or economic, must then be justified by some other benefits to the public. In the case of traditional public utilities, such as the provision of electrical service or water, the benefits of creating a monopoly are typically thought to be the reliability of service and greater state oversight. Often these monopolies are driven by technological limitations as in the case with public regulation of telecommunications. The main “cost” of creating such monopolies is the loss of competition among multiple providers. Such competition is typically thought to lead to lower costs and higher quality service for consumers. The loss of these benefits of competition can be solved or mitigated by the establishment of public service commissions to monitor prices and the quality of service delivery to the public. In the case of political parties, the typical justifications for granting a privileged status include the maintenance of a manageable election ballot, preservation of the ideological integrity of the major parties, political stability (majoritarian control of legislatures), more moderate policy positions, and more easily understood voting cues for citizens. A party duopoly preserves some competition but clearly discourages wider competition among multiple parties. There are also additional costs of establishing a party duopoly including such things as limited ballot choices, greater potential for exclusion of some groups from political participation, and the dangers of entrenchment of the incumbent political party. 221 Another anomaly in the regulation of parties is that some competition, even if it is only between two parties, is generally thought to be highly desirable. The public regulation of political parties

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attempts to have it both ways: maintain two-way competition and its benefits while simultaneously discouraging a wider and more diverse competition among many party players. The public utility analogy encounters complications when applied to political parties because of the unique issues raised by government regulation of parties. In the case of traditional public utilities, there is little value in their autonomy aside from the benefits of economic competition. But there are important advantages to having political parties remain largely free from government regulation. These benefits include such things as vigorous party organizations, open candidate recruitment, free expression of parties’ and candidates’ views, and the desirability of having one party out-of-power and willing to challenge, criticize and ultimately “check” the incumbent party. This distinction between political parties and other quasi-public utilities can be better appreciated if one envisions complete government control over utilities. In the case of government monopoly in the provision of water service the dangers are low cost efficiency and poor service. But with political parties a complete government takeover of such things as the nomination of candidates would raise a whole host of serious problems for a healthy democracy. Despite these important differences between parties and other quasi-public entities, the public utility analogy is heuristic in that it helps highlight issues and problems for government regulation of parties. The comparison is not perfect but the similarities between the efforts to fight monopoly and corruption in the economic sphere and similar problems in the political sphere are informative. The public utility analogy highlights the question of the degree to which parties should be treated as public entities. Economic regulation comes in many forms, encouraging the possibility of finding an optimal model for political parties. In the case of traditional monopolies the goals are the provision of the service at the lowest price and highest quality. In the case of parties, the goals are harder to specify. They would include sufficient regulation of parties to discourage undesirable past party actions that have entrenched one party in government (e.g., partisan gerrymandering, political patronage) or limited access to the ballot for certain groups (e.g., White Primary). But they would simultaneously seek to ensure sufficient autonomy of parties from government to ensure an open political process, particularly that the nomination stage. Even if the goals of party regulation can be clearly identified and agreed upon, there remains the problem of how to institute this sort of regulation and whether it should be undertaken by courts or legislatures. The experience of states with tradition public utilities offer few lessons here given that these problem are confined largely to political parties. As more “linkage entities” enter American politics, often usurping the traditional function of parties, the question of what role(s) parties should play becomes even more complex. 222

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Inevitably, the question of how to treat parties under the rubric of public utility necessary turns on one’s overall concept of how American politics should be ordered. 223 C. The Mass Media Analogy Another analogy that has shed some light on the status of political parties in a democracy has been that which compares them to the government treatment of the mass media in this country. Like the public utility analogy, this comparison reveals some ways in which the relationship between an important political entity and the government can be balanced. The analogy to the media is particularly helpful in that both parties and the media are nongovernmental entities that make vital contributions to our democracy. Both have also long enjoyed important First Amendment rights and this constitutional provision has been used by the courts to determine how far government can go in regulating them. Like political parties, the media is an important forum for political debate, the exchange of political views, and the criticism of government officials and policies. Many of the arguments that judges and others have long mustered to support a free press in this country are also readily applicable to the activities of political parties. Both of these institutions help preserve the “marketplace of ideas” in a democracy by helping to frame issues and foster debate on public policies. 224 Both the mass media and political parties play vital roles in identifying new issues and informing the public on matters relating to government officials and candidates for public office. 225 While the comparison between parties and the media is helpful, it must be noted that determining the role for parties is probably a much more complicated enterprise given the larger array of political activities in which political parties are involved. In its many decisions adjudicating the legal status of the mass media in American political life, the Court has established some guidelines that might be useful in trying to do the same for political parties. 226 Included among these would be a presumption that the First Amendment rights of the media are to be construed as fundamental or “preferred” freedoms. Government burdens on the press are often judged by the high standard of “strict scrutiny,” meaning that the government would have to show a compelling interest in burdening the right. 227 When the press’ First Amendment rights conflict with other asserted rights, such as a defendant’s right to a fair trial, the courts have shown a willingness to balance press rights against individual rights. 228 While the courts have often vigorously defended the free speech rights of the media, the Supreme Court has been unwilling to extent “special” rights to the institutional press that are not enjoyed by ordinary citizens. 229 By extension, the First Amendment rights of political parties need to be balanced against competing political interests, particularly of voters, minor

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parties, and fair general elections. Since political parties are not as independent as the mass media in this country the balance must be struck differently and through the use of a more complex regime. While the mass media operates almost exclusively outside government, parties play a variety of political roles, including: operating relatively independent electoral campaigns, nominating candidates, and ultimately “entering” government as formal participants. The many faces of political parties will necessarily mean that the lessons from the mass media analogy will not be easily transferred wholesale to how the government regulates parties. VII. SCHOLARLY AND JUDICIAL EFFORTS TO RESOLVE THE PARTY DILEMMA Efforts of scholar and jurists to resolve the dilemma of political parties’ proper role in our system of government has generated a wide range of theories and models over many years. Most of these approaches begin by highlighting some political ideal or objective and then try to describe how parties should be structured and regulated in order to maximize attainment of that goal. Some have applied principles derived from economics including competition and widespread participation. Others have focused on maximization of the First Amendment rights of individuals, and some have been guided by concerns over party entrenchment or other party abuses. Some observers have attempted to apply these various guidelines to specific areas of litigation involving parties, such as ballot access or political patronage. Almost all of these approaches has wrestled with the overarching problem of how to retain the “desirable” contributions that parties make to our politics while simultaneously curtailing what are often seen as the “undesirable” activities and consequences of party behavior. 230 In 1987, John Moeller identified three major theories that courts had relied on to place parties within a democratic system. 231 Each of these approaches has had scholarly and judicial advocates at various times. The first is what Moeller labels the “fair politics” approach where the court emphasizes access to the political system as a guiding philosophy. Judicial advocates of this approach tend to favor majoritarian politics, and give prominence to the associational rights of the political parties, especially national ones. These judges have relied on Supreme Court precedents such as Reynolds v. Sims where the Court spoke of the “fair and effective representation for all citizens.” 232 Under this approach, “fairness” is usually construed to involve equal access to the political system. Accordingly, there is a tendency to disfavor political parties that become “entrenched” or that resort to partisan gerrymandering to perpetuate their incumbency. However, supporters of this view usually support the associational rights of the national parties. 233

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This approach often applies a balancing test that weighs the participation rights of individuals against the state’s interest in orderly and stable political processes. 234 Judges employing this method typically oppose ballot access restrictions and political patronage on grounds that these are adverse to individual rights. Moeller dubs his second approach as the “First Amendment” method of adjudication. Judges in this school place a greater emphasis on First Amendment associational rights (both individual and party) as the guiding principle for orienting parties in our system of government. This approach relies explicitly on constitutional language rather than vague notions of “fairness” to guide jurists. In applying this method to actual cases involving such things ballot access and voter participation, judges usually end up favoring the individual’s associational rights over those of the party. However, when dealing with disputes within the parties or between the parties and the states, followers of this school typically favor the parties’ associational rights. A third judicial technique draws on Madison’s competitive model of politics. Moeller identifies this as a minority position that places a premium on vigorous and open political competition. Use of this third approach would favor those situations where the courts would “let the political process make its own decision and policy.” 235 Such an approach usually means a minimum of government supervision/regulation and often ends up defending the role of parties in the political system. Each of the three general trends identified by Moeller has had both judicial and scholarly defenders. Each approach has also spawned a number of intellectual descendents and spin-offs. A. Market-Based Interpretations of the Parties’ Role In recent years, the traditional approaches to placing parties in American democracy have come under increasing criticism by scholarly observers. The emphasis of early courts on political “fairness” came to be seen as an unhelpful guidance for courts dealing with actual disputes. The fair politics approach was viewed as overly formulaic and inflexible and failed to give adequate attention to how the political system should actually operate. 236 Two leading scholars in the field, Samuel Issacharoff and Richard H. Pildes, writing in 1998 found that the fundamental fairness approach had produced a situation where, “courts avoid confronting fundamental questions about the essential political structures of governance and instead apply sterile balancing tests weighing individual rights of political participation against countervailing state interests in orderly and stable [electoral] processes.” 237 Instead, Issacharoff and Pildes propose a model based on judicial encouragement of political competition. The emphasis on competition is likely a descendent of Moeller’s Madisonian model that stressed benefits of widespread participation and competition in electoral politics. 238 Under this approach, courts

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would play a role of fighting anticompetitive behavior by participants, including political parties. 239 This approach is particularly hostile to party entrenchment since that represents serious anti-competitive behavior. B. Modern Legal Models of American Political Parties Legal scholars have struggled for decades to develop a coherent legal model for political parties. A number of models that have emerged are derived from the legal models discussed above. The models tend to differ in their vision for how parties fit into democracy and proscribe different means for reconciling parties to democracy. Most legal approaches have begun by identifying particular roles that parties should play in our political system. These have varied from governmental concerns over political stability, to the goals of maximum electoral choices for voters, to an emphasis on parties’ role as political aggregators. Choice of a primary political goal has often determined where observers end up on such major questions as the ideal number of parties in our system, how much autonomy parties should enjoy in undertaking various activities, and the roles that legislatures and courts should play in the regulation of political parties. Initial views on the purpose of parties also appear to frequently determine the power hierarchy among the party organization, the electorate, and the state. In 2000, professors Persily and Cain identified five major legal paradigms reflecting the major positions of most scholars and judges on this central question. 240 These five models categorize parties according to the underlying theory as to their proper role in a democracy. The typology includes what role political parties should play in the broader political system. Each of these models also prescribes some of the key issues in this field, namely the ideal number of political parties and the respective roles to be played by state legislatures and the judiciary. The following table is a summary of these five models (see table 1.1). This typology of legal roles of parties addresses many of the major issues that arise in the debate over parties’ proper role. Each “school” identified in the table brings its own biases and historical background to the question of how parties should be treated under the law. Most of the modern thinking on political parties can be located among these five paradigms or is descended from one or more of them. What Persily and Cain call the Managerial Paradigm is a traditional approach to parties that dominated thinking until the 1940s. It gave maximum leeway to the states to regulate political parties as they chose. The result was often a situation where state acted to protect the existing party duopoly in the name of political stability and the courts stayed clear of disputes involving parties. Under this model parties did not possess any special right of association as is often claimed today. This model considers the party-in-government

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Table 1.1. Major Legal Paradigms for Political Parties Paradigm

Purpose of Parties

Number of Parties

State Interest

Managerial

Foster Regime Stability

Two

Preserve Nonstability of party interventionist duopoly

Libertarian

Express Indifferent opinion to party members

Stay out

Intervene to preserve elections as public forums

Progressive

Interfere with democracy

Enhance democracy

Intervene to stop partisan capture or corruption

Political Markets

Foster electoral Two or more choice

Manage political competition

Intervene to prevent partisan lockup

Pluralist

Aggregate Two broad interest groups parties into policy coalitions

Ensure party is Intervene only to responsive to protect party organized autonomy interests

None

Judiciary’s Role

Source: Adapted from Nathaniel Persily and Bruce E. Cain, “The Legal Status of Political Parties: A Reassessment of Competing Paradigms,” 100 Columbia Law Review 775, 779 (2000).

arm of political parties as the primary locus of party power. This model has generally lost favor among scholars and judges because of its tendency to protect the party duopoly at the expense of other political groups, its potential for limiting political discourse, and its inability to adequately represent adverse constituencies. A major drawback of this model is that it could lead to “party entrenchment” where the party-in-government wing of the incumbent party ends up with excessive power and is able to hold onto power through such techniques as political patronage and partisan gerrymandering. The Libertarian Paradigm described by Persily and Cain reflects a more modern view of parties and believes that they should be treated as only one of the many types of political linkage entities active in our political system. This model accords parties maximum First Amendment rights and maximum freedom from government regulation. This model draws on the tripartite conception of parties in order to give maximum freedom to the formal party organization. Government regulation of elections would be permitted under this model in order to maintain free and open election, but this would be strictly separate from the party organizations.

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The third model derives from the early Progressives and their attitudes toward parties. This paradigm comes closest to a sort of “anti-party” model for political parties. It grows out of the late nineteenth-century suspicion of party machines and party bosses. The model regards parties as the primary focus for political corruption and discounts any contributions that parties make to representative democracy. This view of parties is perhaps historically bound and has few adherents today. However, professors Persily and Cain identify “modern-day Progressives” as those who continue to see parties as primarily “obstructive forces for the general will of the electorate.” 241 This attitude may also underpin more recent anti-party movements such as the effort to expand the use of nonpartisan elections and the blanket primary movement in California. The Political Markets Paradigm identified by Persily and Cain is obviously derived from economic models. The approach advocates a substantial role for the courts in order to prevent “partisan lockups” and to foster a robustly competitive political environment. This model sees political power as being lodged in the party-in-government wing of parties but also recognizes that this power will often be manipulated by the incumbent party to serve its own interests. This model treats voters like economic models treat consumers, and places great emphasis on creating a process that satisfies this group. Under this model, the role of party leaders is minimized and the parties are reduced to responding faithfully to voters at elections. This model concludes that the number of political parties should be maximized in order to maximize competition. The final legal paradigm presented is one based on the pluralist theory of politics. It favors the maximization of group competition, negotiations and interactions. Under this vision of a political system, parties serve primarily as coalition-builders among many active interest groups, fostering the development of broader policy positions. In order to enhance this aggregating function of parties, pluralists focus party power in local party organizations. This model envisions two board political parties that respond effectively to organized interests. The role of the courts under this model is primarily to protect the formal party organizations and their activity as policy aggregators. Recent years has seen efforts by scholars to fine-tune or combine one or more of the five major paradigms in order to better place parties in our political system. In doing so, observers have often sought to simultaneously solve some of the major questions that have arisen in litigation concerning parties, including: the role of the state and courts in regulation of parties, questions relating to the party duopoly, access to the ballot by minor parties, political parties’ rights of free association, state fusion laws, campaign finance regulation of parties, partisan gerrymandering, political patronage, and regulation of party organizations/committees. What follows is a summary of

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the major positions offered to solve some of these issues and their application to some of the major questions that have arisen in this area. C. Functionalism and New Directions One of the leading modern positions on the role of parties is what has come to be called the functionalist approach. 242 Scholars in this school of thought focus on the functions that political parties play in our system of government. They highlight the contributions that parties make to democracy, arguing that “autonomous parties are a necessary check against one party’s manipulation of the electoral process to its advantage and an indispensable means of aggregating interest groups into the American political system.” 243 For functionalists, autonomous parties perform four vital services to the polity: foster competition, facilitate representation, aggregate interests, and ultimately govern. Supporters of this view of parties favor constitutional and judicial protection for party autonomy, seeing this as an important bulwark against excessive government power. They take a more positive view of parties than many others, seeing parties as critical components in our democracy and as deserving of judicial protection. Their position grows out of the view that autonomous parties are best able to foster electoral competition and protect political minorities. Parties are regarded as a special type of group which should be treated differently than other civic organizations on the basis of the special contributions that parties make to our political system in terms of aggregating interests and nominating candidates for public office. 244 Unlike many other observers, functionalists tend to see the “state” (or the party-in-government) as the primary source of threats to democracy and believe that healthy and independent political parties are part of the check on such government power. They also regard parties as indispensable players in the aggregation of interests in American politics. In order to support this party responsibility, functionalists believe that rights of First Amendment free association should be the centerpiece of constitutional protection for political parties. 245 Under the functionalist view, the courts would play a role checking the power of the incumbent political party including its efforts to “entrench” itself in power at the expense of other political groups in society. The courts would protect the right of political minorities to participate in such things as party primaries through the use of existing constitutional tools that already protect voters’ right to participate in politics. 246 Functionalism highlights the importance of parties’ associational rights and calls for strict scrutiny of intrusions on those rights. 247 The courts have generally upheld this view with regard to “purely” party activities, confirming the right of parties to require that primary voters be party members, 248 the right of the party to hold “closed” primaries, 249 and the right to regulate the seating of their delegates

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at national conventions. 250 The California blanket primary case, Jones v. California, is the most recent Supreme Court case to deal with these issues. 251 In that case the Supreme Court found that the state lacked a sufficiently “compelling state interest” in order to infringe on the associational rights of major parties. The asserted state interests of preventing primary “raiding,” increasing voter participation, the production of more moderate party nominees, and the weakening the dominant party elite were deemed insufficient. While functionalists argue that the associational rights of political parties are different from others groups, they concede that these rights are not absolute. The key issue in deciding such cases is to weigh the burden on voting rights with the associational rights of parties. Functionalism typically leads to a decision in favor of the latter. Functionalists also tend to discount the usefulness of approaching these issues through state action doctrine or by focusing on individual liberties. 252 Functionalism gives primacy to the parties’ right of autonomy but its adherents argue that this is not a radical position because it serves other important interests such as preventing party entrenchment. 253 Ultimately, functionalists believe that their approach strikes a salutary balance for the political system because: it gives states the ultimate authority to decide if parties will play a role in candidate nomination, but on the other, it ensures that one a state erects a nomination process the confers special status on parties, it cannot impose restrictions that either benefit one party over another or ruin parties’ ability to bring minorities into coalitions. 254

In the last decade, most scholarly observers of parties and courts have been hostile to the rights of parties and the consequences of excessive party power such as party lockups and minority disenfranchisement. Instead, many writers have moved towards favoring the competitive model and envisioning the courts as facilitators of such political competition. 255 Others have proposed a variety of models and ideas as to how the party activity might be better reconciled to American democracy. One of the more thoughtful proposals has been put forward by Michael Kang. 256 He has argued in favor of much less regulation of political parties. 257 He rejects the traditional description of parties as “legal creatures that possess a legal identity, persona, and interests in the same manner as an individual or corporation.” 258 In place of this traditional view of parties he argues for the re-conceptualization of parties as “loose collection of political relationships, some legal and some nonlegal, among a diverse set of actors.” 259 Conceived in this way, Kang argues that parties are not easily regulated by government and, in fact, they typically manage to evade government regulations and reform efforts. 260 Oftentimes, “reforms” of the party system backfire, giving the incumbent party more power over party factions. 261 Employing this conceptualization of parties,

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Kang claims that parties are best understood “in terms of the larger ongoing narrative of political contact in which different sets of party actors successively use party regulation and ending court challenges to vanquish rivals by means of legal trump.” 262 Kang argues that application of this “supralegal model” for parties reveals the futility of party regulations and that courts should be skeptical of regulations aimed at political parties. He is able to demonstrate that many past reform efforts aimed at parties have failed because “parties” were defined inappropriately by reformers and courts. Kang favors moving away from the traditionalist rights-based approaches to a pragmatic, functional approach to legal regulation, with a focus on what best helps achieve the aims of elections. 263 These reformers hope that things like the blanket primary will increase the responsiveness of parties by shifting influence from leaders to electorate. They encourage courts to focus on how regulations will affect political system; uphold regulations that produce the structurally desirable effects on the political system. Kang proposes a “supralegal” view of parties that assumes that parties will act through regulation to achieve their own ends. 264 The role for the courts under such a re-conceptualization would be to focus on intra-party disputes and “shift their attention to the construction of a healthy framework for political resolution of political rivalry.” 265 The courts would try to force partisan combatants to solve their disputes through political channels. Kang sums up the courts’ role to be to: scrutinize closely and presumptively strike down party regulation that attempts to dictate the internal affairs of political parties, their leadership structure and decisionmaking, in the absence of exceedingly important governance interest . . . [the] courts should be predisposed to strike down state regulation of the internal affairs of political parties, including party-specific restrictions on internal governance and structure, limitations on political campaigning and campaign-finance activity, and procedures for nomination. 266

Another leading analysis of these issues was advanced by Gregory P. Margarian in 2003. 267 This approach descends from the First Amendment models identified by John Moeller in 1987. It advocates that the First Amendment focus allows substantial regulation of parties (major and minor) in order to facilitate participatory democracy, heighten competition, and invigorate political debate. It is seen as an approach which would have the courts rendering decision that would foster political debate, democratic participation, and simultaneously protect minor political parties. Magarian’s proposal would move away from an emphasis on private rights to one stressing public rights and the responsible party model. 268 Here, the courts would be charged with preserving political stability through maintenance of a strong two-party system and “would resolve disputes about party regulations in ways that advance the dynamic party politics theory, which encourages an

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informed, engaged electorate, spurred on by a larger number of competitive political parties, to sustain a robust political debate.” 269 He sums up this position thusly: [T]he Court should view the First Amendment not as a mere negative protection against government regulation but rather as an affirmative constitutional commitment to foster vigorous, broadly participatory electoral discourse. Expressive freedom on this account, ensures that all members of the political community will have access to the information they need in order to participate thoughtfully in the political process.” [This approach will] allow substantial regulation of the major political parties’ electoral activities while strengthening the First Amendment’s role in protecting minor parties. That state of affairs would facilitate a vibrant participatory democracy, producing a more engaged electorate, heightened electoral competition, and a more robust political debate. 270

Magarian sees a possible trigger to judicial intervention when a “malfunction” occurs in the political system. These situations occur when there is a “choking off the channels of political change” or when “representatives beholden to an effective majority are systematically disadvantaging some minority out of a simple hostility or prejudiced refusal to recognize commonalities or interest, and thereby denying that minority the protection afforded other groups by a representative system.” 271 There has been no shortage of proposals for addressing the problems raised by parties in modern American politics. After reviewing how the courts have dealt with various aspects fo this problems, I will attempt to offer an alternative approach that draws on several of the preceding models. VIII. A PROPOSAL FOR STRIKING A BALANCE The remainder of this work will attempt to organize the existing body of court opinions dealing with political parties around the competing values set forth above. Our objective will be to determine how far the courts have progressed in reconciling the independence of the political parties with ideals of democratic selection. It is hoped that this exercise will also help focus on balancing the competing political values described above and point the way to further refinement of the legal doctrines which govern state efforts to regulate political parties. Successive chapters will deal with different aspects of this problem. The analysis will begin by dividing the case law in this area into the three broad areas of political party activity or existence. This trichotomy was first proposed in the 1960s by two of the leading students of American political parties. 272 Under this conceptualization, American parties can be identified as being composed of three interrelated parts. The first of these is the formal

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party organization itself, composed primarily of activists at the state and local levels. Government regulations which touch this aspect of party existence would include those dealing with party membership, internal party structure, and the selection of party leaders. This first party component would include party committees at all levels of government. This is also the part of the party which comes closest to embodying the “private” side of political parties. In their internal activities, it is also argued that parties are entitled to greater freedom from government regulation. The state interest in these activities is minimal. Concern for party independence is at its highest at this level of activity. These issues will be discussed in chapter 2. The second level of party existence we shall consider at length in chapter 3. This will focus on the electoral side of political parties, which has been the most important function of American political parties. This area has been the one where we have also witnessed the greatest regulatory efforts of the government. The adjudication of these state laws has also generated the largest body of court opinions dealing with parties. When parties undertake “quasi-public” functions, as they do in the electoral process, they necessarily lose much of their aura of being “private” organizations. Accordingly, we would expect that a greater degree of government regulation would be permissible here than would be the case with more purely private or internal party activities of the first type. In terms of our competing political values, when parties enter the realm of electoral politics through the operation of primaries and general elections, they must expect to lose some of their privacy protections and submit to a greater degree of public scrutiny and regulation. This does not mean that parties should lose all of their autonomy when operating in the electoral arena, but rather that they will enjoy only a sort of qualified immunity from government regulation here. The third component of party existence envisioned by the traditional tripartite party model of American political parties is the “party-in-government.” American parties have never entered government in the same sense as their counterparts in parliamentary forms of government. However, even American political parties play an important role once elected to government, including bridging of the separation of powers divide between legislative and executive branches and the internal organization of legislatures. 273 The “incumbent party” would appear to need little legal protection from the “government.” Indeed, just the opposite would appear more likely: non-incumbent (minority) parties and their members might need protection from the reigning party. Case law that has dealt with this third side of political parties often arises from the efforts of incumbent parties to engage in patronage activities and the partisan gerrymandering of electoral districts. Chapter 4 will address this side of party existence. The absence of any firm constitutional language concerning parties, coupled with the paucity of congressional legislation, has had the result of leav-

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ing much of the development of the law of political parties to succeeding generations of federal judges. This has produced a patchwork of court opinions dealing with parties across U.S. history. In most cases the courts have focused primarily on a single constitutional right such as the voting rights of minorities or the First Amendment guarantees of association and free speech. Relatively few cases have dealt exclusively or at length with the larger questions of when and how political parties should be regulated within our democratic system. Instead, these questions have been dealt with only secondarily and in an ad hoc fashion by the courts. In the last few decades we have seen the coincidence of several developments which have combined to put the federal judiciary at the center of the debate over government regulation of the parties. These developments have included: the rising tide of state legislative efforts to regulate parties in more facets of their activities, continued congressional quiescence save for regulation of the national party finances, and the judiciary’s own gradual invigoration of various constitutional tools which have facilitated state efforts to regulate parties. The coincidence of these trends in recent decades has forced the courts to begin the process of balancing party independence with greater governmental regulation. To date, this process has resulted in the development of only a vague and conflicting set of guidelines for how parties may be regulated. In order to construct a framework for adjudicating state regulation of parties, the courts will have to evaluate competing political values which are raised in this debate. NOTES 1. Noble Cunningham, The Making of the American Party System, 1789 to 1809 (Englewood Cliffs, NJ: Prentice-Hall, 1965); William Nisbet Chamber, Political Parties in a New Nation: The American Experience, 1776-1809, (New York: Oxford University Press, 1963) especially pp. 26–27, 43–44, 92–93; John Hoadley, Origins of American Political Parties, 1789–1803 (Lexington, KY: Lexington Books, 1986); and, John H. Aldrich, Why Parties? The Origin and Transformation of Political Parties in America (Chicago: University of Chicago Press, 1995). 2. The Federalist Papers (New York: Bantam Books, 1982) nos. 50, 51; George Washington's Farewell Address, September 19, 1796, Henry Steele Commager, Documents of American History (New York: Appleton-Century-Crofts, 1968), pp. 169–175. See also, Noble Cunningham, The Making of the American Party System, ch. 1. While the Framers were suspicious of parties, Madison and others of course believed that political factions would inevitably develop in the new nation. For a distinction among “parties,” “juntas,” “factions,” and other political entities, see, William Nisbet Chambers, Political Parties in the New Nation, pp. 44–50. 3. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: Bantam Books, 1982) no. 10, at p. 44. 4. Peter W. Schramm and Bradford P. Wilson, American Political Parties and Constitutional Politics (Lanham, MD: Rowman & Littlefield Publishers, 1993) chs. 1–2. 5. W.B. Allen, ed., George Washington: A Collection (Indianapolis: Liberty Classics, 1988) p. 520. 6. See, Leon Epstein, “State Regulation of Political Parties,” in, L. Sandy Maisel, ed., Political Parties and Elections in the United States: An Encyclopedia, 2 vols. (New York:

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Garland Publishing, 1991) pp. 1069–1074. See also, Leon Epstein, Political Parties in the American Mold (Madison: University of Wisconsin, 1986) ch. 5. 7. Note, “Developments in the Law—Elections,” 88 Harvard Law Review, 1111–1339 (1975). Congressional regulation of parties is based on the general welfare clause of the Constitution, Art. I, § 8, cl. 1, as augmented by the necessary and proper clause, Art. I, § 8, cl. 18. See, Buckley v. Valeo, 424 U.S. 1, 90–91 (1976); United States v. Classic, 313 U.S. 299, 317–320 (1941); and McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316, 421 (1819). 8. Federal Election Campaign Law (FECA) of 1971 (18 U.S.C. § 608 et seq.) and the Bipartisan Campaign Reform Act of 2002 (2 U.S.C. § 431 et seq.) are the two major current pieces of federal campaign legislation affecting parties. The FECA has been revised twice and part of it judged unconstitutional, Buckley v. Valeo, 424 U.S. 1 (1976). It would appear that the preclearance requirement of section 5 of the 1975 Voting Rights Act also applies to party conventions, see Morse v. Republican Party of Virginia, 517 U.S. 186 (1996). See also, National Voter Registration Act of 1993, 42 U.S.C. sec. 1973gg, Pub. L. 103–31, May 20, 1993, 107 Stat. 77. On the intricacies of campaign finance, see, Herbert Alexander, Financing Politics, 3rd ed. (Washington: Congressional Quarterly Press, 1984); Leon Epstein, Parties in the American Mold (Madison, WI: University of Wisconsin, 1986), ch. 10; and, Frank Sorauf, Money in American Elections (Glenview, IL: Scott, Foresman, 1988). 9. There are many good histories describing the rise of state regulation of political parties in the nineteenth century: Joel H. Silbey, The American Political Nation, 1838–1893 (Stanford, CA: Stanford University Press, 1991); Joseph R. Starr, “The Legal Status of American Political Parties, I,” 34 American Political Science Review 439 (June 1940); Leonard M. Friedman, “Reflections Upon the Law of Political Parties,” 44 California Law Review 65 (1956); John W. Epperson, The Changing Legal Status of Political Parties in the United States (New York: Garland Publishing, 1986), ch. 2; G. Theodore Mitau, “Judicial Determination of Political Party Organizational Autonomy,” 42 Minnesota Law Review 245 (1957); H.G. Nicholas, “Political Parties and the Law in the United States,” 2 Political Studies 258–270 (1954); Adam Winkler, “Voters’ Rights and Parties’ Wrongs: Early Political Party Regulations in the State Courts, 1886–1915,” 100 Columbia Law Review 873 (2000); Tiffany Jones, Note, “Re-Privatizing American Political Parties: From Private Groups to State Agencies and Back Again,” 15 Journal of Law and Politics 221 (1999). 10. On the Progressive Era generally, see, Richard Hofstadter, The Age of Reform: From Bryan to FDR (New York: Knopf, 1955), and The Progressive Movement, 1900–1915 (Englewood Cliffs, NJ: Prentice Hall, 1963); and Lewis Gould, The Progressive Era (Syracuse, NY: Syracuse University Press, 1974). 11. For an excellent summary of these early reforms, see, Alan Ware, “Anti-Partism and Party Control of Political Reform in the United States: The Case of the Australian Ballot,” 30 British Journal of Political Science 1–29 (2000). 12. Leon Epstein, “State Regulation of Political Parties,” in Maisel, Political Parties and Elections in the United States: An Encyclopedia, pp. 1069–1074. 13. See, Malcolm Jewell and David Olson, Political Parties and Elections in the Amercian States, 3rd ed. (Chicago: Dorsey Press, 1988) p. 88. 14. See, Joseph R. Starr, “The Legal Status of American Political Parties, I,” 34 American Political Science Review 439 (June 1940); and, H.G. Nicholas, “Political Parties and the Law in the United States,” 2 Political Studies 258 (1954). 15. See, Morrow v. Wipf, 22 S.D. 146, 115 N.W. 1121 (1908). 16. See, Starr, “The Legal Status of American Political Parties, I,” at p. 442. 17. See my discussion of fusion laws in chapter 3. 18. Barry Portnoy, “Freedom of Association and the Selection of Delegates to National Political Conventions,” 56 Cornell Law Review 148 (1970); Leonard Friedman, “Reflections Upon the Law of Political Parties,” 44 California Law Review 65 (1956); Joseph Starr, “The Legal Status of American Political Parties, I,” American Political Science Review 439 (1940); Adam Winkler, “Voters’ Rights and Parties’ Wrongs: Early Political Party Regulation in the State Courts, 1886–1915,” 100 Columbia Law Review 873 (2000). 19. Ex Parte Wilson, 125 P. 739 (Okla. Crim Ct. of Appeals, 1912); State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910); Spier v. Baker, 120 Cal. 370, 52 P. 659 (1898); and,

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Britton v. Board of Elections Commissioners, 129 Cal. 337, 61 P. 1115 (1900). These cases were usually based on state constitutional rights to “free elections” since the Fifteenth Amendment right to vote had been limited by the Supreme Court in Minor v. Happersett, 88 U.S. 162, 178 (1874). 20. State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N.W. 961, 969 (Wis. 1910), citing: State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N.W. 482 ( 1898); De Walt v. Bartley, 146 Pa. 529, 24 A. 185 (1892); Oughton v. Black, 212 Pa. 1, 61 A. 346 (1905); Miner v. Olin, 159 Mass. 487, 34 N.E. 721 ( 1893); Cole v. Tucker, 164 Mass. 486, 41 N.E. 681 (1895); Commonwealth v. Rogers, 181 Mass. 184, 63 N.E. 421 (1902); and, State ex rel. Zent v. Nichols, 50 Wash. 508, 97 P. 728 (1908). 21. 129 Cal. 337, 61 P. 1115 (1900). 22. Id. at 1117. See also, Spier v. Baker, 120 Cal. 370, 52 P. 659 (1898) striking an earlier California primary law, and Eaton v. Brown, 96 Cal. 371, 31 P. 250 (1892). The history of the California courts and that state’s first primary laws is discussed in, Leonard M. Friedman, “Reflecting Upon the Law of Political Parties,” 44 California Law Review 65 (1956). 23. The Indiana supreme court stated in 1929 that, “The people have an inalienable right to organize and operate political parties . . .” Sarlls v. State, 166 N.E. 270, 277 (Ind. 1929). 24. E.g., State ex rel. Van Alstine v. Frear, 142 Wis. 32, 125 N.W. 961 (Wis. 1910); Ladd v. Holmes, 40 Or. 167, 66 P. 714, 720-721 (Or. 1901); State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N.W. 482 (1898); State v. Michel, 121 La. 374, 46 So. 430 (La. 1908); In re Redmond, 25 N.Y. Supp. 381 (S.Ct. Spec. Term, Monroe Cty. 1893) (Court upheld right of party to choose which of two delegations could attend a party convention. The court noted that “a state convention, like our legislature, is the sole judge of the election of its own members . . .”) Id. at 384. 25. State v. Michel, 121 La. 372, 46 So. 430, 435 (La. 1908). A few early courts speculated on whether political parties possessed some associational rights distinct from, and perhaps greater than, the associational rights of individual members. See, e.g., Riter v. Douglass, 109 P. 444, 450 (1910), and cases cited therein; Daniel Hays Lowenstein, “Associational Rights of Major Political Parties: A Skeptical Inquiry,” 71 Texas Law Review 1741 (1993); Gary L. Scott and Craig L. Carr, “Political Parties at the Bar: The Controversy over Associational Rights,” 5 University of Puget Sound Law Review 267 (1982). 26. 84 N.E. 85 (1908). “The elector’s choice of persons for office, to be effective, must be from party candidates; and so the nomination of candidates becomes as much a matter of public concern as the election of officers. The public welfare is directly involved in the selection of candidates, and the manner of selection is subject to regulation under the police power.” Id. at 87. 27. E.g., State v. Felton, at 89. 28. E.g., Schostag v. Cator, 91 P. 502, 504 (Cal. 1907); State ex rel. Bateman v. Bode, 45 N.E. 195, 196 (Ohio 1896); Daniel v. Simms, 39 S.E. 690, 693–694 (W. Va. 1901); and, State ex rel. Dunn v. Coburn, 168 S.W. 956, 957 (Mo. 1914); State ex rel. Nordin v. Erikson, 119 Minn. 152, 156, 137 N.W. 385, 386 (1912); State ex rel. McCarthy v. Moore, 87 Minn. 308, 311, 92 N.W. 4, 5 (1902); People ex rel. Coffey v. Democratic General Committee, 164 N.Y. 335, 58 N.E. 124, 125 (1900). See also, Leon Epstein, “Will American Political Parties be Privatized?” 5 Journal of Law and Politics 239 (1989); and Robert H. Wiebe, The Search for Order, 1877–1920 (NY: Hill & Wang, 1980). 29. E.g., In re Redmond, 25 N.Y. Supp. 381 (S.Ct. Spec. Term, Monroe Co. 1893), 383–384; Spier v. Baker, 120 Cal. 370, 52 P. 659 (1898); Whipple v. Broad, 55 P. 172 (1898); DeWalt v. Bartley, 146 Pa. 529, 24 A. 185 (1892). 30. Whipple v. Broad, 55 P. 172, 174. 31. E.g., In re Redmond, at 384 where the court held that, “parties must, to a certain extent, provide for their conduct and management certain rules and regulations, which are not inaptly termed ‘party machinery.’ That such machinery is frequently employed to accomplish personal and factional ends cannot be denied. . . . nevertheless, the party cannot exist without its machinery, and if that machinery is used oppressively, and for improper purposes, the right and power to remedy the evil undoubtedly reside in the party itself. . . .”

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32. See, Paul Allen Beck, Party Politics in America, 8th ed. (New York: Longman, 1997), ch. 3; Timothy Conlan, Ann Marino, and Robert Dilger, “State Parties in the 1980s,” Intergovernmental Perspective, vol. 10 (1984); Advisory Commission on Intergovernmental Relations [ACIR], The Transformation in American Politics (Washington: Advisory Commission on Intergovernmental Relations, 1986). Most state regulations in this area deal with the participation of individuals in the major parties and the recognition of third or minor parties. 33. By 1984, thirty-six states regulated the selection of their parties’ state central committees. ACIR, The Transformation in American Politics, pp. 129–130. The current Florida statute regulating that state’s political parties, Fla. Stat. § 103.991 (2009), is typical. This statute sets forth how the party committees of that state’s major political parties will be structured and governed. In particular, this law sets gender and residency requirements for committee members, terms of office, a process for the filling of vacancies, ex officio membership of party committees, and voting procedures on party committees. This statute establishes minimal requirements for party governance and simultaneously recognizes that a party may select its local, state and national committee members “in such manner as it deems proper.” Fla. Stat. § 103.091(1). For a recent judicial interpretation of this Florida statute and an attempt to strike a balance between party independence and state regulations, see, Republican Party of MiamiDade County v. Davis, 18 So.3d 1112 (Fla. 2009). 34. By 1984, thirty-two states regulated the composition of their parties’ state central committees; most of those barred elected state officials from serving on these committees. See, ACIR, The Transformation in American Politics, pp. 130–131. 35. By 1984, twenty-two states regulated either meeting times and/or places of the party central committees. ACIR, The Transformation in American Politics, pp. 131–132. 36. By 1984, twenty-eight states imposed some internal rules and procedures on the parties’ state central committees. ACIR, The Transformation in American Politics, pp. 132–134. 37. ACIR, The Transformation in American Politics, p. 135–138. 38. See, Paul Allen Beck, Party Politics in America, 8th ed., ch. 9; ACIR, The Transformation in American Politics, pp. 144–157; The Book of the States, 1992–93 (Lexington, KY: Council of State Governments, 1992) ch. 5. 39. Political Parties and Elections in the United States: An Encyclopedia, L. Sandy Maisel, ed. (New York: Garland Publishers, 1991), p. 164. 40. Eight states (CO, CT, DE, ND, NM, NY, RI, UT) used “legal” endorsements in 1986 which give the endorsed candidate some special advantage on the ballot or otherwise during the primary process. See, Jewell and Olson, Political Parties and Elections in American States, pp. 94–104; ACIR, The Transformation in American Politics, pp. 145–149. The Supreme Court discusses pre-primary endorsements in, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989). 41. On the delegate selection process for the national conventions generally, see, Stephen J. Wayne, The Road to the White House, 2000 (New York: Bedford/St. Martin’s, 2000) ch. 4; Nelson Polsby and Aaron Wildavsky, Presidential Elections: Contemporary Strategies of American Electoral Politics (New York: Free Press, 1991) ch. 3. See also, Jewell and Olson, Political Parties and Elections in American States, ch. 8. 42. See, L. Sandy Maisel, ed., Political Parties and Elections in the United States: An Encyclopedia, vol. 2, p. 1029; David E. Price, Bringing Back the Parties (Washington: Congressional Quarterly Press, 1984). 43. Beck, Party Politics in America, 8th ed., ch. 11; Angus Campbell, Philip Converse, Warren Miller, and Donald Stokes, The American Voter (New York: Wiley, 1960), ch. 11; Maisel, Political Parties and Elections in the United States: An Encyclopedia, vol. 2, pp. 760–761, 1039–1040; ACIR, The Transformation in American Politics, pp. 152–153. The use of party-column ballots was apparently to counteract the adoption of the Australian ballot that had encouraged split-ticket voting. See, Jerrold Rusk, “The Effect of the Australian Ballot Reform on Split Ticket Voting: 1876–1908,” 64 American Political Science Review 1220 (1970). As late as 1982, twenty-one states required or allowed a ballot format that facilitated straight-ticket voting; see, Book of the States, 1992–93, p. 104. 44. See, Book of the States, 1992–93, pp. 92–93, 283–328; Jewell and Olson, Political Parties in American States, pp. 154–173; ACIR, The Transformation in American Politics, ch.

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7, and Appendix C; Ruth S. Jones, “State Public Campaign Finances: Implications for Partisan Politics,” 25 American Journal of Political Science 342 (1981). 45. See, Herbert Alexander, Financing Politics: Money, Elections, and Political Reform (Washington: Congressional Quarterly Press, 1976); and his, Reform and Reality: The State and Local Campaign Finance Experience (New York: Twentieth Century Fund Press, 1991); Council on Governmental Ethics Laws, Campaign Finance 1990: Legislation and Litigation (Lexington, KY: Council of State Governments, 1990); Cynthia C. Colella, “Intergovernmental Aspects of F.E.C.A.: State Parties and Campaign Finance,” 74 National Civic Review 265 (1985); Robert Huckshorn, “Who Gave It? Who Got It? The Enforcement of Campaign Finance Laws in the States,” 1985 Journal of Politics 773; Frank J. Sorauf, Money in American Elections (Boston: Scott, Foresman, 1988). 46. This figure was calculated from, The Book of the States, 1992–93, Table 5.10, pp. 294–303. I have included here those states requiring filing from the “party,” “party committees” and “party executive committees.” The states vary greatly in this requirement, some requiring filing if a specified amount of money is involved. 47. This figure calculated from, The Book of the States, 1992–93, Table 5.11, pp. 304–309. 48. This number calculated from, The Book of the States, 1992–93, Table 5.14, pp. 326–328. 49. Wayne, The Road to the White House, 2000 (New York: Bedford/St. Martin’s, 2000) pp. 44–45. In 1984, the two major party public finance limit was $60.6 million, with another $8.1 million going to the party conventions. See, Gary King and Lyn Ragsdale, The Elusive Executive: Discovering Statistical Patterns in the Presidency (Washington: Congressional Quarterly Press, 1988) p. 476. 50. There is an extensive literature on the evolution of political parties in the United States and their changing contributions over history, see, for example, Charles E. Merriam, The American Party System (New York: Macmillan, 1923); Edward M. Sait, Political Parties in America (New York: Century Company, 1927); Harold Bruce, American Parties and Politics (New York, Henry Holt, 1927). Discussions of more recent developments in the political role of parties can be found in: L. Sandy Maisel, ed., The Parties Respond: Changes in the American Party System (Boulder, CO: Westview, 1990); Robert Goldman, ed., Political Parties in the Eighties (Washington: American Enterprise Institute, 1980); Richard McCormick, Political Parties and the Modern State (New Brunswick, NJ: Rutgers University Press, 1984) pp. 71–85; Joel Silbey, The American Political Nation, 1838–1893 (Stanford, CA: Stanford University Press, 1991). On the evolving role of party organizations, see, Paul S. Herrnson, “National Party Organizations at the Century’s End,” in L. Sandy Maisel, ed., The Parties Respond, 3rd ed. (Boulder, CO: Westview Press, 1998). 51. Joel H. Silbey, “The Rise and Fall of American Political Parties 1790–1990,” in Maisel, The Parties Respond, 2nd ed., p. 4. 52. Political developments during this period are discussed in: Joel Silbey, “The Rise and Fall of American Political Parties 1790–2000,” in Maisel, The Parties Respond, 3rd ed. (Boulder, CO: Westview Press, 1994) pp. 3–19. See also, Richard L. McCormick, The Second American Party System: Party Formation in the Jacksonian Era (Chapel Hill, NC: University of North Carolina Press, 1967); William Gienapp, The Origins of the Republican Party, 1852–1856 (New York: Oxford University Press, 1987); Joel H. Silbey, The American Political Nation, 1838–1993 (Stanford, CA: Stanford University Press, 1991); Joel H. Silbey, The Partisan Imperative: The Dynamics of American Political Parties Before the Civil War (Oxford: Oxford University Press, 1985); Harry L. Watson, Jacksonian Politics and Community Conflict (Baton Rouge, LA: Louisiana State University Press, 1981); Ronald P. Formisano, The Birth of Mass Political Parties: Michigan, 1827–1861 (Princeton, NJ: Princeton University Press, 1971). 53. Silbey, “The Rise and Fall of American Parties 1790 to 1990,” in Maisel, The Parties Respond, 1st ed., pp. 4, 11–14. 54. For a discussion of the party systems in U.S. history, see, James Sundquist, Dynamics of the Party System (Washington: The Brookings Institute, 1973); Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics (New York: Norton, 1970); and, Everett Carll Ladd, American Political Parties: Social Change and Political Responses (New York: Norton, 1970).

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55. See, J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-Party South, 1880–1910 (New Haven, CT: Yale University Press, 1974). 56. See, Michael McGerr, The Decline of Popular Politics (New York: Oxford University Press, 1986). 57. Jeffrey Abramson, F. Christopher Arterton, and Gary R. Orren, The Electronic Commonwealth: The Impact of New Media Technologies on Democratic Politics (New York: Basic Books, 1988); Thomas Dye, Harmon Zeigler, and S. Robert Lichter, American Politics in the Media Age, 4th ed. (Pacific Grove, CA: Brooks/Cole Publishing, 1992). 58. Samuel J. Eldersveld and Hanes Walton, Political Parties in American Society, 2nd ed. (Boston: Bedford/St. Martin’s, 2000), ch. 2; Silbey, “The Rise and Fall of American Political Parties, 1790 to 1990,” in Maisel, The Parties Respond, 2nd ed., pp. 14-17; Richard Jensen, “The Last Party System: Decay of Consensus, 1932–1980,” in Paul Kleppner, ed., The Evolution of American Electoral Systems (Westport, CT: Greenwood Press, 1981); Theodore Lowi, The End of Liberalism: The Second Republic in the United States (New York: Norton, 1979). 59. Walter Dean Burnham, The Current Crisis in American Politics (New York: Oxford University Press, 1982). 60. Angus Campbell et al., The American Voter (New York: John Wiley and Sons, 1960); Norman Nie, Sidney Verba, and John Petrocik, The Changing American Voter (Cambridge, MA: Harvard University Press, 1976), chs. 10, 16, 20; and, Warren E. Miller and Merrill Shanks, The New American Voter (Cambridge, MA: Harvard University Press, 1996). 61. For a summary of these developments, see, Paul Allen Beck, Party Politics in America, 8th ed., ch. 7. 62. Joel Silbey, “The Rise and Fall of Political Parties, 1790 to 1990,” in Maisel, The Parties Respond, 2nd ed., p. 16. 63. For a description of this shift to non-party actors, see, Gary Orren and William G. Mayer, "The Press, Political Parties, and the Public-Private Balance in Elections," in Maisel, The Parties Respond, (1990) ch. 10. 64. The role of PAC financing has been especially notable in U.S. House of Representative seats where their funding has been about one-quarter of the total in recent years; see William Keefe, Parties, Politics, and Public Policy in America, 8th, 142-145. See also, Frank J. Sorauf and Scott A. Wilson, “Campaigns and Money: A Changing Role for the Political Parties,” in Maisel, The Parties Respond, 1st ed., ch. 9; Gary Jacobson, “Parties and PACs in Congressional Elections,” in Lawrence Dodd and Bruce Oppenheimer, eds., Congress Reconsidered, 3rd ed. (Washington: Congressional Quarterly Press, 1985). See also, Frank J. Sorauf, “Political Parties and the New World of Campaign Finance,” in Maisel, The Parties Respond, 3rd ed. (Boulder, CO: Westview Press, 1998) pp. 225–242, and Paul S. Herrnson, “National Party Organizations at the Century’s End,” in Maisel, The Parties Respond, 3rd ed., pp. 50–82, especially pp. 71–74. 65. Richard Claude, The Supreme Court and the Electoral Process (Baltimore, MD: Johns Hopkins University Press, 1970); Gordon Baker, The Reapportionment Revolution (New York: Random House, 1966); Ward Elliott, The Rise of Guardian Democracy (Cambridge, MA: Harvard University Press, 1974). 66. Laurence Tribe, American Constitutional Law, 2nd ed., § 13–1. 67. Luther v. Borden, 48 U.S. (7 How.) 1 (1849); Laurence Tribe, American Constitutional Law, 3rd ed., § 3–13. 68. Tribe, 3rd ed., § 3–13. 69. Baker v. Carr, 369 U.S. 186 (1962). 70. Id. at 217. 71. E.g., Goldwater v. Carter, 444 U.S. 996, 1002-1006 (Rehnquist, J., concurring) (1979). 72. E.g., Pacific States Telephone and Telegraph Co. v. Oregon, 223 U.S. 118 (1912); Forsyth v. Hammond, 116 U.S. 506, 519–520 (1897); Taylor and Marshall v. Beckham, 178 U.S. 548, 579 (1900). 73. Colegrove v. Green, 328 U.S. 549 (1946). 74. Id. at 554 (1946). 75. 369 U.S. 186 (1962).

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76. Gilligan v. Morgan, 413 U.S. 1 (1973); and, Nixon v. U.S., 506 U.S. 224 (1993). 77. Goldwater v. Carter, 444 U.S. 996 (1979). 78. Davis v. Bandemer, 478 U.S. 109 (1986). 79. U.S. v. Nixon, 418 U.S. 683 (1974). 80. Franklin v. Massachusetts, 505 U.S. 788 (1992). 81. Powell v. McCormack, 395 U.S. 486 (1969); and, U.S. v. Munoz-Flores, 495 U.S. 385 (1990). 82. On the evolution of the freedom of assembly and association, see, David Fellman, The Constitutional Right of Association (Chicago: University of Chicago Press, 1963); Glen Abernathy, The Right of Assembly and Association (Columbia, SC: University of South Carolina Press, 1961); Reena Raggi, “An Independent Right to Freedom of Association,” 12 Harvard Civil Rights-Civil Liberties Law Review, 1 (1977); and, David O’Brien, Constitutional Law and Politics, 4th ed. (New York: Norton, 2000) vol. 2, ch. 5. 83. On the interrelationship among the rights of assembly, speech and petition, see, Thomas v. Collins, 323 U.S. 516, 530 (1945); DeJonge v. Oregon, 299 U.S. 353, 364 (1937); Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 222 (1967). For a summary of the expansion of this freedom, see, David O’Brien, Constitutional Law and Politics, 4th ed. (New York: Norton, 2000) vol. 2, ch. 5; J.W. Peltason, Understanding the Constitution, 14th ed. (New York: Harcourt, Brace, 1997) pp. 265–269; Tribe, American Constitutional Law, 2nd ed. (Mineola, NY: Foundation Press, 1988) § 12–26; and, Healy v. Jones, 408 U.S. 169 (1972) 84. De Jonge v. Oregon, 299 U.S. 353, 364 (1937). 85. De Jonge v. Oregon, 299 U.S. 353 (1937); and, NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). 86. See, Ray v. Blair, 343 U.S. 214 (1952); and, Williams v. Rhodes, 393 U.S. 23 (1968). In Sweezy v. New Hampshire, 354 U.S. 234, 250–251 (1957) the Court recognized an associational freedom in the context of political parties and individuals wishing to participate in these political organizations. Chief Justice Warren stated for the Court: “This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” In NAACP v. Alabama, 357 U.S. 449 (1958), the Court applied a broadened concept of free association to the NAACP and recognized that this freedom was part of Fourteenth Amendment due process. See also, J.W. Peltason, Understanding the Constitution, 14th ed. (New York: Harcourt Brace, 1997) pp. 266. In LaRouche v. Fowler, 77 F. Supp. 2d 80, 88–89 (D.D.C. 1999), the Court reviews the evolution of the freedom of association s it is applied to political parties. 87. The Court struck a state attempt to deny public employment to someone who refused to take a loyalty oath in, Wieman v. Updegraff, 344 U.S. 183 (1952); and applied the freedom to cases involving membership in state bars in, Konigsberg v. State Bar of California, 366 U.S. 36 (1961); and, Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232 (1957). 88. The freedom was applied to labor unions in, International Association of Machinists v. Street, 367 U.S. 740 (1961); and, Brotherhood of Railway Trainmen v. Virginia State Bar, 377 U.S. 1 (1964). The Court extended the freedom to public interest groups in, NAACP v. Button, 371 U.S. 415 (1963). The freedom was also recognized as including married couples by the Court in, Griswold v. Connecticut, 381 U.S. 479 (1965). 89. 419 U.S. 477, 487 (1975). 90. Tribe, American Constitutional Law, 2nd ed., § 12–26. 91. Compare, United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971) (Court upheld right of labor union to provide members with costs of legal representation as a group protected by free association) and, Garcia v. Texas State Board of Medical Examiners, 358 F. Supp. 1016 (W.D. Texas 1973) vacated and remanded 492 F.2d. 131 (5th Cir. 1974), 384 F. Supp. 434 (W.D. Texas 1974), affirmed, 421 U.S. 995 (1975) (statute barring formation by lay community health group to provide medical services upheld despite free association claims). 92. 454 U.S. 290 (1981). 93. Id. at 295.

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94. Id. at 296. 95. United Mine Workers v. Illinois State Bar Association, 330 U.S. 258 (1947); NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama, 357 U.S. 449 (1958). 96. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roberts v. Jaycees, 468 U.S. 609 (1984). 97. See, Jack W. Peltason, Understanding the Constitution, 14th ed., p. 267; Norman v. Reed, 502 U.S. 279 (1992); Board of Illinois Elections v. Socialist Workers Party, 440 U.S. 173 (1983). 98. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 215 (1986); Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1952). On the comparison between the association rights of individual party members and those of the party itself, see, Mark E. Rush, “Voters’ Rights and the Legal Status of American Political Parties,” 9 Journal of Law and Politics 487(1993); Daniel Hays Lowenstein, “Associational Rights of Major Political Parties: A Skeptical Inquiry,” 71 Texas Law Review 1741 (1993); Gary L. Scott and Craig L. Carr, “Political Parties Before the Bar: The Controversy Over Associational Rights,” 5 University of Puget Sound Law Review 267 (1982); E.E. Schattschneider, Party Government (NY: Farra and Rinehart, 1942) pp. 55–56; and, McCleskey. 99. Bullock v. Carter, 405 U.S. 134 (1972). 100. See the discussion in, LaRouche v. Fowler, 77 F. Supp. 2d. 80, 88–89 (D.D.C. 1999). The major association decisions involving parties during this time period were: Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 109 (1981) (in ruling that the national party has the right to recognize convention delegates, the Court noted that “the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.” ); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 229 (1986) (the Court upheld a party challenge to a state law requiring closed primaries finding that such legislation impermissibly burdened the associational rights of both the party and its members.); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 224–225 (1989) (striking California’s ban on pre-primary endorsements by the party organization as a unconstitutional burden on the right of association). But see, Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (Court upheld Minnesota’s ban on fusion ballots, finding that it did not severely burden the party’s right of association). 101. See discussion in Chapter Two on the regulation of state party committees by the states. 102. E.g., Smith v. Allwright, 321 U.S. 649 (1944). 103. Many courts have held that party membership and internal governance issues implicate “core activities” and cannot be infringed by government without sufficient justification. See, LaRouche v. Fowler, 77 F. Supp.2d 80, 89 (D.D.C. 1999); and, Timmons v. Twin Cities Area New Party, 520 U.S. 351, 360 (1997). See, also, LaRouche v. Fowler, 152 F.3d 974, 996 (D.C. Cir. 1999) ([T]he party’s ability to define who is a ‘bona fide Democrat’ is nothing less than the Party’s ability to define itself.”); and, Laurence Tribe, American Constitutional Law, 2nd ed., § 12–2, p. 791. 104. Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). 105. 479 U.S. 208, 215 (1986). 106. For example, see Duke v. Cleland, 783 F. Supp. 600 (N.D. Georgia 1992); Duke v. Smith, 784 F. Supp. 865 (S.D. Fla. 1992); and, Chapter Three. 107. Duke v. Smith, 784 F. Supp. 865, 867 (S.D. Fla. 1992). 108. See, e.g., California v. Jones, 530 U.S. 567 (2000). 109. See chapter 4, infra. 110. Paul Allen Beck, Political Parties in America, 8th ed., p. 198. 111. William Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington: Congressional Quarterly Press, 1998) p. 81; Paul Allen Beck, Party Politics in America, 8th ed. (New York: Longman, 1996) pp. 198, 205–208. 112. Today there is a quite a variety of types of “open” primaries, see, Keefe, Parties, Politics, and Public Policy in America, 8th ed., pp. 83–87; L. Sandy Maisel, Parties and

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Elections in America, 3rd ed. (New York: Rowman and Littlefield, 1999) p. 200; and, Chapter Three, infra. 113. Paul Allen Beck, Political Parties in America, 8th ed., p. 136. 114. Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). On the open primary generally, see, Beck, Party Politics in America, 8th ed., pp. 202-203. 115. E.g., Marchioro v. Chaney, 442 U.S. 191, 194 (1979); Fahey v. Darigan, 405 F. Supp. 1386, 1394-95 (D.R.I. 1975); Louisiana Republican Party v. Foster, 674 So. 2d 225, 226 (La. 1996); Heitmanis v. Austin, 899 F.2d 521, 529 (6th Cir. 1990). 116. Buckley v. Valeo, 424 U.S. 1, 13–23 (1976). 117. Cousins v. Wigoda, 419 U.S. 477, 487 (1975); Buckley v. Valeo, 424 U.S. 1 (1976); Brown v. Socialist Workers 74 Campaign Committee, 459 U.S. 87 (1982). 118. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 224 (1989). On the topic of party endorsements, generally, see, Malcolm Jewell and David Olson, Political Parties and Elections in American States, pp.100–104. 119. U.S. Constitution, Amendment XIV, section 1. While the Fourteenth Amendment by its own terms is applicable to the states, the Supreme Court has found that the due process clause of the Fifth Amendment is analogous and therefore the principles of equal protection apply equally to the federal government. Bolling v. Sharpe, 347 U.S. 497 (1954). 120. See Henry Abraham, Freedom and the Court, 5th ed. (New York: Oxford University Press, 1988) ch. 7; and, Derrick A. Bell, Race, Racism, and American Law, 2nd ed. (Boston: Little, Brown, 1980). 121. See, Slaughter-House Cases, 16 Wall (83 U.S.) 36 (1973), Virginia v. Strauder, 100 U.S. 303 (1880). The principles of equal protection were extended to racial discrimination generally in Yick Wo v. Hopkins, 118 U.S. 356 (1886). 122. Paul G. Kauper and Francis X. Beytagh, Constitutional Law: Cases and Materials (Boston: Little, Brown, 1980) ch. 8. 123. 304 U.S. 144, 153 n. 4 (1938). 124. See, David O’Brien, Constitutional Law and Politics, 4th ed. (New York: Norton, 2000) vol. 2, ch. 12. 125. For example, Smith v. Allwright, 321 U.S. 649 (1944); Shelley v. Kraemer, 334 U.S. 1 (1948); Cooper v. Aaron, 358 U.S. 1 (1958); and, Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). 126. Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73 (1932). 127. Grovey v. Townsend, 295 U.S. 45, 52 (1935). See also, Nixon v. Condon, 286 U.S. 73, 92–93 (1932) (McReynolds, J. dissenting); Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 522 (1930). But see, Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947) cert. denied 333 U.S. 875 (1948). 128. For example, Smith v. Allwright, 321 U.S. 649 (1944); and, Terry v. Adams, 345 U.S. 461 (1953). See also, David O’Brien, Constitutional Law and Politics, 4th ed. (New York: Norton, 2000) pp. 862–902. 129. 12942 U.S.C. § 1971 et seq. 130. See, Craig R. Ducat and Harold W. Chase, Constitutional Interpretation, 2nd ed. p. 736; Craig Ducat, Constitutional Interpretation, 6th ed. (New York: West Publishing, 1996) ch. 14. 131. For example, see, Gordon Baker, The Reapportionment Revolution (New York: Random House, 1966); and, David O’Brien, Constitutional Law and Politics, 4th ed. (New York: Norton, 2000) vol. 1, ch. 8. 132. See, Gomillion v. Lightfoot, 364 U.S. 339 (1960); Baker v. Carr, 369 U.S. 186 (1962); Reynolds v. Sims, 377 U.S. 533 (1964); Paul G. Kauper and Francis X. Beytagh, Constitutional Law: Cases and Materials (Boston: Little, Brown, 1980) ch. 8; and, David O’Brien, Constitutional Law and Politics, 4th ed., vol. 2, ch. 8. 133. Davis v. Bandemer, 478 U.S. 109 (1986); Morse v. Republican Party of Virginia, 517 U.S. 186 (1996); Smith v. Boyle, 144 F.3d 1060 (7th Cir. 1998); LaPorte County Republican Central Committee v. Board of Commissioners of County of LaPorte, 851 F. Supp. 340 (N.D. Indiana, 1994). 134. See, David O’Brien, Constitutional Law and Politics, 4th ed., vol. 1, ch. 12.

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135. For an excellent broader discussion of the link between voting and democracy, see, Denise L. Baer and David A. Bositis, Politics and Linkages in a Democratic Society (Englewood Cliffs, NJ: Prentice Hall, 1993) pp. 71–97. 136. James Madison, The Federalist Papers, no. 10, ed. by Garry Willis (New York: Bantam Books, 1982) pp. 46–47. 137. David O’Brien, Constitutional Law and Politics, 4th ed., vol. 1, ch. 8. 138. U.S. Constitution, Art. I §§ 2, 4. See also, Kusper v. Pontikes, 414 U.S. 51, 57 (1973). 139. U.S. Constitution Art. I, § 4. 140. Constitutional amendments that have effected the right to vote: XIV (1868) which apportioned representatives among the states; included the equal protection clause which became an important tool for Blacks and then other groups seeking equal access to voting and other forms of political participation; and, laid the groundwork for incorporation of other federal voting rights to the states via the due process clause; XV (1870) which extended the franchise to Black males; XIX (1920) which gave women the vote; XXIV (1964) which abolished the poll tax in federal elections; and, XXVI (1971) which gave 18-year-olds the right to vote. 141. Smith v. Allwright, 321 U.S. 649 (1944). 142. See, U.S. v. Classic, 313 U.S. 299 (1941); and, Ex Parte Yarbrough, 110 U.S. 651 (1884). See also, Tribe, American Constitutional Law, 2nd ed., §§ 16–6, 16–7, and 16–10. 143. The 1964 Civil Rights Act and the 1965 Voting Rights Act were both based in part on equal protection, the commerce power of Congress, and the XVth Amendment right to vote. See, South Carolina v. Katzenbach, 383 U.S. 301 (1966). The court battle over the franchise of Black voters culminated in the 1960s in a series of Supreme Court cases, including: Harman v, Forssenius, 380 U.S. 578 (1965), Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), Katzenbach v. McClung, 379 U.S. 294 (1964), Heart of Atlanta Hotel, Inc. v. U.S., 379 U.S. 241 (1964), Peterson v. Greenville, 373 U.S. 244 (1963); Alabama v. U.S., 371 U.S. 37 (1962); Louisiana v. U.S., 380 U.S. 145 (1965); and, U.S. v. Thomas, 362 U.S. 58 (1960). 144. For example, Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962); and, Gomillion v. Lightfoot, 364 U.S. 339 (1960). 145. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). 146. See, O’Brien, Constitutional Law and Politics, 4th ed., vol. 1, ch. 8 and vol. 2, ch. 4; and, Henry Abraham, Freedom and the Court, ch. 3. 147. The Court nationalized the freedom of speech in 1927 in, Fiske v. Kansas, 274 U.S. 380; the freedom of assembly in 1937 with its decision in, DeJonge v. Oregon, 299 U.S. 353; and the freedom of association in 1958 with, N.A.A.C.P. v. Alabama, 357 U.S. 449. 148. Laurence Tribe, American Constitutional Law, 3rd ed., § 5–15. Civil Rights Cases, 109 U.S. 3 (1883); U.S. v. Harris, 106 U.S. 629 (1882); and, James v. Brown, 190 U.S. 127 (1903). 149. For example, Grovey v. Townsend, 295 U.S. 45 (1935). 150. See, Katzenbach v. McClung, 379 U.S. 241, 279–286 (1964) (Goldberg, J., concurring) and 291-293 (Douglas, J. concurring). 151. South Carolina v. Katzenbach, 384 U.S. 641 (1965); U.S. v. Guest, 383 U.S. 745, 755756 (1965); Heart of Atlanta Motel v. McClung, 379 U.S. 241, 282–283 (1964) (Douglas, J. concurring) (1964). Compare, District of Columbia v. Carter, 409 U.S. 418 (1973); Jones v. Alfred H. Mayer Co., 255 F. Supp. 115 (E.D. Mo. 1961), affirmed, 379 F. 2d 33, 38–41 (8th Cir. 1967); and, Shelley v. Kraemer, 334 U.S. 1, 14–18 (1947). 152. For a history of the expansion of the state action doctrine to the mid-1960s, see, Jones v. Alfred. H. Mayer Co., 379 F. 2d 33, 40–42 (1967). Another good summary of the historical development of the state action doctrine can be found in, LaRouche v. Fowler, 152 F.3d 974, 988–993 (D.C. Cir. 1998). On the decline of the state action doctrine, see, Charles L. Black, “The Supreme Court–Forward,” 81 Harvard Law Review 69, 95–100 (1967); John Silard, “A Constitutional Forecast: Demise of the ‘State Action’ Doctrine Limit on the Equal Protection Guarantee,” 66 Columbia Law Review 855 (1966); and, Jerre S. Williams, “The Twilight of State Action,” 41 Texas Law Review 347 (1963). 153. 273 U.S. 536 (1927). 154. Nixon v. Condon, 286 U.S. 73 (1932). 155. 372 U.S. 368, 374–375 (1963).

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156. Irish v. Democratic-Farmer-Labor Party of Minnesota, 287 F. Supp 794, 800-803 (D. Minn. 1968). 157. Id. at 802–803, 805. 158. Lynch v. Torquato, 343 F. 2d 370, 372 (3rd Cir. 1965) (holding that normal party activities, other than primaries, do not involve state action, distinguishing between party’s “internal affairs” and state action by type of party function); Smith v. State Executive Committee of Democratic Party of Georgia, 288 F. Supp. 371, 374 (N.D. Georgia, 1968) (actions of party’s state chairman not state action for purposes of federal jurisdiction); Georgia v. National Democratic Party, 447 F.2d 1271, 1275 (D.C. Cir. 1971) (collective action of party’s delegates at convention are state action but party may deviate from one-man, one-vote rule in apportionment of delegates among the states); Bode v. National Democratic Party, 452 F. 2d. 1302, 1304-05 (D.C. Cir. 1971) (same); Redfearn v. National Republican Party, 502 F. 2d 1123, 1127 (3rd Cir. 1974) (party’s convention involves state action for purposes of Fourteenth Amendment and civil rights laws, but district court’s injunction here violated party’s First Amendment rights); Ripon Society v. National Republican Party, 525 F. 2d 548, 586-588 (D.C. Cir. 1975) (even if state action applied equal protection to delegate selection process it does not bar party’s delegate selection scheme if it is rational and lacks invidious discrimination). And more recently, Valenti v. Pennsylvania Democratic State Committee, 844 F. Supp. 1015, 1017 (M.D. Penn. 1994) (decision of party’s state committee barring candidate from distributing literature did not amount to state action for § 1983 lawsuit and was an intrusion into “internal affairs” of party). 159. One federal district court confessed that they were still confused on this matter as recently as 1998: “Unfortunately, the question of whether… the rules of political parties constitute state action has not become clearer since Ripon [1975].” LaRouche v. Fowler, 152 F.3d 974, 990 (D.C. Cir. 1998). 160. For a discussion of the place of political parties in a democratic form of government, see, Denise L. Baer and David A. Bositis, Politics and Linkage in a Democratic Society (Englewood Cliffs, NJ: Prentice Hall, 1993), ch. 3; E.E. Schattschneider, Party Government (New York: Farrar and Rinehart, 1942); Samuel Eldersveld and Hanes Walton, Political Parties in American Society, 2nd ed (Boston: Bedford/St. Martin’s, 2000), ch. 1; Gerald Pomper, Voters, Elections, and Parties: The Practice of Democratic Theory (New Brunswick, NJ: Transaction Books, 1988); and, V.O. Key, Politics, Parties, and Pressure Groups, 5th ed. (New York: Thomas Crowell, 1964). 161. Some of the earliest discussions of the legal regulation of political parties are: G. Theodore Mitau, “Judicial Determination of Political Party Organizational Autonomy,” 42 Minnesota Law Review 245–268 (1957); H.G. Nicholas, “Political Parties and the Law in the United States,” 2 Political Studies 258–270 (1954); Joseph R. Starr, “Legal Status of American Political Parties, I” 34 American Political Science Review 439–455 (1940); and, Leonard M. Friedman, “Reflecting Upon the Law of Political Parties,” 44 California Law Review 65 (1956). 162. For a cross-national evaluation of the role of political parties in transitioning to democracy, see, Brian Lai and Ruth Melkonian-Hoover, “Democratic Progress and Regress: The Effect of Parties on the Transition of States to and Away from Democracy,” 58 Political Research Quarterly 551 (2005). On the dearth of scholarly discussion of the role of parties in democratic government, see Ingrid van Biezen and Michael Saward, “Democratic Theorists and Party Scholars: Why They Don’t Talk to Each Other, and Why They Should,” 6 Perspectives on Politics 21 (March 2008). See, e.g., Samuel J. Eldersveld and Hanes Walton, Political Parties in American Society, 2nd ed. (Boston: Bedford/St. Martin’s, 2000) ch. 1; and, E.E. Schattschneider, Party Government (NY: Rinehart, 1942). 163. See, e.g., Republican Party of Arkansas, v. Faulkner County, Arkansas, 49 F.3d 1289, 1295 (8th Cir. 1995). 164. E. E. Schattschneider, The Semisovereign People (New York: Holt, Rinehart, and Winston, 1960) p. 141; V.O. Key, Politics, Parties and Pressure Groups, 5th ed. (New York: Thomas J. Crowell, 1964); Anthony Downs, Economic Theory of Democracy (New York: Harper, 1957); Kay Lawson, ed., Political Parties and Linkage (New Haven, CT: Yale University Press, 1980) ch.1; David Robertson, A Theory of Party Competition (New York: John Wiley and Sons, 1976) ch. 1; Denise L. Baer and David A. Bositis, Politics and Linkage in a Democratic Society (Englewood Cliffs, NJ: Prentice Hall, 1993) pp. 56–66.

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165. For more extended discussions of the separation of powers doctrine, here and abroad, see, Michael J. Malbin, “Political Parties Across the Separation of Powers,” in Peter W. Schramm and Bradford P. Wilson, eds., American Political Parties and Constitutional Politics (Lanham, MD: Rowman and Littlefield, 1993) pp. 75–90; M.J.C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis: Liberty Fund, 1998); Bruce G. Peabody and John D. Nugent, “Toward a Unifying Theory of the Separation of Powers,” 53 American University Law Review 1 (2003); and, Gerhard Casper, Separating Power (Cambridge, MA: Harvard University Press, 1997). 166. See, Leon Epstein, Political Parties in the American Mold (Madison, WI: University of Wisconsin Press, 1986), ch. 6, where he describes political parties as “quasi-governmental agencies” or “public utilities.” 167. On the role of parties generally in a democracy, see, John H. Aldrich, Why Parties? The Origin and Transformation of Political Parties in America (Chicago: University of Chicago, 1995) ch. 1. On the role parties play in Congress, see, Steven S. Smith, The American Congress, 2nd ed. (Boston: Houghton Mifflin, 1999) ch. 6. 168. Parties thus inject ordinary private citizens into the electoral process in the same way juries do in the judicial process, with some of the same benefits. See Henry R. Glick, Courts, Politics, and Justice, 2nd ed. (New York: McGraw Hill, 1988) p. 204. (“When juries were new, citizen participation was seen as an important safeguard against arbitrary executive or judicial power. It still does that today, but it also may encourage general respect and support for courts, since decisions are made by fellow citizens.”) 169. For descriptions of the dynamics and problems of governing within a system of separated powers, see, Louis Fisher, Constitutional Conflicts Between Congress and the President (Princeton, NJ: Princeton University Press, 1985); Charles O. Jones, ed., Separate But Equal Branches: Congress and the Presidency (Chatham, NH: Chatham House, 1995); and, Lance T. LeLoup and Steven A. Shull, President and Congress: Collaboration and Combat in National Policymaking (Boston: Allyn and Bacon, 1999). On the tension that exists between our constitution and party system, see, John Zvesper, “American Political Parties and Constitutional Government” in, Richard Maidment and John Zvesper, eds., Reflections on the Constitution: The American Constitution After Two Hundred Years (New York: Manchester University Press, 1989) ch. 7; and, James Q. Wilson, “Political Parties and the Separation of Powers,” in Robert A. Goldwin and Art Kaufman, eds., Separation of Powers—Does It Still Work? (Washington: American Enterprise Institute for Public Policy, 1986) pp. 18. And on how the separation of powers has been exacerbated during periods of “divided government” see, Gary W. Cox and Samuel Kernell, The Politics of Divided Government, 2nd ed. (Boston: Allyn and Bacon, 1996); David W. Brady, “The Causes and Consequences of Divided Government: Toward a New Theory of American Government,” 87 American Political Science Review 189 (1993); and, Morris Fiorina, Divided Government, 2nd ed. (Boston: Allyn and Bacon, 1996). 170. See, e.g., Lloyd Cutler, “Some Reflections About Divided Government,” 18 Presidential Studies Quarterly 485 (1988); Woodrow Wilson, Congressional Government (Baltimore: Johns Hopkins, 1981); Henry Jones Ford, The Rise and Growth of American Politics (New York: Macmillan, 1898); Steven Calabresi, “Political Parties as Mediating Institutions,” 61 University of Chicago Law Review 1479–1533 (Fall 1994); James L. Sundquist, Constitutional Reform and Effective Government (Washington: Brookings Institution, 1992) pp. 230; and, James MacGregor Burns, The Deadlock of Democracy: Four-Party Politics in America (Englewood Cliffs, NJ: Prentice Hall, 1963). 171. For a description of the role of responsible parties in government, see, Committee on Political Parties, “Toward a More Responsible Two-Party System,” 44 American Political Science Review supp. 1 (1950); and, William J. Keefe, Parties, Politics and Public Policy in America, 8th ed., ch. 7. 172. For a discussion of the role of the judiciary in American government, see, Alexander M. Bickel, The Least Dangerous Branch, 2nd ed. (New Haven, CT: Yale University Press, 1986), ch. 1; Jesse H. Choper, Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980); Jack W. Paltason, Understanding the Constitution, 14th ed. (New

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York: Harcourt Brace, 1997) pp. 24–28; and, John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980). Major Supreme Court decisions dealing with the separation of powers include: Springer v. Philippine Islands, 277 U.S. 189, 201–202 (1928); Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579, 635 (1952); U.S. v. Nixon, 418 U.S. 683, 707 (1974); Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977); Kilbourn v. Thompson, 103 U.S. 168, 190–193 (1880); O’Donoghue v. U.S., 289 U.S. 516, 530–536 (1932); Loving v. U.S., 517 U.S. 748, 756–774 (1996); Mistretta v. U.S., 488 U.S. 361, 380–381 (1989); and, Clinton v. Jones, 520 U.S. 681, 697–706 (1997). On the importance of a detached and neutral judiciary in the warrant process, see, Coolidge v. New Hampshire, 403 U.S. 443, 449-453 (1971). 173. See, James Madison, Federalist Papers (New York: Bantam Books, 1982) no. 48, and Alexander Hamilton, nos. 78, and 79; U.S. Declaration of Independence, paragraphs 10-11. The Declaration of Independence recognized the importance of independent judicial power in charging King George III with failing to establish judicial power and making judges “dependent on his Will alone.” The separation of powers system was ultimately built into the Constitution and supported by the system of “checks and balances” as well as by different terms of office and different constituencies for each of the three branches’ personnel. See also, Justice Frankfurter’s description of an independent judiciary in, Dennis v. U.S., 341 U.S. 494, 525 (1951) (Frankfurter, J. concurring) and, Stephen G. Breyer, “Judicial Independence in the United States,” 40 Saint Louis University Law Journal 989 (Summer 1996). 174. O’Donoghue v. U.S., at 530. 175. U.S. Constitution, Art. III sec. 1 (service during “good behaviour” and salary nondiminution clause), Art. III sec. 2 (judicial power generally), Art. II sec. 4 (impeachment process); Art. II sec. 2 (appointment process) 176. See, Corpus Juris Secundum (St. Paul, MN: West Publishing, 1981 and Supplement 1999) vol. 48A, Judges § 86; Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 347–348 (1873); and, Forrester v. White, 484 U.S. 219, 225–229 (1988). 177. 1 Cranch (5 U.S.) 137, 177 (1803). 178. See, Leon Epstein, Parties in the American Mold, (Madison, WI: University of Wisconsin Press, 1986) ch. 6. 179. The Constitution appears to foresee the establishment of a federal bureaucracy in Article II, § 2, cl. 1, where it states that, “The President . . . may require the Opinion, in writing, of the principal Officers in each of the Executive Departments. . . .”; and again in Article II, sec. 2, cl. 2, concerning the appointment of “Officers of the United States” by the president. For a full description of the rise of the bureaucracy in this country, see, Peter Woll, American Bureaucracy, 2nd ed. (New York: Norton, 1977). 180. For a discussion of the “public interest” standard as a guide for bureaucratic decisionmaking, see, Bernard Schwartz, Administrative Law, 2nd ed. (Boston: Little, Brown, 1984) § 2.7; and, Kenneth F. Warren, Administrative Law in the Political System, 3rd ed. (Upper Saddle River, NJ: Prentice Hall, 1996) pp. 109–124. The Supreme Court has recognized the importance of this standard in, New York Central Securities Corp. v. United States, 287 U.S. 12 (1932); American Trucking Association v. Atchison, Topeka and Santa Fe Railway Co., 387 U.S. 397, 421–422 (1967); National Cable Television Association v. United States, 415 U.S. 336, 341 (1974); and, Humphrey’s Executor v. U.S., 295 U.S. 602 (1935). 181. See, Woodrow Wilson, “The Study of Administration,” and David H. Rosenbloom, “Public Administrative Theory and the Separation of Powers,” both in Jay M. Shafritz and Albert C. Hyde, eds., Classics of Public Administration, 3rd ed. (Pacific Grove, CA: Brooks/ Cole, 1992) pp. 11–24, 510–522. 182. There have been numerous efforts, both legislative and judicial, to “de-politicize” the federal bureaucracy. For example, the Hatch Act, 5 U.S.C. §§ 1501-1503 (1994), which is discussed in this context by John E. Theuman, “Public Employee’s Rights of Free Speech Under Federal Constitution’s First Amendment—Supreme Court Cases,” 97 L.Ed.2d 903–926 (1989). Some Provisions of the Administrative Procedure Act, 5 U.S.C. §§ 1101–1011 (1994), were also designed to ensure that agency decisions are taken on apolitical, or at least nonpartisan, grounds.

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183. See, e.g., Richard Hofstadter, The Age of Reform: From Bryan to FDR (New York: Knopf, 1955), and, The Progressive Movement, 1900–1915 (Englewood Cliffs, NJ: Prentice Hall, 1963). 184. Burdick v. Takushi, 504 U.S. 428, 433 (1992); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986); American Party of Texas v. White, 415 U.S. 767, 781 (1974); and, Jenness v. Fortson, 403 U.S. 431, 442 (1971). 185. U.S. Constitution, Article I, § 4. See also, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 222 (1974); and, Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986). The U.S. Constitution specifically reserves the following electoral functions to the states: qualifications for voting for the House of Representatives which must be identical to those for the more numerous branch of the state’s legislature (Art. I, § 2, cl. 1); the time, place, and manner of holding congressional elections are to be prescribed by each state legislature, subject to congressional legislation (Art. I, § 4, cl. 1). See relevant discussion in, United States v. Classic, 313 U.S. 299, 315 (1941). 186. See, for example, Storer v. Brown, 415 U.S. 724, 733, 736 (1974) (“integrity of various routes to the ballot”), Libertarian Party v. Secretary of State, 817 P.2d 998, 1004 (Colo. 1991) (“maintain integrity of ballot access system”); Kusper v. Pontikes, 414 U.S. 51, 59–60 (1973) (“integrity of the electoral process”); Rosario v. Rockefeller, 410 U.S. 752, 761 (1973) (“protect and preserve integrity of nomination process”); American Party of Texas v. White, 415 U.S. 767, 786, and 779–780 (1974) (“integrity of party primary elections”); Nader v. Schaffer, 417 F. Supp. 837, 845 (D. Conn. 1976) (“integrity of process, including preserving parties as viable and indentifiable groups”); Bullock v. Carter, 405 U.S. 134, 145 (1972 ); and, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 231 (1989). See also, American Party of Texas v. White, 415 U.S. 767, 790 (1974); Lubin v. Panish, 415 U.S. 709, 715 (1974); Jenness v. Fortson, 403 U.S. 431, 442 (1971); Fahey v. Darigan, 405 F. Supp. 1386, 1395 (D.R.I. 1975); Note, “Primary Elections: The Real Party in Interest,” 27 Rutgers Law Review 298-329 (1974); and, Comment, “The Right to Vote and Restrictions on Crossover Voting,” 40 University of Chicago Law Review 636-660 (1973). 187. See, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 231232 (1989). 188. See, e.g., Storer v. Brown, 415 U.S. 724, 730,733 and 736 (1974). (At 730: “there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather then chaos, is to accompany the democratic process.”) 189. Dunn v. Blumstein, 405 U.S. 330, 343–344 (1972). 190. Oregon v. Mitchell, 400 U.S. 112, 118 (1970). 191. Kramer v. Union Free School District, 395 U.S. 621, 625 (1969). 192. American Party of Texas v. White, 415 U.S. 767, 785–786 (1974). 193. Rosario v. Rockefeller, 410 U.S. 752, 758–761 (1973). 194. Bullock v. Carter, 405 U.S. 134, 145 (1972). 195. 415 U.S. 767, 779–780 (1974). 196. See, e.g., Bentman v. Seventh Ward Democratic Executive Central Committee, 218 A.2d 261, 266 (Penn. 1966). 197. Eu v. San Francisco County Democratic Committee, 792 F.2d 802, 810-811 (9th Cir. 1986). 198. Id. at 810 (9th Cir. 1986). 199. Jenness v. Fortson, 403 U.S. 431, 442 (1971). Compare, Monro v. Socialist Workers Party, 479 U.S. 189, 198-199 (1986); Erum v. Cayetano, 881 F.2d 689, 692-695 (9th Cir. 1989) (State claimed it had traditional interests in “combating unrestrained [party] factionalism”); and, Lightfoot v. Eu, 964 F.2d 865, 871 (9th Cir. 1992). 200. Storer v. Brown, 415 U.S. 724, 735 (1974). 201. E.g., Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992); Lubin v. Panish, 415 U.S. 709, 715 (1974); and, American Party of Texas v. White, 415 U.S. 709, 776–795 (1974). 202. Some courts have indicated a concern with ballot size by saying that various ballot access laws avoid “laundry lists” of candidates. See, e.g., Thournir v. Meyer, 708 F. Supp. 1183, 1186–1187 (Colo. 1989) (to prevent “clogging of the election machinery”); Lubin v. Panish, 415 U.S. 709, 712–713 (1974) (“The desire to limit the size of the ballot has been

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variously phrased as a desire to minimize voter confusion, . . . to limit the number of runoff elections, . . . to curb ‘ballot-flooding’, . . . and to prevent the overwhelming of voting machines.”); and Paul v. State of Indiana Election Board, 743 F. Supp. 616, 624 (S.D. Ind. 1990) (ban on write-ins to avoid “risk that little-known candidates may ride on a storm of popular passion into office before the voters have had a chance to examine and reflect upon his qualifications.”). 203. See, Lubin v. Panish, 415 U.S. 709, 715–716 (1974); Anderson v. Calebrezze, 460 U.S. 780, 796 (1983); Jenness v. Fortson, 403 U.S. 431, 442 (1971); and, Bullock v. Carter, 405 U.S. 134, 145 (1972). States defending filing fees for access to the ballot have raised similar arguments, e.g.: Dixon v. Maryland Administrative Board of Election Laws, 878 F.2d 776, 783 (4th Cir. 1989) (“to help defray the cost of write-in candidacies” and “the requirement helps assure that only serious candidates are accorded official status.”); and, Fulani v. Krevanik, 973 F.2d 1539, 1541 (11th Cir. 1992) (“preventing voter confusion by limiting ballot access to political parties with a significant modicum of support.”). 204. These statutes are also sometimes called “unaffiliation statutes” or “delayed enrollment laws.” 205. On raiding, see discussions in, Rosario v. Rockefeller, 410 U.S. 752, 760–761 (1973); Storer v. Brown, 415 U.S. 724, 734–736 (1974); Kusper v. Pontikes, 414 U.S. 51, 59–60 (1973). Political scientists have found little evidence of organized raiding: see, Alan Abramowitz, John McGlennon, and Ronald Rappoport, “A Note on Strategic Voting in a Primary Election,” 43 Journal of Politics 899 (1981); Garry D. Wekkin, “Why Crossover Voters Are Not ‘Mischievous Voters’: The Segmented Partisanship Hypothesis,” 19 American Politics Quarterly 229–257 (1991). The Supreme Court downplayed the significance of raiding in Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 219 (1986). 206. Nader v. Shaffer, 417 F. Supp. 837, 845 (D. Conn. 1976). See also, Ray v. Blair, 343 U.S. 214, 221–222 (1952); and, Lippitt v. Cipollone, 337 F. Supp. 1405, 1406 (N.D. Ohio 1971). 207. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 231–232 (1989). See the Court’s comparison at 232 note 22 with the Marchioro case where the Supreme Court upheld a Washington statute which simply mandated that political parties create central committees to which the party itself then delegated campaign and policy responsibilities. For a thorough discussion and evaluation of the arguments advanced by states to justify their statutes regulating parties see the opinions generated by the litigation over California’s elaborate regulation of its parties: San Francisco County Democratic Central Committee v. Eu, 792 F.2d 802, 814–820 (9th Cir. 1986); rehearing en banc, 826 F. 2d 814 (9th Cir. 1987), affirmed sub nom., Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 225–233 (1989). 208. Eu v. San Francisco Democratic Central Committee, 489 U.S. 214, 229–233 (1989). 209. There is also a considerable literature on the causes and desirability of “two-partyism” in the United States, see, e.g., William J. Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington: Congressional Quarterly Press, 1998); Paul Allen Beck, Party Politics in America, 8th ed. (New York: Longman, 1997) ch. 2; Denise L. Baer and David A. Bositis, Politics and Linkage in a Democratic Society (Englewood Cliffs, NJ: Prentice Hall, 1993) pp. 65–66, 147–148; and, V.O. Key, Politics, Parties, and Pressure Groups (NY: Crowell Co., 1948) pp. 217–235. 210. See, John W. Epperson, The Changing Legal Status of Political Parties in the United States (NY: Garland Publishing, 1986); James S. Fay, “The Legal Regulation of Political Parties,” 9 Journal of Legislation, 263 (1982); Roy Christman and Barbara Norrander, “Party Deregulation via the Courts: The Case of California,” 6 Journal of Law and Politics, 723 (1990); Clifton McCleskey, “Parties at Bar: Equal Protection, Freedom of Association, and the Rights of Political Organizations,” 46 Journal of Politics 346 (1984). 211. E.g., McConnell v. Federal Election Commission, 540 U.S. 93, 352 (2003) (Rehnquist, C.J., dissenting in part) (“political parties often foster speech critical to a healthy democracy, and fulfill the need for like-minded individuals to ban together and promote a political philosophy.”) 212. Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II) 213 F.3d 1221, 1238 (10th Cir. 2000) (Seymour, J., dissenting) (“[T]here is also

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ample support for the legislative determination that if left unchecked, parties can exert a corrupting influence on democratic processes or, equally importantly, appear to do so.”). 213. This discussion relies on the discussion in, Richard J. Pierce and Ernest Gellhorn, Regulated Industries in a Nutshell (St. Paul, MN: West Publishing Co. 1994), ch. 1. See also, Eliot Jones and Truman C. Bigham, Principles of Public Utilities (New York: Macmillan, 1931). 214. See, e.g., Charles J. Phillips, Jr., The Regulation of Public Utilities: Theory and Practice (Arlington, VA: Public Utilities Reports, 1988); Julia Black, Peter Muchlinski, and Paul Walker, eds., Commercial Regulation and Judicial Review (Evanston, ILL.: Northwestern Univ. Press, 1998); Richard J. Pierce, Economic Regulation (Cincinnati: Anderson Pub. Co. 1994); Henry Clifford, Spurr, Guiding Principles of Public Service Regulation (Washington, DC: Public Utilities Reports, Inc. 1928); Eliot Jones, Principles of Public Utilities (New York: Macmillan, 1931). 215. See, Leon Epstein, Political Parties in the American Mold (Madison: University of Wisconsin, 1986) ch. 5, which traces the historical conversion of parties in this country. See also, Ingrid van Biezen, “Political Parties as Public Utilities,” 10 Party Politics 701 (2004). 216. Epstein, Political Parties in the American Mold (Madison: University of Wisconsin, 1986) pp. 162–174. 217. See, Everett Carll Ladd, American Political Parties (New York: Norton, 1970) pp. 121, 153; Richard Hofstadter, The Age of Reform, p. 169; and, Kenneth MacKay, The Progressive Movement of 1924 (NY: Octagon Books, 1972). 218. Commonwealth v. Rogers, 63 N.E. 421, 423 (Mass. 1902). 219. Epstein, Political Parties in the American Mold, p. 156. 220. See, e.g., Nathaniel Persily, 76 New York Univ. Law Rev. 750, 751, 761 (2001). Others have applied various economic theories and market principles to the analysis of parties, see, e.g., Samuel Issacharoff and Richard H. Pildes, “Law and the Political Process: Politics as Markets: Partisan Lockups of the Democratic process” 50 Stanford Law Review 643 (1998). 221. The benefits of a multi-party political systems has been much debated though there is little experience with this in the American context. 222. See Citizen United v. Federal Election Commission, 558 U.S. 310 (2010). 223. Compare, Nathaniel Persily, “Toward a Functional Defense of Political Party Autonomy,” 76 New York University Law Review 750, 790 (2001) (“intrusion on party autonomy ought to depend on a theory about how American democracy should be organized and about the place of parties in that scheme.”). The use of economic models and concepts have continued to be used by some commentators rely on market principles to place parties in American politics. See, e.g., Samuel Issacharoff and Richard H. Pildes, “Politics as Markets: Partisan Lockups of the Democratic Process,” 50 Stanford Law Review 643 (1998). 224. Judicial opinions explaining the importance of the media in maintaining free speech in a democratic society include: Palko v. Connecticut, 302 U.S. 319, 327 (1937) (Free Speech “is the matrix, the indispensable condition, of nearly every other form of freedom.”); DeJonge v. Oregon, 299 U.S. 353, 364–365 (1937); U.S. v. New York Times Co., 403 U.S. 713, 716–717 (1971) (“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.”); Grosjean v. American Press Co., 297 U.S. 233, 249–251 (1936) (Free press is “basic to the existence of constitutional democracy.”); Branzburg v. Hayes, 408 U.S. 665, 680-681 (1972); Near v. Minnesota, 283 U.S. 697, 722 (1931); Curtis Publishing Co. v. Butts, 388 U.S. 130, 145 (1967); and, Lovell v. Griffin, 303 U.S. 444, 450 (1938). There is a vast scholarly literature on the importance of the First Amendment, see, e.g., Walter Berns, The First Amendment and the Future of American Democracy (Chicago: Gateways Editions, 1985); Zechariah Chafee, Free Speech in the United States (Cambridge, MA: Harvard University Press, 1941); Thomas Emerson, The System of Freedom of Expression (New York: Random House, 1970); David Fellman, The Constitutional Right of Association (Chicago: University of Chicago Press, 1963); Franklyn Haiman, Speech and Law in a Free Society (Chicago: University of Chicago Press, 1981); and, Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (New York: Oxford University Press, 1965).

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225. While the media’s role as informer of the public is important, the courts have usually rejected any claim of a “special privilege” in cases where newspersons refuse to reveal their confidential sources, seek special access to information, or when media coverage of a trial could infringe the rights of the criminally accused. See, Branzburg v. Hayes, 408 U.S. 665, 683 (1972); and, Donald Lively et al., Communications Law: Media, Entertainment and Regulation (Cincinnati, OH: Anderson Publishers, 1997) pp. 26–50. 226. See generally, David M. O’Brien, Constitutional Law and Politics, vol. 2, 8th ed. (New York: Norton, 2011) pp. 623–664; and Zechariah Chafee, Free Speech in the United States (Cambridge, MA: Harvard University Press, 1946). 227. See, e.g., Near v. Minnesota, 283 U.S. 697 (1931); and, New York Times Co. v. U.S., 403 U.S. 670 (1971). The Court has also developed standards for assessing “indirect” prior restraints on the media, see, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972). 228. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). 229. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1 (1978); and David O’Brien, The Public’s Right to Know: The Supreme Court and the First Amendment (New York: Praeger, 1981). 230. Further complicating the placing of parties in American democracy is the fact that parties themselves are often seen as vehicles for political reform. See, e.g., Michael Kang, 91 Iowa Law Review 131, 135 (2005); Richard H. Pildes, “The Constitutionalization of Democratic Politics,” 118 Harvard L. Rev. 28 (2004). See also, Lee Epstein and Charles Hadley, “On the Treatment of Political Parties in the U.S. Supreme Court: 1900–1986,” 52 The Journal of Politics 413 (1990); and, Frank J. Sorauf, “Extra-Legal Political Parties in Wisconsin,” 48 American Political Science Review 692, 692 (1954). 231. “The Federal Courts’ Involvement in the Reform of Political Parties,” 40 The Western Political Quarterly 717 (1987). See also, Lee Epstein and Charles Hadley, “On the Treatment of Political Parties in the U.S. Supreme Court: 1900-1986,” 52 The Journal of Politics 413 (1990). 232. 377 U.S. 533, 565-566 (1964). See also, Elrod v. Burns, 427 U.S.347, 372 (1975) (referring to the “unfettered judgment of each individual citizen.”); and, Bandemer v. Davis, 604 F. Supp.1479, 1496 (citing the “constitutional norm of fair, effective, and equal representation.”). 233. See, e.g., Cousins v. Wigoda, 419 U.S. 477, 490 (1974). 234. The Supreme Court has used this approach, see, Gaffney v. Cummings, 412 U.S. 735, 753 (1973) 235. Moeller, p. 726. 236. See, Samuel Issacharoff and Richard H. Pildes, “Symposium: Law and the Political Process: Politics as Markets: Partisan Lockups of the Democratic Process,” 50 Stanford Law Review 643, 644–-645 (1998). 237. Id. at 645. 238. Justice Scalia has advocated a similar approach based on competition, see, e.g., Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). 239. See, Richard J. Pildes, “Commentary: The Theory of Political Competition,” 85 Virginia Law Review 1605 (1999); Samuel Issacharoff and Richard Pildes, “Politics as Markets: Partisan Lockups of the Democratic Process,” 50 Stanford Law Review 643 (1998); and, Michael S. Kang, “The Bright Side of Partisan Gerrymandering,” 14 Cornell Journal of Law and Public Policy 3 (2005). 240. Nathaniel Persily and Bruce E. Cain, “The Legal Status of Political Parties: A Reassessment of Competing Paradigms,” 100 Columbia Law Review 775 (2000). 241. Id. at 786. 242. Nathaniel Persily, “Toward a Functional Defense of Political Party Autonomy,” 76 New York University Law Review 750 (2001). 243. Persily, at 766. 244. Persily, at 755, 761, 765. 245. Persily, at 750. 246. See Persily at 754, citing the protection against voter discrimination based on race, gender or age derived from the Fifteenth, Nineteenth, and Twenty-sixth Amendments. 247. Persily, at 769.

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248. E.g., Nader v. Schaffer, 429 U.S. 989 (1976). 249. E.g., Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). 250. E.g., Democratic Party v. Wisconsin, 450 U.S. 107 (1981). 251. 530 U.S. 567 (2000). 252. See, Persily at 790 (“the parties’ sui generis organizational character forces a different type of constitutional analysis. Either one takes the Court’s view and erects a superstructure of uncomfortable parallels to truly private organizational expression and association, or one takes a more honest approach that the constitutionality of such intrusions on party autonomy ought to depend on a theory about how American democracy should be organized and about the place of parties in the scheme.”). He describes limited circumstances when state action can be applied to political parties, see, Persily at 756–57, 759–760. 253. Persily, at 793, 798. 254. Persily, at 813. 255. See, e.g., Richard L. Hasen, “Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition,” 1997 Supreme Court Review 331; Daniel R. Ortiz, “Duopoly versus Autonomy: How the TwoParty System Harms the Major Parties,” 100 Columbia Law Review 753 (2000); Adam Winkler, “Voters’ Rights and Parties’ Wrongs: Early Political Regulation in the State Courts, 1886–1915,” 100 Columbia Law Review 873 (2000); and, Richard l. Hasen, “Do the Parties or the People own the Electoral Process?” 149 University of Pennsylvania Law Review 815 (2001). 256. Michael S. Kang, “The Hydraulics and Politics of Party Regulation,” 91 Iowa Law Review 131 (2005). 257. See also, Michael S. Kang, “The Bright Side of Partisan Gerrymandering,” 14 Cornell Journal of Law and Public Policy,” 3 (2005). 258. Id. at 133. 259. Id. at 133. 260. Id. at 155. Kang relies in part on the “hydraulic” theory of party politics from, Samuel Issacharoff and Pamela Karlan, “The Hydraulics of Campaign Finance Reform” 77 Texas Law Review 1705 (1999). 261. Id. at 160-161. 262. Id. at 135. 263. Id. at 139. See also, Pildes, “The Theory of Political Competition,” 85 Virginia Law Review 1605 (1999). 264. Kang, at 171. On the ability of the parties to evade reforms, see also, Lowenstein, 71 Texas Law Review 1741, 1756 (1993). 265. Id. at 175. 266. Id. at 176-177. 267. Gregory P. Magarian, “Regulating Political Parties Under a ‘Public Rights’ First Amendment,” 44 William and Mary Law Review 1939 (2003). 268. Magarian traces the public right theory from, Alexander Meiklejohn, Political Freedom (1948). 269. Id. at 2043. 270. Id. at 1944. 271. Id. at 710. 272. V.O. Key, Politics, Parties, and Pressure Groups, 5th ed. (New York: Crowell, 1964) pp. 211-212; and, Frank J. Sorauf, Party Politics in America (Boston: Little, Brown and Company, 1968) ch. 1. See also, John H. Aldrich, Why Parties? The Origin and Transformation of Political Parties in America (Chicago: University of Chicago Press, 1995) pp. 7, 12–14. For applications of this model to the free association rights of political parties, see, Robert C. Wigton, “American Political Parties Under the First Amendment,” 7 Journal of Law and Policy 411 (1999); Lauren Hancock, “Note: Life of the Party: Analyzing Political Parties’ First Amendment Associational Rights when the Primary Election Process is Construed Along a Continuum,” 88 Minnesota Law Review 159 (2003); and, Elizabeth Garrett, “Is the Party Over? Courts and the Political Process,” 2002 Supreme Court Review 95 (2002).

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273. See, e.g., Samuel J. Eldersveld and Hanes Walton, Political Parties in American Society, 2nd ed. (Boston: Bedford/St. Martin’s, 2000) ch. 15; and, William Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington: Congressional Quarterly, 1998) ch. 6.

Chapter Two

Judicial Regulation of the Internal Activities of Political Parties

As American political parties have evolved into modern, complex organizations in recent years their internal structure and processes have come under increasing regulation by state legislatures. Party organization is clearer than ever and the internal party machinery is more active than in the past. Parties have also become more intertwined with state and local elections as they have been delegated additional responsibilities by state legislatures. These developments have meant that the private side of political parties has become increasingly blurred with their public functions. State regulation of political parties which began in the electoral process frequently to combat racism and party corruption has grown to encompass many other party functions unrelated to prior party misbehavior. This historic erosion of the private side of political parties now imperils the benefits associated with independent, autonomous, and vigorous political parties. This chapter considers those government regulations that touch the most intimate and vital aspects of American political parties. In terms of the tripartite model described at the end of the previous chapter, these are the regulations that potentially impinge the most seriously on the independence of political parties. In constitutional terms, these regulations are those that put the heaviest burden on the parties’ right of free association. If some degree of party independence is to be protected from government control, then it must be in the conduct of their own internal affairs. A described in chapter 1, most states have enacted elaborate statutory schemes to regulate their elections and political parties. These statutes typically fall into two broad categories: the first are those that regulate internal party governance, organizational structure, and political activities. The second are those that regulate matters more directly related to the electoral 71

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process itself but which frequently impact the parties as well. 1 This chapter will be primarily concerned with the first set of laws. Chapter 3 will consider the second type of statute. State laws which seek to place limitations on how political parties organize and govern themselves internally are the most serious threat to party independence. These laws touch on the parties’ ability to define themselves and their ideology through controls over party membership, leadership selection, party support for and endorsement of nominees, and ultimately party positions on issues of public policy. States regulate their political parties through a variety of mechanisms, including the following: 2 • Definition of “political party.” Most states that define “political party” do so in terms of the percentage that the party’s gubernatorial or presidential candidate received in the last election, typically 5 percent of the statewide vote. 3 This is an important matter because official recognition of an organization as a “party” can determine how easily the organization’s nominees gain access to the ballot or enjoy other statutory privileges. • Recognition of Specifically Named Parties. A few states name specific parties for official recognition. This also can be of great significance for securing ballot access and other electoral benefits from the state. 4 • Establishment of Specific Party Organizational Structures and Methods of Leadership Selection. These laws are often quite detailed, specifying various levels of party committees, dictating how and when party leaders are to be chosen, setting the size of the committees, voting methods, definition of a quorum, gender balance, terms of office, bylaws, and how party meetings are called. 5 • Functions and Powers of Various Party Bodies. These regulations fall into two broad categories: those giving the party committees powers to run the party internally (e.g., handling of funds, organizing party work), and those granting responsibilities of a more public nature (e.g., filling nomination vacancies, endorsing non-party candidates, rendering pre-primary endorsements). 6 • Selection of Party Nominees. Some state laws specify the acceptable method(s) for the selection of party nominees (caucus, convention, or primary) and the procedures to be followed in selecting nominees. Most states also have special rules for selection of party delegates to the national party conventions. 7 Virtually every state regulatory scheme is a mix of legislative directives and party rules. The statutes often do this by adopting some existing or future party rules on the same topic. This method gives the state’s parties some discretion in meeting statutory guidelines. For instance, a state might require that there be a party central committee but then let that party body adopt its

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own procedures for selection of its executive committee. Some states, like New York, make frequent use of this technique, referencing party rules throughout the election statute. Many states also still recognize the old doctrine that party rules control a situation absent express statutory language changing it. 8 In terms of the tripartite model, those laws regulating purely internal party matters should be interpreted most narrowly by the courts in order to maximize party independence. The justification for this is that if there are benefits to having independent parties in our political system, then that independence must be most strongly protected in the area of “internal” (private) party operations. Government regulation of these internal party activities should therefore be subject to the most vigorous review by the courts. However, as parties increasingly enter the public arena through performance of more electoral activities they should expect to be subjected to greater governmental supervision. The difficulty arises in trying to adequately identify which party activities fall on which side of the line. American courts have long expressed a reluctance to interfere with internal party affairs. 9 The general rule, frequently repeated, is that in the absence of a clear statutory grant of power or the violation of a legal right, the courts will not intervene in party disputes. 10 This Common Law position appears to have been based on several considerations, including the early conceptualization of political parties as “voluntary organizations” with their own internal procedures for resolving disputes. 11 Some of the earliest expressions of this sentiment were judicial refusals to intervene in party affairs through quo warranto proceedings because party officials were not seen as public officials subject to that legal tool. 12 Other early courts seemed to base this principle on considerations akin to the political question doctrine, 13 wanting to stay clear of internal party disputes because of their inability to fashion adequate remedies or standards. The reluctance to become involved in party affairs appears to have been especially strong when it involved the selection of party delegates to national conventions, or actions taken by national party conventions. 14 Much of the early case law on parties reveals a strong judicial desire to avoid involvement in the resolution of disputes among “factions” within a political party. Some judges seemed to believe that such internal struggles were in fact healthy expressions of vigorous and open political parties. As a result, many early courts were simply willing to let disputes confined to a single political party be fought out within the party organization itself without judicial intervention. 15 Certainly the case could be made that internal party disputes over such matters as the party’s position on various public policy issues is one best left up to internal party mechanisms, so long as they remain broadly democratic and fair.

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As seen in chapter 1, party corruption in the late nineteenth century and party racism in the decades thereafter led to party nominations being considered as integral parts of the overall electoral process and thus subject to sweeping state regulation. I will not necessarily assume that here: although a large part of the nomination process is no doubt public and governmental in nature, it is also arguably the most important function of American parties today and essential to their independence and autonomy, especially when the selection of candidates is done through conventions or caucuses. Some nomination issues, such as control over who may vote in a party primary, go to the heart of the parties’ role in our political system. The early rule of judicial non-intervention in political party affairs was developed at a time when there was a paucity of state regulations. Early courts could simply limit their interventions into partisan affairs to those situations where there was a statute allowing such involvement. This formulation of the rule dictating when courts could become involved in party affairs allowed the courts to avoid the job of clearly identifying those instances when they should intervene and apply constitutional standards. The net effect of this early rule was to allow state legislatures to determine when parties could be regulated as “public entities” through the passage of legislation that the courts would then enforce. With the further enactment of state laws regulating the political parties, the stage was set for a steady erosion of the private side of political parties. This, in effect, is where we are now and why there is a need for a new rule, or set of rules, drawing a clear line between the public side of party activities that are subject to state regulation, and those activities which are beyond such control. The old Common Law rule is no longer feasible in the modern era of wide scale government regulation of parties in the performance of delegated duties. The courts cannot simply allow state legislatures to continue to “convert” political parties into completely public entities. Since it seems unlikely that the state legislatures will roll back decades of legislation regulating parties, it is left to the courts to re-establish a clearer distinction between the public and private sides of American political parties. 16 This task has already started in a piecemeal fashion by many courts in this country. It is essentially a task requiring a refinement of the constitutional tools used to place American parties within the overall scheme of government. I. WHAT ARE “INTERNAL” PARTY ACTIVITIES? If greater constitutional protection is to be given to political parties when they are undertaking “internal” activities, we must first have a clear definition of which activities fall under this rubric. Many courts have addressed this definitional problem in passing but few have discussed the matter at

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length or attempted to identify specifically which party actions are “internal” to a political party. This reluctance becomes understandable when one tries to label some party functions as either private or public. For instance, the common party practice of endorsing a candidate in an election usually involves an internal party decision but also has a significant impact on the public electoral process. Despite such uncertainty around many traditional party activities, it is important that a clear definition be developed in order to re-establish the balance between public and private interests in this sphere. This task seems to fall naturally to the courts where some headway has already been made. The courts also seem to be the best equipped to establish a comprehensive set of principles in the area and thereby strike a balance between the public and private sides of American parties. The record of state legislatures in this area has been one of mostly piecemeal legislation that has gradually eroded the private side of parties. State legislation has often formally “recognized” political parties but this is usually only done so the state may then impose additional public duties upon them. While parties may have benefited in some ways from this official recognition, they have paid a heavy price in the form of less independence and less autonomy. This growth in the public role of political parties in state and local politics has further complicated the task of neatly dividing those party activities that are internal from those that are electoral or public in nature. Statutory regulation also raises the questions of whether and when political parties are somehow transformed into state actors when performing certain public duties. There are two general ways to approach the problem of identifying the private side of political parties, both of which have some support in case law. The first is simply to compile a list of those party actions or activities that are deemed “internal” and thus largely beyond government regulation. This approach is somewhat attractive for its neatness. The problem lies in the difficulty of compiling a comprehensive list given the wide range of activities parties are engaged in today. The other problem with this approach is that it is somewhat time-bound: once the list is generated it would soon become obsolete given the ever-changing role played by parties in American politics. The second approach to this problem is to develop a theoretical standard to guide future courts in deciding which party operations are internal. Such a standard might define these activities as those “vital to the organizational maintenance of party machinery,” or perhaps as those “necessary to ensure that the party is able to preserve its ideological purity and self-identification.” This approach would be more dynamic and able to evolve with political parties. However, it would also probably suffer from a greater subjectivity in its application. Of course, the two approaches are not mutually exclusive and could be merged in order to best identify the class of party operations that lie beyond strict government regulation.

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In approaching the question of which party activities are internal the courts have relied heavily on the doctrine of “state action.” As indicated in chapter 1, this concept is well-developed in the law and was a ready tool for the courts to apply to political parties. This approach has essentially meant that the courts have tried to define what may be regulated by the state as broadly equivalent to those situations where the parties perform “governmental functions” or otherwise perform tasks that amount to “state action.” 17 At first, this approach might seem conducive to party independence since parties would basically get the residuum: that is, those internal party activities not subject to state regulation would include everything that does not involve state action. However, when it is recalled how liberally the concept of state action has been interpreted in recent years one can see that the range of “internal” party activities could be quickly curtailed under this approach. The Supreme Court laid the foundation for the expansion of the state action doctrine in the White Primary cases beginning in the 1930s. In a series of cases spanning more than a decade the Court sought to root out race discrimination in the political process through a variety of legal means, including an expansion in what actions could be considered “state action.” 18 This was necessary because the primary vehicles for combating racism derived from the Fourteenth Amendment to the Constitution which requires that there be some element of governmental participation (“state action”) in order for the practice of racial discrimination to be outlawed. 19 Thus, the federal courts during this time tried to reach what previously had been considered private racial discrimination by re-defining state action to include a wider range of discriminatory practices. 20 One of the most popular civil rights laws, Section 1983, incorporates the state action element in classic language: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress. 21

Beginning in the 1930s, the courts pursued their efforts against race discrimination in America into the political arena and in doing so restricted party independence. In one of the first White Primary cases, Nixon v. Herndon in 1927, the Supreme Court held that a political party could not bar Black voters from their party primary under the Fourteenth Amendment. 22 This ruling was extended to nomination activities undertaken by a party’s (internal) executive committee several years later in Nixon v. Condon. 23 In this way the courts pursued race discrimination in the electoral process into the inner workings of the political parties. While laudable as a means for

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attacking race discrimination, which was certainly endemic in some state parties at the time, this tactic had the unintended effect of opening up the parties to greater government regulation (including judicial supervision) in areas unrelated to race discrimination or other party misbehavior. 24 In its landmark 1941 decision in U.S. v. Classic, the Supreme Court justified its ruling that constitutional requirements extended to party primaries because the state had made the primary an “integral part of the election machinery.” 25 The Court justified this by noting that the state had set up the primary machinery, regulated access to the primary ballot, established filing requirements for candidates, and paid for the primary election out of public monies. 26 The Court reiterated this position even more strongly three years later in Smith v. Allwright. 27 The Court in Allwright rejected the decision of the Texas State Supreme Court that its primaries were a private party affair and said that the federal courts would decide for themselves whether state action was present in such situations. 28 The Court went on to examine Texas’ primary law and concluded that the statutory system for selection of party nominees made the party “an agency of the State in so far as it determines the participants in a primary election.” 29 This adoption of a “state agency” conceptualization of parties quickly replaced the older notion of parties as private, voluntary clubs in American constitutional law. Another important step in the expansion of judicial power was the Supreme Court’s 1963 decision in Gray v. Sanders where the Court extended the “one person, one vote” rule to Georgia’s party primary system. 30 In that case Justice Douglas, writing for the Court, concluded that Georgia’s adoption of the direct primary made it a part of the “public election machinery” of that state and therefore subject to constitutional strictures. 31 Significantly, the Court in Gray limited its decision to nominations made by primary elections, reserving the issue of whether equal protection extended to nomination by party conventions. 32 Thus, even at this early date, the Court showed some concern over how far government regulations should extend into what might be considered internal party operations. The new judicial willingness to intervene in electoral matters took another leap in the 1960s when the Court became involved in the reapportionment of electoral districts around the nation. The reapportionment revolution began with Baker v. Carr in 1962 when the Court decided to enter the “political thicket” of electoral politics. 33 In a series of decisions through the 1960s the Supreme Court struck down a variety of state districting schemes as violations of equal protection. 34 During this time lower courts applied equal protection requirements of one person, one vote to other elected public offices. 35 This trend of greater application of equal protection doctrine has continued with the extension of these principles to most local government units. 36

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While these early cases on reapportionment and redistricting did not concern political parties directly, they did reflect a growing judicial comfort in the handling of electoral matters. Inevitably, this judicial involvement grew to include more aspects of the electoral process. The latest wave of judicial action expanding the equal protection doctrine has been its application to partisan gerrymandering of electoral districts, 37 and disputes over the creation of minority-majority electoral districts to favor an ethnic or racial group. 38 Once the Supreme Court had established these constitutional foundations for greater legislative and judicial regulation of politics and elections, it was inevitable that such regulation would eventually encroach more and more on political parties. It has fallen primarily to state and lower federal courts to attempt to refine more precisely which party activities—outside of those involving race discrimination—amount to “state action” and thus trigger Fourteenth Amendment protections. 39 While it was clear from the beginning of this period that federal constitutional protections extended to party primaries, other party decisions touching the electoral process were not so easily adjudicated. The question of when (or which) party activities are tantamount to “state action” may seem to be an esoteric legal question. However, given the evolution of judicial thinking in this area, the answer to this question tells us, in effect, when constitutional protections arise and thus when the courts will adjudicate matters involving political parties. II. INTRA-PARTY ELECTIONS A series of lower federal cases from the mid-1960s struggled with the question of what constitutes an internal party matter in adjudicating disputes over intra-party elections. These disputes typically concerned how parties selected members to serve on various party governance committees from ward leader to state central committee. The selection of these party officers might at first seem to be obviously an “internal” party matter, but many states delegate additional responsibilities to these party officials thereby compromising their purely private status. The most common of these statutorily delegated duties are: the power to fill vacancies on primary ballots due to a candidate’s withdrawal after the primary election is held; the giving of party consent for a candidate to run under the party label who is not a registered member of the party; and, the selection of delegates to party nominating conventions. These arguably “public” functions of party committees formed the basis for a number of challenges to the method by which parties selected their committee members. The argument was that since these party officers were performing (or could potentially perform) some government functions then they had to be chosen in accordance with the equal protection clause and its one-person,

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one-vote requirement. Disputes over these issues forced judges to think some about the dual public-private nature of parties, including which party activities were sufficiently public to trigger the application of constitutional doctrines and which were beyond such government oversight. These cases shed some light on the problem of identifying which party actions may be regulated by the government. Some of the earliest and best thinking about how to determine which political party activities lie beyond government regulation can be traced to an obscure Pennsylvania case in the mid-1960s. Lynch v. Torquato began as a local dispute over the selection of the chairman of the Cambria County Democratic Party. 40 At that time, political parties in Pennsylvania could decide for themselves the method for selection of their county chairs. In Cambria County the Democratic Party chairmen were chosen by a vote of the party’s county committee which was composed of two elected representatives from each of the 190 voting precincts in the county. The persons who challenged this system were local Democratic Party members who claimed that this scheme violated equal protection. They based this claim on the allegation that although the county’s precincts contained approximately equal numbers of voters overall, some precincts varied greatly in the number of registered Democrats. The plaintiffs in Lynch relied in particular on the then-recent Supreme Court decision in Baker v. Carr as the basis for their claim. 41 In a colorful opinion, Judge Edward Dumbauld of the district court rejected the analogy to Baker v. Carr. He found that the rule of that landmark case prohibiting dilution of the right to vote was inapplicable to the situation in Lynch. The critical distinction he drew was that the office of elected county party chairman was not a public official elected by the registered voters of the county. Instead, Dumbauld found party officers to be merely “functionaries of a private organization chosen in accordance with the party’s rules. They are in no sense public officers. They are not elective officers, for whom registered voters may cast a ballot.” 42 He thus concluded that there was no “dilution” of the plaintiff’s right to vote since they had no right to vote in a party election. Judge Dumbauld supported his decision with a number of observations, including some drawn from his own experiences as a party county chairman. The first of these was the fact that the state of Pennsylvania had by statute given its political parties the option of creating the office of county chairman and left it to them to decide on a method of selection. 43 While this observation alone would probably have disposed of the case, Dumbauld went on to discuss the nature of party elections and the role of party leaders. He noted that by the time of Lynch, the selection of nominees for all state and local offices in Pennsylvania was conducted through a direct primary system. This was apparently a reference to the fact that the selection of party nominees is

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ultimately in the hands of the rank-and-file party members not party leaders. Dumbauld thus tried to minimize the role played by party leaders in the selection of the party’s nominees, noting that, “A county chairman has no legal or governmental authority whatever. He is not a public officer at all. Whatever he may be able to accomplish is purely the result of influence. The legal power belongs entirely to the officials.” 44 Dumbauld believed that there existed a “clear distinction between the legal powers of a public official and the political functions of a party worker.” 45 This distinction between these two sets of officers is reinforced by the primary system. Under the old convention method of choosing party nominees, party officers frequently wielded considerable influence. However, as Judge Dumbauld noted, under a primary system the role of party leaders in determining the selection of nominees is greatly reduced. 46 On appeal to the Third Circuit Court of Appeals, Judge Dumbauld’s opinion dismissing the complaint in Lynch was affirmed. 47 Circuit Judge Hastie opined that this lawsuit was more of an internal party power struggle than a genuine effort by the plaintiffs to vindicate their right to vote. Nonetheless, he took the opportunity to expound further on the distinction between party elections and public elections. Hastie continued Judge Dumbauld’s line of reasoning based on an analysis of the tasks typically undertaken by county party chairmen. Pennsylvania law and party traditions at the time allowed county chairs to select party nominees under extraordinary circumstances, such as the death or withdrawal of a party nominee after a primary election. However, Hastie noted that the “normal and ordinary responsibilities” of local party leaders included such tasks as: raising and spending money in the party’s interests, planning and directing local political campaigns, encouraging voter registration, and administering political patronage. 48 This job description portrayed county chairs as overwhelmingly political creatures with only rare “public” responsibilities. Given this depiction of the office of county chair, it was easy for Hastie to conclude that the newly expanded doctrine of equal protection was inapposite to this situation. In his decision he wrote that, “[T]he citizen’s constitutional right to equality as an elector . . . applies to the choice of those who shall be his elected representatives in the conduct of government, not in the internal management of a political party.” 49 While Judge Hastie easily found his contemporaneous Pennsylvania county chairmen to be primarily party officials, he also recognized the inherent difficulties of drawing clear distinctions between the public and private sides of other parts of the candidate-selection process. These problems become particularly vexing in the case of primary elections and other party functions that come close to the actual selection of public officials. Hastie conceded in a footnote that other circumstances could result in the application of equal protection principles:

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The question at what stage popular choice must rule in the process of selecting public officials is a difficult one with far reaching implications. Indeed, the choice of delegates to party national conventions for the nomination of President and Vice president would seem logically to be covered by the plaintiff’s view of the reach of the equal protection clause. 50

Hastie’s aside questioning which stages of the electoral process should be made subject to equal protection rapidly became a key question in this area. In the subsequent thirty-five years many courts grappled with the interface between private or internal party operations and the public electoral process. The problem soon evolved into one of line-drawing in the lower courts. Whereas the courts that heard the dispute in Lynch could easily categorize the office of county chair as a non-public party officer, subsequent fact patterns were to prove more difficult for the courts. The Lynch opinions signaled the beginning of efforts in the lower courts to identify those party offices and party functions that would be deemed tantamount to “state action” and thus subject to state legislative regulation. The Supreme Court cases in the decades before Lynch focussed on demonstrating that party primaries were part of the overall election process and therefore implicated important public interests that needed to be regulated. It was left primarily to the lower courts, beginning with the Lynch opinions, to start the process of untangling other private party operations from public responsibilities. The Lynch decisions were among the first of a long line of cases dealing with the selection of various party officers, including: ward leaders, county committee members, and state committee persons. Discussions in these cases mirrored and frequently endorsed the approach taken by the judges in the Lynch decisions. Most of these decisions focussed on two intertwined issues: 1) the nature and functions of the elected party office that was in dispute, in particular, whether the officer’s duties were “governmental” in nature or primarily concerned with “internal party management”; and, 2) how closely the party office involved was to the actual selection of a public or governmental officer. This second line of inquiry tried to determine how much of a role the party officer had in the filling of a government office, whether that participation was through service as a delegate at a party convention, or through the appointment of a party nominee as in the case of a vacancy on the ballot after a primary, or through the approval of the candidacy of a nonparty member. 51 Less than a year after the Lynch decision was handed down from the Third Circuit, the Pennsylvania Supreme Court weighed in on similar issues in Bentman v. Seventh Ward Democratic Executive Committee. 52 This case involved the removal of two recently elected members of a party ward’s executive committee in the city of Philadelphia. Plaintiffs were removed

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from the committee by a vote of the entire executive committee for alleged “party disloyalty” before taking office. The court considered at length the impact of a 1947 state law regulating political parties in Pennsylvania. In particular, the court was interested in determining whether this statutory change evidenced an intent to give the state’s courts jurisdiction over electoral processes inside political parties. The court cast the issue in terms of representative theory: The instant controversy, intra-party in nature, presents a basic and fundamental issue in the democratic process and government by representation: whether the electors of a political party have a right, cognizable in a court of law, to choose whom they will to represent them in their party’s organization and councils? 53

With this emphasis on intraparty democracy, the Pennsylvania Supreme Court found that the removal of the two committeemen was an improper undoing of their election by party members at large. On the more important question of whether and when courts should adjudicate party elections, the court set forth this standard: “[J]udicial intervention must be limited to controversies where the issue raised bears a direct and substantial relationship to the performance of public functions by the political party.” 54 This language from Bentman would seem to set the bar of judicial intervention into party affairs even higher than the Third Circuit did in Lynch. In particular, the requirement of a “direct and substantial” nexus between the party and its public duties would appear to indicate a strong desire to preserve as much independence as possible for internal party operations. The court went on to define the “public” portion of its standard by pointing to examples: a party filling a ballot vacancy after a primary election; a special election to fill a legislative vacancy; or “special emergencies” where county chairs must be consulted to fill vacancies. 55 The term “direct” was also defined by example, pointing to the role played by a party in the nomination process for judgeships that were created after the primary had been held. Despite this standard and these examples, the Bentman court found that even party ward leader elections should be subject to judicial scrutiny and constitutional standards. The court seemed to tie its decision to the fact that the ward elections were “now legally recognized” and that ward leaders exercised duties that were important “not only to the person elected but to the voters who elected such person to act as their representative.” 56 This emphasis on the representative role of party officials is very different from Lynch’s focus on the primary functions performed by these party officials. If adopted the Bentman approach would surely have increased dramatically the pace and scope of judicial supervision of political parties. If relatively minor, in-house party elections were made subject to wholesale judicial and constitutional regulation on the basis that there was a representative link to general party

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members, it is difficult to see what party activities would lie beyond judicial oversight. The court in Bentman was clearly intent on bringing most party activity under judicial control. The court there essentially voided the earlier Common Law rule of judicial non-intervention in the affairs of political parties that had previously been regarded as private organizations. 57 The Bentman court also cited with approval the Fourth Circuit’s decision in Rice v. Elmore that heralded the increased judicial regulation of political parties, likening them to “state institutions” through which the sovereign power of the people is exercised. 58 The court also adopted the Rice characterization of party officials: “[T]hey are election officials of the state de facto if not de jure, and as such must observe the limitations of the Constitution.” 59 In adopting this position hostile to party autonomy, the Bentman court essentially dismissed the Lynch approach. 60 The attempt by the Bentman court to extend equal protection principles to all those offices that are “representative” in nature appears to be rooted in the early case law that initially applied these principles to legislative elections. 61 Since the mid-1960s, the Supreme Court has applied the rule first to congressional elections, 62 then state legislatures, 63 and eventually to local elections. 64 However, use of the “representative” character of the office as a standard for when equal protection applies would create difficulties in the context of intra-party elections. In a sense, such intra-party elections are the election of representatives, but they are representative of their fellow partisans not of the general public as are government officers. If elected party officials are deemed “representative” of rank-and-file party members then this would obviously extend equal protection requirements much deeper into party governance structures than the public-private distinction of Lynch. A few months after Bentman, the Supreme Court reined in the “representative office” standard in a unanimous decision in Sailors v. Board of Education of the County of Kent. 65 This case involved a malapportioned county school board. Under Michigan law at the time, county school boards were chosen by delegates from local school boards who had been elected by popular vote. The Court found that the election of county school board need not meet the one-person, one-vote standard because they were “non-legislative” officers. 66 Writing for the Court, Justice Douglas observed that, “We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by election.” 67 The Supreme Court’s ruling in Sailors was seized upon by the New Jersey Supreme Court in a decision handed down the very next day involving political parties: Rogers v. State Committee of the Republican Party. 68 The dispute in Rogers again involved a claim that a state central committee of a party was not chosen in compliance with the one-person, one-vote rule. The

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New Jersey Supreme Court recognized that the representation of each county in the state by two persons resulted in great representational distortions given the varying populations among the State’s counties. Nonetheless, the court refused to extend the rule of one-person, one-vote to its state parties. In a process reminiscent of Lynch, the New Jersey court reviewed the functions of its state’s political parties and their central committees under the relevant state law. These duties included many of those typical for parties: receiving and disbursing funds to maintain the party organization, giving publicity to party candidates, reporting financial receipts to the state, and filling vacancies in primaries. The New Jersey state constitution at that time even allowed parties to name members to the committee responsible for redistricting the state legislature. 69 Despite this broad panoply of powers, the court found that “the governmental functions given to the State Committee and its chairman are minimal in significance. They exercise no legislative functions. Their primary function is the administration of the party.” 70 Thus, that court managed to merge the purely functional approach with the legislative/representational one. The Supreme Court gave added impetus to the Lynch approach three years later in Hadley v. Junior College District of Metropolitan Kansas City. 71 This time it was a challenge by taxpayers and residents to the method of selecting trustees for a junior college. The Court struck the state law finding that it violated Fourteenth Amendment equal protection rules. Plaintiffs claimed that the system of having districts of varying populations each elect one trustee to the board was a violation of their equal protection rights. The Supreme Court responded by reiterating the importance of the oneperson, one-vote rule in all state and local elections of officials who “perform important governmental functions.” 72 The deciding factor in Hadley appears to have been the fact that the government had chosen to have these officials elected to their offices. While the Court seemed sympathetic to the need for flexibility in filling some local offices by other methods, such as appointment, they made it clear that state and local elections must meet constitutional standards. 73 While the Court’s ruling in Hadley did not deal directly with political parties, it did have an indirect impact on them. It made clear that the one-person, one-vote rule of Reynolds and its progeny applied to governmental officials, which seems to take us back to Lynch’s focus on the nature of the office involved. A few months after the Supreme Court’s opinion in Hadley was handed down a federal court in Washington State decided a pair of cases which further refined the Lynch rule. The two cases, Maxey v. Washington State Democratic Party 74 and Dahl v. Republican State Committee, 75 were both authored by District Judge Alfred T. Goodwin. The cases presented similar but not identical issues, thereby giving Goodwin the opportunity to draw some fine distinctions. In Maxey, Goodwin held that the party nomination

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process, even by the convention method, was a “critical” stage of the selection process that must therefore comply with equal protection requirements. 76 However, in Dahl, he found that such rules did not apply to the party’s selection of its state party committee members. The party’s nomination process whereby it selected persons to run for public office was thus treated differently than the party’s procedures for choosing its internal party officers. These companion cases allowed Goodwin to highlight the distinction between public elections and private elections involving political parties. The dispute in Maxey was a section 1983 action brought by Democratic Party committeemen against the party’s state committee. The plaintiffs sought to have the one-person, one-vote principle applied to the state party convention system the same as it had been to party primaries. Plaintiff’s challenge was to the manner in which the party selected its delegates to the state and national conventions. At the time, the Democratic Party in Washington used a convention system whereby delegates were chosen in stages: precinct caucuses selected and sent delegates to county conventions which in turn elected and sent delegates to the party’s state convention. These state convention delegates then met in congressional districts to choose delegates to the national convention. The controversy grew from the fact that the state committee apportioned state convention delegates among counties on the basis of considerations other than the population of the counties. 77 There was no dispute as to the unrepresentative nature of the process used in allocating delegates. The difficult issue was whether, and to what extent, the oneperson, one-vote principle should be applied to the convention method of delegate selection. This question had been reserved by the Supreme Court only seven years earlier in Gray v. Sanders. 78 The issue is important because it comes very close to our central question of when private (internal) party operations end and public (electoral) duties begin. Both conventions and primaries operate to identify party nominees. But while the direct primary method is a fairly public event (particularly where the primary is “open” to nonpartisans), the convention method is much more of an in-house or intraparty mechanism. The issue of applicability of constitutional rules thus turned on the question of the delineation of the public and private aspects of political parties. Goodwin’s decision in Maxey to require that the party’s nomination process meet constitutional standards of one-person, one-vote was based on the view that political parties were “an integral part of the state created electoral process.” 79 This interpretation treats parties as kind of “agents” of the state that perform tasks delegated to them by the state legislature. This approach to party elections is clearly distinct from either the Lynch functional approach or the focus on the representative quality of the office as seen in Bentman. 80 Goodwin’s position in Maxey on these issues was that the constitutional principle must apply to all stages of the delegate selection process, from local

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precincts to the state level. He also extended his order to include those ex officio delegates appointed by the state committee, directing that even they be persons who had been elected to their positions according to one-person, one-vote. 81 He rejected comparisons with Lynch finding that there was no attack in Maxey on the political party’s administrative machinery. He also summarily dismissed the party’s arguments that a weighted delegate selection system might serve some internal party needs such as strengthening local party units by rewarding their past electoral success with bonus delegates. Maxey’s companion case, Dahl v. Republican State Committee, 82 represented another civil rights claim. This time plaintiffs were party chairmen and precinct committee members who challenged the unrepresentative nature of the state central committee whose composition was established by state law at the time. Judge Goodwin upheld the Washington statute which directed each party’s state central committee be composed of two persons from each county in the state regardless of population because those elections were not part of the state-created election process. Goodwin first distinguished the Dahl situation from that in Maxey by referencing the stage of the process, claiming that “the election process has not yet commenced when the state committees are being organized,” as in Dahl. 83 Judge Goodwin also invoked Lynch v. Torquato in support of his position. He then decided that the state party central committees in Washington performed “primarily administrative” functions and concerned themselves “almost exclusively with the internal affairs of the political parties.” 84 Washington state central committees thus performed “no governmental or representative functions” except in the appointment of national party delegates. The Maxey-Dahl companion decisions are useful in that they show how courts at that time were struggling to extend fundamental rights of voting and representative government while also trying to preserve a degree of party integrity in some functions. Judge Goodwin went to considerable lengths to distinguish the apportionment and selection of convention delegates (Maxey) from the selection of state central committee members (Dahl). A 1972 challenge to New York State’s Election Law provided a federal court with an opportunity once again to isolate the public side of political parties. Plaintiffs in Seergy v. Kings County Republican County Committee 85 challenged the method by which votes were counted on a county party committee. The county party in question had opted to follow a statutory provision allowing the party to create a county committee where each member had one vote without consideration of the population of the district electing him. Plaintiffs asserted that this violated the one-person, one-vote rule. The Second Circuit decided this case by carefully considering the functions performed by party county committees in New York in a process reminiscent of Lynch. Circuit Judge Mansfield found that these party bodies

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performed largely internal party management functions and only rarely did they perform “public electoral functions.” 86 Given this dual set of party functions, Mansfield ultimately decided that the constitutional rule of oneperson, one-vote applied only to those rare instances when a party county committee undertook one of the public electoral functions. He relied on Lynch for the proposition that internal party affairs were exempt from constitutional strictures, and Hadley for the idea that equal protection applies only to “integral parts” of the election process. 87 This view of parties as parts of the election process is closely related to the belief that parties somehow become “agents” of the state through the delegation of additional “public” responsibilities to them by law. In 1975 a dispute arose over election of a Democratic Party ward leader in Philadelphia which culminated in McMenamin v. Philadelphia County Democratic Executive Committee. 88 In a bizarre series of events, two persons claimed that they had been duly elected Democratic ward leader of Philadelphia’s forty-second ward. Prior to the ward election meeting, defendant Herbert McGinchey ascertained that he would probably not win the contest. In order to rig the election, McGinchey conspired to lock plaintiff Audrey McMenamin out of the designated meeting place. McMenamin responded to this by holding a meeting of her own supporters on the steps of the meeting hall at which she was elected ward leader. McGinchey countered by scheduling an organizational meeting for the next day aboard a bus which he had hired for the purpose and directed it to a secret destination where he was elected ward leader by his supporters. When these dueling ward leaders came before Judge Higginbotham he reluctantly ruled against the plaintiff because he found the office of party ward leader was not a public office. Higginbotham relied heavily on Lynch, “the most instructive case in this Circuit,” for the principle that the courts should stay out of internal party affairs. 89 He noted that the fight in McMenamin did not present a dispute implicating the usual issues that bring courts into party affairs such as racial discrimination, geographic discrimination, election tampering, corrupt patronage practices, or convention delegate selection. 90 Relying again on Lynch, he noted that that there was no state action since plaintiff was deprived of her office by party leaders conducting internal party business, not by the actions of state officers. 91 In 1977, a dispute arose within the Democratic Party of Oklahoma over selection of delegates to the party’s central committee. The resulting opinion, Hunt v. Democratic Party of Oklahoma, 92 reveals a number of things concerning judicial attitudes towards party autonomy. The plaintiffs in Hunt alleged a denial of equal protection because the party rule based the number of delegates on geography rather than population. Chief Judge Barrow ultimately and very reluctantly dismissed the case primarily on the basis that, “The Court should not and will not lightly dismiss, as de minimis, a party’s

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choice of organizational structure, even though the Court feels that such organizational structure is implicitly inequitable.” 93 The Court went on to discuss, and to quote at length, the Third Circuit’s decision in Lynch on the importance of free association for the successful operation of political parties. Barrow made no secret of his belief that the party should adopt a rule apportioning its central committee seats on the basis of population, but nonetheless ruled against the plaintiffs because of the importance he attached to the need for party independence in such internal matters. 94 After the 1970s, there were few cases dealing with issues of intraparty elections. One decision worth mentioning is the 1994 case of Federspiel v. Ohio Republican Party. 95 This case involved the classic battle between party factions over election of the party’s central committee. Since the plaintiff’s framed the action as a § 1983 suit, there was the requirement that they show “state action” on the part of the other Republican Party faction in denying them civil rights. The district court considered the claim at length, but ultimately rejected the plaintiff’s assertion that state action was involved. Of particular relevance, the court emphatically rejected the claim that extensive regulation of political parties by the state of Ohio had converted them into state entities whose actions would constitute “state action.” 96 The court also took the opportunity to state that the settlement of internal party disputes was an important part of the right of free association of the members. In 2009, a state court in Florida ruled on a dispute between the Republican Party of Florida and nineteen individuals who were candidates for the Miami-Dade County Republican Executive Committee. 97 The Miami-Dade Party had added a party loyalty oath requirement for persons seeking election to the party’s executive committee. This oath was in addition to one required by the state of Florida. The plaintiffs were unaware of this new requirement, failed to file the oath, and the party refused to seat them on the Committee. The Florida court sought to harmonize the two oath requirements and concluded that, “the party retained an express statutory right to ‘provide for the selection of its . . . county executive committee in such manner as it deems proper.’” 98 But this court went further and noted that “political parties are not governmental entities, and there is no fundamental right on the part of a citizen to run for the executive committee of a political party without obeying the party’s rules.” 99 The court then opined that, “political party members have a constitutional right ‘not to associate’ with those do not share their party platform or rule, so long as they do not engage in prohibited acts of discrimination.” 100 Though from a lower court, this opinion is important because it shows a judicial attitude tending to favor party control over its own internal elections and bases this right in part on First Amendment rights.

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A. Assessing Judicial Approaches to Intraparty Elections This review of the case law in the years following Lynch shows that the courts devised a variety of standards, factors, and methods for determining when to intervene in intraparty elections and apply constitutional standards. All of these courts gave some consideration to our central issue: how to accommodate the Supreme Court’s expanding interpretation of equal protection while preserving some degree of party independence and autonomy. In effect, they all were trying to identify or define those party actions that were “internal” to the parties themselves. This issue raised difficult and interrelated questions of representative government, political participation, free association, and the role of parties in a democratic system of government. Table One is a summary of the major approaches taken by courts, both state and federal, in their attempts to distinguish the public and private sides of American political parties. I have also indicated my assessment of the probable impact of each approach on the issue of party autonomy. As the review of the case law earlier revealed, courts have frequently merged two or more of these approaches in rendering decisions in this area. Identifying the Public-Private Boundary in Intra-Party Elections: Summary of Judicial Approaches A. The Lynch Functional Approach: Constitutional principles apply to the selection of party officers whose duties include “public” responsibilities. 101 Impact: Usually tends to favor party autonomy. Assessment: Flexible approach that gives courts considerable discretion to determine whether party office under scrutiny performs public functions since many political parties can perform some public functions, the question becomes one of degree. B. Representative Focus: If the public officer serves in a “representative” capacity then his or her selection should conform to constitutional principles. 102 Impact: Uncertain; too few cases. Assessment: Appears to favor party autonomy, though the outcome would depend on whether the party officer was held to represent fellow partisans or the general electorate. C. Party Officers as State Agents: If the party office involved one which was created by the state and is an “integral part of the state-created electoral process” then state action is present and the selection process must conform to Fourteenth Amendment. 103 Impact: Would almost likely favor greater limitations on party autonomy.

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Assessment: This approach seems to begin with the assumption that parties are virtual arms of the state once the legislature delegates electoral duties to them. Leaves little discretion to courts once it has been determined that legislature delegated public responsibilities. D. Stage of the Electoral Process: If the party election is “close” to the process whereby a government official is chosen then that party function must conform to constitutional guidelines. 104 Impact: Would appear to vary considerably. Not well developed enough to predict. Assessment: Leaves much discretion to courts to decide how “close” the party process under scrutiny is to the actual selection of a public officer. The approach initiated in the Lynch opinion proved to be one of the most enduring. This approach focuses analysis on the functions or duties of the elected individual, asking whether these are “private” or “public” in nature. This technique is clearly derivative of the state action doctrine since “private” officials presumably do not undertake “state action.” The approach looks closely at the party office involved to determine if the incumbent’s duties are primarily concerned with administration of the party itself. Under this approach the possibility—or even reality—of the office-holder performing some “public” duties does not automatically transform the office into a public one for equal protection purposes. Instead, if the job of party leader is predominantly party administration, then the office is exempt from equal protection even if there are some minor public responsibilities. Application of this approach usually provides considerable protection for genuinely intraparty elections, including those of various party committee persons. In the decade and a half following Lynch, many state and lower federal courts made use of this functional approach to determine if party elections were subject to constitutional restraints. Occasionally, a court would even try to identify those specific duties of a given party office that were sufficiently “public” and apply constitutional principles only to those activities. 105 Those courts that have decided the applicability of constitutional standards based on whether the party officer served in a “representative” capacity have been few. If this view were accepted, there would appear to be very little room left for parties to perform much internal selection without considerable government oversight. The focus of representative capacity is attractive in theory but could lead to some anomalous results. Trying to identify which party leaders, or party elections, should be “representative” would be no easier than trying to determine which party activities are public or private. In a sense, virtually all party elections are connected, if only indirectly, to our representative form of government. But clearly we cannot bring every party election under strict equal protection guidelines—even if only because there

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is considerable uncertainty as to who are “party members” at any one time. Applying constitutional requirements to elected persons who represent the general public is obviously fundamental to our democracy. But trying to identify which, and what exactly who, is entitled to be represented by a particular party officer is difficult. While most would probably agree that elections to choose party nominees should meet constitutional strictures, inhouse party elections (e.g., selection of convention delegates) that are removed from the actual nomination of candidates, should probably not be so heavily regulated. A large part of the problem here is that party membership in this country is so fluid and uncertain. American political parties are simply too ill-defined to hold their leaders to strict standards of representation. Should leaders represent all registered party members, only active party members, those who give money, those who voted in the last election, or some other group? In practice, it seems that if party leaders “represent” anyone it would be the party activists: a fairly small percentage of total party membership and a subset not very representative of rank-and-file party members. 106 A third approach to this problem can be gleaned from language found in a few cases. This approach analogizes parties to state agencies and is potentially the most hostile constitutional device for deciding how far states can go in regulating their parties. This technique virtually starts with its conclusion as to party independence: once the state has delegated substantial electoral responsibilities to parties, the parties surrender most of their independence. How and when this trade-off of independence for official status takes place is not clear. This ambiguity alone might give the courts some discretion as the when parties are “converted” into public entities. But it seems that once parties are declared “public,” the courts would be hard pressed to shield any subsequent activities from government regulation. The danger for parties here is that once this determination is made, then apparently there is soon no room for party autonomy. 107 A fourth approach resorted to by some courts in deciding these cases have been to look to the stage of the electoral process involved. More precisely, these courts want to know how close the internal party decision (election) was to the actual selection of a public officer. Clearly, some distinctions can be made using this standard: the choice of a party chair or election of members to a party central committee is much further removed from the selecting a “public” officer than say the party choice of a nominee for a government post. Under this approach, those party decisions that are closer to the selection of a public official would receive less judicial deference and be held to higher constitutional standards in their procedures. The case law on intraparty elections does not settle much but it does reveal many of the persistent problems that arise in this area. Many judges handling these cases have obviously wanted to ensure that party elections be

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as democratic as possible. Indeed, since at least the time of the Progressive Movement there has been a significant public interest in seeing that parties operate democratically in their internal operations. Nowhere is this issue more sharply drawn that in the regulation of internal party selection procedures. Today, of course, most states try to enhance the democratic behavior of their political parties through a variety of statutory devices such as open meeting laws, specification of party structure, and mandating the frequency of party meetings. But the further regulation of intraparty elections by imposing additional constitutional requirements may take this enforced democracy too far. In doing so, it forces us to ask where the boundary is going to be set between government regulation of parties for the public interest and the maintenance of some degree of party autonomy. As seen earlier, the courts have already created some exceptions to the blanket application of equal protection principles. For example, exemptions from strict compliance with constitutional requirements have been granted for the selection of persons whose duties are “so far removed from the normal governmental activities and so disproportionately affect different groups that a popular election . . . might not be required.” 108 Similarly, the Supreme Court has recognized that there is a role for the filling of certain government offices by appointment rather than through election. 109 Several courts have also ruled that the election of delegates to state constitutional conventions need not comply with federal notions of equal protection. 110 Perhaps the best example of this sort of exemption is the selection of judges in many states. For years, the courts have held that the elections of judges in the states need not meet constitutional voting requirements of equal protection absent a showing of invidious discrimination. 111 The theory underlying this exemption for judicial elections is that judges are not chosen to be representatives but rather to serve. A similar exception from constitutional requirements seems appropriate for intraparty elections though for different reasons. Partial insulation from electoral politics has long been thought to enhance judicial objectivity, independence, and mystique. 112 In the case of political parties, such separation helps to maintain the party’s ideological purity and position by lessening the role of rank-and-file party members. The porous nature of our parties and the weak party allegiance of a large share of the American electorate make it unwise to hold party committees or their leaders too closely to the will of the general membership. 113 If party leaders were obliged to faithfully “represent” the at-large party membership, then the parties would lose what ideological coherence and policy stances they now possess. Party leaders should not be held hostage to the vagaries of their large and transient membership. By relieving parties of strict adherence to the ideals of representative government, the role of the most politically knowledgeable and experienced party

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members would be enhanced. Exempting party organizations from strict adherence to democratic norms in their internal operations would also appear to recognize the reality of party organizations in this country. American political parties have long been regarded as being of the “cadre” type which is characterized by a dominant set of party activists. Traditionally, rank-and-file party members in this country are only loosely allied to their party, often restricting their party participation to voting. 114 In the mid-1970s there was a sharp decline in the number of court cases dealing with intraparty elections. 115 The interests of the federal judiciary began to shift to issues of First Amendment free association. 116 This development meant that a broader array of cases relating to parties and elections began appearing in the federal courts. This shift also opened up a number of new opportunities for finding a balance between state regulation of electoral matter and maintenance of some degree of party autonomy. III. FREEDOM OF ASSOCIATION AND THE REGULATION INTERNAL PARTY ACTIVITIES By 1970, the debate over the appropriate degree of government regulation of political parties had begun to shift from cases concerning disputes over intraparty elections to cases challenging state ballot access laws, state regulation of internal party governance, and state regulation of party primaries. This shift was accompanied by a change of constitutional vehicles as well. The cases in the prior section on intraparty elections were decided primarily on Fourteenth Amendment principles of state action, equal protection, and oneperson, one-vote. The disputes involving parties after 1970 tended to deal with matters other than party elections and to be adjudicated under the expanding First Amendment doctrine of free association. While these are very different constitutional devices, many of the same general issues of party independence and government regulation were present. In this section, I will review the cases that addressed internal matters such as selection of party leaders and organizational structure. 117 At about this same time, a number of courts began to show greater interest in protecting the integrity and ideological coherence of political parties. These cases appear to spring from the Supreme Court’s 1952 decision in Ray v. Blair, 118 which upheld a party rule (and state statute) that excluded persons from serving as party nominees unless they had signed a pledge that they would support the party’s national ticket. While primarily an equal protection challenge, this case also became a prime opportunity for the Court to address fundamental questions of free association in the context of political parties. Writing for the Court, Justice Reed concluded that, “Various tests of party allegiance for candidates in primaries are found in a number of states. The

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requirement of a pledge from the candidate participating in primaries is not unusual. Such a provision protects a party from intrusion by those with adverse political principles.” 119 This decision typified the emerging judicial attitude that courts and state legislatures had an interest in “protecting” political parties from outside forces. This protective rationale underlay many of the state regulatory statutes at the time. The first wave of state laws regulating parties in the early twentieth century were aimed at eradicating corrupt and unfair party practices. These newer laws were motivated, in part, by a desire to protect and preserve political parties and their role in the election process. The Supreme Court helped lay the groundwork for the new era emphasizing the right of free association in electoral matters with its 1968 decision in Williams v. Rhodes. 120 This case involved a third party’s challenge to Ohio’s ballot access law which made it virtually impossible for minor parties to get on the state ballot in presidential elections. The majority found that this statute violated the equal protection clause because it treated minor parties substantially differently that it did the two major parties. However, the Court made a passing reference to the free association issue involved, noting that, “In the present situation the state law places a burden on two different, though overlapping, rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” 121 In concurring opinions, both Justices Douglas and Harlan emphasized the vital link between the right to vote and the freedoms of assembly and expression. 122 Justice Harlan wrote that he would have rested the decision on the First Amendment right even though Ohio had not directly burdened the third party’s right because the state had deprived “appellants of much of the substance, if not the form, of their protected rights.” 123 Soon after Williams, the Court developed the strict scrutiny review standard where substantial burdens on important political rights, including the right to vote and the right of association, would have to be justified by the state showing that the statute was narrowly tailored to serve a “compelling state interest.” 124 States at this time were fairly successful at defending their electoral laws by claiming that such laws preserved the “integrity of the electoral process,” or other important state interests. 125 Throughout the 1970s, the courts tried to refine the associational rights of political parties and their members. Most of these cases dealt with electoral matters rather then the internal party organization or decision-making processes. In most of these cases, the courts concluded that the state interests in maintaining a simple and manageable ballot was sufficiently “compelling” to overwhelm the free association claim. 126 While few of these early cases directly concerned political parties’ internal operations or organization, several did expand First Amendment rights

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into the electoral realm generally. The Supreme Court handed down an important decision in 1973 furthering bolstering the application of free association principles to parties in Kusper v. Pontikes. 127 In this case the plaintiffs challenged a state disaffiliation statute that prevented individuals from voting in a party primary if they had voted in the primary of another political party in the preceding twenty-three months. In striking down this disaffiliation statute, the Court relied explicitly on the free association doctrine in a famous statement that proclaimed: There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom. 128

The growing connection between political parties and free association was further strengthened in the mid-1970s by two Supreme Court cases growing out of disputes over the selection of delegates to the 1972 Democratic National Convention. In the first of these, O’Brien v. Brown, 129 time constraints prevented the Court from issuing a full opinion on the merits, so they simply stayed the judgment of the Court of Appeals which had deprived the party of its traditional right to seat national delegates. However, the Court took the opportunity to make these important comments relevant to party independence and state regulation: No case is cited to us in which any federal court has undertaken to interject itself into the deliberative processes of a national political party convention; no holding of this Court up to now gives support for judicial intervention in the circumstances presented here, involving as they do relationships of great delicacy that are essentially political in nature. . . . Judicial intervention is this area traditionally has been approached with great caution and restraint. 130

In the other delegate selection dispute during this period, Cousins v. Wigoda, the Court spoke even more directly about the importance of association rights for political parties. 131 This time the Court ruled that the lower court’s injunction preventing some delegates from serving had abridged the associational rights of both the party and the individuals. Justice Brennan authored the unanimous opinion and made explicit the link between political parties and this constitutional rights, declaring flatly that, “The National Democratic Party and its adherents enjoy a constitutionally protected right of association.” 132 Another major Supreme Court decision from this period raising association issues was Storer v. Brown in which the Court upheld California’s soreloser disaffiliation statute. 133 This law barred independent candidates from

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the ballot in a general election if they had been enrolled with a qualified party in the preceding twelve months. The Court turned away arguments grounded in both Fourteenth Amendment equal protection and First Amendment free association. They also rejected any sort of litmus test for such state laws, arguing that there “is no substitute for the hard judgments that must be made” in these types of cases. 134 As to the free association claim, the Court found that while burdens on this right are inherently suspect, they can be overcome by a showing of compelling state interests. The Court described at length California’s compelling interests, including primarily the integrity and stability of the state’s electoral process. But while California was able to demonstrate a compelling interest in Storer, the Court conceded that “all or even a large portion of state election laws would fail” the strict scrutiny test applicable to this genre of statutes. 135 This admission is somewhat curious given the apparent ease with which the Court found a compelling state interest in Storer. Nonetheless, this remark at least left open the possibility that other state regulations of this sort might not withstand strict scrutiny analysis. In addition to these Supreme Court cases, a few lower courts in the 1970s also belied a willingness to expand free association principles to cover both electoral (public) and private sides of parties. The prime example of this would be the 1975 decision in Ripon Society, Inc. v. National Republican Party. 136 This case represented a challenge to the delegate selection process to be used by the National Republican Party at its 1976 national convention. In the course of its two opinions, the District of Columbia Circuit Court struggled to balance equal protection ideals with First Amendment association rights. The Court ultimately struck down the party’s practice of using “victory bonus” delegates to reward those states that had voted Republican in prior elections. But Judge Bazelon nonetheless recognized the importance of party autonomy and independence: Of particular relevance here, in our view, is the institutional structure promoted by the First Amendment. Under that structure, political thought and organization are delegated to the people; the government may not intervene, through any branch including the judiciary, except in the most narrow and compelling circumstances. 137

And in a display of unusual deference to the judgment of party’s on political and organizational matters, the Court noted that the right of party members to “organize a party in the way that will make it the most effective political organization.” 138 Another strong statement on the associational rights of parties appeared in 1976 in the decision Nader v. Schaffer, from the federal district court in Connecticut. 139 Plaintiffs there challenged the state’s law that required enrollment with a political party before one could participate in that party’s

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primary. District Court Judge Anderson upheld the statute and took the opportunity to issue a lengthy and well-researched discussion of the associational rights of parties and their members, which included the following observation: Because the political party is formed for the purpose of engaging in political activities, constitutionally protected associational rights of its members are vitally essential to the candidate selection process. . . . An attempt to interfere with a party’s ability to maintain itself is simultaneously an interference with the associational rights of its members. 140

Judge Anderson was able to distinguish two sets of state interests commonly asserted in these situations: 1) the protection of the associational rights of party members by protecting the party from “intrusion by those with adverse interests; and, 2) the protection of the overall integrity of the state electoral process.” 141 The two goals are clearly interrelated since the maintenance of healthy political parties enhances the integrity of the electoral process generally. Ideologically coherent and identifiable political parties enhance the overall electoral process by providing voters with a limited range of familiar and recognizable party labels. Expanding on Judge Anderson’s discussion, one can align certain types of state electoral-related laws discussed earlier with each of the objectives. In figure 2.1, I have tried to link two sets of common state regulatory laws with each of these objectives. Most state legislatures and courts have usually jumbled the two major motives together. However, as indicated in figure 2.1, the primary objective served by the second set of state regulations is to preserve party autonomy and the meaning of party labels for voters. This distinction could be a useful one as we search for places to draw clearer boundaries to state regulations over parties. I would argue that those state laws that are primarily concerned with regulating—supposedly protecting— political parties should be more closely scrutinized than those laws that are aimed directly (and often exclusively) at the more public concern of maintaining a fair and open electoral process. Most early cases dealing with electoral matters found in favor of the state’s regulatory scheme given the ease of showing the importance of maintaining an open and fair electoral system. 142 However, in those cases challenging the regulation of parties’ internal affairs, the state’s interest in preserving the integrity of the electoral process, preventing fraud, and keeping the ballot to a manageable length, is no longer present. Instead, these challenges are to state laws regulating internal party operations and organizational structure where the state interest was clearly less weighty. The state interest in regulating such internal party matters can perhaps be best described as indirect. In order to preserve a democratic and representative electoral sys-

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Figure 2.1. State Laws Regulating Parties and Their Objectives

tem, political parties must meet some minimal standards. The difficulty, as we have seen, is that if this state interest is pursued too far the result can be the suffocation of vigorous parties which are themselves vital components in both our electoral system and our representative form of government. IV. THE SUPREME COURT JOINS THE DEBATE While the 1970s saw the expansion of free association to electoral matters, including parties’ electoral activities, it was not until 1979 that the Supreme Court opened the door to application of these concepts to what we have termed “internal party matters” including party organizational structure and self-governance. In that year the Supreme Court first distinguished the regulation of the internal side of political parties from the regulation of parties’ electoral activities with its brief decision in Marchioro v. Chaney. 143 This case involved a dispute within the Democratic Party of Washington State. Political parties in Washington had been regulated by the state since the 1920s. Among the state regulations was one establishing a state central committee for each party and setting forth its composition and powers. These same things were also authorized by the Charter of the Washington State Democratic Party. In 1976, the State Democratic Convention revised the party charter and expanded the convention’s membership to include the election of additional members beyond those specified in the state law. After the

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election of these new members the state committee refused to seat them, relying on the narrower definition of the committee’s composition set forth in the state statute. These elected representatives immediately sued claiming that the state law was a violation of their First Amendment right to free association. Significantly, the plaintiffs in Marchioro did not challenge the State’s right to regulate the party’s electoral activities. Rather, they rested their claim on the assertion that Washington had burdened the party’s ability to make “purely internal party decisions,” including the making of party policy between conventions, directing the party’s administrative apparatus, raising and distributing funds to party candidates, conducting workshops on campaign organization, and generally furthering the party’s policy interests and electing its adherents to office. 144 The Washington State Supreme Court sitting en banc found that the plaintiffs failed to demonstrate that the State had burdened their rights of association by its statutory alteration of the state committee’s membership. That court noted that, No case of the United States Supreme Court has extended the right of association in political affairs to areas outside racial discrimination or participation in the electoral process. Furthermore, there seems to be little inclination to expand the doctrine to other aspects of the political process. 145

On appeal, the U.S. Supreme Court unanimously affirmed the dismissal of the plaintiff’s free association claim. However, the Court did so because, “none of these [internal] activities . . . is regulated by statute . . . the source of the Committee’s authority is the charter adopted by the Democratic Party. In short, all of the ‘internal party decisions’ which appellants claim should not be made by a statutorily composed Committee are made not because of anything in the statute, but because of the delegations of authority from the Convention itself.” 146 The Court’s decision in Marchioro was significant because it represented the beginning of the judiciary’s willingness to link free association principles to situations where a state tried to regulate internal party matters. Although plaintiffs’ free association claim failed in Marchioro, the Court opened the door to the development of different standards for adjudicating claims relating to parties’ internal affairs. The case is also important in that it refused to simply assume that the existence of a state statute would automatically override internal party decisions as to party organization and party governance. Instead, the Court in Marchioro gave considerable weight to the importance of preserving party autonomy in the face of mounting state regulation. Marchioro also recognized that associational rights of political parties might be greater in those instances when state tried to regulate parties’ nonelectoral activities. In the 1980s this line of thinking was pursued and memorialized by the Supreme Court in a series of rulings which together showed a

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determination to preserve political parties from wholesale regulation in matters not closely tied to the election process. In the span of just a few years, the Court attempted to provide answers to three of the key questions relating to the associational rights of political parties in their internal governance. In its 1983 decision in Anderson v. Celebrezze the Court set forth a standard for judging state regulations burdening parties’ rights to free association. 147 Three years later in Tashjian v. Republican Party of Connecticut they wrestled with the thorny issues of who comprises the membership of a political party and how that membership is determined. 148 Finally, in 1989 the Court came to the central question of how heavily a state may regulate internal party governance and organization in light of the First Amendment guarantee of free association. 149 A. Anderson v. Celebrezze: A Test for Judging Electoral Regulations In 1983 the Supreme Court finally set forth a test for adjudicating state electoral laws that infringed free association rights. The case grew out of the attempt by independent presidential candidate John Anderson to gain a spot on Ohio’s ballot for the November 1980 election. Ohio law at the time required independent candidates to submit filing fees and signatures of registered voters by a specified date. Anderson’s supporters tendered their nominating petitions almost two months late and were denied access to Ohio’s November presidential ballot. The Court used this ballot access dispute to re-emphasize the importance of the rights to vote and to associate for political reasons as they had first done in Williams v. Rhodes. The connection to the right to vote was fairly obvious in Anderson, since the candidate’s supporters would have to mount a write-in campaign if his name were not printed on the official ballot. But the Court also went to some length to show that the right of free association was implicated here, noting that “[t]he exclusion of candidates also burdens voters’ freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens.” 150 The Court recognized that some burdens on First Amendment rights were inevitable in order to prevent “ballot chaos,” but nonetheless found the Ohio statute placed an unconstitutional burden on the association rights of Anderson’s supporters. The Court reached this decision after developing a balancing test to be used to judge state laws of this sort. Justice Stevens, writing for a slim majority, explained the two-step (“sliding-scale”) test as follows: 1. “first consider the character and magnitude of the asserted injury to rights protected by the First and Fourteenth Amendments”; then,

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2. “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” 151 In carrying out the second step, courts were urged to “consider the extent to which those [state] interests make it necessary to burden plaintiffs’ rights.” 152 This balancing test clearly puts a substantial burden on states that elect to regulate political activity touching free association rights. Significantly, the Court in Anderson ignored the fairly obvious equal protection argument as a basis for their decision. The choice to emphasize free association was deliberate and has redounded to the benefit of parties seeking to free themselves from excess state regulation. 153 The Anderson decision and its challenger-friendly standard were critical in expanding the Court’s interpretation of free association, particularly as it applied to political parties. In Anderson the Court found that the freedom to associate attached to voters collectively who possessed a right to associate with the candidate at the polls. This principle would clearly be applicable to parties when they nominate candidates since this is essentially helping citizens organize and support a candidate for office. It is a small step from this interpretation of free association for a collectivity of voters to greater free association rights for political parties. In essence, the Anderson decision refocussed the compelling interest standard used in cases like Storer a decade earlier in order to reach a decision favoring association over state regulatory efforts. 154 B. Tashjian v. Republican Party of Connecticut: Who Comprises the Party? The Court’s gradual extension of the freedom of association to political parties inevitably led to difficult questions concerning party composition and membership. Obviously, we need to know who belongs to a party if the rights of association are to be fully enforced. An accurate definition of party membership is also critical for determining eligibility for participation in intraparty elections and primaries. And finally, we need to be able to identify parties in terms of their membership if party democracy is to be enhanced. The porous nature and uncertain boundaries of American political parties make this task difficult. A related and elusive question is, who is actually the “holder” of the free association right: the party, its individual members, and/ or those outsiders seeking to associate with the party. 155 These issues of party membership and free association were addressed by the Court in its 1986 decision in Tashjian v. Republican Party of Connecticut. 156 For many years Connecticut had had a statute barring the participation of independent voters in the state’s party primaries. In 1983, the Republican Party’s State Central Committee adopted a new party rule opening the par-

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ty’s primaries to independent voters as well as registered Republicans. The move was apparently motivated by a desire to expand the party’s membership base. Indeed, at the time, unaffiliated (independent) voters outnumbered registered Republicans in the State of Connecticut. Republican Party efforts in the state legislature to repeal the law mandating “closed” party primaries failed and so the party sued in federal court. When this dispute came before the Supreme Court they applied the Anderson test and easily found Connecticut’s statute to be an unconstitutional burden on the free association rights of both the party and its members. The Court reiterated the importance of free association in the context of political parties and noted that, “[t]he Party’s attempts to broaden the base of public participation in and support for its activities is conduct undeniably central to the exercise of the right of association.” 157 The Court found that Connecticut’s effort to close its primaries interfered with the parties’ “associational opportunities at the crucial juncture” in the political process: when parties seek new supporters in their quest for electoral victory. 158 Connecticut sought unsuccessfully to assert several compelling state interests in order to justify its decision to force its parties to close their primaries. These included: efficiency and cost effective administration of the primary system, prevention of “raiding,” avoidance of voter confusion, and protection of responsible party government. The Court considered and rejected each of these justifications. The cost-effectiveness argument was found to be too speculative, and “raiding” was seen as something usually carried out by the opposing political party (if ever) and not by independent voters. The other two asserted state justifications derive from a paternalistic interest in preserving political parties’ ideological integrity and safeguarding the meaning of the party labels for the average voter. These sorts of justifications are often asserted by states in these situations. Indeed, states frequently claim that they are actually trying to help their parties by protecting them from outside interference or dilution of their policy positions or party ideology. The Tashjian court summarily rejected these party-prophylactic justifications, noting that participation by independents in Republican Party affairs could actually help the party broaden its message and win the support of more independent voters. More importantly, the Court recognized that the parties themselves were best suited to identify and protect their own interests. 159 The state’s claim that it had an interest in protecting the two-party system and responsible party government drew a longer response from the justices. The Court distinguished Connecticut’s law from electoral regulations it had previously upheld. Earlier decisions were regarded as valid state efforts to protect parties from “external disruption” whereas Connecticut’s statute was seen as an attempt to protect “the integrity of the Party against the Party itself.” 160 This distinction is significant and similar to our model’s effort to

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separate those external party activities that may be subject to state regulation from those internal ones that should be largely free from state interference. It appears to turn on an assessment of the goals of the state legislature when it passed the regulation. A more objective standard employing the same tools might be more easily applied. That is, instead of trying to divine the legislature’s motives, the courts might be better advised to judge for themselves whether the regulation is disruptive of the internal processes of the parties or not. This discussion by the Court shows that they were willing to dichotomize between these two types of state regulatory laws. The Court in Tashjian also evidenced some respect for party independence and autonomy. The justices scolded Connecticut for attempting to “‘substitute its own judgment for that of the party.’” 161 They also warned Connecticut that they should not “prevent the parties from taking internal steps affecting their own process for selection of candidates.” 162 These remarks reveal a desire on the Court’s part to recognize and preserve a substantial degree of party autonomy from state regulation. C. Eu v. San Francisco County Democratic Central Committee: Protecting Party Self-Governance In 1984 a dispute arose in California that would eventually present the Supreme Court with an opportunity to rule decisively on the matter of the state regulation of internal party governance. The case began as a challenge to California’s complex and detailed election law by committees representing the Democratic, Republican and Libertarian political parties. California had long been a leading state in seeking to closely regulate both its elections and its political parties. In this case, the parties challenged a California statute that dictated the selection method and term of office for party committee members, and another that banned pre-primary endorsements by parties. The state had tried to control the organization and composition of the parties’ governing bodies by imposing term limits on them and requiring that the position of state party chair rotate between northern and southern residents of the state. The plaintiffs brought suit based on First Amendment claims of free expression and free association. The Eu litigation consumed half a decade and reached the Supreme Court on two occasions. 163 Along the way several opinions were written that illuminate the constitutional relationship between state regulatory interests and parties’ associational rights. In the dispute, California took the position that its political parties were “public entities” rather than private associations and therefore were not deserving of First Amendment protection. The parties argued the other extreme: namely that they were “voluntary associations” entitled to full First Amendment rights. 164 Both the Ninth Circuit and the

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Supreme Court ultimately sided with the parties in what has become the single most important case protecting party independence and autonomy. The Ninth Circuit Court of Appeals issued two opinions in the Eu litigation, both striking down California’s statute regulating parties as a violation of the First Amendment. The Court rejected as “bootstrap reasoning” the state’s assertion that it could somehow convert its political parties into “public entities” through extensive regulation and simultaneously deprive them of First Amendment protections. 165 The Court forcefully linked internal party structure and governance to the First Amendment by declaring that the “right of association would be hollow without a corollary right of self-governance, ‘there must be a right not only to form political associations but to organize and direct them in the way that will make them most effective.’” 166 The Court supported its view with examples of the practical problems that California’s statutory rules posed for parties in terms of organizational flexibility and independence from state control. The Court also found that the regulation of leadership selection infringed on the parties’ right to free expression by limiting their choice of leaders. The Ninth Circuit considered and rejected each of the California’s asserted “compelling interests.” The Court found that the state interests in preventing intraparty “friction” or “factionalism,” or in affirmatively promoting party “harmony,” fell short of being compelling interests. The Court conceded that a state typically has such an interest in generally preserving the “integrity of the electoral process” but that this did not extend to helping parties, or certain parties, organize themselves more effectively to ensure that they get onto the ballot. In sum, the court stated that the government must assume a “neutral role” with regard to political parties and “not interfere with the associational rights of political parties beyond what is necessary to assure honest and orderly elections.” 167 On remand from the Supreme Court the Ninth Circuit reaffirmed its position in a nearly identical opinion. 168 Taking into consideration the Supreme Court’s intervening decision in Tashjian, the Ninth Circuit adopted that opinion’s distinction between state laws that protect parties from “external disruptions” that are constitutionally permissible, and those laws that purport to protect parties from “internal disruptions” which are not constitutional. 169 The Court found that the state had no valid interest in protecting parties from themselves: “We have no trouble concluding that the First Amendment forecloses paternalistic state action designed to protect parties from choosing rules of governance that may prove to be harmful to party interests.” 170 The U.S. Supreme Court affirmed the Ninth Circuit’s second opinion and came down hard on California’s statutory attempt to specify how political parties could operate themselves internally. 171 Justice Marshall’s opinion, supported by all of the other seven justices participating in the decision, found that California’s statutory scheme “directly implicate[d] the associa-

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tional rights of political parties and their members.” 172 The Court then ruled that the constitutionality of state election laws would be determined through application of the strict scrutiny test requiring states to demonstrate that their law advanced a “compelling state interest” and that it was narrowly tailored to serve that interest. 173 The adoption of this most demanding of judicial tests raised the bar considerably higher for state electoral laws than did the sliding scale test set out in Anderson and applied in Tashjian. Despite this strong language, the Court in Eu went on to describe the test as a rather mild barrier to state regulation, citing numerous instances of valid (“compelling”) state regulations. It ruled that the states could enact electoral laws interfering with the internal affairs of political parties if they were simply necessary to “ensure that elections are fair and honest.” 174 To illustrate, the Court noted the variety of state electoral laws that it had upheld in the past, including those that had established minimum requirements for voting, 175 required that the major parties use primaries to select their nominees, 176 limited voters to participation in only one party’s primary, 177 charged reasonable filing fees to candidates, 178 and imposed waiting periods for voters who switched party allegiances. 179 The key distinction here, if there was one, was that these valid laws were not a “direct regulation” of a party’s leadership. Justice Marshall explained that burdens on political parties’ rights imposed by these laws were “necessary to the successful completion of a party’s external responsibilities in ensuring the order and fairness of elections.” 180 However, in the wake of the Eu decision it still remained unclear whether strict scrutiny applied to all electoral laws or only to those placing a direct burden on party leaders. The attempt in Eu to distinguish valid from invalid state legislation on the basis of whether the law placed a direct or indirect burden on the association rights of parties seems like it would be difficult to apply. The Tashjian approach of upholding laws unless they burden the internal operations of parties may be a similar test but would probably be easier to apply to new cases. V. APPLICATION OF SUPREME COURT RULES FOR STATE REGULATION OF ELECTORAL MATTERS In the wake of this trilogy of Supreme Court rulings the debate over the regulation of political parties shifted back to the lower courts. These courts wrestled with the same issues and attempted to apply some of the guidelines enunciated by the Supreme Court in the 1980s. Several of these courts complained of the inconsistency among the various standards put forward by the Supreme Court to adjudicate state electoral laws in light of the First Amendment. 181 Most lower courts eventually adopted the Anderson test though they

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usually concluded that the challenged state law posed a serious threat to First Amendment rights and therefore had to be supported by a compelling state interest. While lower courts were generally in agreement that the strict scrutiny standard should be applied to state electoral laws, the outcomes of the cases remained uneven. For example, in 1995 the Eight Circuit Court of Appeals applied strict scrutiny and struck down an Arkansas law that required state parties to use primaries to nominate their candidates. 182 Three years later, a federal district court in Rhode Island found that a state law requiring political parties to use primaries was supported by a compelling state interest, namely the need “‘to take political nominations out of the smoke-filled rooms of the political bosses and give them to the voters.’” 183 Similarly divergent conclusions were reached by lower courts considering state laws that required disaffiliation from one party by voters or candidates before they could participate in the primary of another party. 184 Agreement on a review standard was thus not very helpful in bringing uniformity to this corner of the law. A number of lower courts made use of the internal/external burden distinction set forth in Tashjian. This distinction, it will be recalled, was between those state electoral regulations which sought to prevent the disruption of political parties from external forces and those laws that purported to protect parties from themselves or internal disruption. 185 An example of this in the lower courts would be the 1996 decision in Louisiana Republican Party v. Foster where the Louisiana Supreme Court struck a state law attempting to change the selection method for the party’s state central committee. 186 Louisiana had passed a law that tried to bring the selection method employed by the state’s Republican Party closer to the ideal of one-person, one-vote. The court rejected the state’s asserted interests in upholding the integrity of the election process because, “organization and composition of the state central committee was a purely internal matter.” 187 Many lower courts during this period upheld state regulations that involved the free association rights of parties. For example, in 1991 the Colorado Supreme Court in Colorado Libertarian Party v. Secretary of State of Colorado, upheld that state’s twelve-month unaffiliation statute. 188 This law dictated that candidates who were not nominated by a party primary or convention had to remain unaffiliated with a political party for twelve months before being able to file for access to the ballot. The Colorado Supreme Court found that this statute, unlike those in Tashjian and Eu, was directed at protecting the electoral process from external threats. 189 The court thus upheld this requirement finding that it promoted “the overall stability of the state’s electoral process, without ‘unfairly or unnecessarily’ impinging upon the [Colorado Libertarian Party’s] associational rights.” 190 The Colorado court found Eu inapplicable since it addressed “intra-political party concerns and not the situation in the present case where a political organization’s lack

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of any affiliation requirement . . . has a disorganizing effect on other political parties and organizations.” 191 Thus, though this case did not help out this particular third party, it nevertheless continued the distinction between laws regulating internal party matters and those protecting the overall electoral system. A different interpretation of the evolving standards in this area was briefly considered by the Eight Circuit in Republican Party of Arkansas v. Faulkner County, Arkansas. 192 This court reviewed the possibility that the easier Anderson-Tashjian test might apply to state laws regulating voters’ and candidates’ rights while the more demanding strict scrutiny test could apply to state efforts to regulate political parties. The Eight Circuit declined to endorse this distinction, finding that it had no support in either the case law or logic since “it would make little sense to afford greater protection to the rights of political parties than to the rights of voters and candidates.” 193 However, the two-tier approach should not be dismissed so quickly. There are separate and distinct reasons for protecting political parties as intact and independent organizations—considerations that are beyond, or in addition to, the traditional First Amendment rights of free expression and association. It could be argued that the rights of parties to autonomy and independence are different from, rather than superior to, the rights of voters and candidates seeking ballot access. 194 The limitations typically imposed by state law on parties are usually more destructive and cumulative in their effect than those imposed on individual candidates or voters. The burdens typically imposed on candidates and voters—registration fees and disaffiliation requirements— represent an inconvenience or only a partial circumscription of association rights. In contrast, state regulations of parties often tend to extinguish the associational rights of all members of the party and could eventually eviscerate the party itself by depriving it of the fundamental ability to determine who participates in party primaries and party governance structures. The free association rights of parties were generally reinforced during this period by most lower courts. These decisions tended to favor parties’ rights to control who could participate in party gatherings on grounds of First Amendment free association. In a variety of fact scenarios, courts since the mid-1980s have allowed parties wide latitude in determining who can participate in various party gatherings. For example, in a 1987 case from the First Circuit, a party was allowed to deny speaking privileges to an individual at a party forum held for its presidential candidates since such a gathering was deemed to not be a “governmental activity” and the party was to be considered an agent of the state only as far as it “determines participants in a primary election.” 195 Similarly, a party’s ejection of evangelical Christians from a party meeting was upheld on free association grounds by a district court in Nebraska in 1991 since the party’s “alleged actions relate[d] solely to internal affairs of the Douglas County Republican Party.” 196 And in 1986

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a federal district court struck an unusual Pennsylvania law as a violation of the complaining party’s free association rights because it had the effect of forcing the party to either expand or contract its membership base in order to gain access to the ballot. 197 The most recent major Supreme Court ruling on the question of association rights of political parties was their 2000 decision in California Democratic Party v. Jones, in which the Court struck that state’s “blanket primary” as a violation of the party’s free association rights. 198 This case solidifies the twenty-year trend since at least Marchioro in which the Court has reinforced the association rights of parties in a wide variety of contexts. The Jones case grew from a 1996 decision by California to eliminate the use of “closed” primaries in favor of a “blanket” primary whereby any registered voter could vote in any party’s primary and thus have a voice in who received that party’s nomination. All four of California’s statutory political parties sued challenging this new form of primary election as a violation of their First Amendment right of association. The Supreme Court agreed with the plaintiffs in a 7–2 decision that restated the Court’s position that although there are important state interests in regulating primary elections, they are not “wholly public affairs that the States may regulate freely. To the contrary, we have continually stressed that when States regulate parties’ internal processes they must act within limits imposed by the Constitution.” 199 The Court made clear that the right of parties to associate also includes the right to not associate. This was seen as another way that the ideological integrity of parties could be preserved. For the Court, Justice Scalia noted the importance of this right for parties: 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 position 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. 200

California’s blanket primary was deemed a serious burden on the parties’ rights because it forced them to associate with persons they considered to be outside their political organizations. The state’s asserted compelling interests in the election of more “representative officials” and the expansion of candidate debates beyond partisan politics were rejected by the Court. The Jones case further expanded the association rights of parties by making clear that it includes the right to not associate. The case is also important for extending the constitutional ban on state intervention in “internal” party matters to include even a general state regulation of the primary election process. By doing so, the Court has probably expanded the definition of “internal” party

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matters and thus the class of party functions receiving the greatest constitutional protection. Since the Supreme Court’s 1979 decision in Marchioro, the parties have steadily gained a substantial degree of constitutional protection for many of their functions. Taken together, these court decisions have come to represent a substantial brake on the state regulation of political parties that has been growing for nearly a century. The debate over party autonomy since Marchioro has been carried out in the language and standards of the First Amendment. This has had the effect of extending constitutional protection to “internal party affairs” even if not expressed in those terms. The debate also shifted away from things that are fairly clearly “internal” party activities, such as the selection of party leaders, to the consideration of other party activities that are less clearly “internal” in nature. The remainder of this chapter will look at two of these newer lines of cases that have applied free association principles to party activities that fall very close to the public/private boundary in party existence. VI. THE PRE-PRIMARY ENDORSEMENT One of the most interesting and controversial party functions is that of the pre-primary endorsement. 201 This is the power of political parties, either through a party convention or through their central committees, to give the party imprimatur to one or more of the candidates running in a primary election. This party function is especially significant for our purposes because it falls so very close to the public/private boundary of party activities. In one sense a party endorsement is an internal activity, undertaken by internal party organs. However, the endorsement may also have a broader public impact by indirectly influencing the outcome of the general election. 202 As states began adopting the direct primary as the means for nominating candidates in the early twentieth century, some of them simultaneously granted their parties the power to endorse one or more candidates who were seeking the party nomination. This appears to have been motivated by a desire to compensate party organizations that had lost much of their control over the nomination process through the introduction of the direct primary. The granting of the power to make pre-primary endorsements was a way of tempering this loss by preserving some role for party organizations in the nomination process. 203 Today, there are two general types of pre-primary endorsements: those that are recognized by state law that may carry some ballot access privilege and those that are undertaken by parties informally and without official sanction. 204 For decades pre-primary endorsements were little-noticed party affairs. However, in the late 1970s this party function came under fire in some states.

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Florida was one of the first states to attempt to deprive its political parties of their power to endorse primary candidates. In what appears to have been a blatant partisan move, both houses of the Florida state legislature passed a ban on party endorsements in a single day in April 1978 and the governor signed the bill into law the next day. The statute took effect immediately and appears to have been aimed at derailing endorsements by the Dade County Democratic Party in an upcoming primary election. In an opinion issued three weeks later, a federal district court struck down this effort to eliminate pre-primary endorsements in Abrams v. Reno. 205 The court found that the ban amounted to a prior restraint on the party’s free speech and applied strict scrutiny analysis. The federal judge also found that the “legislation interfere[d] with the internal workings of political parties at the state and local levels,” 206 and was therefore an unconstitutional burden on the party’s rights of free association. The real battle over party endorsements, however, was to take place in the state of California in the late 1980s. California had long been a leading antiparty state due in large part to its unusually bad experience with party machines and party corruption early in the twentieth century. 207 The battle over the pre-primary endorsement in California soon became entangled with that state’s long tradition of holding nonpartisan elections for judges, school boards, and county and city offices. In 1984, the California Supreme Court abruptly declared that the state’s constitutional requirement of nonpartisan elections for certain offices did not prohibit political parties from endorsing candidates for those offices. 208 This decision immediately triggered a movement to amend the state’s constitution to make such a ban explicit. In June 1986 the voters of California adopted a constitutional amendment which stated flatly that, “No political party central committee may endorse, support or oppose a candidate for a nonpartisan office.” 209 The adoption of this amendment quickly led to protracted litigation involving both of the major parties in California under the caption Geary v. Renne. 210 Ultimately, this case reached the U.S. Supreme Court, but in a sharply divided opinion the high court found the case to be nonjusticiable and remanded it for dismissal. 211 While the final outcome of the Geary case was unsatisfying, the litigation did generate several opinions which represent some of the best judicial thinking on the endorsement issue and the role of parties’ nonpartisan elections. All of the judges who wrote opinions in this dispute agreed that California’s ban represented a serious burden on political parties’ First Amendment rights requiring the application of strict scrutiny. However, the judges disagreed on the application of the test, in particular whether California had demonstrated a compelling state interest in holding nonpartisan elections and whether the endorsement ban itself was “narrowly drawn” for First Amendment purposes.

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Judges who opposed the partisan endorsements in Geary saw the ban as a way to curb excessive party power over both the electoral process and elected officials. Judge Trott of the Ninth Circuit believed that the constitutional ban would prevent political parties from “dominating an area designed to remain open to everyone.” 212 The suspicion of parties and their baneful effects on politics were summarized plainly by Judge Trott when that panel first considered the situation in Geary: We are persuaded by both history and the logic advanced by defendantsappellees and the amici that party endorsements would place local officials and judges in debt to the statutory political parties and that through the endorsement and support process, the political parties would indeed be able to close the door to elective office to independent-minded persons who refuse to toe the party line. It is likely that any process by which a major party would decide whom to endorse—or support—would effectively determine who could and who could not run for that office. 213

Supporters of the ban on endorsements also believed that it was a “narrowly drawn” burden on First Amendment rights because it applied to only a few “intrastate offices,” and left open other avenues for expression of political opinions. 214 Not surprisingly, judges who supported the endorsement ban gave little consideration to the possibility that a ban on party endorsements would burden parties’ free association rights by interfering in their internal affairs. A majority of the Ninth Circuit sitting en banc that subsequently reheard Geary reversed their earlier panel. On reconsideration, the entire Ninth Circuit opposed the ban on endorsements and presented a very different view of the role of parties in the political process. These judges applied the Supreme Court’s reasoning from Eu that struck California’s endorsement ban in partisan elections, finding no significant different between the burdens on political parties in partisan versus nonpartisan elections. 215 The majority of the Ninth Circuit believed the most serious threat to the integrity of the electoral process was not the “dominance” of political parties but rather candidates searching for campaign funding. In concurrence, Judge Reinhardt contended that: “[W]hatever the cause of the problems in municipal government in the early 1900s, today’s threat to the integrity of the political process comes not from the Republican or Democratic parties—or even from the Libertarians—but rather from the corrupting influence of money in politics—that is, from massive campaign contributions. . . . In fact, today’s problems concerning the lack of integrity in government may well stem in substantial part from the weakening of the political party system, both locally and nationally. Throughout the nation, candidates can no longer look to the party to assume responsibility for the cost of their campaigns. . . . These days public officials and would-be

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Midway through the Geary saga came the broader challenge to California’s party regulation scheme in the Eu v. San Francisco Democratic Central Committee litigation discussed earlier. The Supreme Court’s opinion in Eu was most famous for striking California’s attempt to sharply restrict its parties’ control over their own internal organization and structure. But the decision also overturned California’s statutory ban on pre-primary endorsements as a violation of both free speech and the free association rights of parties. 217 Noting that this constitutional protection has its “fullest and most urgent application to speech uttered during a campaign for political office” 218 the Court applied strict scrutiny analysis. The judges rejected California’s proffered state interests and ruled that a ban on party endorsements “directly hampers the ability of a party to spread its message and hamstrings voters seeking to inform themselves about the candidates and the campaign issues.” 219 The Court also found that the ban on party endorsements put an unconstitutional burden on the parties’ right of free association, explaining that: Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to “identify the people who constitute the association,” and to select a “standard bearer who best represents the party’s ideologies and preferences.” Depriving a political party of the power to endorse suffocates this right. 220

As these cases indicate, the courts have afforded considerable protection to the pre-primary endorsement. Few judges have considered this party function in terms of whether it is an “internal” party operation that should be protected on that basis. 221 Instead, the courts have protected parties’ endorsement powers using First Amendment free speech and free association principles. This may simply be a different route to the same end but the result is that this important party responsibility enjoys considerable constitutional protection today. This is important because the power to endorse primary candidates goes to the heart of the role parties play in our political system. If parties were unable to have substantial influence over who was able to run under their banners, then political parties, party organizations, and party labels would soon become irrelevant. 222 VII. SELECTION OF PRESIDENTIAL CONVENTION DELEGATES A final area of litigation that has dealt with internal party matters are those cases involving the selection of delegates to national party conventions.

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These cases raise new and important issues relating to party organization, including the relationship between levels of party organization and their relationship to state regulations. These issues have usually been framed in terms of the priority among national party rules, state party rules, and state legislation regulating political parties. These cases raise questions of what might be termed “party federalism,” that is, the relationship that exists between national party organizations and their state and local subdivisions. These issues have rarely come up in other fact scenarios dealing with political parties, making the delegate selection cases somewhat unique. It is through these cases that we see some differing constitutional treatment of national as opposed to state and local party organizations. Through the delegate selection cases, the courts have tried to clarify the relationship between competing party rules and state laws governing delegate selection. In doing so, the courts have occasionally revealed their conception of political parties and their role in our political system. American parties have long been regarded organizationally as layers of party organizations or committees from the precinct level up to the national party level. 223 The cases in this area have given some guidance as to how national party organizations may relate to their state committees and the relationship of party rules to state legislation. Early state court litigation on the question of whether the state or the party should control the selection of convention delegates generally favored the party. A typical early case was the 1952 decision in Alexander v. Booth from the Florida Supreme Court. 224 In that dispute the executive committee of the state Republican Party determined the manner for the selection of the party’s national convention delegates. Party members challenged this practice claiming that state law required that delegates be elected in a party primary. The Florida Supreme Court held for the party, declaring that: “Not only in the State of Florida, but throughout other states of the Union by ‘custom and practice’ party Executive Committees have exercised the power to elect, or select Delegates to the National Convention, when the subject matter is not regulated or controlled by statute.” 225 The Court went on to state that national delegates are “party officers and not state officers.” This early case reflects the prevailing view at that time favoring conceptualization of parties as private rather than public or governmental entities. As state regulatory schemes became more intrusive, the courts would face greater pressures to favor state regulatory power over party independence. Generally, the federal courts have been much more deferential to the independence and autonomy of the national party organizations than they have been to the state party organizations. There seems to be a fairly strong reluctance to hold the national parties to strict constitutional standards or to regulate them in any way comparable to the way states routinely regulate state party organizations. Federal courts also seem to not want the states to

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regulate matters relating to the national parties. The question of national regulation of party organizations is obliquely and occasionally referenced in the delegate selection cases. 226 Many of these judicial views spring from the Supreme Court’s 1972 per curiam decision in O’Brien v. Brown. 227 This case involved a dispute over the “unseating” of delegates from the states of California and Illinois by the Credentials Committee at the 1972 Democratic National Convention. The decision of the Ninth Circuit ordering the party to seat the California delegates was stayed by the U.S. Supreme Court because: 1) the dispute could not be resolved in the short time available; 2) the entire Convention could still review the decision of the credentials committee; and, 3) there was a “large public interest in allowing the political process to function free from judicial supervision.” 228 Although the Court did not reach the merits in this case, the decision indicated that the judiciary should stay out of disputes within the national parties. Only Justices Marshall and Douglas, in dissent, believed that the actions of national parties in this case were justiciable and thus subject to the requirements of Fourteenth Amendment due process. 229 The Court in O’Brien also reiterated the long-existing policy of the courts to enter partisan politics only with great caution, the Court noting that: Judicial intervention in this area traditionally has been approached with great caution and restraint. It has been understood since our national parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intra party disputes as to which delegates shall be seated . . . Highly important questions are presented concerning justiciability. . . . Vital rights of association guaranteed by the Constitution are also involved. 230

Three years later, in another delegate dispute arising from the 1972 Democratic National Convention, the Supreme Court squarely addressed the question of priority between state laws and party rules. The litigation in Cousins v. Wigoda grew out of a dispute over the seating of the Illinois delegation to the Convention. 231 Several members of the Illinois delegation successfully challenged the seating of rival Illinois delegates before the Credentials Committee of the National Democratic Party. The losing slate of delegates sued in an Illinois state court for an injunction claiming that they had been selected in accordance with state law. This set the stage for a classic confrontation between party rules and state law. The Illinois Appellate Court that eventually heard the dispute ruled in no uncertain terms that, “the law of the state is supreme and party rules to the contrary are of no effect . . .” 232 This view, however, was quickly reversed by the U.S. Supreme Court on appeal with the Court ruling that the state’s interests in regulating delegate selection to a national party convention were not “compelling” and therefore the state regulations posed an unconstitutional burden on the party’s free

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association rights. The Court minimized the interests of individual states in the process of selecting delegates to national conventions, noting that, “The Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” 233 The majority also felt that if each state could set the qualifications for national delegate selection that this would, “destroy the effectiveness of the National Party Convention as a concerted enterprise engaged in the vital process of choosing Presidential and Vice-Presidential candidates—a process which usually involves coalitions cutting across state lines.” 234 The Supreme Court majority in Cousins also made clear what the Court was not deciding in that case. In a footnote they indicated that they were not ruling on whether decisions of a national party constitute “state action,” whether national parties are subject to reapportionment rules, or even whether national parties were regulable by, or only by, the Congress. 235 The larger significance of the decision in Cousins is that the Court clearly applied free association principles to the relationship between national parties and their state counterparts. The case also clearly set the priority of national party rules over state laws by minimizing the state interests in the national delegate selection process. In 1981 the Supreme Court handed down its third major ruling in the delegate selection area with its decision in Democratic Party of the United States v. Wisconsin ex rel. La Follette. 236 This time the dispute was over the Wisconsin delegate slate to the 1980 Democratic National Convention. Democratic National Party rules at the time required that all delegates to the Convention be chosen at closed primaries where only registered party members could vote. The State of Wisconsin required that national delegates, however elected, had to vote at the Convention in accord with a statewide preferential primary that was open to all registered voters regardless of party affiliation. After the Democratic National Convention refused to seat the Wisconsin delegates so bound, the delegates sued in state court. The Wisconsin Supreme Court held that the state delegates were bound by the results of the preferential primary and that the Democratic National Party could not refuse to seat them. 237 The state supreme court found that the state had “compelling interests” in the overall integrity of the electoral process, increasing voter turnout at primaries, preventing harassment of voters, and preserving the secrecy of the ballot. 238 The U.S. Supreme Court reversed this holding and found that the Wisconsin law represented a substantial intrusion into the associational rights of the parties. 239 The Supreme Court rejected Wisconsin’s efforts to distinguish Cousins on the grounds that the Wisconsin statute represented only an indirect burden on the parties’ right to association. The Court then went on to carefully limit the role that they believed the courts—and state legislatures—

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should play in trying to regulate the role of political parties in our political system. For the Court, Justice Stewart wrote: [I]t is not for the courts to mediate the merits of this dispute. For even if the State were correct, a State, or a court, may not constitutionally substitute its own judgment for that of the Party. 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. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational. 240

The Court in the Wisconsin case also attached considerable importance to the party efforts, as opposed to those of the state, to preserve party ideological cohesion or purity. This interesting concern has arisen only rarely in Supreme Court opinions. 241 The direction set by the Supreme Court in the O’Brien, Cousins, and Wisconsin decisions settled much of the law on party selection of national delegates. By the early 1980s it was clear that national parties were to be accorded special consideration that placed them largely beyond state regulation. Lower courts since that time have continued to recognize the priority of national party rules and interests over state regulatory interests. In the same year as the Wisconsin ruling from the Supreme Court, the Sixth Circuit struck a Michigan law regulating the selection of national delegates in violation of national party rules. 242 Two years later, the Eleventh Circuit refused to be drawn into a dispute over whether a party state executive committee was performing “governmental functions” in selecting national convention delegates, deeming the matter nonjusticiable. 243 In the late 1990s, presidential candidate Lyndon LaRouche challenged the Democratic National Party’s delegate-selection rules, alleging a violation of the 1965 Voting Rights Act. The District of Columbia Court of Appeals refused to apply strict scrutiny and upheld the party’s delegate selection process under free association principles. 244 Today, it is fairly well settled that the interests of the states in the selection of national convention delegates must yield to national party rules. However, the question of delegate selection for state party conventions is a different matter, lacking the issues of “party federalism” and national party interests. This question was addressed by the Sixth Circuit in 1990 with its decision in Heitmanis v. Austin. 245 That court struck provisions of Michigan’s election law that regulated the parties’ selection of delegates to state party conventions. The court’s reasoning closely paralleled earlier decisions barring the states from regulating party selection of national delegates. The Sixth Circuit ruled that:

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The instant case involves . . . provisions . . . which conflict with State party rules. We hold that these portions of the Election Law significantly burden the right to freedom of association of the State Party and its members. . . . By requiring the county executive committees to be made up of an equal number of elected delegates and legislators, the Election Law directly controls the internal structure of the political parties. 246

The delegate selection cases, taken together, represent an important extension of constitutional guarantees to the parties. Not only do they reiterate the application of free association principles to parties, but these cases also give constitutional recognition to the rights of the national parties to order their relationship with their state parties. This latter guarantee is critical for the national parties to continue to modernize and fulfill their unique role in our constitutional democracy. 247 VIII. CONCLUSION This chapter has reviewed several lines of case law all dealing with various aspects of state regulation of internal party affairs. Over time the courts have approached this topic using a variety of constitutional doctrines and provisions. The earliest courts to think about government regulation of internal party matters tended to simply stay out of these disputes, considering parties to be private “voluntary associations.” Many early courts simply deemed such matters too “political” for judicial resolution. As state regulation of parties grew the debate surrounding these regulations also grew. Numerous judges in the 1960s and 1970s worked to reconcile the need for state regulation of electoral matters with the desire to preserve party independence. These courts used equal protection doctrine, especially its derivative the oneperson, one-vote rule, and the rapidly expanding doctrines associated with representative government at that time. The debate after 1970 continued largely on First Amendment grounds, as the courts resorted to free speech and free association principles to try to place parties within the democratic framework. Whether discussed in terms of equal protection doctrine or First Amendment principles, many of the same fundamental issues and problems have arisen. Looking back over several decades of judicial activity in this area it seems that the courts have increasingly sought tools and rationales for locating and solidifying the boundary between those party activities that should be significantly regulated by the states and those that should be largely free of such regulation. This process has involved considerable confusion as judges have split over where and how to draw this boundary. Supreme Court cases like Eu appear to have fostered the development of a hierarchy among party functions in terms of the degree of constitutional protection that they should

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be granted. Under this scheme, the maximum constitutional protection is accorded to matters of party self-governance, including the selection of leaders and internal party organization. Party activities that deal with the nomination process more directly, however, appear to receive less constitutional protection and more judicial scrutiny. As we will see in subsequent chapters, this hierarchy of functions and review standards can be extended into the parties’ conduct in purely electoral matters as well. Two of the most recent areas of judicial activity concerning the regulation of internal party matters have been those adjudicating the pre-primary endorsement and the selection of national convention delegates. Both of these party functions fall very close to the public-private boundary in party behavior and thus forced the courts to draw some clearer distinctions. Significantly, even these party functions nearest the public-private divide have been granted considerable constitutional protection. While considerable progress has been made by the courts on the vexing issues of party autonomy versus state electoral interests, much still remains to be done. Agreement as to applicable constitutional vehicles and even on the appropriate constitutional standard, have not led to uniform decisions on the rights of political parties. The next chapter will extend our discussion into what are more clearly public, electoral functions of political parties. These decisions should help isolate and refine the elusive boundary between the two sides of American parties. NOTES 1. See, e.g., Paul Allen Beck, Party Politics in America, 8th ed. (NY: Longman, 1997) ch. 3. 2. Compare the list of state statutes regulating parties in, Marchioro v. Chaney, 442 U.S. 191, 195 n. 11 (1979). 3. See e.g., Ohio Revised Code, §§ 3501.01, 3517.01 (1996 and supp. 2001); 10 Illinois Compiled Statutes 5/7–2 (1993 and supp. 2002); California Elections Code §§ 338, 5100 (West 1996 and supp. 2001). Ohio actually defines several types of parties depending on their votegetting strength in the last statewide election: “major” parties are those that received at least 20 percent of the vote, “intermediate” parties 10–20 percent, and “minor” parties 5–10 percent. New York defines “party” as a political organization whose last gubernatorial candidate received at least 50,000 votes. See, New York Election Law § 1–104 (McKinney 1998 and supp. 2002). An interesting discussion of state definitional statutes concerning parties can be found in, Hunt v. Democratic Party of Oklahoma, 439 F. Supp. 788, 790 (N.D. Okl. 1977). 4. California recognizes four “qualified” political parties and gives them special statutory attention. See, California Elections Code §§ 7050–7244 (Democratic Party), 7250–7470 (Republican Party), 7500–7695 (American Independent Party), and 7700–7884 (Peace and Freedom Party) (West 1996 and supp. 2001). New political parties may qualify in California under statutory guidelines, see, California Elections Code §§ 5000-5006 (West 1996 and supp. 2001). 5. Many states, such as Ohio, specify the type of district from which party leaders will be elected and require that the elections be “direct.” See, e.g., Ohio Revised Code §§ 3517.02, 3517.03 (1996 and supp. 2001). New York broadly defines districts from which party committee members must be elected, leaving much discretion to party rules. See New York Election Law §§ 2–100, 2–102, 2–104 (McKinney 1998 and supp. 2002). New York also leaves the

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precise size and gender balance on party committees to party rules. New York mandates that state and county party committees be elected but leaves the decision on local committees up to the parties to decide. On New York’s deference to party rules, see, People v. Myers, 223 NYS2d 787 (1962); and, Application of Leichter, 223 NYS2d 789 (1961). Compare, 10 Illinois Compiled Statutes 5/7–7, 7–8 (1993 and supp. 2002). Illinois has a new detailed statute on committee composition, selection and powers with alternative methods from which the party may choose. Even county party committees in Illinois are tightly regulated, 10 Illinois Compiled Statutes 5/7–9 (1993 and supp. 2002). California specifies party organization and leadership selection in great detail with a special chapter for each qualified party, see, California Elections Code, §§ 7150–7884 (West 1996 and supp. 2001). 6. These laws also often specify how meetings are to be advertised in advance, how new party committees will take office, required filing of party constitutions and bylaws, etc. See, e.g., Ohio Revised Code, §§ 3517.02, 3517.04, 3517.05 (1996 and supp. 2001). Other common “public” functions for party organizations include the recommendation of persons to serve on the state’s board of elections and the power of central committees to waive the petition filing requirements for a candidate. See, e.g., Ohio Revised Code, §§ 3501.07, 3513.051 (1996 and supp. 2001); New York Election Law §§ 3–100, 5–206, 6–611, 6–148 (McKinney 1998 and supp. 2002). Despite its comprehensive regulatory scheme, Illinois does recognize that party committees have additional “powers usually exercised by such committees” that are not inconsistent with law; see, 10 Illinois Compiled Statutes 5/7–8(I) and 5/7–9(d) (1993 and supp. 2002); and, People v. Kramer, 160 N.E. 60 (Ill. 1928), recognizing inherent powers of Illinois state parties. 7. These statutory requirements are often very detailed setting forth the form of the ballot, declaration procedures for candidates, provisions for write-in candidates, filing requirements, rules for conducting elections and how challenges will be resolved. Often the state’s board of elections plays a major supervisory role here, essentially displacing the parties from much of their traditional role in primaries. Some states also regulate their state party conventions in detail, including membership, size, and how delegates are selected. See, e.g., Ohio Revised Code, § 3513.01–3513.33 (1996 and supp. 2001); New York Election Law §§ 2–122, 2–122a, 2–126 (McKinney 1998 and supp. 2002); 10 Illinois Compiled States 5/7–5. 5/7–14.1 and 14.2 (1993 and supp. 2002). New York’s regulations vary by level of the party with the state central committee being regulated the most closely. Compare, New York Election Law §§ 6–104 and 6–108 (McKinney 1998 and supp. 2002). California regulates primaries and nominations, California Elections Code, §§ 8000-8228, 13000–13317 (ballots), 14000-14990 (election day procedures), 15000–15673 (voting procedures), and has special rules for presidential delegate selection, §§ 6000–6954 (West 1996 and supp. 2001). 8. E.g., Donnelly v. Curcio, (2d Dept. 2001) 284 A.D.2d 460, 726 NYS2d 703, leave to appeal denied, 96 NY2d 718, 785 NE2d 656 (2001). 9. This rule is reflected in the legal digests: 39 West’s Federal Practice Digest, 4th ed., Elections §§ 121, 122 (West Group, 2001); and, 29 Corpus Juris Secundum, Elections § 89 (NY: American Law Book Company, 1965 and 2000 supp.). An interesting comparison between the old and modern restatements of this rule can be found in: 18 American Jurisprudence, Elections §§ 143, 272 (Rochester, NY: Lawyers Cooperative Publishers, 1938); and, American Jurisprudence 2d, Elections §§ 1–3, 207–208 (Rochester, NY: Lawyers Cooperative, 1996 and 2001 supp.). Judicial reluctance to become involved in party affairs is widely reflected in the case law: e.g., O’Brien v. Brown, 409 U.S. 1, 4 (1972); and, Irish v. DemocraticFarmer-Labor Party of Minnesota, 287 F. Supp. 794, 805 (D. Minn. 1968) affirmed, 399 F.2d 119, 120 (8th Cir. 1968). 10. See, for example, State ex rel. Padgett v. Vanderburgh Circuit Court, 138 N.E. 2d 143, 144 (Ind. 1956) (Court is without jurisdiction to try dispute over publication of a slate of primary candidates because this is a “purely political” activity); State ex rel. McCurdy v. DeMaioribus, 9 Ohio App. 2d 280, 224 N.E.2d 353 (Ohio Ct. App. 1967); Smith v. State Executive Committee of Democratic Party of Georgia, 288 F. Supp. 371, 376 (N.D. Ga. 1968) (“[T]here is no known case to the effect that any jurisdiction exists over the internal rules or management of a political party.”); Wagoner County Election Board v. Plunkett, 305 P.2d 525, 529–530 (Okl. 1956) (In challenge to run-off primary, held that there exists no common law

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right to contest party nomination of candidates for public office absent specific statutory provision); Democratic-Farmer-Labor State Central Committee v. Holm, 33 N.W.2d 831, 833 (Minn. 1948) (“[I]n factional controversies within a political party, where there is involved no controlling statute. . . . the courts will not assume jurisdiction, but will leave the matter for determination within the party organization.”); State ex rel. Webber v. Felton, 84 N.E. 85 (Ohio 1908); Wall v. Currie, 213 S.W.2d 816, 817–818 (Tex. 1948); State ex rel. Smith v. Bosworth, 117 S.E.2d 610 (W. Va. 1960); Wallace v. Cash, 328 S.W.2d 516, 518 (Ky. 1959); Foster v. Ponder, 361 S.W.2d 538, 539 (Ark. 1962); Deamer v. Jones, 201 A.2d 712, 714 (N.J. 1964); Morris v. Peters, 46 S.E.2d 729 (Ga. 1948); and, Phillips v. Gallagher, 76 N.W. 285 (Minn. 1898). Two of the most recent restatements of this position appear in, Reform Party of the United States v. Gargan, 89 F. Supp.2d 751, 760 (W.D. Va. 2000), and Reform Party of Connecticut v. Bysiewicz, 760 A.2d 1257, 1261 (Conn. 2000). 11. See, e.g., State ex rel. McCurdy v. DeMaioribus, 224 N.E.2d 353, 354 (Ohio Ct. App., 1948); and, Kearns v. Howley, 41 A. 273, 275 (Penn. 1898) citing the 1880 English case of Rigby v. Connol, 14 Chancery Division 482, for the proposition that there is no judicial right to intervene in a voluntary association absent involvement of a property right. The last Supreme Court endorsement of the “voluntary organization” characterization of political parties was probably Ray v. Blair, 343 U.S. 154, 222 n. 9 (1952) (per curiam). The Court in Grovey v. Townsend, 295 U.S. 45 (1935) held that the actions by party leaders barring a Black person from a party primary did not amount to “state action,” and that party leaders were not state officers even though state law required parties to hold primaries. This decision was overruled by Smith v. Allwright, 321 U.S. 649, 666 (1944). 12. E.g., Commonwealth ex rel. Koontz v. Dunkle, 50 A.2d 496 (Penn. 1947); and, Morris v. Peters, 46 S.E.2d 729, 737–738 (Ga. 1948). 13. See, e.g., Wagoner County Election Board v. Plunkett, 305 P.2d 525, 530 (Okl. 1956): “It is a firmly established rule that the equity power of courts exercising general equity powers does not include election contests, unless it is so provided expressly or impliedly by organic or statute law. The reason for this exclusion is that the questions involved are political and that the right to public office is not considered as constituting property in such sense as will warrant intervention of equity to protect it.” (Quoting, 18 American Jurisprudence, Elections §272 (Rochester, NY: Lawyers Co-Operative Publishing Co., 1938)). 14. For example, Irish v. Democratic-Farmer-Labor Party of Minnesota, 287 F. Supp. 794 (D. Minn. 1968); Democratic-Farmer-Labor State Central Committee v. Holm, 33 N.W.2d 831 (Minn. 1948); Phillips v. Gallagher, 76 N.W. 285 (Minn. 1898). See also, Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1981); and O’Brien v. Brown, 409 U.S. 1 (1972). 15. This attitude that intraparty disputes should be left to be settled within the parties themselves is occasionally seen in a modern cases as well: Storer v. Brown, 415 U.S. 724, 735 (1974) (“The State’s general policy is to have contending forces within the party employ the primary campaign and primary election to finally settle their differences.”); San Francisco Democratic Central Committee v. Eu, 792 F.2d 802, 818 (9th Cir. 1986) (“Moreover, Storer viewed the primary as set apart for healthy intraparty confrontation, even bloodletting.”); and, Federspiel v. Ohio Republican Party, 867 F.Supp. 617, 623 (S.D. Ohio 1994) (“The fact that a political party risks and often realizes internal friction does not justify intrusion by a court or state…Furthermore, it is essential to their member’s constitutional rights of free association that political parties be able to resolve intraparty disputes on their own.”) 16. A sketch of the historical origins and rise of state regulation of political parties can be found in, San Francisco County Democratic Central Committee v. Eu, 792 F.2d 802, 804–806 (9th Cir. 1986). 17. The phrases “state action” and “governmental function” have been used interchangeably in the case law. 18. Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73 (1932); U.S. v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944); Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947); Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949); and, Terry v. Adams, 345 U.S. 461 (1953). See also, John G. Kester, “Constitutional Restrictions on Political Parties,” 60 Virginia Law Review 735 (1974).

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19. Section one of the Fourteenth Amendment reads, in pertinent part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of liberty, life, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Italics added. 20. A similar expansion took place in the definition of what constituted “interstate commerce” for similar reasons. See, e.g., Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964); Katzenbach v. McClung, 379 U.S. 294 (1964); and, Daniel v. Paul, 395 U.S. 298 (1969). 21. 42 U.S.C. § 1983. Italics added. Section 1983’s “under color of” state law requirement has been found to be equivalent to the state action requirement of the Fourteenth Amendment, see, Adickes v. S.H. Kress and Co., 398 U.S. 144, 152 n.7 (1970); U.S. v. Price, 383 U.S. 787, 794–795 n. 7 (1966); West v. Atkins, 487 U.S. 42, 49–50 (1988); and, Gibbs v. Titelman, 502 F.2d 1107, 1110 (3d Cir. 1974). On the increasing scope of Section 1983 litigation, see, Robert C. Wigton, “The Second Circuit, Civil Rights Litigation, and Expanding Federal Jurisdiction,” 15 Vermont Law Review no. 2 , 301–332 (Winter 1991). 22. 273 U.S. 536 (1927). 23. 286 U.S. 73, 85 (1932). Compare, Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949), holding that party’s vesting of nomination process in a political club does not shield process from federal law that bars racial discrimination. 24. See, for example, Smith v. State Executive Committee of the Democratic Party of Georgia, 288 F. Supp. 371, 375 (N.D. Ga. 1968), recognizing this fact. 25. 313 U.S. 299, 318 (1944). 26. Id. at 311–312. 27. 321 U.S. 649 (1944). 28. Id. at 662, rejecting the Texas supreme court decision in Bell v. Hill, 74 S.W.2d 113 (1934), that the state Democratic Party was a “voluntary association.” 29. Id. at 663. 30. 372 U.S. 368 (1963). 31. Id. at 374–375, quoting Chapman v. King, 154 F.2d 460, 463–464 (5th Cir. 1946) certiorari denied, 327 U.S. 800 (1946). 32. Id. at 379 n. 10. 33. In Baker v. Carr, 369 U.S. 186, 202 (1962), the Court backed off its decision in Colegrove v. Green, 328 U.S. 549, 556 (1946), in which Justice Frankfurter coined the phrase “political thicket” as a reference to the intractable political difficulties that the courts would face in attempting to fashion judicial remedies in this field. 34. Reynolds v. Sims, 377 U.S. 533 (1964) (Court holds that a malapportioned state legislature is governed by the equal protection clause which requires substantially equal legislative representation for all citizens); Baker v. Carr, 369 U.S. 186 (1962) (Court found severely malapportioned state legislature to support a claim of denial of equal protection); Wesberry v. Sanders, 376 U.S. 1 (1964) (Malapportioned congressional districts must meet equal protection standards, that is, be as nearly equal in population as practicable); and Avery v. Midland County, Texas, 390 U.S. 474 (1968) (Local government units with general governmental powers may not under Fourteenth Amendment equal protection use single-member districts of substantially unequal populations). After Reynolds, the Supreme Court rapidly extended Equal Protection principles to require that both houses of state legislatures be apportioned substantially on the basis of population: WMCA, Inc. v. Lomenzo, 337 U.S. 633 (1964) (New York); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964) (Maryland); Davis v. Mann, 377 U.S. 678 (1964) (Virginia); Roman v. Sincock, 377 U.S. 695 (1964) (Delaware); Lucas v. Fourty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964) (Colorado); Burns v. Richardson, 384 U.S. 73, 90–92 (1966) (Hawaii); and, Swann v. Adams, 385 U.S. 440, 443–447 (1967) (Florida). 35. E.g., State ex rel. Sonneborn v. Sylvester, 132 N.W.2d 249 (Wis. 1965) (county board of supervisors); and, Bianchi v. Griffin, 217 F. Supp. 166 (E.D. N.Y. 1963) (county board of supervisors). 36. E.g., Kramer v. Union Free School District, 395 U.S. 621 (1969) (school district elections); Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50 (1970)

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(selection of junior college trustees); Board of Estimate of City of New York v. Morris, 489 U.S. 688 (1989) (New York City Board of Estimate). 37. E.g., Davis v. Bandemer, 478 U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267 (2004). 38. Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995); Bush v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996); and, Hunt v. Cromartie, 526 U.S. 143 (1999). 39. A couple representative lower court cases applying state action principles to potentially internal party activities: State ex rel. Cain v. Kay, 309 N.E.2d 860 (Ohio 1974) (A state party chair is not a “government official” simply because county central committees exercise some governmental functions.); and, Banchy v. Republican Party of Hamilton County, 898 F.2d 1192 (6th Cir. 1990) (Refusal of party to allow newly elected precinct executives to vote for their respective ward chairs does not constitute state action.). 40. 228 F. Supp. 268 (W.D. Penn. 1964) affirmed, 343 F.2d 370 (3d Cir. 1965). 41. 369 U.S. 186 (1962). 42. Lynch v. Torquato, 228 F. Supp. 268 (W.D. Penn. 1964). 43. Id. at 270. 44. Id. at 271. 45. Id. at 272. 46. For a more recent discussion of this, see, William J. Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington: Congressional Quarterly, 1998) p. 88. 47. 343 F.2d 370 (3d Cir. 1965). 48. Id. at 372. 49. Id. 50. Id. at 372 n. 5. Italics added. The question as to when, and to what extent, states can regulate party selection of convention delegates is dealt with in a later section of this chapter. 51. One of the few examples of a party executive committee exercising a “public electoral function” is often said to be when the committee approves the party nomination for a person not enrolled with the party. This usually involves a third or “minor” political party. In Anderson v. Meisser I, 239 N.E.2d 531 (N.Y. 1968), the New York Court of Appeals upheld a state law that allowed a party to designate a committee to authorize such candidacies. Under this scheme, a county-wide party committee could determine who received the party nod in a primary even though some members of the committee lived outside the district that the elected official would represent. Issues of one-person, one-vote were raised in a collateral attack on this statute in federal court, resulting in Anderson v. Meisser II, 285 F. Supp. 974 (E.D. N.Y. 1968). The federal court also upheld the New York law, reasoning that the “loss of a single party member’s influence in his district by diffusion of power over the larger area of the county is at least partly offset by the increased sway he gains in other districts.” Id. at 976. A decade later in Mrazek v. Suffolk County Board of Elections, 471 F. Supp. 412 (E.D. N.Y. 1979), it was held that since the process by which candidates get on the ballot is an integral part of the election process, it must comport with one-person, one-vote rules. Id. at 414. On appeal, the court concluded that this situation did not violate Equal Protection principles, “because however diluted the votes of local party members may be by outsider intervention into non-party nominations for their state representatives, their own votes, within the affected districts, remain entirely equal.” 630 F.2d 890, 898 (2d Cir. 1980). 52. 218 A.2d 261 (Penn. 1966). 53. Id. at 265. Footnote citing representational government sources omitted. 54. Id. at 266. Italics in original. 55. Id. at 267. 56. Id. at 269. 57. Id. at 266, citing and limiting sharply, Commonwealth ex rel. Koontz v. Dunkle, 50 A.2d 496 (Penn. 1947); Kearns v. Howley, 41 A. 273 (Penn. 1898); and, Kenneck v. Pennock, 157 A. 613 (Penn. 1931). 58. Bentman v. Seventh Ward Democratic Executive Committee, 218 A.2d 261, 268 (Penn. 1966), citing Rice v. Elmore, 165 F.2d 387, 389 (4th Cir. 1947). 59. Id. at 268, quoting, Rice v. Elmore, 165 F.2d 387, 391 (4th Cir. 1947).

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60. Another important part of the court’s rationale in Bentman was their determination that the State of Pennsylvania had, by its 1947 legislation, essentially converted its political parties into state agencies. In support of this interpretation, the court quoted the Supreme Court’s decision in Smith v. Allright, 321 U.S. 649, 663 (1944) (“The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party.”) This conceptualization of parties as state agencies has been repeated by other courts and is clearly an approach that would substantially erode, if not eliminate, any basis for parties to perform unregulated activities. Compare, Seergy v. Kings County Republican County Committee, 459 F.2d 306, 414 (2d Cir. 1972). 61. See, Gray v. Sanders, 372 U.S. 368, 379, 381 (1963) which was one of the first cases to set forth the one-man, one-vote principle in striking down Georgia’s county unit system for counting votes in party primaries for statewide offices. See also Ripon Society, Inc. v. National Republican Party, 525 F.2d 567, 579–580 (D.C. Cir. 1975) (en banc), citing Wells v. Edwards, 347 F. Supp. 453, 455 (M.D. La. 1972) (“[T]he rationale behind the one-man, one-vote principle. . . . evolved out of the efforts to preserve a truly representative form of government . . .”). 62. E.g., Wesberry v. Sanders, 376 U.S. 1 (1964). 63. E.g., Reynolds v. Sims, 377 U.S. 533 (1964). 64. E.g., Avery v. Midland County, 390 U.S. 474, 479-481 (1968); Abate v. Mandt, 403 U.S. 182, 185 (1971); Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 56 (1970); and New York City Board of Estimate v. Morris, 489 U.S. 688, 692-93 (1989). 65. 387 U.S. 105 (1967). 66. Id. at 108, 111. If adopted, this limitation of the equal protection doctrine to “legislators” instead of all “representatives” would have largely obviated the clause’s application to most internal party elections. The distinction between “legislators” and “representatives,” if it ever existed, was explicitly rejected by the Court as “unmanageable” three years later in Hadley v. Junior College District of Metropolitan Kansas City, 387 U.S. 50, 55–56 (1970). 67. 387 U.S. 105, 108 (1967). 68. 232 A.2d 852 (N.J. 1967). 69. Id. at 854. 70. Id. at 855. 71. 397 U.S. 50 (1970). 72. Id. at 54. 73. Id. at 58. 74. 319 F. Supp. 673 (W.D. Wash. 1970). 75. 319 F. Supp. 682 (W.D. Wash. 1970). 76. 319 F. Supp. 673, 679 (W.D. Wash. 1970). 77. Id. at 675. The Washington State Democratic Party had been using a complex and convoluted method for decades to select its presidential convention delegates: each county was first given an equal number of delegate votes, five more delegate votes were given for each senatorial district within the county, one more delegate vote was awarded for each 20 percent of the county’s population encompassed by a district covering more than one county, one more delegate vote for each one thousand votes or major fraction thereof cast for the party’s presidential nominee in the last election, and one delegate vote for each two thousand-vote plurality that the party’s last presidential nominee achieved over his opponent in that county. A number of ex officio delegate seats were also designated by the state committee. 78. 372 U.S. 368, 378 n. 10 (1963). 79. 319 F. Supp. 673, 679 (W.D. Wash. 1970). Similar language appears in, Moore v. Ogilvie, 394 U.S. 814, 819 (1969); Gray v. Sanders, 372 U.S. 368, 374, 380 (1963); Terry v. Adams, 345 U.S. 461 (1953); and, Smith v. Allwright, 321 U.S. 649, 660, 664 (1944). See also, Seergy v. Kings County Republican County Committee, 459 F.2d 308, 315 (2d Cir. 1972); Bentman v. Seventh Ward Democratic Executive Committee, 218 A.2d 261, 268 (Penn. 1966); U.S. v. Classic, 313 U.S. 299, 316-317 (1941); and, Newberry v. U.S., 256 U.S. 232, 250 (1921). 80. Although Goodwin decided to treat parties as state agents in Maxey, he also recognized that there were problems in applying this approach to other party activities. On this matter, he

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commented that, “The question next arises, when does the state-created presidential election process begin? Obviously, the process is a continuing one that begins for some voters when they register to vote. For the purposes of this case, I hold that the process begins when the state committee allocates the delegates to the state convention. It is at this point that the strictures of Gray and the one-man-one-vote principle require that the allocation be made on some rational population basis. Either total population or total Democratic voters as measured by the Democratic vote in the last presidential election should satisfy the equal-vote requirement.” 319 F. Supp. 673, 679 (W.D. Wash. 1970). 81. Id. at 682. 82. 319 F. Supp. 682 (W.D. Wash. 1970). 83. Id. at 684. 84. Id. at 685. 85. 459 F.2d 308 (2d Cir. 1972). 86. Id. at 314, citing as examples of public electoral functions: nomination of candidates to fill vacancies or to run in special elections, or the giving of consent to candidacies by nonmembers of the party. 87. A similar case was considered the next year by a federal district court in Oklahoma where party members alleged that the method by which members of their state central committee were chosen violated equal protection principles. In Todd v. Oklahoma State Democratic Central Committee, 361 F. Supp. 491, 493 (W.D. Okl. 1973), the court upheld the party’s selection method finding that parties in Oklahoma were organized by their own internal rules rather than by state law and were thus “voluntary organizations.” The court there went on to declare that members of the party’s central committee were not “public officers” and therefore no Democratic elector had a right to vote for them. Instead that court reviewed the duties of such committee members, quoting at length from Lynch, and ultimately finding that these party leaders were simply “functionaries of a private organization.” 88. 405 F. Supp. 998 (E.D. Penn. 1975). 89. Id. at 1002. 90. Id. at 1001. 91. In the same year McMenamin was decided, a federal district court in Rhode Island dealt with a similar set of issues in Fahey v. Darigan, 405 F. Supp 1386 (D.R.I. 1975). In this latter case, plaintiffs challenged a recently enacted state law requiring the chairs of the party committees in the city of Providence to appoint additional members to their party’s ward committees so as to increase their size to nineteen members each. These new appointees were to serve until the next party election when they would be replaced. Plaintiffs claimed that this process violated the one-person, one-vote principle. The court disposed of the equal protection claim by pointing to Lynch and Seergy, finding that the possibility that the newly appointed ward leaders would ever perform an “public” function before their replacement by election to be so remote as to render the suit nonjusticiable. Id. at 1393. 92. 439 F. Supp. 788 (N.D. Okl. 1977). 93. Id. at 791. 94. But when party leaders are in a position to actually nominate a candidate for a public office, federal courts are much more likely to require that equal protection standards be met. This issue arose in the Second Circuit in 1978 when a congressional seat in New York became vacant. In Montano v. Lefkowitz, 575 F.2d 378 (2d Cir. 1978), the court concluded here that the Constitution required that there be some adjustment (weighting) to the party committee’s voting on this issue to ensure that the party nomination was made by committee members who had been elected from within the congressional district. Compare, Grimes v. Commonwealth of Kentucky, 462 F.2d 1359 (6th Cir. 1972). 95. 867 F. Supp. 617 (S.D. Ohio 1994). 96. Id. at 622. 97. Republican Party of Miami-Dade County v. Davis, 18 So.3d 1112 (Fla. 2009). 98. Id. at 1114, quoting Florida Statute § 103.091 (1) (2008). 99. Id. at 1118. 100. Id. at 1118–1119, citing Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 122 (1981).

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101. Lynch v. Torquato, 228 F. Supp. 268 (W.D. Penn. 1964). 102. See, e.g., Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 54–56 (1970); and, Bentman v. Seventh Ward Democratic Executive Committee, 218 A.2d 261, 265–266 (Penn. 1966). 103. See, e.g., Seergy v. Kings County Republican County Committee, 459 F.2d 308, 414 (2d Cir. 1972); Moore v. Ogilvie, 394 U.S. 814, 819 (1969); and, Smith v. Alwright, 321 U.S. 649, 660, 663 (1944). A strong argument against parties being converted in to quasi-public entities, even when there is extensive state regulation, is set forth in, Federspiel v. Ohio Republican Party, 867 F. Supp. 617, 621-624 (S.D. Ohio 1994). For a discussion of “integral functions” in this context, see: Note, “One Man, One Vote and the Selection of Delegates to National Nominating Conventions,” 37 University of Chicago Law Review 536, 542–544 (1970). 104. Maxey v. Washington State Democratic Party, 319 F. Supp. 673, 679 (W.D. Wash. 1970). 105. Other courts have acknowledged that political parties engage in a mix of activities, only some of which amount to state action, see, e.g., Banchy v. Republican Party of Hamilton County, 898 F.2d 1192, 1194–1195 (6th Cir. 1990) (“While [the statute] delegates to the central committee of a state party the power to appoint certain county officials when a vacancy occurs, this does not mean that all actions of a central committee constitute state action.”). 106. See, Paul Allen Beck, Party Politics in America, 8th ed. (NY: Longman, 1997) pp. 367–370. See also, Samuel J. Eldersveld and Hanes Walton, Political Parties in American Society, 2nd ed. (Boston: Bedford/St. Martin’s, 2000) ch. 8; William J. Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington: Congressional Quarterly Press, 1998) p. 293–295. 107. On the question as to whether, or when, heavy state regulation can “convert” an entity into a quasi-public agency and thereby satisfy state action requirements, see, Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Jackson v. Metropolitan Edison, 419 U.S. 345, 358 (1974); San Francisco County Democratic Central Committee v. Eu, 792 F.2d 803, 810–811 (9th Cir. 1986); Federspiel v. Ohio Republican Party, 867 F. Supp. 617, 621–624 (S.D. Ohio 1994); and, California Republican Party v. Mercier, 652 F. Supp. 928, 934 (C.D. Calif. 1986). 108. See, Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 56 (1970); and, Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 727–728 (1973). 109. See, Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 58 (1970); and, Sailors v. Board of Education of the City of Kent, 387 U.S. 105, 109–110 (1967); and compare, Fortson v. Morris, 385 U.S. 231 (1966). 110. See, Driskell v. Edwards, 374 F. Supp. 1, 3 (W.D. La. 1974) vacated, 419 U.S. 812 (1974); West v. Carr, 370 S.W.2d 469, 474 (1963) certiorari denied, 378 U.S. 557 (1964); Bates v. Edwards, 294 So.2d 532, 534 (La. 1974); Stander v. Kelley, 250 A.2d 474, 481, certiorari denied sub nom., Lindsay v. Kelley, 395 U.S. 827 (1969); and, Livingston v. Ogilvie, 250 N.E.2d 138, 145–46 (1969). 111. See, for example, Wells v. Edwards, 347 F. Supp. 453, 455 (M.D. La. 1972), affirmed in memorandum opinion, 409 U.S. 1095 (1973). This rule has been reiterated by many courts: Latin American Citizens Council No. 4434 v. Clements, 914 F.2d 620, 626-27 (5th Cir. 1990); Chisom v. Edwards, 839 F.2d 1056, 1060–61 (5th Cir. 1988); Voter Information Project v. City of Baton Rouge, 612 F.2d 208, 210–211 (5th Cir. 1980); Mallory v. State of Ohio, 38 F. Supp. 2d 525, 569 (S.D. Ohio 1997), Anthony v. Michigan, 35 F. Supp. 2d 989, 999 (E.D. Mich. 1999); Clark v. Edwards, 725 F. Supp. 285, 294 (M.D. La. 1988) appeal dismissed, 958 F.2d 614 (5th Cir. 1992); Buchanan v. Gilligan, 349 F. Supp. 569, 571 (N.D. Ohio 1972); Holshouser v. Scott, 335 F. Supp. 928, 932–33 (M.D.N.C. 1971); New York State Association of Trial Lawyers v. Rockefeller, 267 F. Supp. 148 (S.D.N.Y. 1967); Buchanan v. Rhodes, 249 F. Supp. 860, 864–65 (N.D. Ohio 1966) appealed dismissed, 385 U.S. 3 (1966) (per curiam); Stokes v. Fortson, 234 F. Supp. 575, 577 (N.D. Ga. 1964). Although the one-person, one-vote rule does not apply to judicial elections, the requirements of the 1965 Voting Rights Act apparently do apply: Chisom v. Roemer, 501 U.S. 380, 390 (1991). See also, Note, “The Equal-Population Principle: Does It Apply to Elected Judges?” 47 Notre Dame Law Review 316 (1971).

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112. All federal judges are nominated by the president and confirmed by the Senate. U.S. Constitution, Art. II, section 2, clause 2. Many states also have appointed judges while others try to insulate their judges from politics by requiring them to seek election in nonpartisan elections. See, Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, ed. by Garry Willis (New York: Bantam Books, 1982) nos. 47, 51, 78, 81, 82 for some of the early thoughts on judicial independent. For some recent Supreme Court thinking on this matter, see, Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002); and, Karen L. Luchka, “Judicial Independence and State Judicial Selection Methods,” The 2003 Eckerd College Scholar (St. Petersburg, FL: Ford Apprentice Scholar Program at Eckerd College, 2003) pp. 46–56. 113. See, e.g., Paul Allen Beck, Party Politics in America, 8th ed. (New York: Longman, 1997) ch. 7; and L. Sandy Maisel, Parties and Elections in America, 3rd ed. (New York: Rowman and Littlefield, 1999) p. 138. 114. See, John F. Bibby, Politics, Parties, and Elections in America, 4th ed. (Belmont, CA: Wadsworth, 2000) ch. 4. 115. Two prominent cases dealing with intraparty elections after 1970 are Federspiel v. Ohio Republican Party, 867 F. Supp. 617 (S.D. Ohio 1994); and, Louisiana Republican Party v. Foster, 674 So.2d 225 (La. 1996). Both of these cases are dealt with in the next section since they were based largely on Free Association principles rather than equal protection doctrine as were most pre-1970 cases. 116. See chapter 1 for a general description of the right of the right of free association and its relationship to political parties and their members. 117. On the link between the regulation of party organizations and free association, see, Arthur M.Weisburd, “Candidate-Making and the Constitution: Constitutional restraints on and Protections of Party Nominating Methods,” 57 Southern California Law Review 213 (1984); and, Note, “Primary Elections and the Collective Rights of Freedom of Association,” 94 Yale Law Journal 117 (1984). 118. 343 U.S. 214 (1952). 119. Id. at 221–222. 120. 393 U.S. 23 (1968). 121. Id. at 30. 122. Id. at 39 (Douglas, J. concurring in the result); Id. at 41 (Harlan, J. concurring in the result). On the importance of the right of free association and its link to the right to vote, Douglas cited, NAACP v. Button, 371 U.S. 415, 430 (1963); NAACP v. Alabama, 357 U.S. 449, 460 (1958); and, Wesberry v. Sanders 376 U.S. 1, 17 (1964). 123. Id. at 41 (Harlan, J. concurring in the result). 124. Dunn v. Blumstein, 405 U.S. 330, 343 (1972); Kramer v. Union Free School District, 395 U.S. 621 (1969); Rosario v. Rockefeller, 410 U.S. 752 (1973); Kusper v. Pontikes, 414 U.S. 51, 58–59 (1973); and, Jenness v. Fortson, 403 U.S. 431 (1971); Illinois Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979); and, American Party of Texas v. White, 415 U.S. 767, 780, and n. 11 (1974). 125. E.g., Rosario v. Rockefeller, 410 U.S. 752, 761 (1973). 126. See, e.g., Jenness v. Fortson, 403 U.S. 431 (1971) (upholding a signature requirement for access to the ballot for independent candidates in face of both equal protection and free association claims finding it helps prevent voter confusion and maintain integrity of process); Rosario v. Rockefeller, 410 U.S. 752 (1973) (upholding party registration requirement for primary participation, Court accepts State’s anti-raiding justification as sufficient to overcome free association claim). But see, Kusper v. Pontikes, 414 U.S. 51 (1973) (striking twenty-threemonth registration requirement as a violation of free association rejecting the state’s antiraiding interest as insufficient). 127. 414 U.S. 51 (1973). 128. Id. at 56–57 (citations omitted). 129. 409 U.S. 1 (1972) (per curiam). 130. Id. at 4. (citations omitted). 131. 419 U.S. 477, 487–491 (1975). 132. Id. at 487. The delegate selection cases will be discussed more fully later in this Chapter. 133. 415 U.S. 724 (1974).

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134. Id., citing Dunn v. Blumstein, 405 U.S. 330, 348 (1972). 135. Id. at 730. 136. 525 F.2d 548 (D.C. Cir. 1975), rehearing en banc, 525 F.2d 567 (D.C. Cir. 1975). 137. Id. at 554. (citations omitted). Two years later a district judge in Oklahoma turned away a challenge to the selection of party leaders, noting the importance of associational rights for parties: “The Court should not and will not lightly dismiss, as de minimis, a party’s choice of organizational structure, even though the Court feels that such organizational structure is implicitly inequitable.” Hunt v. Democratic Party of Oklahoma, 439 F. Supp. 788 (N.D. Okl. 1977). 138. Id. at 586. Compare, Fahey v. Darigan, 405 F. Supp. 1386, 1394–1398 (D.R.I. 1975), which held unconstitutional under free association principles a state law that required party leaders to appoint additional members to party’s ward committees in order to increase their size, relying heavily on Storer v. Brown, 415 U.S. 724, 729–730 (1974). 139. 417 F. Supp. 837, 844–847 (D. Conn. 1976). 140. Id. at 844–845 (citations omitted). 141. Id. at 845, quoting Ray v. Blair, 343 U.S. 214, 221–222 (1952). Compare, David E. Price, Bringing Back the Parties (Washington, DC: Congressional Quarterly Press, 1984) ch. 5. 142. In chapter 3, we will return to the association issues raised by the regulation of parties in the electoral arena as opposed to those state regulations aimed at the internal workings of parties addressed in this chapter. 143. 442 U.S. 191 (1979). 144. Id. at 194–195 (1979). 145. Marchioro v. Chaney, 582 P.2d 487, 493 (1978). 146. 442 U.S. 191, 198–199 (1979). 147. 460 U.S. 780 (1983). 148. 479 U.S. 208 (1986) 149. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989). 150. 460 U.S. 780, 787–788 (1983). 151. Id. at 789. 152. Id. (italics added). 153. Compare, Lubin v. Panish, 415 U.S. 708 (1974) decided the same term in which the Court struck a candidate filing fee as a violation of equal protection since it discriminated against indigent candidates. 154. See, Anderson v. Celebrezze, 460 U.S. 780, 806–823 (1983) (Rehnquist, J. dissenting) arguing in favor of the Storer interpretation of the strict scrutiny standard in these cases. 155. The courts have usually found that the, “The rights of political parties are derivative of and coextensive with the associational rights of their members.” Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981). See similar statements in, Sweezy v. New Hampshire, 354 US 234, 250–251 (1957); First National Bank v. Bellotti, 435 U.S. 765, 777 (1978); NAACP v. Button, 371 US 415, 431 (1963); Republican Party of Arkansas v. Faulkner County, Arkansas, 49 F.3d 1289, 1292 (8th Cir. 1995); Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 US 431, 448 n. 10 (2001); Norman v. Reed, 502 U.S. 279, 288 (1992); Roberts v. United States Jaycees, 468 U.S. 609, 622-623 (1984); and, Nixon v. Shrink Missouri Government PAC, 528 US 377, 419 (2000) (Thomas, J., dissenting). See also, Mark E. Warren, Democracy and Association (Princeton, NJ: Princeton University Press, 2001); M. Glenn Abernathy, The Right of Assembly and Association (Columbia, SC: University of South Carolina Press, 1981) pp. 190–196, 278–286. 156. 479 U.S. 208 (1986). 157. Id. at 214. 158. Id. at 216. 159. Id. at 225. 160. Id. at 224. The Court distinguished its decisions in, Storer v. Brown, 415 U.S. 724 (1974) and Rosario v. Rockefeller, 410 U.S. 752 (1973), where they upheld state regulations in the form of disaffiliation statutes because there were genuinely aimed at protecting parties from external disruption. 161. Id. at 224, quoting, Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 123 (1981).

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162. Id. at 224 (italics added). 163. San Francisco County Democratic Central Committee v. Eu, 792 F.2d 802 (9th Cir. 1986). That decision was vacated and remanded by the Supreme Court in light of the Court’s decision in Tashjian v. Republican Party of Connecticut under the caption Eu v. San Francisco County Democratic Central Committee, 479 U.S. 1024 (1987). On remand, the Ninth Circuit issued an amended decision, 826 F.2d 814 (9th Cir. 1987) which was then affirmed by the U.S. Supreme Court, 489 U.S. 214 (1989). 164. 792 F.2d 802, 804 (9th Cir. 1986). 165. Id. at 810–811. 166. Id. at 812, quoting in part, Ripon Society, Inc. v. National Republican Party, 525 F.2d 567, 585 (D.C. Cir. 1975). 167. Id. at 815. 168. 826 F.2d 814 (9th Cir. 1987). Most of the new material in the Ninth Circuit’s second opinion responding to the remand order from the Supreme Court’s is found at 829–832. 169. Id. at 829. 170. Id. at 830. 171. 489 U.S. 214, 229–233 (1989). 172. Id. at 229. 173. Id. at 222 and 231. 174. Id. at 231. 175. See, Oregon v. Mitchell, 400 U.S. 112, 118 (1970) (minimum age); Dunn v. Blumstein, 405 U.S. 330, 343–344 (1972) (residency requirement); and, Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 625 (1969) (citizenship requirement). 176. American Party of Texas v. White, 415 U.S. 767, 779–780 (1974). 177. Id. at 785–786. 178. Bullock v. Carter, 405 U.S. 134, 145 (1972). 179. Rosario v. Rockefeller, 410 U.S. 752, 761 (1973). 180. Id. at 232 (italics added.) 181. E.g., Colorado Libertarian Party v. Secretary of State of Colorado, 817 P.2d 998, 1001 (Col. 1991); Republican Party of Arkansas v. Faulkner County, Arkansas, 49 F.3d 1289 (8th Cir. 1995); and, National Prohibition Party v. State of Colorado, 752 P.2d 80, 83 (Col. 1988) (en banc). See also, Fulani v. Krivanek, 973 F.2d 1539, 1543 (11th cir. 1992); and, Duke v. Cleland, 5 F.3d 1399, 1405 (11th Cir. 1993). 182. Republican Party of Arkansas v. Faulkner County, Arkansas, 49 F.3d 1289, 1296–1297 (8th Cir. 1995). 183. Cool Moose Party v. State of Rhode Island, 6 F. Supp.2d 116, 120 (D.R.I. 1998), quoting Lightfoot v. Eu, 964 F.2d 865, 872 (9th Cir. 1992), certiorari denied, 507 U.S. 919 (1993). 184. Compare, Colorado Libertarian Party v. Secretary of State of Colorado, 817 P.2d 998 (Col. 1991) (en banc) where the Colorado supreme court upheld a 12-month unaffiliation statute because it was supported by state interests in maintaining the integrity of the election process; and, Cool Moose Party v. State of Rhode Island, 6 F. Supp. 2d 116, 121 (D.R.I. 1998) finding that a ban on cross-over voting in primaries did not implicate state electoral interests at all. 185. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 224 (1986). Compare, Eu v. San Francisco County Democratic Central Committee, 479 F.2d 814, 829 (9th Cir. 1987). 186. 674 So.2d 225 (La. 1996). 187. Id. at 232. 188. 817 P.2d 998 (Col. 1991). 189. Id. at 1004–1005. 190. Id. at 1004, citing several other disaffiliation cases: Storer v. Brown, 415 U.S. 724 (1974); Rosario v. Rockefeller, 410 U.S. 752 (1973); Davis v. State Election Board, 762 P.2d 932 (Okl. 1988); Anderson v. Hooper, 632 F.2d 116 (10th Cir. 1980); and, Clement v. Fashing, 457 U.S. 957, 964 (1982). 191. Id. at 1005. (italics in original). 192. 49 F.3d 1289 (8th Cir. 1995). 193. Id. at 1297.

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194. See, Gottlieb, “Fleshing Out the Right of Association,” 49 Albany Law Review 825, 836–837 (1985). The Supreme Court has hinted that the free association rights of political parties might be greater than, or at least distinct from, the association rights of their members. See, California Democratic Party v. Jones, 530 U.S. 567, 575 (2000); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 373 (1997) (Stevens, J. dissenting); Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 448 n. 10 (2001); and “Supreme Court, 1996 Term, Leading Cases, Associational Rights of Political parties,” 111 Harvard Law Review 197 (1997). 195. Kay v. New Hampshire, 821 F.2d 31, 33 (1st Cir. 1987). 196. Blank v. Heinemann, 771 F. Supp. 1018 (D. Nebr. 1991). 197. Consumer Party v. Davis, 633 F. Supp. 877, 889-890 (E.D. Penn. 1986). 198. 530 U.S. 567 (2000). 199. Id. at 572–573. 200. Id. at 575. 201. An excellent description of the pre-primary endorsement can be found in, Malcolm E. Jewell and Sarah M. Morehouse, Political Parties and Elections in American States, 4th ed. (Washington: Congressional Quarterly, 2001) pp. 106–118. Other studies of the subject include: Schuyler C. Wallace, “Pre-Primary Conventions,” 106 Annals of American Academy of Political and Social Science (March 1923) 103; Malcolm Jewell and Sarah McCally Morehouse, “Gubernatorial Endorsements,” 24 American Politics Quarterly 338–362 (1996); Sarah McCally Morehouse, “The Politics of Gubernatorial Nominations,” State Government 53 (Summer 1980). One of the earliest cases to discuss party endorsements was, Gallant v. La France, 222 A.2d 567 (R.I. 1966). 202. See discussion in Jewell and Morehouse, Political Parties and Elections in American States, 4th ed. pp. 109–116. It appears that the beneficial effects of the party endorsement may be mostly from the organizational support and money that follow the decision, rather than as a voting cue for primary voters. 203. Id. at pp. 106–107. 204. Only a handful of states formally recognize their parties’ ability to endorse (or “designate”) candidates before a primary election. The state that probably has the most elaborate endorsement law is Connecticut, see, Connecticut General Statutes, §§ 9-372(9), 9–382, 9–390, 9–400 (Supp. 2002). Other states that recognize the pre-primary endorsement by statute include: Colorado Revised Statutes Annotated, §§ 1–4-601 (Supp. 2002); North Dakota Century Code, chapter 16.1–11 (Supp. 2002); Rhode Island General Laws, §17–-12-4 (Supp. 2001); New Mexico Statutes Annotated, § 1–8-21.1; and, New York Election Law § 6–104 (McKinney 2002). Some of these laws state that all candidates who receive a certain percentage of the convention vote (15 percent in Connecticut, 20 percent in New Mexico, and 30 percent in Colorado) automatically secure access to the party’s primary ballot. 205. 452 F. Supp. 1166 (S.D. Fla. 1978). A few months later another federal judge in Florida struck down a state law that banned party endorsements of candidates for judicial offices in that state, Concerned Democrats of Florida v. Reno, 458 F. Supp. 60 (S.D. Fla. 1978). 206. Id. at 1170, citing, Buckley v. Valeo, 424 U.S. 1 (1975). 207. For a description of California’s early experience with political parties see, Geary v. Renne, 880 F.2d 1062, 1073–78 (9th Cir. 1989); and 911 F.2d 280, 306–307 (9th Cir. 1990) (Alarcon, J. dissenting). See also, John R. Owens, Edmond Constantini, and Louis F. Wechsler, California Politics and Parties (London: Macmillan, 1970); Walton Bean, Boss Ruef’s San Francisco (Berkeley, CA: Univ. of California Press, 1967); and, Andrew McNitt, “The Effect of the Preprimary Endorsement on Competition for Nominations,” Journal of Politics vol. 42, no. 1 (February 1980) pp. 257–266. 208. Unger v. Superior Court (Republican Party) 692 P.2d 238 (Calif. 1984) (en banc). 209. California Constitution, Art II, § 6(b) (1986). 210. Geary v. Renne, 708 F. Supp. 278 (N.D. Calif. 1988), reversed, 880 F.2d 1062 (9th Cir. 1989), reheard en banc and reversed, 911 F.2d 280 (9th Cir. 1990). Separate litigation challenging the constitutionality of California’s election statutes was taking place during this same time under the same caption, Geary v. Renne, 914 F.2d 1249 (9th Cir. 1990). 211. 501 U.S. 312 (1991), on remand, 943 F.2d 32 (9th Cir. 1991).

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212. 880 F.2d 1062, 1066 (9th Cir. 1989). 213. Id. at 1079–1080. 214. Id. at 1066–1067. 215. 911 F.2d 280, 284–285 (9th Cir. 1990) (en banc); and 298–299 (Rymer, J. dissenting). 216. Id. at 287 (Reinhardt, J. concurring). Compare the majority statement that, “[T]he prohibition of endorsement appears to be counterproductive, for it increases the dependence of judicial candidates on campaign contributions. Endorsements permit the judge to get his name before the public in a favorable light at no expense to himself.” Id. at 292. 217. 489 U.S. 214, 222–229 (1989). 218. Id. at 223 (internal quotation marks omitted). 219. Id. 220. Id. at 224 (citations omitted). 221. The closest that the Ninth Circuit came to discussing a possible distinction between the public nomination process and the private party activity of rendering party endorsements came in a few comments by the judges in Geary v. Renne, 880 F.2d 1062, 1079 n. 26 (9th Cir. 1989), and, at 1085 (Canby, J. dissenting). 222. A district court in Rhode Island refused to become involved in an intraparty dispute over the constitutionality of a state law that regulated how parties endorsed primary candidates in Charlestown Democratic Town Committee v. Connell, 789 F. Supp. 517 (D.R.I. 1992). The dispute over First Amendment rights in nonpartisan elections has recently been renewed in a case coming out of Minnesota challenging that state’s campaign regulations for judicial candidates, see, Republican Party of Minnesota v. Kelly, 63 F. Supp.2d 967 (D. Minn. 1999), affirmed, 247 F.3d 854 (8th Cir. 2001), reversed and remanded sub nom., Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002). 223. American political parties have been described as “stratarchies,” that is, possessing some aspects of hierarchy while also being organized in layers of party committees. See, Samuel J. Eldersveld, Political Parties: A Behavioral Analysis (Chicago: Rand McNally, 1964) pp. 9–10, 98–117; William J. Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington: Congressional Quarterly, 1998) pp. 18-39; John F. Bibby, Politics, Parties, and Elections in America 4th ed. (Belmont, CA: Wadsworth, 2000) ch. 4; and, Samuel J. Eldersveld and Hanes Walton, Political Parties in American Society, 2nd ed. (Boston: Bedford/St. Martin’s 2000) chs. 6–7. 224. 56 So.2d 716 (Fla. 1952). 225. Id. at 719, citing, Stanford et al. v. Butler et al., 181 S.W.2d 269 (Tex. 194); State ex rel. West v. Gray, Sec. of State et al., 169 So. 36 (Fla. 1936); Smith et al. v. McQueen, 166 So. 788 (Ala. 1936); and, State ex rel. Traer et al. v. Gray, Sec. of State, 19 So.2d 311 (Fla. 1944). 226. See, for example, Cousins v. Wigoda, 419 U.S. 477, 484 n. 4 (1975); and the discussion of congressional power over electoral matters generally in Buckley v. Valeo, 424 U.S. 1, 90-92 (1976). 227. 409 U.S. 1 (1972) vacating, Brown v. O’Brien, 469 F.2d 563 (D.C. Cir. 1972). Compare, Smith v. State Executive Committee of Democratic Party of Georgia, 288 F. Supp. 371 (N.D. Ga. 1968), where judge refused to impanel a three-judge court to determine constitutionality of a party’s delegate selection rules because the statute authorizing the party to make the rules was itself constitutional. On the matter of judicial involvement in these matters, the Court wrote: “[T]here is no known case to the effect that any jurisdiction exists over the internal rules or management of a political party. Perhaps the presence of obvious political and legislative remedies and the argument that legislative and primary nomination has already afforded equal protection belies the need therefor.” Id. at 376. Earlier cases that indicated that there was jurisdiction over these topics included: Bode v. National Democratic Party, 452 F.2d 1302 (D.C. Cir. 1971) cert. denied 404 U.S. 1019 (1972); and, Georgia v. National Democratic Party, 447 F.2d 1271 (D.C. Cir. 1971), cert. denied 404 U.S. 858 (1971). 228. Id. at 3. 229. Id. at 12–16 (Marshall, J. dissenting). 230. Id. at 4–5. 231. 419 U.S. 477 (1975).

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232. 302 N.E.2d 614, 627 (1973). The Illinois appellate court added that, “The interest of the state in protecting the effective right to participate in primaries is superior to whatever other interests the party itself might wish to protect.” Id. at 629. See also, John R. Schmidt and Wayne W. Whalen, “Credential Contests at the 1968—and 1972—Democratic National Conventions,” 82 Harvard Law Review 1438–1470 (1969). 233. 419 U.S. 477, 490 (1975). Compare, Anderson v. Celebrezze, 460 U.S. 780, 795 (1983) ([T]he State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries.”) 234. Id. at 490. 235. Id. at 484 n. 4. 236. 450 U.S. 107 (1981). 237. State of Wisconsin ex rel. LaFollette v. Democratic Party of United States, 287 N.W.2d 519 (Wisc. 1980). 238. Id. at 536. 239. 450 U.S. 107, 125–126 (1981). 240. Id. at 123–124 (footnotes omitted). The Court cites Ripon Society, Inc v. National Republican Party, 525 F.2d 567, 585 (en banc) (“[A] party’s choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the Constitution . . .”) 241. E.g, Rosario v. Rockefeller, 410 U.S. 752, 760 (1973). 242. Ferency v. Austin, 493 F. Supp. 683, 691 (W.D. Mich. 1981) reversed, 666 F.2d 1023 (6th Cir. 1981). The district court held that party caucuses were not “elections” subject to state regulation, and that the state attorney general cannot determine eligibility of a political party’s national delegates. 243. Wymbs v. Republican State Executive Committee of Florida, 719 F.2d 1072 (11th Cir. 1983) cert. denied, 465 U.S. 1103 (1984). 244. LaRouche v. Fowler, 152 F.2d 974, 993-998 (D.C. Cir. 1998). 245. 677 F. Supp. 1347 (E.D. Mich. 1988) reversed, 899 F.2d 521 (6th Cir. 1990). 246. 899 F.2d 521, 529 (6th Cir. 1990). 247. On party modernization generally, see, L. Sandy Maisel, ed., The Parties Respond, 3rd ed. (Boulder, CO: Westview Press, 1998).

Chapter Three

The Regulation of Political Parties in the Electoral Process

[A]s a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process. —Justice Byron White, Storer v. Brown (1974) 1 The [States’] power to regulate the time, place, and manner of elections does not justify, without more, the abridgement of fundamental rights, such as the right to vote or, as here, the freedom of political association. —Justice Thurgood Marshall, Tashjian v. Republican Party of Connecticut (1986) 2

The previous chapter focused on the constitutional standards for adjudicating laws regulating the internal activities and operations of political parties. This chapter will focus on party activities that are generally considered to be more “public” in nature. This set of activities includes primarily those party functions that relate directly to the general election process. When political parties undertake activities beyond their own internal governance or the selection of their nominees, they inevitably become involved in matters that are of concern to the general public. In these situations, the likelihood that “state interests” will outweigh the interests of the parties themselves increases, making it more likely that the regulation will be upheld by the courts. While the interests of political parties do not disappear while undertaking these more public tasks, their interest is sharply diminished relative to the interests of the state. This greater state interest justifies greater state regulation over electoral matters than it does over matters like party governance. This chapter will review electoral laws in the U.S. with particular attention to how these laws impact political parties. Most laws regulating the 133

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electoral activities of political parties are state laws. The only significant federal legislation here is the Federal Election Campaign Act (FECA). As in the last chapter, we are especially interested in how the courts have balanced the competing policy interests in their adjudication of these state laws. The state interests behind these laws have traditionally been broad, including protecting the “integrity of the electoral process,” preventing of corruption in elections, and maintenance of a political process that is open, fair, and democratic. Party interests in this area are similar to those raised in opposition to state laws regulating parties’ internal affairs: maintenance of party independence through control over vital party functions such as nominations. While state interests will ordinarily triumph over party interests in matters closely linked to general elections there is still a need to demarcate the limits of state power over these aspects of elections that touch on vital interests of the parties. 3 As became clear in the last chapter, the disentangling of the internal (private) and external (public) roles of political parties cannot be done neatly. Indeed, the public and private sides of parties overlap to a considerable degree. We will continue to use this distinction as a means for organizing the case law on parties. Internal party activities need to be given substantial constitutional protection if the special contributions of parties to democratic government are to be preserved. But in carrying out their more “public” functions parties should be subject to greater public regulation by being held to higher constitutional standards. State election laws are generally much less of a threat to political parties as autonomous organizations than laws regulating internal party organization, structure, and leadership selection. Nonetheless, when these laws extend to regulating such things as the campaign activities of political parties, they can easily infringe on important First Amendment rights. As we have seen, the states have regulated various aspects of their own elections for decades. The earliest state electoral regulations grew out of the Progressive Movement’s desire to combat political corruption. These first state regulatory laws were concerned primarily with “cleaning up” politics by rooting out political corruption and bribery of public officials. States at that time sought to instill greater public confidence in the electoral process through the institution of the direct primary, government preparation of “official” election ballots, the introduction of nonpartisan elections, and the adoption of the secret (“Australian”) ballot. 4 Many of these early reforms were directed at political parties and their perceived role in corrupting government and elections. These early election laws had a great impact on parties. The direct primary in particular limited the power of party organizations over the selection of party nominees. State efforts to regulate their elections accelerated in mid-twentieth century in the wake of judicial decisions outlawing race discrimination in party

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behavior. Evolution in the doctrines of state action and equal protection made it easier for states to expand their regulation of elections in general, including the electoral behavior of political parties. As seen in chapter 2, many of the laws dealt with internal party matters. States also began regulating the behavior of parties in the electoral process. State laws regulated how parties and candidates could conduct themselves in political campaigns. Some early state laws tried to regulate the financial side of campaigns as well. 5 Serious efforts to regulate campaign finance began in the early 1980s at the federal level and this lead has been followed in an increasing number of states since that time. Most modern state election regulations are aimed at candidates, their campaign organizations, and political entities such as political action committees (PACs). Political parties are often mentioned in these statutes but have usually been only a secondary target of these more recent state election laws. Political parties have not been major financial contributors to state and local elections in the United States in recent years. 6 However, as the role of parties in the fiscal side of American elections has changed in recent years, there has been an increased likelihood of clashes between states seeking to regulate campaign finances and party activities. 7 In recent years, states have continued to expand their elections regulations through the use of nonpartisan elections, greater state control access to the general election ballot, and more elaborate regulation of non-financial campaign activities. State law also plays an important part in determining how political parties nominate their candidates for public office. States can mandate certain nomination methods (caucus, convention, direct primary), can determine who may participate in a party’s primary, and many other aspects of the nomination process. Many of these regulations are of vital interest to the parties. In the extreme, a state can adopt nonpartisan elections that eliminate parties from the ballot altogether. Most modern election laws tend to fall into one of the following categories: • Campaign Finance Laws: This is one of the few areas where there is substantial federal law regulating the parties. 8 State laws regulating the financial side of elections commonly include such things as: filing requirements for candidates, political organizations, and political parties; 9 limitations on campaign contributions and expenditures; 10 a ban on the use of public funds for campaigns; 11 regulation of the solicitation of campaign contributions; 12 restrictions on candidates’ use of personal funds; 13 and a wide variety of other financial regulatory techniques. 14 • Non-Financial Campaign Regulation Laws: In addition to financial regulations, many states also impose a variety of restrictions on campaign activities undertaken by candidates, their organizations, political parties, political action committees (PACs), and other political organizations. The

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most common of these regulatory devices include: the creation of a state elections board to oversee campaign activities, 15 and limitations on political advertising during campaigns, most commonly requiring disclosure of the advertisement’s sponsor. 16 • Ballot Access Laws: Every state election law controls the means by which candidates are placed on the government’s official general election ballot. These laws typically set forth alternate routes by which candidates may appear on the ballot, often differentiating among major (“qualified”) political parties, minor political parties, and independent candidates. The most popular techniques for controlling access to the ballot include petition (signature) requirements, early filing deadlines, application fees, and antifusion statutes. 17 States also regulate the parties and candidates through their choice of primary model(s). • Nomination Regulations: States have long controlled how their parties nominate their party standard-bearers. These regulations include whether parties must use primiaries, party registration requirements, and whether the primary is “open” or “closed.” Such regulations can affect the strength and coherence of political parties. 18 State election laws have been the subject of almost innumerable legal challenges over the years. Most of these challenges have used the same constitutional arguments as those challenging state regulations of internal party activities, including the First Amendment rights of free speech and free association and Fourteenth Amendment equal protection. This chapter will focus on those state laws that regulate various aspects of the general election phase as they affect political parties. Regulation of the nomination phase of elections was dealt with in the previous chapter as those regulations tend to be those that touch internal party activities. While the distinction between public and private sides of parties does not correspond exactly to the boundary between primaries and the general election, this political interface is easily identified and is one often used by the courts to determine how closely political parties may be regulated by the states. I. FEDERAL CAMPAIGN FINANCE LAWS AND THE PARTIES The federal government has been attempting to regulate the financial side of elections for more than a century. 19 The growing concentration of wealth in the United States in the late nineteenth century raised concerns that wealthy individuals and corporations could corrupt the electoral process. Many states at that time enacted legislation requiring the disclosure of large campaign contributions. The failure of these state laws to curb electoral corruption led to calls for federal regulation. President Theodore Roosevelt responded by

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calling for federal campaign reform as early as 1905, seeking primarily to limit corporate donations to campaigns for federal candidates. Congress responded by enacting the Tillman Act in 1907 that barred corporations from making campaign contributions in federal elections. 20 The Tillman Act was subsequently amended by Congress in order to close various “loopholes” and to expand its coverage. 21 Another early federal effort in this field came with the passage of the Federal Corrupt Practices Act of 1925. 22 This latter piece of legislation broadened federal regulatory power over campaign finance by mandating the disclosure of campaign donations and expenditures by congressional candidates. In 1940 the Hatch Act declared campaign contributions to be “pernicious political activity” and placed limitations on the amount of money individuals could donate to federal candidates or political committees. 23 These early campaign finance laws were enacted to root out financial corruption in federal campaigns by limiting the influence of corporations, wealthy individuals, and eventually labor unions. 24 Political parties per se were not a primary target of these early laws. However, in a couple early decisions interpreting these campaign finance laws the Supreme Court did have occasion to consider how far federal regulations of campaign finance should go in regulating political parties. In the only criminal prosecution under the Tillman Act, the Court in 1921 struck down that part of the Act that applied to party primaries or conventions. 25 Twenty years later in U.S. v. Classic, the Court reversed this position and upheld Congress’ power to regulate even primary elections when “they are a step in the exercise by the people of their choice of representatives in Congress.” 26 This federal power to regulate primaries was formally recognized by Congress when it enacted Taft-Hartley in 1947. 27 The era of modern government regulation of campaign finance was inaugurated in 1971 when Congress enacted the Federal Election Campaign Act of 1971 (FECA). 28 This landmark legislation was a consolidation and expansion of earlier federal efforts in this area. The Federal Election Campaign Act was enacted in response to the political corruption associated with the Nixon presidency and the 1968 presidential election process, perceptions of continued corruption in campaign finances, and the spiraling costs of presidential campaigns. In enacting FECA, Congress was once again targeting financial corruption in federal elections that was associated primarily with corporations and wealthy donors. The original FECA sought to regulate federal elections through two means: 1. A requirement of disclosure of campaign finances by candidate committees, party committees, and PACs. These disclosures were to include money raised and spent in federal election campaign; and,

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2. The establishment of specific limitations on both campaign contributions and campaign expenditures by individuals and groups to candidates, party committees, and PACs. These were set at different levels for different types of contributors (e.g., individuals, PACs) and have been amended several times. Financial abuses during the 1972 presidential campaign season motivated Congress to amend FECA in 1974. These amendments created the Federal Election Commission as an independent regulatory board to administer provisions of FECA, including the public funding program for presidential candidates. These amendments set additional limitations on contributions by individuals and political committees to candidates, parties and political committees. The amendments also placed limits on campaign expenditures by candidates, individuals, political committees and parties in federal elections. 29 Although the 1974 amendments mention parties specifically, it was understood by many in Congress at the time that these amendments would actually strengthen the role of political parties. In its Report to the Senate floor, the Senate Committee on Rules and Administration expressed these sentiments concerning the 1974 amendments to FECA and their impact on the parties: The Committee was cautioned by several witnesses to examine the relationship between campaign finance and political parties. Your Committee agrees that a vigorous party system is vital to American politics and has given this matter careful study. Under the Committee bill, parties will retain their essential non-financial responsibilities in electoral politics. More important, the bill retains the role of political parties in private financing for federal candidates. Public grants will go directly to candidates . . . . This also reflects the present pattern of private fund-raising, since candidates receive the bulk of their contributions directly from the public, rather than from parties. However, the Committee recognizes that pooling resources from many small contributors is a legitimate function and an integral part of party politics. Accordingly, the bill includes special provision for private funding by political parties. In a general election, candidates may not accept direct contributions if they accept the full level of public assistance. But they may receive substantial private funding, in addition to the public grant, in the form of expenditures by state and national party committees. The bill insures that such party assistance actually represents the involvement of many voters and not merely the influence of a wealthy few. It prevents evasion of the individual contribution limits by persons funneling large gifts thorough party committees; each person’s donation to party funds used to assist federal candidates under this special provision much not exceed the maximum amount he could give directly to the candidate.

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Thus, parties will play an increased role in building strong coalitions of voters and in keeping candidates responsible to the electorate through the party organization. In addition, the parties will continue to perform crucial functions in the election apart from fund-raising, such as registration and voter turnout campaigns, providing speakers, organizing volunteer workers and publicizing issues. Indeed, the combination of substantial public financing with limits on private gifts to candidates will release large sums presently committed to individual campaigns and make them available for donation to the parties. As a result, our financially hard-pressed parties will have increased resources not only to conduct party-wide election efforts, but also to sustain important party operations in between elections. 30

As these committee remarks make clear, the Congress was not out to curb the financial role of parties in elections but rather the opposite. The amendments ultimately raised the expenditure limits for many campaign activities that are traditionally associated with political parties, including exemptions for expenditures on food, invitations, “slate cards,” and sample ballots. The amendments also increased the amount that the national party committees could spend. 31 Campaign finance regulations are important to parties and voters in general because they can directly affect important First Amendment rights of association and speech. 32 A. The Buckley Decision The 1974 amendments were immediately challenged by an array of officeholders, candidates, and their political supporters. The challenge was led by New York Senator James Buckley and presidential candidate Senator Eugene McCarthy. The dispute eventually culminated in the Supreme Court’s 1976 opinion in Buckley v. Valeo, which has become the Court’s landmark decision in the realm of campaign finance. 33 In a lengthy and complex per curiam opinion, the Court weighed in on several of the major issues in this field. The Court upheld several important provisions of FECA, including the principle of placing limitations on contributions to candidates for federal offices, the requirement of disclosure of campaign finances, and the public funding of presidential elections. The Court found the ceilings on campaign contributions to be supported by a substantial government interests in curbing corruption in federal elections. However, the Court struck several key provisions of FECA that sought to limit independent campaign expenditures by individuals and groups as violations of the First Amendment right of free expression. The Court in Buckley drew an important distinction between campaign contributions and campaign expenditures for purposes of First Amendment free speech and free association. While both activities were seen as implicat-

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ing fundamental First Amendment issues, the Court decided that a political contribution merely conveyes “a general expression of support for a candidate and his views, but does not communicate the underlying basis for the support.” 34 In contrast, the Court found that FECA’s limitations on independent expenditures “impose significantly more severe restrictions on protected freedoms of speech and association than do its limitations on financial contributions.” 35 Accordingly, limitations on campaign expenditures failed judicial scrutiny while those on contributions were upheld (see figure 3.1). Since the Buckley decision, the Court has generally adhered to this distinction between contributions and expenditures in adjudicating laws limiting these twin political activities. The Court requires that limitations on contributions be held to a lower review standard, often referred to as “heightened scrutiny.” This standard requires that limitations on contributions be justified by a sufficiently important governmental interest that is closely drawn so as to avoid any abridgement of First Amendment rights. However, government efforts to limit campaign expenditures continue to be subject to the heavier burden of strict scrutiny, requiring the showing of a compelling government interest and the absence of less burdensome alternatives. 36 The effect of the Buckley ruling was to give independent political organizations, including PACs, a great boost. Suddenly, political contributions to political parties were subject to FECA limitations while independent expenditures by PACs and other groups in support of political causes and candidates were largely uncapped and unregulated. The effect of this financial

Figure 3.1. Limiting Political Money After Buckley: The Expenditure-Contribution Distinction

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advantage was the proliferation of PACs throughout American politics. 37 Political parties found themselves financially disadvantaged and increasingly displaced by PACs as the primary vehicle in American elections. This situation was exacerbated by spiraling campaign costs that have increasingly driven candidates into the arms of those organizations that can provide adequate financial assistance. 38 Few of these consequences appear to have been anticipated by the Congress in amending FECA nor intended by the Supreme Court in deciding Buckley. In its opinion, the Court focussed on finding a balance between valid government interests in regulating campaign finance and preservation of fundamental First Amendment freedoms. The justices wrote eloquently on the goal of affording broad protection for the interchange of ideas and the maintenance of “uninhibited, robust, and wide-open” public debate. 39 The Buckley Court gave limited consideration in its opinion to the political consequences of its decision including its potential impact on the major parties. A majority of the Court did not believe that their decision would adversely affect or discriminate against either challenger candidates or third political parties. 40 The Court expressed no concern that its decision might re-write the financial landscape of American elections by altering the financial positions of PACs and political parties. Congress responded quickly to the Buckley decision by amending FECA in 1976 to bring the statute into compliance with the Court’s decision. 41 Most of the changes to FECA involved the selection and composition of the Federal Election Commission. However, the Congress did make some minor adjustments affecting the parties as well. The most significant of these was the creation of explicit limitations on the contributions that individuals and multi-candidate committees could make to the national party committees. Under the amendments, individuals could give up to $20,000 per year to a party’s national committees, and multi-candidate committees could give up to $15,000 per year. 42 In 1979, Congress enacted further amendments to FECA that sought to expand the role of political parties in the electoral process by giving them a greater financial role. 43 In its report of the amendments to the Senate floor in June of 1979, the Senate Committee on Rules and Administration noted that: An equally important objective of the bill is to encourage grassroots participation in the political process. Witnesses in testimony before the committee expressed the opinion that the current act unduly restricts the role of political parties in Federal election campaigns. Several provisions in the bill are directed at enhancing and enlarging the scope of political party activity, as one means to encourage individual participation. 44

In order to encourage such “volunteer activity” through the parties, the Committee’s bill extended the definition of “volunteer expenditures” to in-

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clude volunteer activity on behalf of a political party, eased some of the reporting requirements for state and local party committees, and allowed state and local party committees to raise and expend certain funds on behalf of the party’s Presidential candidate. Taken together, these amendments represented substantial assistance to the parties, though the immediate goal was greater citizen participation politics rather than stronger political parties. 45 The law in this area is constantly changing given the stream of rulings issued by the Federal Election Commission and new campaign finance amendments to FECA from Congress. However, despite this fluid situation, the following generalizations can be made about the impact of the federal election campaign laws on the parties: 46 • All national and state and most local party committees must register with the Federal Election Commission and file periodic reports disclosing their federal campaign activities. 47 • Party committees may contribute money directly to federal candidates subject to statutory limitations. 48 • National and state party committees may make additional “coordinated expenditures” on behalf of their party nominees in general elections subject to limitations. 49 • State and local party committees may spend unlimited amounts of money on certain campaign activities (e.g., efforts to get out the vote (GOTV), production of campaign literature for volunteer distribution, etc.) which do not count towards their other contribution or spending limitations. 50 The Supreme Court has continued to be involved in the national debate over campaign finance since its 1976 decision in Buckley v. Valeo. Since that time, the federal judiciary has been repeatedly drawn back into this field to adjudge rulings of the FEC and to interpret new campaign finance legislation from Congress. The courts have, in effect, been caught between sporadic government efforts to reform the fiscal side of federal campaign and the relentless efforts of parties, PACs and individual donors to circumvent provisions of the law. For our purposes, some of this body of case law is also useful because it reveals judicial thinking on the issues surrounding the role of parties within our democratic system. 51 B. The Courts Open the Door to Intraparty Money-Sharing In the early 1980s a dispute arose over whether a state party committee could designate the party’s national senatorial campaign committee as its agent for disbursement of campaign funds that the state committee was itself permitted to make under FECA. The dispute turned on an interpretation of FECA provisions and prior FEC rulings, and eventually reached the Supreme Court

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in 1981 under the caption, Federal Election Commission v. Democratic Senatorial Campaign Committee (F.E.C. v. D.S.C.C.). 52 The DSCC is one of the four “Hill committees” made up of members of Congress that collect money for Senate and House candidates. 53 The Hill committees are authorized by FECA to make certain limited direct expenditures for congressional candidates. 54 For some time, the FEC had permitted the party Hill committees to allocate funds received from their state or national party committees to those party races that the Hill committee deemed most important for the party as a whole. These agency agreements effectively eased the FECA restraints and allowed the party committees to shift money between themselves for expenditure in those races the party felt were most important. The dispute in F.E.C. v. D.S.C.C. began when the Democrats’ Hill committee for the Senate filed a complaint alleging that the use of such agency agreements violated FECA. After two lower federal courts split on the main issue of the case, the Supreme Court granted certiorari in 1981. 55 The high court ruled unanimously that such agency agreements were not precluded by FECA and that the FEC had the authority to make such determinations. Writing for the Court, Justice White found that nothing in FECA expressly disapproved of such arrangements that let various party committees “share” their spending authority. 56 The Court in F.E.C. v. D.S.C.C. discussed briefly the appropriate role that political parties should play in financing federal campaigns. The justices generally supported what they deemed to be the legislative intent behind FECA to preserve a financial role for political parties in federal elections. 57 The Supreme Court determined that party agency agreements did not undermine FECA’s main purpose: the elimination of corruption or the appearance of corruption in federal races. The ruling in F.E.C. v. D.S.C.C. is generally regarded today as the decision that opened the door to wholesale sharing of campaign funds between different levels of the parties. 58 By allowing parties to share such spending authority, the campaign spending limits of the national parties effectively doubled since state party committees often have unspent funds they can transfer to the national committee. 59 However, a decade later a federal court upheld a FEC rule banning party committees serving as conduits between donors and candidates. In Federal Election Commission v. National Republican Senatorial Committee (F.E.C. v. N.R.S.C.), 60 the issue was whether a national party committee was serving as an improper conduit between party donors and party candidates when it solicited contributions on behalf of the party’s congressional candidates. If a national committee exercises “direction or control” over such money, then the contribution counts against the overall FECA limit for the party committee. The regulation was intended to curb the practice of “earmarking” whereby donors could evade contribution limits by funneling their contribution through a national party organization. The district court in F.E.C. v. N.R.S.C.

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decided that the case showed that the NRSC had in fact exercised such control over the money raised. The court decided that the regulation was valid because it was sufficiently tailored to serve a compelling government interest, viz., the prevention of corruption or its appearance in the political process. Significantly, the court wrote that “political parties do not have an exalted constitutional status that would automatically exempt them from limits imposed on other political committees.” 61 It appears that the Hill committee rulings have opened significant new opportunities for the parties to share and transfer money between party committees. It has been estimated that total intraparty transfers of both hard and soft money in the 1999–2000 election cycle were $184 million by the Democrats and $226 million by the Republicans. 62 The decision in F.E.C. v. D.S.C.C. not only opened the door to transfers of money from national party committees to state party committees. It has also led to state party committees transferring their “spending authority” to their national party counterparts, thus effectively doubling the coordinated spending that the national party committee may undertake in that state. 63 Court decisions involving the parties’ Hill committees also implicate some complex issues of what I labeled “party federalism” in the last chapter. These issues are raised when the government takes actions that significantly effect the relations between and among organizational levels of the parties. A ban or limitation on intraparty money transfers would seem to fall into this category. Government regulation of how parties share money within their federated organizations would impinge basic free association rights. These rather obtuse questions were not directly raised by the parties in the Hill committee litigation. C. Limitations on Party Campaign Expenditures: The Colorado Litigation In the early 1990s, litigation began in Colorado that would produce six federal court opinions, including two from the Supreme Court, adjudicating the Party Expenditure Provision of FECA. 64 This litigation, under the name Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado I), served as the vehicle for an extended judicial discussion of political parties, their First Amendment rights, and the role of government in regulating parties through financial limitations. The genesis of the dispute was the purchase of radio time by the Colorado Republican Campaign Committee criticizing a Democratic member of Congress from Colorado. The Colorado Democratic Party filed a complaint with the FEC alleging that the purchase of the ads by the Republican Party violated FECA because it was not reported as an “expenditure” of the party. FECA stipulates that political parties “may not make any expenditure in connection with the

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general election campaign of a candidate for Federal office” that exceeds specified dollar amounts. 65 The narrow issue thus became whether the purchased radio ad was made “in connection with” a general election campaign. Later in the litigation, the issue would become the constitutionality of the Party Expenditure Provision. The Colorado District Court, per Judge Edward Nottingham, found that the Republican radio ads were not “in connection with” the general election of a federal candidate. He relied on the use of that phrase elsewhere in FECA, finding that it required an “express advocacy of the election or defeat of a clearly-identifiable candidate.” 66 He went on to determine that there was no “express advocacy” in the Republican radio ad and thus held that the expenditure was not subject to FECA limitations. Judge Nottingham’s opinion was reversed by the Tenth Circuit in 1995. 67 That court found that the Colorado Republican Committee’s radio ads were “coordinated” with the campaign and therefore violated the coordinated spending limitation of FECA. The court chose to defer to the definition of the key phrase “expenditures in connection with” that had been advocated by the FEC. Instead of holding the party expenditure to the higher standard of “express advocacy,” the Court ruled that the FECA limits applied if the spending merely “involves a clearly identified candidate and an electioneering message, without regard to whether that message constitutes express advocacy.” 68 The Tenth Circuit also dismissed the constitutional issues raised by the party committee in this case and rejected any special exemption of party committees from FECA expenditure ceilings. Colorado I reached the Supreme Court in 1996. That Court vacated and remanded the Tenth Circuit’s opinion and produced a splintered set of opinions on the issues raised. 69 Seven members of the Court were able to agree that FECA’s Party Expenditure Provision was unconstitutional as applied to the facts because the expenditure for the radio ads were made before the Republican Party had chosen its senatorial candidate. 70 Furthermore, they found no evidence in this case that the ad campaign had been developed pursuant to any agreement between the party committee and the candidate. A majority of the justices thus viewed this particular expenditure as an “independent” one that could not be limited by FECA (see figure 3.1). While this rationale effectively disposed of the case, it also ducked the major issues raised, including the facial constitutionality of FECA’s limitations on party expenditures. Individual members of the Court, however, did take the opportunity to give their views on FECA and government regulation of political parties. Justice Breyer authored the principal opinion in Colorado I in which Justices O’Connor and Souter joined. 71 This lead opinion declared that the Party Expenditure Provision of FECA did not apply to the expenditures of the Colorado Republican Party in this particular dispute. Four conservative

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members of the Court agreed with the judgment expressed in Breyer’s opinion, but also dissented on several points and offered a different rationale for the result. Led by Justice Kennedy, the conservative wing of the Court concluded that the FECA limitations on party expenditures were not only void on the facts in Colorado but were also facially unconstitutional under the First Amendment. 72 Justice Kennedy concluded that party expenditures made in cooperation with a candidate of the party were indistinguishable from “independent expenditures” that had been declared unlimited since the Buckley decision. He saw the two expenditures as implicating the same fundamental First Amendment rights. 73 Justices Stevens and Ginsburg filed a brief dissent in Colorado I in which they took the position that “all money spent by a political party to secure the election of its candidates” should be considered “contributions” and limited accordingly. 74 This position was the polar opposite to the stance taken by Justice Thomas who argued that all party expenditures should be considered “independent” expenditures and thus be fully unregulated. Justices Stevens and Ginsburg believed that the regulation of party money was appropriate because, “[a] party shares a unique relationship with a candidate it sponsors because their political fates are inextricably linked.” 75 The members of the Court in Colorado I thus wrote opinions that ran the entire gamut of possibilities on how party expenditures should be treated for purposes of FECA. The battle over which types of political organizations should be capable of making unlimited “independent expenditures” had been raging on the Court for years. 76 The Buckley decision in 1976 had ruled that individuals could make unlimited expenditures, which are labeled “contributions.” 77 Almost a decade later, the Court ruled that political committees, such as PACs, were also capable of making unlimited “independent expenditures.” 78 In Colorado I, several conservative members of the Court indicated that they were ready to extend this privilege to party committees. These justices argued that the only acceptable government interest in this context—prevention of political corruption—was absent. They argued that political parties exist to support their candidates and therefore it makes no sense to limit them in this fundamental role by labeling their expenditures as “coordinated” and thus equivalent to “contributions” that can be limited by federal law. 79 The distinctions being fought over in the Colorado litigation are summarized in figure 3.2. This figure depicts the major “money flows” in federal elections from various donors to candidates, including both “coordinated” and “independent” expenditures. The Colorado litigation was basically a dispute over how to label and limit campaign contributions and expenditures from and by different political entities. 80 The Colorado dispute was remanded back down to Judge Nottingham in 1999, as Colorado II, to reconsider whether the Party Expenditure Provision of FECA was facially unconstitutional. 81 On remand, Judge Nottingham

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Figure 3.2. Comparison of Contribution and Expenditure Limitations by Donor Type. a

Independent expenditures by PACs unlimited since Buckley 2 USC § 434(b)(6)(B)(iii). FECA limits contributions by donor type, 2 USC §§ 441a, 441b, 441c. Coordinated expenditures by PACs limited, 2 USC § 441a(a)5. d Presidential candidate campaign expenditures limited by 2 USC §441a(b). e Coordinated expenditures by party committees limited by Colorado II as “contributions,” 2 USC §. f Independent expenditures by party committe possible since Colorado I and unlimited since Colorado II. b c

ruled that the Party Expenditure Provision of FECA was an unconstitutional burden on the First Amendment rights of political parties. He reiterated his earlier position on the importance of First Amendment rights where political parties are concerned, stating that, “Political parties, and the central activities in which they engage, are a paradigm of the right to freedom of association as guaranteed by the First Amendment.” 82 Given the important constitutional rights involved, he believed that only a “compelling government interest” could justify the FECA limitation on coordinated expenditures of political parties. Since Buckley, the only compelling government interest acceptable to the courts for burdening First Amendment rights under these circumstances had been the prevention of political corruption or its appearance. 83 Judge Nottingham found that the likelihood of corruption in the expenditure of party funds was unlikely because “‘[t]he party can’t afford to get in a situation that is corrupt or corrupting because the party has to be held accountable, and the party is held accountable through the ballot.’” 84 Judge Nottingham’s decision was based on his understanding of the relationships between political donors, party committees, and candidates. He seemed to consider that because the fates of parties and candidates are so deeply intertwined their finances could not be realistically separated. Spending limitations on parties thus would not curb political corruption but only serve to create an “unnatu-

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ral” separation between parties and candidates. He found the governmental interest here to be insufficient, particularly given the strong First Amendment concerns where political parties are involved. Judge Nottingham’s decision was affirmed by a divided Tenth Circuit the next year. 85 That court found that the Party Expenditure Provision represented a “significant interference” with the First Amendment rights of political parties in general and that the FEC had failed to show that coordinated spending by party committees corrupts the political process. 86 The Tenth Circuit reached this decision while reluctantly applying a new, less demanding standard for such legislation recently enunciated by the Supreme Court. 87 In striking the Party Expenditure Provision (again) the Tenth Circuit noted the special role of parties in the political system: In the case of political parties, though, a limit upon the amount a party can spend in coordination with its candidates certainly entails more that a “marginal restriction” upon the party’s free speech. Indeed, in the context of an election, a party speaks in large part through its identified candidates; candidates, in a significant measure, speak for their political parties. 88

After the better part of a decade, the central issue in the Colorado litigation—the facial validity of the Party Expenditure Provision—finally came before the Supreme Court in 2001. In Colorado II, the Court reversed the Tenth Circuit and held that the Party Expenditure Provision was not facially invalid under the First Amendment. 89 Five members of the Court, led by Justice Souter, found that the FECA provision met the standard of being “closely drawn” to serve an important government interest in combating political corruption. 90 The majority believed that both history and political reality showed that unlimited spending by the parties coordinated with the party’s candidates and campaigns was not vital to American political parties. 91 The majority also rejected the party’s claim that since parties are explicitly organized to elect their candidates, a limit on coordinated expenditures would somehow be “uniquely burdensome” for them as compared with PACs. Resorting again to what they considered to be “political realities,” the Court stated that: Parties perform functions more complex than simply electing candidates; whether they like it or not, they act as agents for spending on behalf of those who seek to produce obligated officeholders. It is this party role, which functionally unites parties with other self-interested political actors, that the Party Expenditure Provision targets. This party role, accordingly, provides good reason to view limits on coordinated spending by parties through the same lens applied to such spending by donors, like PACs, that can use parties as conduits for contributions meant to place candidates under obligation. 92

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The Court went on to note that parties often serve as efficient conduits for special interest money, thus potentially exacerbating the likelihood of political corruption or its appearance. The majority refused to grant parties an “exemption” from spending limitations that FECA imposed on other political donors when they “coordinate” their spending with candidates or campaigns. The Court concluded that: A party is not, therefore, in a unique position. It is in the same position as individuals and PACs, as to whom coordinated spending limits have already been held valid; and indeed, a party is better off, for a party has the special privilege the others do not enjoy, of making coordinated expenditures up to the limit of the Party Expenditure Provision. 93

The majority’s understanding of money in American politics led them to believe that coordinated party expenditures were susceptible to the sort of quid pro quo political corruption of political candidates and officeholders that FECA had long sought to eradicate. 94 The dissenters in Colorado II were led by Justice Thomas and included Justice Scalia, Justice Kennedy, and Chief Justice Rehnquist. 95 These justices believed that the Party Expenditure Provision violated the First Amendment because it interfered with the relationship between parties and their candidates and failed to prevent political corruption. These justices adopted the characterization of the party-candidate relationship put forward by Justice Kennedy in Colorado I: that a party and its candidate are “inextricably intertwined” and that there exits a “unity of interest,” between them where, “it is natural for a party and its candidate to work together and consult with one another during the course of an election.” 96 The dissenters admitted that truly “independent” expenditures by political parties were possible but that by forcing parties to artificially segregate coordinated and independent expenditures would put an unconstitutional burden on the party-candidate relationship and hamper the party’s ability to get its message out. 97 The dissenters favored applying the lower standard of Nixon v. Shrink Missouri Government PAC to this provision of FECA. If eradicating political corruption were the primary goal, they suggested that Congress could lower the cap on contributions rather than burden First Amendment rights by limiting parties’ ability to expend funds for their own candidates. 98 D. The Colorado Opinions in Context The Colorado decisions represent some of the most recent judicial thinking on the complex issues inherent in the government’s on-going effort to regulate money in American politics. The Supreme Court’s Colorado II decision has, for the moment, left intact the basic FECA regulatory scheme as interpreted and applied by the Buckley ruling. However, the close 5–4 decision in

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Colorado II means that we are probably going to eventually see further shifts in the Court’s position on these issues. The Court remains rather sharply divided on many of the basic issues here, including the role that parties should play in American election campaigns. Most of the conservative members of the Court favor lifting spending limitations on the parties so that they can enjoy a status similar to PACs. They believe that the imposition of federal imitations on “coordinated expenditures” works to the advantage of PACs over parties. They reason that PACs can more easily segregate unlimited “independent expenditures” than parties and are thus afforded an overall spending advantage. For the conservative justices, the lifting of the limitations on coordinated expenditures for political parties would level the playing field between parties and PACs. Liberals on the Court tend to favor keeping limitations on coordinated spending by parties. They argue that the parties can (and in fact have) segregated their coordinated expenditures from their independent expenditures. Furthermore, they claim that parties benefit from special higher statutory expenditure limitations than other “multicandidate political committees.” 99 The liberal justices believe that preservation of the coordinated expenditure limits, in tandem with the higher expenditure limitations for parties, equalizes their financial situation relative to PACs. Thus, ironically, both sets of justices believe that their position works to keep PACs and parties in more comparable financial positions. 100 The crux of the problem facing the Court in these cases is the difficulty in applying the same regulatory framework to such different political entities as parties and PACs. While both entities serve as important linkages between the people and their government, they retain significance differences as well. It is probably inevitable that PACs will find it much easier than parties to segregate their independent and coordinated campaign expenditures to the satisfaction of the government. Parties are naturally going to be more closely linked to their own candidates and will find it more difficult to neatly separate the two types of financial activity. 101 The difficulty in regulating PACs and parties with the same set of rules is further complicated when one considers the anti-corruption rationale that has traditionally been used to justify government regulation of money in politics. The sort of explicit quid pro quo corruption that the Congress and the courts seek to prevent is virtually inherent in the giving of financial support by PACs. Most political action committees are linked directly to an interest group with a relatively narrow policy agenda that seeks to influence government officials on that specific set of issues. Political parties, on the other hand, are by nature more broadly based organizations that typically articulate relatively moderate positions across a wide range of issues. Traditionally, American political parties have not taken as extreme positions on issues as PACs because their membership is more diverse and they seek to present a broad front in order to maximize their electoral appeal. 102 PACs are generally

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focussed on influencing government rather than on winning elections, so they are freer of the need to appease a large number of voters. Parties are also less likely to be caught up in the kind of direct quid pro quo corruption that Congress and the courts find so odious. Parties have certainly not been immune to corruption in the past, but party corruption has usually been linked to the ability of the victorious party to “pay off” its supporters with jobs and other forms of political patronage. This sort of petty corruption does not appear to compromise government policymaking to the same extent as that engendered by PAC activity. And even this form of political corruption has declined sharply in recent decades with the rise of a civil service system, broad welfare programs, and the disappearance of most urban political machines. 103 The opinions that emerged from the Colorado litigation are also useful in that they reveal two basic judicial conceptualizations of American political parties and what role they play in our larger democratic system of government. The two views diverge particularly on what relationship exists between political parties and candidates running under the party’s banner. They also take very different positions on how to balance the First Amendment rights of speech and association with the government interest in combating political corruption. 104 One of the views considers political parties to be an integral part of a seamless political system. These judges see political parties as tightly and inevitably interwoven with their party candidates, their party officeholders, and, to a lesser extent, with their party supporters and donors. Under this depiction of parties it is unrealistic and futile to attempt to regulate financial relations. This view also holds that political corruption would not be significantly lessened by regulation of campaign money, because the parties are “too large and too diverse to be corrupted.” 105 This view concludes that campaign regulations represent a serious interference with fundamental First Amendment rights of speech and assembly with little or no anti-corruption benefits. 106 The other major judicial conceptualization of parties that can be derived from the Colorado litigation sees parties as special actors in American politics. This view conceives of parties as intermediaries between government (partisan officeholders) and those outside government who seek to influence government policymaking. This view sees parties as positioned in the middle of American politics with special responsibilities. According to this conception, parties can potentially serve as “conduits” for the quid pro quo sort of corruption that Congress seeks to mitigate. Judges espousing this position usually also argue that courts should defer to congressional judgment as to the threat of corruption posed by contribution to political parties. This view thus concludes that parties’ role in campaign finance needs strict regulation. 107

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Both of these views of American parties have considerable basis in reality. Each view, however, tends to emphasize a particular aspect of party behavior and how that behavior relates to the larger political setting. While all of the judges are sensitive to the First Amendment issues implicated by campaign finance laws, they differ widely in how confident they are that regulation will diminish political corruption. The judges who have written on this topic strike very different balances between the two competing political interests present here: protection of parties’ First Amendment rights to free speech and association versus the need for public regulation of campaign money to prevent widespread political corruption. Conservative jurists have tended to favor limiting government regulation of campaign and have relied on the First Amendment freedoms. This position is in keeping with traditional conservative posture favoring de-regulation. Liberal judges have emphasized the potential role that parties could play in political corruption while minimizing any burdens that these regulations might place on parties’ First Amendment rights. Criticisms of campaign finance laws have increased as campaign finance evolved in recent years and as it became increasingly apparent that the FECA framework was not achieving its goals. Commentators have assailed the logic of the Buckley decision for years, particularly the usefulness of the distinction between campaign “contributions” and “expenditures.” 108 This erosion has been due in part to changes in how money is raised and spent in American politics as well as legal developments. Many changes have been forced by the persistent efforts of donors and political organizations to circumvent FECA limitations. This struggle over the regulation of money in American politics implicates a whole range of fundamental issues including the role of political parties in our political system. E. The 1990s: The Fall of FECA and the Rise of “Soft Money” By the early 1990s, interpretations of FECA by both the courts and the FEC had radically transformed the role of money in American politics. 109 The major consequence arising from these interpretations was the appearance and rapid growth in unregulated “soft money” in election campaigns. “Soft money” has come to refer to those campaign contributions from corporations, PACs, and wealthy individuals give to party committees, especially to the national party committees. Federal statutes usually refer to “soft money” as “non-federal” funds, reflecting the fact that this money was not subject to federal regulation under the original version of FECA. In the 1990s, political parties quickly started using soft money for a variety of party-building activities, including payment for office facilities and equipment, get-out-the-vote (GOTV) campaigns, registration drives, and party conventions. Soft money became controversial because it lay largely outside the FECA regulatory

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scheme and was therefore at the time largely undocumented and unlimited. 110 The growth in soft money in American politics can be traced to two broad trends in FEC rulings and court decisions since the 1970s. The first of these were early FEC rulings that allowed the parties to use soft money to help finance the nonfederal part of their generic campaign activities. 111 Federal court decisions, such as F.E.C. v. D.S.C.C, were a second contributor to the ability of political parties to transfer funds between party levels. 112 This latter development made soft money more attractive as it permitted the comparatively well-heeled national party committees to transfer excess funds to those state and local party committees where the closest elections were taking place. 113 Parallel to these interpretations of FECA rendering soft money more useful to the parties were rulings on how the parties could use these funds. The critical rulings here were those that held that FECA limitations on party spending on advertisements applied only to those ads that expressly called for either the election or defeat of a named candidate. 114 This development meant that parties could use soft money for generic issue advocacy (“issue ads”) and remain free of most government regulation. Court decisions were the final ingredient in the rise of soft money, particularly the ruling in Colorado I that held that the parties could make unlimited “independent expenditures” in addition to making limited “coordinated expenditures.” 115 The cumulative effect of these court rulings and Federal Election Commission decisions over a quarter century was to allow the parties to raise and spend unlimited funds on generic campaign advertising. The availability and versatility of soft money made it a very popular item with political parties anxious to help candidates fund increasingly expensive campaigns. In 1996, the two major parties each raised about $150 million in soft money, twice the amount that each raised only two years earlier. By the 2000 election cycle, each national party had raised about a quarter billion dollars in soft money. 116 Concerns over the rise of soft money were exacerbated by the concomitant trend in the use of those funds by political parties and others to pay for “issue ads” in election campaigns. 117 These are broadcast campaign messages that evade FECA limitations by avoiding the express advocacy of either the election or defeat of a named candidate. Instead, these ads deliver a general party message on campaign issues or support for the party generally. Issue ads may focus on a particular candidate but may not expressly advocate the election or defeat of that candidate. This form of campaign activity has grown rapidly, fed by the rise in soft money. Much of this advertising is negative in nature, contributing further to the controversial nature of this development. 118

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The union of soft money and issue ads on the American electoral scene has largely vitiated the original FECA campaign finance scheme that documented and limited much of the money in American politics for years. 119 By 1996, soft money had surpassed regulated (“hard”) campaign money in federal elections. 120 This growth in soft money coincided with other high profile financial abuses at the time, including the revelation of large campaign contributions by Enron Corporation, the use of White House “sleepovers” by the Clinton administration to raise campaign funds, and Vice President Al Gore’s use of his office telephone to make fund-raising calls. 121 The fact that much of this soft money was being used to fund aggressive “issue ads” by a variety of political actors added still more fuel to calls for “repair” of the thirty-year-old FECA system. These developments renewed reform efforts in Congress that eventually led to the passage of the Bipartisan Campaign Reform Act (BCRA), the latest chapter in the campaign finance reform odyssey. F. The Bipartisan Campaign Reform Act of 2002 On March 27, 2002 President Bush signed the Bipartisan Campaign Reform Act of 2002 (BCRA) into law. 122 Popularly known as the McCain-Feingold Act after its two Senate sponsors, the legislation is one of the boldest attempts to regulate money in American politics. The passage of BCRA came after a seven-year struggle led by Senator John McCain, and included hundreds of congressional votes, one presidential veto, and multiple Senate filibusters. 123 BCRA is the most party-focused campaign reform legislation to date. Parties and the problems associated with them were of comparatively minor concern with earlier campaign finance laws. BCRA, however, took aim directly at the national party organizations and their use of soft money. Passage of the legislation has set the stage for extended judicial discussion of the role of political parties in American elections. 124 The final version of the Bipartisan Campaign Reform Act had three major provisions particularly relevant to political parties: a ban on donations of soft money to national political parties, an increase in the limitations on contributions of regulated (“hard”) money subject to FECA that may be made to federal candidates, and stricter limitations on the use of broadcast commercials (“issue ads”) by non-candidates. A major goal of BCRA was to control the evils associated with “soft money,” particularly as it had come to be used by political parties. 125 The Bipartisan Campaign Reform Act is an elaborate piece of legislation that attempts to plug as many of the holes in the old campaign finance system as possible. While much of the Act is aimed at political parties, the legislation will have an impact on virtually all political organizations involved in federal campaigns. The heart of BCRA is its ban on the use of soft money by the national party committees, including the Hill committees. This provision states that

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national party committees “may not solicit, receive, or direct to another person a contribution” that falls outside the federal campaign finance system. 126 The limitation is clearly aimed at all the potential party roles in the raising and spending of unregulated money in federal elections. Its language even extends to the “transfer” of such funds among party committees—clearly an effort to overturn the decision in F.E.C. v. N.S.C.C. The limitation is drawn even tighter by placing a limitation on state and local party organizations’ use of soft money in federal election campaigns, even barring the use of such funds for traditional sorts of party-building efforts. 127 Another important BCRA provision relevant to political parties is one that essentially forces parties to elect between either making all their federal campaign spending in the form of hard “coordinated expenditures” that are regulated by FECA, or making them all in the form of “independent expenditures” that must be kept strictly separate from the campaigns of party candidates for federal office. 128 The goal of this provision was apparently to overturn the ruling of the Supreme Court in Colorado I that had ruled that parties could make both types of campaign expenditures. 129 The ultimate impact of this provision, and whether it will effectively limit party spending or make that spending more transparent, remains uncertain. The Bipartisan Campaign Reform Act also takes on the controversial topic of issue ads. 130 Issue ads are those political advertisements that do not expressly advocate either the election or defeat of a named candidate. The distinction between “issue advocacy” and “express advocacy” began with the Buckley decision in 1976. 131 The Court in that case was trying to strike a balance between the governmental interests in regulating political advertising and the First Amendment rights of advertisers. This balance was found by recognizing the right of the government to regulate “express advocacy,” which was defined as those political advertisements that advocated the election or defeat of a named candidate through the use of “magic words,” such as “defeat,” “vote for,” “elect,” and “cast your vote for.” Since express advocacy was deemed subject to government regulation, it could only be funded with “hard money” subject to FECA limitations. Since Buckley upheld the government’s ability to regulate express advocacy, corporations and interest groups quickly began producing generic political advertisements that did not make use of the “magic words” that would bring them under FECA regulations. This newer class of advertisements, soon dubbed “issue ads,” thus evaded government regulation and soon exploded with the contemporaneous availability of “soft money.” BCRA aimed to break this alliance of soft money and issue advertisements. This was to be accomplished by flatly outlawing parties’ receipt and use of soft money and the adoption of a broader definition of the sort of political advertising subject to federal regulation. BCRA sought to eliminate the distinction between issue advocacy and express advocacy by merging

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them into a broader category labeled “electioneering communications” that would henceforth be subject to federal regulation. 132 This was accomplished by creation of a new, broader definition of political advertising called “electioneering communications.” 133 Under this new definition, political advertisements that can be regulated are all communications that “refer to a clearly identified candidate for Federal office,” 134 and not simply those that expressly advocate the election or defeat of a candidate. The ultimate impact of BCRA on the parties is difficult to predict. Campaign reform legislation is renown for having unintended consequences or even backfiring on its proponents. However, some believe that the Act will force parties to change how they raise campaign funds, though they will probably continue to find avenues for directing financial resources into close political races. Although BCRA prohibits the parties from using soft money, other nonparty organizations, including PACs and non-profit organizations might well take up some of the slack. This leads some to predict that there will be a proliferation in those sorts of organizations that are being variously called “quasi-party” organizations, “shadow” groups, or “section 527” committees—named after the section of the Internal Revenue Code under which they are organized. 135 BCRA may also force the national party organizations to use their state and local party organizations more for the expenditure of soft money since these units may use such funds, on a limited basis, for various grassroots activities that the national party may not. Since BCRA forces the parties to choose between making limited “coordinated” expenditures” or strictly uncoordinated “independent expenditures,” the parties will likely learn to direct hard money into competitive congressional race order to make up for the loss of the ability to use soft money for that purpose. 136 In the end, BCRA will probably be subject to many end-runs by the parties and other organizations seeking to influence elections. 137 BCRA is also likely to have an impact on state and local party organizations. The Act attempts to segregate federal and state campaign finances so as to limit the use of soft money in federal elections. It does this by requiring that state and local party committees use only hard money to influence federal campaigns. It seems likely that the legislation will force state parties to reevaluate carefully how they participate in federal elections. This will probably be preceded by a period of experimentation by state parties to determine how to best raise and spend campaign money. It also appears like that BCRA will have a decentralizing effect on party organizations leading to greater compartmentalization of party activities. BCRA does not directly ban the raising of soft money by state parties but tries to prevent its use in federal election campaigns. The Act’s Levin Amendment was intended to encourage state and local grassroots activity by allowing sub-national party organizations the ability to establish committees to spend money on registration drives and get-out-the-vote campaigns. 138 The Act will also probably lead to

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some decentralization in party organization, reversing a longstanding trend, through its efforts to dichotomize state and federal campaign activities. Finally this latest campaign finance law may lead to greater reliance on nonparty groups to raise money since the Act falls so heavily and explicitly on political parties. 139 As with many earlier campaign finance laws, BCRA will no doubt produce some unanticipated results and face amendments to rectify these unforeseen consequences. 140 G. The Legal Challenge to BCRA: McConnell v. F.E.C. The passage of BCRA triggered immediate court challenges, led by the primary opponent to the Act’s passage, Senator Mitch McConnell of Kentucky. 141 Both political parties joined the challenge to the new law asserting a broad range of constitutional claims. 142 The major objections raised by the parties were based on free speech and free association. Party plaintiffs argued that the Act would diminish the historic role of the parties in the election process by restricting their ability to give direct financial support to candidates and to communicate with their members on issues of public concern. The parties also complained that BCRA would infringe on their free association rights by interfering with the links between national, state, and local party organizations. The parties claimed that this severing of intraparty connections would destroy the organizational structure of the parties, isolate party levels from one another, and harm the parties’ ability to function as collective representatives of their members. The parties also complained that the Act would deny them equal protection of the laws under the due process clause of Fifth Amendment by favoring special interest groups over parties in its financial regulation. And finally, they asserted that the Act would violate the Tenth Amendment by usurping state authority over the regulation of their own election finances. 143 In May 2003, a three-judge court upheld the main provisions of BCRA in McConnell v. F.E.C.—one of the longest opinions ever issued by a federal district court. 144 The court upheld the Act’s ban on the use of “soft money” for most federal electoral activities, but not other political activities. 145 The district court upheld the ban on the use of soft money by state parties for communications that promote, oppose, attack or support a specific federal candidate. The court upheld BCRA’s ban on federal candidates’ soliciting, receiving, directing, transferring, or spending of soft money in any election. The court also upheld the Act’s broader definition of “electioneering communication” that was aimed at curbing issue ads. Finally, they held that soft money could not be used for issue ads that clearly identified a federal candidate. All three judges of the district court agreed to strike down BCRA’s attempt to force political parties to choose between either making unlimited “independent expenditures” or limited “independent expenditures.”

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One of the most interesting parts of the district court’s opinion in McConnell was a discussion by Circuit Judge Karen LeCraft Henderson on what she believed to be the four primary roles of political parties in a democratic form of government. 146 This is a rare occasion when a judge gives extended space in an opinion to the political theory underlying his or her ruling. Judge Henderson described the four main contributions of political parties to the American political system as: the coordination of political messages and activities across the federal system, the encouragement of “democratic nationalism” by sponsoring political discussion and nominating candidates, service as “critical agents” fostering the development of national consensus on issues, and cultivation of “a sense of community and collective responsibility” in the United States. She goes on to depict American parties as critical elements in lubricating the American system, particularly elections. Judge Henderson concludes that these important party functions would be disrupted by most of the key provisions of BCRA. As expected, the district court’s decision in McConnell was immediately appealed to the U.S. Supreme Court. In a complex set of opinions, the justices upheld most of BCRA and gave us their most detailed view of political parties to date. 147 Five members of the Court, in an opinion authored by Justices Stevens and O’Connor, upheld the two main provisions of BCRA: the ban on “soft money” and the expanded federal regulation of “electioneering communications.” The Stevens-O’Connor opinion began by adopting the lower review standard for judging BCRA’s regulations. This standard from earlier case law merely requires that the regulation be “closely drawn” to serve a sufficiently important governmental interest. 148 The application of this lower standard of review was justified in large part by characterizing BCRA as imposing limitations on “contributions” rather than on “expenditures.” As will be recalled, limitations on campaign “expenditures” have been subjected to the more demanding strict scrutiny review standard since Buckley. The McConnell majority proceeded to balance the burden of BCRA’s limitations on the parties with the benefits that the Act would yield in the battle against political corruption. The parties claimed that BCRA infringed their First Amendment right to free speech. The majority responded only briefly to this claim which had been raised by the parties against several of BCRA’s provisions. The Court did not find that the ban on “soft money” to be “overbroad,” observing that the parties would still have alternate avenues for conducting fund-raising activities. 149 The Court also rejected the parties’ First Amendment claim that the new regulation of “electioneering communications” would infringe their free speech by limiting the parties’ ability to engage in effective advocacy. The majority dismissed this claim by characterizing the reduction in the amount of money available to state and local parties to fund their federal election activities as “largely inconsequential.” 150 The Court minimized the

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burden of BCRA on parties, claiming that the regulations would “simply limit the source and individual amount of donations.” 151 The majority in McConnell was also unsympathetic to the claims by party-plaintiffs that BCRA’s limitations on the transfer of money between party committees would violate their First Amendment rights of free association. The majority wrote that, In making this argument, plaintiffs greatly exaggerate the effect of § 323, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. . . . The modest impact that § 323 has on the ability of committees within a party to associate with each other does not independently occasion strict scrutiny. 152

The Court also rejected the free association challenge to BCRA’s limitations on spending by state and local party committees in federal elections. The Stevens-O’Connor majority labeled this burden on the parties’ associational rights as only a “minor restriction” since state and local parties could simply forego the Levin Amendment option and pay for their federal election activity solely with “hard” money. 153 The limitations imposed on hard money transfer within parties were regarded by the majority as “so insubstantial as to be de minimis.” 154 The BCRA provision limiting transfers were seen by the majority as necessary to prevent circumvention of the larger goals of the legislation. The majority believed that national party committees were so closely intertwined with their state party counterparts that corruption could only be prevented by regulating the use of campaign funds by state parties in federal elections. 155 The Court’s majority also agreed strongly with the Congress that BCRA’s elaborate regulation of political parties was necessary to prevent “circumvention” of the Act’s objectives. 156 Repeatedly in their opinion, the justices made reference to the need to prevent parties from circumventing federal campaign finance laws as they believed had taken place so often in the past. 157 This image of parties helped the majority magnify the importance of the anti-corruption goal of BCRA. Simultaneously, the majority downplayed the burden these regulations would impose on the parties by characterizing the parties as “extraordinarily flexible in adapting to new regulations on their fundraising abilities.” 158 The Stevens-O’Connor opinion depicted American parties as highly adaptable, seamless organizations with long track records of evading campaign finance laws in order to sell their influence over party officeholders and candidates. Having minimized the burden of BCRA on the parties’ rights of free speech and free association, the Court then turned to assessing the intended benefits of BCRA. Justices Stevens and O’Connor were convinced that there was ample evidence of “corruption” on the record in McConnell to justify the

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slight burden BCRA would put on parties’ First Amendment rights. 159 The majority relied heavily on a description of political parties from a 1998 report of the Senate Committee on Governmental Affairs. 160 This six-volume report was the result of an extensive investigation into the campaign practices in the 1996 elections. It concluded with an unflattering description of the role that parties had come to play in modern campaigns, including their role in the circumvention of FECA regulations. This Senate Report implicated the parties deeply in political corruption, concluding that “both parties promised and provided special access to candidates and senior Government officials in exchange for large soft-money contributions.” 161 In reaching its assessment of the party role in political corruption, the majority adopted a broad definition of what constitutes “corruption.” They conceived of political corruption as much more than the traditional quid pro quo form of corruption consisting of the exchange of political favors for campaign contributions. Instead, Justices Stevens and O’Connor took the following position on what constitutes congressionally preventable corruption: Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges . . . “we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” 162

Justices Stevens and O’Connor also dealt with the claim that BCRA discriminated against political parties in favor of interest groups. 163 This claim of a denial of equal protection of the laws in violation of the Fifth Amendment is one that had been asserted by political parties in earlier challenges to federal campaign finance laws. The majority in McConnell rejected the claim, noting that some provisions of BCRA actually favored parties over other types of political groups. More significantly, the Court described the special function and powers of political parties that they believed justified the disparate treatment: Political parties have influence and power in the legislature that vastly exceeds that of any interest group. As a result, it is hardly surprising that party affiliation is the primary way by which voters identify candidates, or that parties in turn have special access to and relationships with federal officeholders. Congress’ efforts at campaign finance regulation may account for these salient differences. 164

The image of parties put forward by Justices Stevens and O’Connor in the McConnell case is consistent with earlier descriptions of political parties by

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the more liberal members of the Court. In fact, the majority opinion in McConnell is something of an extension and refinement of Justice Souter’s majority opinion for the same set of five justices in Colorado II only two years earlier. 165 With the addition of the McConnell opinion, we can now summarize this group’s characterization of political parties as follows: • Government regulations of parties should be subject to a less demanding review standard that gives adequate weight to the government’s strong interest in combating political corruption. • Parties are deeply involved in political “corruption,” broadly conceived, including giving donors special access to party candidates and officeholder. • Party committees at different levels across the federal system are closely connected and allied, including the sharing of financial resources. • Parties enjoy significant preferential treatment over other political entities, such as PACS, under the federal regulatory scheme. • Parties are flexible organizations that can and will find alternate routes to enjoy their First Amendment rights of expression and association despite government regulations. • Government regulation of campaign finance is necessary to prevent the circumvention of campaign laws by parties and others. The other justices in McConnell, including most of the conservative members of the Court, advanced a very different view of political parties and emphasized different features of the party system. Chief Justice Rehnquist’s partial dissent in McConnell, in which Justices Scalia and Kennedy joined, is the probably best recantation of the conservative position on these issues. The Chief Justice began by stressing the important role that political parties play in our political system: [T]he national parties are exemplars of political speech at all levels of government . . . political parties often foster speech crucial to a healthy democracy, and fulfill the need for like-minded individuals to ban together and promote a political philosophy. When political parties engage in pure political speech that has little or no potential to corrupt their federal candidates and officeholders, the government cannot constitutionally burden their speech any more than it could burden the speech of individuals engaging in these same activities. 166

Rehnquist proceeded to argue that BCRA’s limitations on “soft money” that were upheld by the McConnell majority, were simply too broad for First Amendment purposes since they “regulate all donations to national political committees, no matter the use to which the funds are put.” 167 As to the “political corruption” rationale behind BCRA, Rehnquist found that the “unprecedented breadth” of BCRA essentially assumed that most political asso-

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ciations involving political parties were automatically “corrupt.” The conservative jurists rejected the majority’s interpretation of “political corruption” and their willingness to assume that it was a serious political problem that Congress could seek to eradicate. Rehnquist also determined that “there is scant evidence in the record to indicate that federal candidates or officeholders are corrupted or would appear to be corrupted by donations for these activities.” 168 Rehnquist made the following connection between political corruption and the First Amendment: [A] close association with others, especially in the realm of political speech, is not a surrogate for corruption; it is one of our most treasured First Amendment rights. The Court’s willingness to impute corruption on the basis of a relationship greatly infringes associational rights and expands the Congress’ ability to regulate political speech. 169

The Rehnquist dissent also took issue with the majority’s heavy reliance on the “circumvention” rationale as a justification for BCRA’s elaborate regulatory scheme over the parties. The conservatives on the Court felt that BCRA imposed an “extensive” set of regulations on state and local party organizations in order to enforce the Act’s ban on national parties’ use of soft money. They minimized the significance of this rationale for BCRA, stating: It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. . . . All political speech that is not sifted through federal regulation circumvents the regulatory scheme to some degree or another, and thus by the Court’s standard would be a ‘loophole’ in the current system. Unless the Court would uphold federal regulation of all funding of political speech, a rationale dependent on circumvention alone will not do. 170

The dissenters in McConnell took a different position on the appropriate standard of review that should be used to judge BCRA. Justice Rehnquist was willing to apply the “heightened scrutiny” standard from Buckley that the majority had used, but reached a different result than Justices Stevens and O’Connor. Justice Kennedy took the position that the less exacting “heightened scrutiny” standard was applicable only to those regulations that explicitly limited contributions to a candidate. He wrote that “application of the less exacting review to contribution limits must be confined to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder. Any broader definition of the category contradicts Buckley’s quid pro quo rationale . . .” 171 Kennedy went on to explain that he believed that strict scrutiny should be applied to government regulation of free speech, while the lower standard was appropriate for limitations on free association. 172 Justice Thomas wrote separately that he favored the application of strict scrutiny to

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BCRA, lamenting what he considered to be “the steady decrease in the level of scrutiny applied to restrictions on core political speech.” 173 While there seems to be less agreement among conservative jurists on the issues involved in this case, they generally emphasize the following points relating to the regulation of political parties in the electoral process: • Parties play a special role in our political system and government regulations infringing their First Amendment rights should be closely scrutinized by the courts. • Government campaign finance laws should be aimed narrowly at eradicating actual or apparent quid pro quo corruption in the political process. • Parties’ enjoyment of their First Amendment rights does not necessarily lead to political corruption. • Political parties are “inextricably intertwined” with their candidates and their campaign organizations making government regulations difficult. 174 • Parties do not get preferential treatment under the federal campaign finance laws. • Circumvention of federal campaign laws alone is not sufficient to justify burdening parties’ First Amendment rights. This distillation of these two broad judicial conceptions of American political parties and their place in American politics may provide some guidance for reconciling government regulations with the need to preserve political parties. At this time, the Supreme Court remains rather polarized on the issues of government regulation of campaigns and how they view political parties fitting into the American political system. H. Recent Campaign Finance Litigation and the Parties: The Citizens United Decision Since the Supreme Court’s decision in McConnell the battle over campaign finance laws has continued along several fronts. The most important of these rulings for political parties have been those construing the so-called Party Expenditure Provision and campaign finance restrictions on “electioneering communication” and soft money. 175 These recent decisions show how the courts are treating parties relative to other political entities active in federal campaigns. They also provide some hints as to the future direction that election laws may take and their impact on the parties. The case that has attracted the greatest attention since McConnell has been Citizens United v. F.E.C. which the Supreme Court decided in January 2010. 176 Citizens United was a nonprofit, tax exempt organization that had produced a movie focusing on Senator Hillary Clinton, who was running for president at the time. The organization planned to release the movie in early

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2008 and then to follow this with several television commercials promoting the sale of the film in video-on-demand format. If Senator Clinton were to become the Democratic nominee for president, the organization planned additional broadcasts of its advertisements later in 2008. Given that some of these television ads would fall within the time period during which BCRA barred “electioneering communication,” Citizens United initiated an action against the Federal Election Commission. The group sought a preliminary injunction preventing the FEC from enforcing BCRA § 203 that banned electioneering communications within sixty days before a general election or within thirty days before a primary election. 177 The gravamen of the complaint was that the relevant BCRA sections were unconstitutional burdens on the group’s First Amendment rights to free speech. The Supreme Court’s decision in Citizens United was authored by Justice Anthony Kennedy. This opinion reversed the lower court’s decision on BCRA § 203 and held that the restrictions on electioneering communications by corporations offended the First Amendment. 178 Justice Kennedy agreed with the lower court that the Citizens United advertisement constituted the functional equivalent of express advocacy under the Court’s McConnell decision. 179 However, he characterized the restrictions in BCRA § 203 as “classic examples of censorship,” 180 and stated that in the context of political speech there is no basis for “the Government to impose restrictions on certain disfavored speakers.” 181 He then went on to reconsider the Court’s 1990 decision in Austin v. Michigan Chamber of Commerce 182 in which the Court had upheld state restrictions on independent expenditures by entities on the basis of their status as corporations. Justice Kennedy found that the Austin decision was “not well reasoned” and contradicted other precedents in the field including the Court’s 1976 decision in Buckley v. Valeo. 183 Justice Kennedy believed that Austin relied heavily on the argument that the government could regulate quid pro quo corruption—a rationale that he deemed inapplicable to independent expenditures by corporations. The Court overruled its Austin decision and those parts of the McConnell decision that appeared to support the view that such restrictions on corporate financing of campaigns were acceptable under the First Amendment. 184 Members of the Court in Citizens United also debated the so-called “antidistortion rationale.” 185 This argument appeared in the Court’s Austin decision but has antecedents going back at least as far as Buckley v. Valeo in 1976. 186 In its Austin decision the Court allowed the state of Michigan to limit the campaign expenditures of corporations because they found that the state had a compelling interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlations to the public’s support for the corporation’s political ideals.” 187 The anti-distortion rationale is part of a larger controversy over whether the government should be able to

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“level the playing field” among various political actors, including PACs, corporations, labor unions, 527s and political parties. This broader issue concerning the equalization among political actors—financially and otherwise—has arisen only occasionally in court opinions but is one critical for political parties. In his dissent to Citizens United, Justice Stevens argued that by striking BRCA’s limitations on electioneering communication, the majority had misapplied the campaign finance regulatory scheme in a way that would give corporate speech an advantage over political parties. He summed up this concern for parties by noting that: Going forward, corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind. The Court’s ruling thus dramatically enhances the role of corporations and unions—and the narrow interests they represent—vis-a-vis the role of political parties—and the broad coalitions they represent—in determining who will hold public office. 188

Justice Stevens also defended the Court’s Austin decision and its antidistortion rationale. He went on to explain why legislatures might decide to impose special burdens on corporations in order to level the electoral terrain: Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfai[r] influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities.” In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests of local voters. Consequently, when corporations grab up the prime broadcasting slots on the eve of an election, they can flood the market with advocacy that bears “little or no correlation” to the ideas of natural persons or to any broader notion of the public good. The opinions of real people may be marginalized. The expenditure restrictions of § 441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas. 189

Conservative members of the Court have usually argued against the government playing an equalizing role among various political actors. They typically rely on language from Buckley stating that “the concept that the

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government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” 190 This debate over the government’s role, if any, in balancing the relative positions of political entities in the electoral process is especially important for political parties. Some believe that political parties are already subject to more burdensome regulations than most other political actors. If they were also to be disadvantaged under federal campaign laws, then parties would be severely handicapped in performing what beneficial services they can provide to the political system. 191 Another recent challenge to federal campaign finance laws was brought in March 2010 by the Republican National Committee. In a lawsuit captioned Republican National Committee v. Federal Election Commission (R.N.C. v. F.E.C.) the party brought an as-applied challenge to the “soft money” limitations imposed on political parties by BCRA. 192 The plaintiffs argued that these restrictions were outside the regulations upheld by the Court in McConnell because they were not sufficiently connected to a federal election and posed no risk of the sort of quid pro quo corruption that BCRA sought to prevent. In June 2010, the Supreme Court affirmed without opinion the lower court’s decision in R.N.C. v. F.E.C. which had found that the McConnell decision had already upheld BCRA’s limitations on political parties. 193 The decision to leave this lower court ruling in place is further indication that the current Supreme Court is not anxious to help political parties relative to corporate entities in the area of campaign finance. In his dissent to Citizens United, Justice Stevens noted that the “imbalance” between parties and corporations in campaign finance could be cured by the removal of the softmoney limitations imposed on parties. 194 In R.N.C. v. F.E.C., the Court could have remedied this advantage given to corporations in Citizens United, but chose to leave undisturbed the soft money limitations on parties. A related case, captioned Cao v. F.E.C., was commenced in January 2010 by Louisiana congressman Anh “Joseph” Cao in federal court in Louisiana. 195 This action, also supported by the Republican National Committee, challenged several federal campaign laws, including the Party Expenditure Provision. 196 District Judge Berrigan ultimately granted the FEC’s motions for summary judgments in this dispute. But in the course of her opinion, she provided an extended discussion of political parties and relevant portions of federal campaign finance laws. Party-plaintiffs in this case had asserted the “own speech” claim. 197 This argument was based on the assertion that “any time a political party pays for a communication and discloses publicly that it has done so, it is the party’s ‘own speech’ and therefore limits on such speech are unconstitutional.” 198 The Republican National Committee argued that its “own speech” could not be regulated even if that speech were openly coordinated with a candidate’s campaign. 199 This claim was clearly an attempt to circumvent the limitations on political parties’ coordinated expenditures by

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arguing that such expression is not functionally identical to an outright contribution to the candidate’s campaign. Judge Berrigan certified this question to the Fifth Circuit Court of Appeals. However, she made it clear that she felt that to permit unregulated coordinated expenditures for political parties’ “own speech” would lead to “a heightened risk of circumvention and improper ‘quid pro quos’ between donors and candidates.” 200 The Fifth Circuit, sitting en banc, heard the appeal in Cao v. FEC and issued its opinion in September 2010. 201 In an eleven-to-five vote, the court upheld all of the challenged federal election campaign provisions, finding that there were no infringements of plaintiffs’ right to engage in political debate or discussion. The Court of Appeals also discussed the “own speech” claim that the party had raised in the district court. 202 The Court of Appeals rejected the party’s broad “own speech” assertion. They relied on the Supreme Court’s decision in Colorado II which they believed had “expressly recognized that Congress has the power to regulate coordinated expenditures in order to combat circumvention of the contribution limits and political corruption.” 203 The party also tried to argue that the Supreme Court’s decision in Citizens United aided their “own speech” claim, but the Court of Appeals disagreed again, finding that the Citizens United decision only addressed Congress’ power political parties’ independent expenditures and did not address coordinated expenditures. 204 One of the most interesting parts of the Fifth Circuit’s opinion in Cao was their response to the party’s argument that parts of the federal election campaign finance laws imposed the same limitations on parties as they did on PACs. 205 The Republican Party had argued that the Supreme Court’s decisions in Buckley and Colorado I had indicated that the speech of political parties deserved greater protection that the political speech of PACs. 206 This argument was based on the view that parties play a special role in our democratic system and therefore should be given preferential treatment under federal campaign finance laws. The Court of Appeals rejected and inverted this argument writing that: Although the Court in both Buckley and Colorado I acknowledged the important historic role that political parties have played in the democratic election of this Nation’s public officials, the Court simultaneously acknowledged that it is this precise role that political parties fill that gives rise to the Government’s compelling interest in regulating their coordinated expenditures and contributions. . . . [T]he extent that the Plaintiffs attempt to argue that Buckley and Colorado I support the proposition that the Government cannot place the same restrictive contribution limitations on political parties that it places on PACs, that argument is foreclosed by Colorado II—where the Supreme Court’s analysis fully supports the Government’s differential treatment of political parties—because of what Colorado II recognized as a political parity’s unique susceptibility to corruption. 207

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Thus while the Fifth Circuit viewed parties as special political actors that status led the Court to conclude that stricter rather than more lenient restrictions should be applied to parties. Once gain we see the parties being considered either as vital, vibrant components of American democracy or vessels of political corruption. This dichotomy in judicial thinking has appeared in other court decisions interpreting various aspects of the law where parties are involved. II. STATE CAMPAIGN FINANCE LAWS AND THE PARTIES Virtually every state now has elaborate campaign finance laws on their books that regulate both campaign contributions and expenditures in state elections. 208 State laws on this topic vary widely: most use techniques similar to FECA but no single model seems to prevail among the states. The dollar amounts set by the various states also vary greatly, with the larger states generally allowing larger financial contributions into their electoral processes. The states have been regulating various aspects of their electoral processes since at least the time of the Progressive Movement. Many states either began such regulation or expanded it in the early 1970s in the wake of the Watergate Scandal and Congress’s enactment of FECA in 1971. State motivations for enacting such laws were similar to those concerns that have moved Congress to attempt to regulate campaign finance: growing unease over the volume of money in campaigns and concerns over political corruption or its appearance in state politics. State laws regulating campaign finances range from the very lax to the highly detailed and elaborate. 209 State limitations on campaign contributions are typically keyed to the status of the donor. Categories of donors most often regulated by state campaign finance laws include: individuals, corporations, labor unions, and candidates and their families. One class of political donor regulated by many states that the federal government does not regulate is public utilities and other state-regulated industries. Most states set specific dollar amounts on how much individuals may contribute to state election campaigns, often even by specific statewide office. Of the thirty-six states that set specific dollar limitations on individual campaign contributions, most have set the amount in the range of $1,000 to $2,000 per year or election cycle. The remaining fourteen states impose no limitations on the amount that individuals may contribute to state candidates and their campaigns. About twenty states prohibit campaign contributions altogether from corporations, while most of the others set a relatively low dollar ceiling on such contributions. Campaign contributions by labor unions are similarly banned completely in fourteen states, limited to specific dollar amounts in twenty-eight states, with the remaining eight states setting no limitations on corporate donations. 210

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The foregoing limitations are on contributions to candidates and their campaign organizations. Many states also regulate financial contributions to their state political parties using similar classes of donors. Individuals are subject to state dollar limitations when making contributions to state parties in about half the states of the Union. These limits typically range from about $5,000 to $20,000 per election cycle. About twenty-eight states impose no legal limitations on donations to state political parties by individuals. The states split about evenly on PAC donations to political parties with about half the states having a specific dollar limitation on the amount PACs may give to parties and about half the states putting no limits on PAC-to-party gifts. State laws regulating corporate donations to political parties are sharply divided: fifteen states specify a dollar limit on corporate giving to parties, thirteen states place no limit at all on such gifts, and twenty-two states prohibit such giving altogether. 211 Some states have also legislated on another campaign finance issue familiar at the federal level: the transfer of campaign money within the parties. No state appears to flatly prohibit such intraparty money transfers, but about nine states limit the amount of money that a state party may accept from its national party committee, with $25,000 per year being a fairly typical amount permitted. About thirty-seven states allow unlimited money transfers to state parties from their national party committee, the remainder of the states are silent on the matter. Many state campaign finance laws also impose some regulations on campaign expenditures, although these regulations are much less burdensome and specific than the regulation of campaign contributions. 212 This differing treatment of limitations on campaign contributions versus campaign expenditures is in keeping with the distinction made between the two by the Court in Buckley v. Valeo. 213 State laws regulating campaign expenditures tend to deal with things like who may make such expenditures (e.g., candidates, candidate organizations) and how surplus campaign funds may be spent. Only about eleven states even attempt to impose a specific dollar limitation on state campaign expenditures and these limitations are either voluntary or contingent upon the candidate accepting public funding. For the most part, state campaign expenditure laws do not directly implicate or significantly affect state political parties. Consequently, there were few legal challenges to state campaign expenditure regulations before 1970. A. Adjudication of State Campaign Finance Laws Federal election law springs primarily from judicial interpretations of FECA and, in particular, the Supreme Court’s 1976 landmark decision in Buckley v. Valeo. The adjudication of state electoral laws, however, has developed more slowly and more recently. The growth in state legislative efforts to expand

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regulation of their state electoral processes in recent years has inevitably led to more judicial interpretations of state campaign laws. Although FECA explicitly preempts the states from regulating federal election campaigns, the states have always had the right to regulate their own electoral processes, including political parties, through state legislation. 214 It has long been generally agreed that state campaign laws much conform to the requirements of the First Amendment. However, the precise nature of this conformity has never been entirely clear. The standard for adjudging state laws limiting political contributions has typically been the “closest scrutiny” standard originally set out by the Supreme Court in Buckley for adjudging federal campaign laws. Under this standard, if the regulation is judged to be a burden on the First Amendment then it may be sustained only, “if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.” 215 The Supreme Court reiterated this standard for electoral laws throughout 1980s, occasionally using it to strike down federal laws infringing election activities. 216 Two years after the Buckley decision, the Court applied this standard to a state election law in First National Bank of Boston v. Bellotti. 217 The Court there found that a Massachusetts law forbidding banks and corporations from making expenditures to influence the vote in state referenda to be an unconstitutional burden on the First Amendment right of free speech. Five justices found that Massachusetts had failed to show that corporations had been “overwhelming or even significant in influencing referenda in Massachusetts,” or that they posed “any threat to the confidence of citizenry in government.” 218 During the 1980s only a few challenges to state campaign finance laws reached the federal courts. 219 One of the most significant judicial discussions of state election laws to emerge from this period involved a challenge to Michigan’s campaign finance law that began with the 1988 federal district court ruling in Michigan State Chamber of Commerce v. Austin. 220 This court upheld the state limitation on independent corporate expenditures finding that it was a precisely drawn means of serving a “compelling state interest,” namely, the prevention of alliances between wealthy corporate donors and politicians. The Sixth Circuit Court of Appeals reversed this holding, determining that the corporate plaintiff in the case was not a traditional profitoriented corporation but rather one “formed for the dissemination of ideas.” 221 The appeals court believed that the Supreme Court had made a distinction between these two types of corporations for First Amendment purposes in its intervening decision in F.E.C. v. Massachusetts Citizens for Life, Inc. 222 The Sixth Circuit interpreted that Supreme Court decision as holding that nonprofit corporations posed little threat of political corruption and therefore should not be heavily regulated by the states. 223

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The Supreme Court took the Austin case on appeal and reversed, upholding that the state law because it was supported by a compelling state interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.” 224 The Court went to considerable lengths to distinguish the Michigan Chamber of Commerce from the nonprofit, ideological corporation that it had protected from state regulation in F.E.C. v. Massachusetts Citizens for Life, Inc. 225 The Court’s decision in Austin, in effect, lent strong support to state efforts to eliminate the corrupting influence of large corporations in state elections and politics. The divisions among courts and judges in the Austin litigation illustrate the divergent application of the strict scrutiny standard to these types of laws. In the 1990s lower courts continued to split over how to adjudicate state campaign finance laws. Most judges agreed that some form of strict scrutiny was appropriate, but differed over how low campaign contribution limits could be set by the states and still be considered to be “narrowly tailored” to meet a compelling government interest. 226 At the heart of this dispute was whether small political contributions could implicate the governmental interest in preventing political corruption or its appearance. Most were in agreement that large contributions from “fat cats” raised the specter of political corruption. As more states began to regulate relatively small campaign contributions the courts were forced to determine how low state campaign contributions could be set without violating the First Amendment. The answer to this question turned on when the amount of the contribution regulated was so small that it could no longer be seen as “narrowly drawn” to serve a compelling government interest in battling corruption. In Buckley, the Supreme Court had upheld the $1000 contribution limit of FECA but left open the question of how low the states could set their campaign contribution limitations. 227 The only guidance on this topic offered by Buckley was the Court’s brief statement that, “contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy.” 228 This remark still left open the question of how low a state could set its contribution limits without violating the First Amendment. Apparently, state campaign finance limitations could vary from state to state depending on local conditions such as the cost of campaigning. In response, a series of lower court cases appeared in the 1990s upholding and striking down various campaign finance limitation amounts in state laws. 229 A representative case from the 1990s showing the judicial disagreement over the application of strict scrutiny to state campaign laws is Carver v. Nixon, which began as a challenge to Missouri’s campaign finance limitations on individual contributions. 230 The district judge in Carver upheld Missouri’s campaign contribution limitations—some of which were as low as

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$100 per election cycle—as being “narrowly tailored” to serve a compelling state interest in preventing political corruption. The Eighth Circuit reversed this holding, finding that the state had failed to show that such low limitations were narrowly tailored to serve a compelling state interest. 231 The Circuit Court decided that the Missouri had failed to “refine” its general interest in combating political corruption was not sufficiently “narrowly drawn” to meet the requirement of the strict scrutiny test. 232 B. Recent Developments in State Campaign Finance In 2000, the Supreme Court handed down its most important modern ruling dealing with state campaign laws. The case began as a challenge to Missouri’s campaign finance law that restricted the amount of money that could be contributed to candidates for state offices. The case provided the Court with an opportunity to clarify the law in this area by enunciating a definitive review standard for state campaign finance laws. In Nixon v. Shrink Missouri Government PAC the Court in a 6–3 decision upheld Missouri’s law in the face of a broad First Amendment attack brought by a political action committee. 233 The Court, per Justice Souter, found the Missouri statute acceptable because it was comparable to the federal regulations upheld in Buckley and supported by similar legislative concerns. The Court rejected plaintiffs’ demand that Missouri demonstrate empirically the link between large political campaign contributions and political corruption. 234 The Court refined and restated the basic test of Buckley, making clear that this test was also applicable to state campaign finance laws limiting political contributions: In Buckley, we specifically rejected the contention that $1,000, or any other amount, was a constitutional minimum below which legislatures could not regulate. As indicated above, we referred instead to the outer limits of contribution regulation by asking whether there was any showing that the limits were so low as to impede the ability of candidates to ‘amass the resources necessary for effective advocacy.’ We asked, in other words, whether the contribution limitation was so radical as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless. 235

It will be noted that by this ruling the Supreme Court also avoided being drawn into the debate over how low states could set their campaign finance contributions limits. The Court’s refusal to apply traditional strict scrutiny to the state’s campaign finance law in Shrink Missouri sent a clear signal that the Court was giving the states considerable discretion in regulating campaign finance within their own borders. In doing so they firmly rejected efforts of the Eighth Circuit in that case to strengthen the constitutional protections against state campaign finance regulations. 236 The decision in

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Shrink Missouri represented an important boost for state efforts to regulate the financial side of campaigns. The decision in also fine-tunes the “closely drawn” prong of the strict scrutiny test by explaining that this means that the limitation must be narrowly focused on the compelling state interest, leave contributors free to affiliate with candidates, and allow candidates to amass sufficient resources to wage effective campaigns. 237 The Court’s decision barely mentions political parties but is nonetheless an important one for the parties because it gives further judicial sanction to the ability of the states to broadly regulate their electoral processes. Given the intimate role of parties in all aspects of campaigning, including the financial, the decision will have an impact on the parties and their exercise of First Amendment rights. The most important recent campaign contributions case that directly involved political parties was yet another challenge to Missouri’s campaign finance laws. In Missouri Republican Party v. Lamb, the Eighth Circuit Court of Appeals again tried to curb state power over the electoral process by invoking First Amendment principles. 238 This litigation began as a challenge by political parties and others to the state’s limitations on the amount of cash and in-kind contributions that parties could give to candidates for public office. The Eighth Circuit heard the case in 2000 and ruled that the Missouri law violated the free speech rights of political parties. This Court declined to apply the reasoning of Shrink Missouri to this case precisely because it involved political parties. And for the same reason the Court refused to apply the Buckley rule that limitations on political “contributions” are generally permissible whereas those on “independent expenditures” are not. The Eighth Circuit based its ruling on its conceptualization of the relationship between political parties and their candidates. Circuit Judge Arnold described this relationship thusly: The main object of a political party is to elect its candidates to office, and, in large measure, the speech of its candidates is its own speech. While political parties employ various methods to speak, a principal way in which they express themselves is through the speech of their candidates. In fact, parties and their candidates are often alter egos. 239

The Court of Appeals explained that this “unity of purpose” between political parties and their candidates meant that party contributions to candidates did not carry the threat of political corruption as did contributions from other types of contributors. The reasoning of these judges was that parties, unlike other types of contributors, are not attempting to buy favors from their own candidates because they serve a unified political cause. The Eighth Circuit thus agreed with those Supreme Court justices in the Colorado litigation who believed that parties were special political entities that should be relieved of some of the burdens placed on other classes of political contribu-

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tors. 240 The Eighth Circuit concluded by finding that the Missouri law burdened the parties’ fundamental right to free speech (not association) and therefore it had to be justified by demonstration of a compelling state interest. When the Lamb case reached the Supreme Court it was remanded to the Eighth Circuit for rehearing in light of the Supreme Court’s intervening decision in Colorado II. On remand, the Eighth Circuit dutifully did a complete turn around and found that the Missouri limitation on parties’ political contributions did not violate First Amendment free speech. The Circuit adopted the Supreme Court’s position that limitations on political parties’ contributions deserve no special consideration or higher level of scrutiny than similar limitations on PACs and other contributors. 241 It now appears clear that the Supreme Court believes that the same constitutional principles apply to the adjudication of all campaign finance laws, whether they are federal or state. The Court’s decisions in Massachusetts Citizens, Austin, Shrink Missouri, and Lamb, taken together, have settled many of the major disputes in this area. Lower courts have accepted the Supreme Court’s clarification of its position on campaign finance laws. Most lower court decisions since Shrink Missouri have upheld state efforts to regulate the financial side of their electoral processes. 242 A majority of the Court seems, for the present, to have firmly rejected giving political parties any special constitutional protection from campaign finance regulation by either the state or federal governments. The upshot of these court decisions is that the states now enjoy considerable discretion in the regulation of the financial activities of their political parties. 243 As constitutional restrictions on state regulation of electoral matters have been eased by the Court over the past decade the states have become emboldened in their efforts to regulate political parties more closely. Soon after the passage of FECA, a number of states enacted laws providing for public financing of state elections. Like their congressional counterparts, state legislators were motivated by desires to eliminate corruption or its appearance in state elections, to make it financially possible for more people to run for political offices, and to equalize the resources between candidates. 244 Since the late 1990s, the public campaign finance movement has regained momentum with a number of states and localities enacting “clean elections” laws. These laws typically include some mechanism by which candidates “qualify” for public funding, usually by securing a certain sum of money through many small individual contributions. Maine was one of the first states to adopt a clean elections law and has been followed by similar enactments in Massachusetts, Vermont, North Carolina, New Mexico, and Arizona. These laws have often proven to be somewhat controversial but they have so far survived constitutional challenges. 245 Today, about half of the states

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have adopted special tax provisions to raise funds for state elections. These laws use a variety of state tax credits, deductions, check-offs, and surcharges to generate revenue. About fourteen states direct that some or all of these funds go to state political parties. This decision to divert campaign resources directly to the state’s parties is clearly an attempt to strengthen the role that parties, as opposed to PACs or candidate organizations, play in the state’s electoral processes. 246 III. STATE NON-FINANCIAL ELECTION LAWS: REGULATION OF BALLOT ACCESS AND PARTY PRIMARIES Most efforts by the government to regulate elections in this country have been through campaign finance legislation. Given the centrality of money in modern campaigns this is understandable. The 1971 Federal Election Campaign Act (FECA), and the state laws it spawned in the 1970s, have had a major impact on elections and campaign in the United States. However, in addition to these campaign finance laws, both the Congress and the states have enacted laws regulating the non-financial aspects of the electoral process. These non-financial regulations often raise First Amendment issues implicating political parties and individual candidates. The parties have seldom been the primary target of modern state election reforms but they have often challenged those state laws that they believe infringe their electoral interests. The class of state election laws that has generated the most litigation has been those limiting access to state election ballots. 247 As part of the reform movement in the late nineteenth century most states adopted the Australian ballot which meant that state officials rather than the political parties would prepare election ballots. The adoption of officially prepared ballots inevitably led to the question of which candidates and parties would be listed on the new ballots and how they would qualify for this status. The states responded to this situation by adopting ballot access laws. In some states ballot access legislation originated during the Red Scare Era in the early 1900s as a means of keeping communist party candidates off the ballot. Since that time virtually every state has enacted some limitations on which candidates and political parties may appear on its election ballot and how they get there. 248 In limiting access to their ballots, the states have resorted to a wide variety of methods. Most states give nominees of the two major parties virtually automatic access to the ballot. Candidates nominated by minor parties and independent candidates seeking ballot access must usually either pay a fee and/or collect a specified number of voter signatures by a certain date. Some states provide for minor parties to qualify for the ballot by having a certain number of registered voters in the state. Another technique for con-

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trolling ballot access for political parties has been to grant it to those parties that garner a specific proportion of the vote in prior election(s). 249 Given the centrality of ballot access to party survival, it should be no surprise that parties have frequently been among those challenging these state restrictions. Ballot access is an issue that is of special concern to minor political parties since they often face additional hurdles to ballot access under state law. These disputes have usually ended up in federal court where the judges have sought to balance the practical needs of the state to print understandable ballots of reasonable length against the rights of parties and candidates to appear on the ballot. 250 The result has been that while there is no federal statutory law on ballot access there is a sizable body of federal case law on the subject. The federal judiciary has struggled for decades to develop a coherent position on the adjudication of state laws regulating access to the ballot. 251 Access to the official ballot raises fundamental issues for political parties, candidates, and their supporters. Serious questions of a party’s right to free association are implicated by these laws as are the rights of voters to be able to “associate” with the candidates and parties of their choice through the voting process. Since the late 1960s, the Supreme Court has handed down at least a dozen major opinions interpreting various types of state ballot access laws. These decisions divide about equally in striking down or upholding state ballot access laws. 252 Taken together, the Supreme Court’s rulings on ballot access cases have long recognized the need of the states to regulate access to their ballots. In Storer v. Brown in 1974, the Court noted that, “As a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.” 253 The federal courts have frequently given substantial weight to the asserted state interest in these cases. The interests most often asserted by states defending their ballot access laws include such things as: preventing voter confusion, keeping the ballot of a manageable length, avoiding a “laundry lists” of candidates and parties, deterring “frivolous” candidacies, preserving the dominance of the two major parties, avoiding the need for costly run-off elections, preventing “clogging of the election machinery,” and generally promoting “political stability.” 254 The last of these is of particular interest to political parties because it refers to the states’ interest in protecting parties from intraparty fighting and splintering. This justification applies mostly, if not exclusively, to primary elections where the possibility of internal party fighting can occur. 255 One of the Supreme Court’s earliest ballot access decisions was Williams v. Rhodes in 1968 that struck down an Ohio law on equal protection grounds because the law made it “virtually impossible” for minor parties to secure a place on the state ballot. 256 This case established that a showing of a compel-

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ling state interest would be necessary to sustain state laws of this sort. The decision also established that the First Amendment freedom of association included the right to associate as a political party. 257 Subsequent ballot access cases expanded the freedom of association here to include the right of voters to “associate with a political party” by voting for its nominees in elections. As such, the freedom to associate has increasingly come to overlap the right to vote in this area. 258 Three years later, in Jenness v. Fortson, the Court upheld a Georgia law requiring that candidates who had lost in a party primary election had to secure the signatures of 5 percent of those eligible to vote at the last election in order to get on the general election ballot. The Court found that this statute did not abridge free association or free speech because the law, “in no way freezes the status quo.” 259 The decision is also frequently cited as the Court’s acquiescence to state ballot access laws that require minor parties and independent candidates demonstrate some minimum level of popular support as a prerequisite to ballot qualification. In the oft-quoted words of Justice Stewart, “There is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot.” 260 The Jenness decision also upheld generally the power of the states to give automatic ballot access to nominees of the major political parties. In the next year, the Court delivered another ballot access ruling in Bullock v. Carter. 261 This time the Court unanimously struck down Texas’ primary election filing fee. The Court again recognized the general power of the states to regulate ballot access. However, the Court noted that the “existence of such barriers does not of itself compel strict scrutiny.” 262 The Court ultimately found that the Texas filing fees to be so large as to amount to a violation of equal protection, explaining that: [T]he Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate we conclude . . . the law must be “closely scrutinized” and found reasonably necessary to accomplishment of legitimate state objectives in order to pass constitutional muster. 263

The Court unanimously found that Texas’ scheme failed this test of close scrutiny and struck down the law on equal protection grounds for discriminating against candidates unable to pay the filing fee. The next year, in Kusper v. Pontikes, the Court again struck down a state primary election law. 264 In that case, the state of Illinois had sought to bar persons from voting in a party primary if they had voted in another party’s primary in the preceding twenty-three months. The Court stated that, “a significant encroachment upon associational freedom cannot be justified upon a mere showing of legit-

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imate state interests. . . . For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty.” 265 In 1974 the Court handed down three major decisions in the ballot access area: American Party of Texas v. White, 266 Lubin v. Panish, 267 and Storer v. Brown. 268 These three cases show the Court trying to balance the practical needs of the states with the First Amendment rights of the parties and candidates. In American Party of Texas, the Court upheld a Texas law that established a complicated process whereby “new” political parties could gain access to the ballot. The Texas scheme included requirements that new parties receiving less than 2 percent of the vote in the last election had to meet additional requirements demonstrating sufficient popular support through either a party convention or the collection of signatures. The Court found that Texas had a compelling state interest in making sure that “intraparty competition be settled before the general election by primary election or by party convention” and that this interest overrode the party’s First Amendment rights. 269 The Court rejected the equal protection claim in this case, finding that there was no invidious discrimination against third parties or independent candidates. 270 Instead, the Court concluded that the Texas law “affords minority political parties a real and essentially equal opportunity for ballot qualification.” 271 In the same year, the Supreme Court considered California’s election statute in Storer v. Brown. 272 This decision remains one of the Court’s most thorough discussions of the constitutional issues raised when states seek to regulate access to their ballots. The statute at issue contained a disaffiliation provision (“sore loser” clause) that denied a ballot place to independent candidates who had been registered with a “qualified” (major) party in the preceding twelve months. The law also imposed the additional requirement that independent candidates demonstrate a minimum of popular support—by petitions with signatures of at least 5 percent of the total number of votes cast in the last general election—to qualify for a place on the state ballot. Before adjudicating these California laws, the Court in Storer set out in some detail the standard by which such regulations were to be judged. Writing for six members of the Court, Justice White observed that there was no automatic rule invalidating all state restrictions on the rights of voters. Instead, he offered this statement on how state election laws should be judged: The rule is not self-executing and is no substitute for the hard judgments that must be made. Decision in this context, as in others, is very much a ‘matter of degree,’ very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interests the State claims to be protecting, and the interests of those who are disadvantaged by this classification.’” 273

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The Storer majority upheld the disaffiliation requirement as being justified by a state interest in maintaining the integrity of routes to the state ballot and the stability of the political system. The Court balanced this state interest against the First Amendment rights involved. They concluded that the state interests involved here were “not only permissible, but compelling and as outweighing the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status.” 274 The majority in Storer, however, was less supportive of California’s imposition of signature requirements on independent candidates seeking ballot access. The Court remanded this part of the California election scheme after raising questions as to whether the requirements were “unduly onerous” on independent candidates. In particular, the Court questioned California’s limiting the eligible petition signatories to those who had not voted in the prior party primary. 275 In the third case from 1974, Lubin v. Panish, candidates challenged California’s filing fee for ballot access. 276 The Court struck down this provision because the state failed to provide reasonable alternative means for access to the ballot, and because the filing fees were not sufficiently related to any compelling state interest. The Court also relied on the equal protection clause noting that the statute fell disproportionately on minor parties. 277 In 1979 the Court handed down yet another ballot access decision in Illinois State Board of Elections v. Socialist Workers Party. 278 This time the Court invoked strict scrutiny to strike Illinois’ signature requirement for independent candidates and new parties seeking access to the state ballot. In an opinion in which the entire Court concurred, the Illinois law was found to be in violation of the equal protection clause. The fatal flaw in the statute was that it required independent candidates and new political parties seeking access to a local ballot to obtain more signatures that candidates needed to get onto the statewide election ballot. The next major opportunity for the Supreme Court to speak on ballot access issues came in litigation stemming from the 1982 presidential election. The dispute in Anderson v. Celebrezze arose when independent candidate John Anderson unsuccessfully sought to qualify for the Ohio ballot. 279 The Court in this case ultimately found that Ohio’s statute—setting a filing deadline for independent candidates in March for the November election—to be an unconstitutional burden on the voting and associational rights of the candidate’s supporters. The Court again recognized the state’s important right to regulate ballot access but ruled that such restrictions on fundamental rights could not be too restrictive. The Court indicated that they usually upheld such restrictions when they were “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” 280 The majority in Anderson noted that state ballot access restrictions would most likely to be upheld if they fall into one of three

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categories: 1) those that required a preliminary showing of electoral support; 2) those that prevented some “distortion” of the electoral process (e.g., antiraiding statutes); and, 3) those that were unrelated to First Amendment concerns (e.g., a ban on state judges simultaneously serving in elected offices). 281 Justice Stevens’ opinion for the Court in Anderson rejected an all-ornothing rule for these laws and instead set down a two-tier test for adjudging state election laws. He described the process whereby the courts should consider electoral laws thusly: [The Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments . . . then [it] must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule . . . the Court must not only consider the legitimacy and strength of each of those interest; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. 282

An election law from the state of Washington was upheld by the Court in 1986 in Monro v. Socialist Workers Party. 283 The statute had required that minor-party candidates receive at least 1 percent of the total primary vote for that particular office in order to be placed on the general election ballot. Under this law, minor parties could still nominate candidates at party conventions but were also required to participate in the state’s blanket primary and garner at least 1 percent of the vote. The majority in Monro reiterated the Court’s position that state restrictions of this sort implicated fundamental rights and triggered a close judicial scrutiny. However, they decided that the states need not particularize their evidence in these situations in order to prove that the regulation was needed to prevent voter confusion, ballot overcrowding, or frivolous candidacies. 284 This rule obviously eases the burden on states seeking to regulate access to their election ballot. The fact that the state of Washington employed a “blanket primary” at the time probably helped the Court reach its decision. In a blanket primary, all candidates must appear on a single primary ballot at which voters may vote for whichever candidates they choose without regard to the voter’s own party registration. This made it easier for the Court to conclude that the primary election was an integral part of the state’s overall electoral process and therefore could be closely regulated by state law. 285 Through the 1990s, the Court continued to take the occasional ballot access case. In 1992 they considered an Illinois election statute again in Norman v. Reed. 286 There the Court struck down Illinois’ requirement that new political parties secure signatures of voters in all of the political subdivisions affected by a candidacy in order to qualify for various local ballots. The Court found that this requirement violated the party organizers’ right of free

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association. The law was found to not be the least restrictive means of advancing the state’s asserted interest of limiting ballot space to those parties that had demonstrated public support. The Court noted that the demanding traditional strict scrutiny test was reserved only for state laws that posed “severe” restrictions on voters’ rights. In cases where the state law was not deemed severe, the Court would apply the more flexible test set forth in Anderson. 287 A similar interpretation of the appropriate review standard for electoral legislation appeared the same year in the Court’s Burdick v. Takushi opinion. 288 In that case the Court upheld Hawaii’s ban on write-in voting from a First Amendment challenge. Justice White explained the application of tests thusly: [T]he rigorousness of our inquiry into the propriety of state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. 289

By the early 1990s, the Court had thus settled on the two-tier test derived from the Anderson and Timmons cases where a court considering a state election law must first assess the burden that the law imposes on First Amendment rights. If that burden is deemed “severe” then the Court applied traditional strict scrutiny and the law is usually found unconstitutional. If the law does not present a “severe” burden then a lesser for of scrutiny is used. This interpretation of the Anderson test for ballot access legislation has been reiterated and applied in many cases since that time. 290 In a related line of cases, several courts have the employed the same test to judge state laws burdening the right to place initiatives on the ballot. 291 Many lower courts have struck down state ballot access laws by determining that they were not “severe” burdens on constitutional rights or by resorting to the equal protection doctrine. 292 A related associational interest of political parties is the right not to associate with certain individuals, either voters or potential candidates. This issue has come up only infrequently but is an important corollary to the positive right of association. Since at least the early 1980s the Supreme Court has recognized that political parties’ right of association includes the right to identify who constitutes the party and who does not. In Democratic Party of United States v. Wisconsin the Court upheld the national party’s right to refuse to seat state delegates chosen in violation of national party rules. 293 The Court recognized that party rules play an important part in safeguarding the party’s right of association. For the Court, Justice Stewart wrote:

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This party right to refuse association was recognized again more recently in Duke v. Cleland where the Georgia Republican Party sought to keep David Duke off the party’s presidential primary ballot. 295 In that case, the Eleventh Circuit upheld the party’s right to control its primary ballot, stating that, “the Party’s constitutionally protected right encompasses its decision to exclude Duke as a candidate on the Republican Primary ballot because Duke’s political beliefs are inconsistent with those of the Republican Party.” 296 This recognition of parties’ control over their own ideological boundaries in the primary process does not normally pit the party against a state regulatory effort. Nonetheless, this parallel line of case law is very important because it has further strengthen the association right of parties to control their own identity and ideological boundaries from external interference, whether this interference is from the state or unwanted candidates. Ballot access legislation and campaign finance regulations have been the primary means through which the states have sought to regulate their parties, elections, and candidates. However, most states have also enacted a few other types of laws that regulate the campaign activities of parties and candidates. These laws often are directed more at candidates than at the parties and in fact have seldom been challenged by the parties in court. Nonetheless, some of these lesser regulations raise questions of First Amendment free speech and free association that indirectly impact the parties. One of the most common types of state election laws are those regulating election communications. These laws typically require that campaign advertisements identify their sponsor and/or source of funding, prohibit fraudulent campaign activities or false campaign statements, and in some instances attempt to impose ethical limitations on candidates for public office. 297 Some states have also attempted to ban anonymous campaign literature but the courts have generally tended to strike down these laws as direct limitations on First Amendment rights. 298 Another popular state campaign regulation is to restrict campaign activities near polling places. These regulations have usually been upheld by the courts on the basis that the state’s interest in preventing voter intimidation is a sufficiently compelling interest. 299

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In recent years, some states have adopted legislation providing for “voter pamphlets” or “voter guides.” These documents are either official ones produced and distributed by the state or unofficial endorsements of a slate of candidates produced by a private organization. 300 Regulation of the latter type of private “voter guides” is often advocated by political parties who are anxious to preserve their own power to officially endorse candidates for public office in the name of the party. The California legislature has sought to regulate these private mailings by requiring that they carry a disclaimer indicating that they are not official endorsements of a political party. 301 All states now impose some restrictions on the political activities of their public employees. 302 These laws are modeled on the 1939 federal Hatch Act. 303 All of these statutes grew out of the desire to prevent political corruption or its appearance in government by limiting the political activities of political appointees in government. All of these statutes apply to the political activities of individuals rather than those of political parties. But they are clearly aimed at breaking the link between government workers and local party machines. 304 A. State Anti-Fusion Laws The debate over the appropriate standard for electoral regulations became intertwined with the controversy over state anti-fusion laws in the mid1990s. Fusion or “cross-nomination” is the practice whereby more than one political party nominates the same candidate for the same elective office. It is a strategy that has long appealed to minor parties. 305 Given the hurdles to victory for third party candidates, fusion with a major party candidate has offered one of the few ways for third parties to endorse a winning candidate. It can also give minor parties some political leverage over government officeholders whom they helped to get elected. For these reasons, minor parties have been the major advocates of fusion. The practice of multiple nominations of candidates began in the latter half of the nineteenth century and was instrumental to the early success of third parties in the West and Midwest, including the Grangers, Greenbackers, and Populists who “fused” with Democratic candidates. The practice was also used in the South by the Republican Party to encourage factionalism within the dominant Democratic Party. Beginning in the 1890s, the threat of powerful new third parties caused many states to adopt laws limiting or banning fusion. These anti-fusion laws had the effect of preserving the existing twoparty system by making it very difficult for third parties to field winning candidates. 306 States have usually defended their anti-fusion laws by claiming that they help keep election ballots simple, ensure that winning candidates secure a majority of the votes cast, and help preserve the coherence of the major

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parties by discouraging intraparty factionalism or “party splintering.” 307 The courts normally weight these state interests against the rights of voters to associate with the candidates of their choice through the electoral process. Prohibitions on fusion necessarily raise serious and fundamental questions about the associational rights of political parties and the constitutional protections they deserve. While neither the practice of fusion nor the enactment of anti-fusion laws is new, it was not until the 1990s that the federal courts began to seriously consider seriously the constitutionality of these laws. 308 In 1994, the New Party of Minnesota challenged that state’s anti-fusion law in Twin Cities Area New Party v. McKenna. 309 The federal district court that initially heard the case invoked the Anderson test and found that the burden imposed on the party’s First Amendment rights was “not so severe as to trigger a heightened scrutiny of the challenged statutes.” 310 The district judge described the law as a “politically neutral regulation” and noted that the minor party could still nominate any candidate other than one already nominated by another political party. In 1996, this decision was reversed on appeal to the Eighth Circuit. 311 That Court took the position that Minnesota’s law imposed a “severe” burden on the New Party’s right to free association. The Court of Appeals responded to the district court by writing that: The New Party cannot nominate its chosen candidate when the candidate has been nominated by another party despite having the candidate’s and the other party’s blessing. The State’s simplistic view that the New Party can just pick someone else does not lessen the burden on the New Party’s right to nominate its candidate of choice. . . . [T]he burden here is severe because Minnesota’s laws keep the New Party from developing consensual political alliances and thus broadening the base of public participation in and support for its activities. . . . Minnesota’s statute forces the New Party to make a no-win choice. New Party members must either cast their votes for candidates with no realistic chance of winning, defect from their party and vote for a major party candidate who does, or decline to vote at all. 312

In 1997, the Supreme Court took the appeal from the Eighth Circuit’s decision and, under the caption Timmons v. Twin Cities Area New Party, rendered its major opinion on state anti-fusion statutes. 313 Six of the justices voted to reverse the Eighth Circuit opinion and to uphold Minnesota’s ban on fusion candidacies. The majority, led by Chief Justice Rehnquist, agreed with the state of Minnesota and accepted its proffered state interests in regulating ballot access. Applying the Anderson test, the Court determined that Minnesota’s law did not amount to a “severe” burden on the minor party’s right of free association. The majority also rejected comparisons to both Eu and Tashjian, noting that anti-fusion laws “are silent on parties’ internal structure, governance, and policy-making.” 314 The Court thus attempted to distinguish state anti-fusion laws from the types of legislation that they had previ-

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ously found to be unconstitutional burdens on parties’ conduct of their internal affairs. In assessing the burden on the minor party, the Supreme Court in Timmons noted that Minnesota had not “excluded a particular group of citizens, or a political party, from participation in the election process. . . . The New Party remains free to endorse candidates for office, to ally itself with others, to nominate candidates for office, and to spread its message to all who would listen.” 315 The Court characterized Minnesota’s anti-fusion law as only limiting slightly the party’s range of potential candidates and its ability to communicate with voters. 316 In a particularly revealing comment, the Timmons majority described what it believed was the relationship between First Amendment free association and the electoral process in the United States. For the majority, Chief Justice Rehnquist wrote that he was “unpersuaded” that political parties in general possessed any “right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate. Ballots serve primarily to elect candidates, not as forums for political expression.” 317 This vision of the relationship between the rights of free association and voting appears to subordinate the rights of free association to the mechanics of the electoral process. If this view were accepted, the balance between state interests and party/candidate rights would be sharply pre-balanced in favor of the former. Under such an interpretation, it is hard to imagine what, if any, associational interests would be great enough to overcome the state interests usually offered to justify electoral regulations. The three dissenters in Timmons, Justices Stevens, Ginsburg, and Souter, would have struck down the Minnesota anti-fusion statute. 318 They considered the law to be a violation of the minor parties’ “right to select their nominees for public office and to communicate the identity of their nominees to the voting public.” 319 They rejected the majority’s suggestions that the minor party could simply nominate their second choice or publicize the fact that their first choice was running under another party’s banner. They also dismissed Minnesota’s asserted state interests in banning fusion—prevention of ballot clutter and manipulation, encouraging competitive elections, and minimizing intraparty factionalism—as “imaginative” and “far-fetched.” 320 They also noted that anti-fusion laws, unlike some other mechanics of the electoral system, directly burdened the associational rights of third parties. The dissenters turned the state’s argument for preserving “political stability” on its head by showing that fusion can actually enhance rather than erode such stability. Justice Stevens described how this could happen: [T]he fusion candidacy is the best marriage of the virtues of the minor party challenge to entrenched viewpoints and the political stability that the two-party system provides. The fusion candidacy does not threaten to divide the legislature and create significant risks of factionalism, which is the principal risk

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The majority of lower courts have followed the Supreme Court’s lead in Timmons. 322 However, serious opposition to state anti-fusion laws has persisted in the Third and Eighth Circuits to the present time. In litigation contemporaneous with Timmons, federal courts in the Third Circuit heard a challenge to Pennsylvania’s ban on the cross-nomination of candidates in local elections. 323 A few months before the Supreme Court handed down its decision in Timmons, the Third Circuit had rendered a decision in Patriot Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party I) striking down Pennsylvania’s anti-fusion law. 324 The Third Circuit determined that the law violated the First Amendment rights of minor parties’ to free association because it burdened the ability of the party to organize and develop into a statewide political organization. 325 Writing for the court, Circuit Judge Jane Roth explained: The core First Amendment principles originally expounded in Williams and refined in Anderson extend to this case. By preventing cross-nomination and fusion, Pennsylvania’s election laws burdened the Patriot Party’s ability to choose a candidate and to organize and gain influence in the political system. The Party was prohibited by law from associating with Eshenbaugh, despite the fact that Eshenbaugh was the Party’s first choice to be its candidate. It was also prohibited from forming a consensual political alliance, which would have eliminated the “wasted” vote problem and allowed the Party to demonstrate its true electoral strength. Of course the Party was still free to organize and to nominate a candidate who had not been nominated by another political party, but by imposing its election requirements, the Department [of Elections] undeniably burdened the Patriot Party’s right to associate. 326

The Third Circuit thus shifted the focus of the inquiry away from whether the law burdened the party in its purely electoral activities and instead focused on how the law burdened the party in the conduct of its own internal affairs. This tactic allowed the Circuit Court to rely on the broader interpretation of political parties’ associational rights derived from earlier case law on parties’ internal activities, including the Supreme Court’s 1989 opinion in Eu v. San Francisco County Democratic Central Committee. 327 The Court noted that there is an intimate connection between statutory burdens on electoral rights and those imposed by statutes on the internal operations of parties:

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We note, finally, that burdens on minor political parties translate directly into burdens on individual voters. The ban on cross-nomination burdens the associational rights of a voter who supports a minor party platform but recognizes that his vote will be a political nullity unless he casts it for a major party candidate. 328

The Supreme Court’s decision in Timmons finding that Minnesota’s antifusion law did not violate First Amendment rights of free association was handed down only six months after the Third Circuit rendered its decision in Patriot Party I. In light of the Supreme Court’s opinion favoring anti-fusion laws, the Third Circuit reconsidered its decision en banc and issued another opinion in 1999 under the caption Reform Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party II). 329 In this second opinion, the Third Circuit accepted the Supreme Court’s ruling in Timmons that anti-fusion laws did not violate First Amendment rights. 330 However, the entire Third Circuit with only one judge dissenting, took the opportunity to “reaffirm” its ruling in Patriot Party I by ruling that Pennsylvania’s anti-fusion law was an unconstitutional violation of the party’s right to equal protection of the laws. This finding was based on the fact that the Pennsylvania statute allowed the two major political parties to cross-nominate but denied this option to new political parties. 331 By grounding its decision on equal protection rather than First Amendment free association, the Third Circuit was able to sidestep the Supreme Court’s Timmons opinion. Obviously, the opinions from the Third and Eighth Circuits represent a very different view of anti-fusion legislation, and more importantly, of the rights of minor political parties. The courts of appeals were much more receptive to the importance of the fundamental rights of new or small political parties in our political system. They accordingly struck a different very balance between the rights of new political organizations and the interests of the states in maintaining manageable election ballots. Given the sharp disagreement among judges on this topic, it would appear that this battle is not yet resolved. The latest chapter in the judicial debate over party cross-nomination began in Alaska in 2002. In that year, two of Alaska’s minor parties mutually agreed to “share” a primary election ballot on which the names of both parties’ candidates would appear. Registrants of the two parties would therefore be able to vote for a mix of party candidates. State election officials refused to allow this “joint” primary ballot and the two parties sued. Three years later, the case reached the Alaska Supreme Court under the caption Alaska v. Green Party of Alaska where that court struck down the state’s law banning shared primary ballots. 332 The court based its holding squarely on the parties’ free association rights under the state constitution. 333 This was apparently another effort to sidestep the Supreme Court’s decision in Tim-

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mons and recognize a broader free association right for parties than had the Supreme Court under the First Amendment. 334 The Alaska court distinguished the Supreme Court’s decision in Timmons by noting that: Timmons does not speak to the present electoral scheme. Broadly put, the statute in Timmons limited a political party’s right to associate by means of the general election ballot with another political party’s candidate. . . . By contrast, the statutes challenged here do not impose eligibility requirements upon candidates. Indeed, the goal of the Green and Republican Moderate parties is not to associate with other political party’s candidates, but rather to associate with a broader spectrum of voters. 335

The crucial distinction drawn by the Alaska court was that Timmons dealt with fusion at the general election phase while the Alaska dispute was over shared ballots at the primary election phase. This difference is critical for the parties because their associational interests are much higher at the primary phase of the election process. In the words of Chief Justice Bryner for the Alaska Supreme Court: The overarching principle uniting Tashjian and Jones is that the First Amendment protects the rights of voters to band together as parties to pursue political ends. . . . This right is perhaps nowhere more important than during a primary election: it is at the primary election that political parties select the candidates who will speak for them to the broader public and, if successful, will lead their political party in advancing its interests. 336

Once again a lower court distinguished Supreme Court precedent in order to give greater protection to political parties’ associational rights. The Alaska court demonstrated a high regard for the associational rights of the parties similar to that voiced by the Eighth Circuit in the Timmons case. Taken together, these lower court decisions reveal two broad views of political parties and their role in the electoral process. Challenges to anti-fusion laws in recent years have helped to bring into sharper focus many of the issues surrounding state regulation of political parties. The usual test used to judge such laws, announced in the Anderson decision, has not proven to be particularly useful. Judges on both sides of the issue can muster arguments showing that the burden is or is not “severe.” It is clear that anti-fusion laws fall disproportionately heavily on minor political parties. It is also clear that the true reason for the enactment of these laws is to protect the existing two-party system under the guise of protecting “political stability.” The burden that these laws place on minor parties raises question whether such parties should be accorded some special judicial protection. Given all the advantages that the two major parties already enjoy, both financial and electoral, it seems appropriate that minor parties should be

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given some special protection. The exemption could easily grow out of First Amendment freedoms of speech and association as well as equal protection principles. B. Nonpartisan Elections and the Parties Nonpartisan elections are those where the names of the candidates appear on the ballot without any party designation. Laws mandating nonpartisan elections are in effect a form of ballot access legislation that is directed at the parties rather than candidates. Most elections in the United States today are in fact nonpartisan. State laws requiring them come is in a wide variety of forms, some more exclusive of political parties than others. 337 The use of nonpartisan ballots is often reinforced by state laws regulating the campaign behavior of candidates. These limitations most frequently include prohibitions on: attending or speaking at partisan events, identifying themselves as members of a political party, soliciting funds from political parties, publicly accepting party endorsements, and soliciting or accepting the nomination of a political party. 338 Some states further reinforce their nonpartisan elections with so-called “announce” clauses that bar candidates from publicly expressing their views on controversial political issues. 339 Nonpartisan elections became popular during the Progressive Era in the late nineteenth century when they were seen as a way to curb the power and corruption of party bosses and political machines. The Reformers hoped that nonpartisan elections would encourage voters to base their voting decision on policy issues and candidate qualifications rather than on party affiliation. 340 Nonpartisan elections have remained popular with modern political reformers who believe that they help foster better government by making elected officials responsive directly to the people rather than to party officers. Some supporters also see nonpartisan elections as a useful means for insulating local elections from national politics and national party organizations, leaving the local officials free to focus on the efficient delivery of municipal services. 341 The effect of nonpartisan elections on voters, parties, and electoral outcomes has long been debated. Most political scientists appear to be less sanguine than the Progressives, being much less confident in the likelihood that nonpartisan elections will produce more informed voters. It has long been believed that nonpartisan elections hurt Democratic candidates because they favor higher status candidates whose supporters are less in need of a party label as a voting cue. It has also usually been assumed that these types of elections favor non-traditional, “dark horse,” candidates who may be unknown to the party organization but are well-funded. These assumptions seem plausible but have not been conclusively proven. There is some evidence that ballots without party identification may help minor parties by

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placing them on a more equal campaign footing with the two major parties. 342 On their face, nonpartisan election laws would appear to pose significant constitutional problems. The elimination of party labels from the ballot raises serious questions of free speech and free association for candidates, voters, and parties. Nonetheless, it has been long settled that the states may generally allow or require nonpartisan elections. 343 Although the overall constitutionality of nonpartisan elections is well-settled, there continue to be challenges to some of the specific statutory devices that states have enacted to reinforce such laws. The nonpartisan elections that have attracted the most appellate court attention have been those mandating them for state judges. 344 Many states and localities have long employed nonpartisan elections for filling their judicial posts. 345 The use of nonpartisan elections for the selection of judges has been justified with many of the same reasons that nonpartisan elections were instituted for other government offices. However, states often cite the goals of maintaining judicial independence and impartiality as additional reasons for holding nonpartisan elections to choose their judges. Legal challenges to nonpartisan judicial election laws have usually centered on the free speech rights of judicial candidates. The central dilemma of nonpartisan judicial elections has been the need to reconcile the inherent tension between having judges who are responsive and accountable to the public but who also appear to be impartial and independent. 346 The goals of accountability and responsiveness are served through the process of electing judges. However, many believe that elections simultaneously undermine the goals of judicial independence and impartiality by “politicizing” judgeships. The result has been the adoption of elections without parties as a sort of compromise. Academic observers and politicians continue to debate the relative merits of the various methods of judicial selection. Justice O’Connor is one of many who favor some sort of appointment process for state judges in place of elections. Others have called for public funding of judicial races as a way out of this dilemma. 347 One of the most thorough discussions of nonpartisan judicial elections in recent years appeared in litigation over Minnesota’s judicial canons. Canon 5 of that state’s code of judicial conduct barred candidates for judicial offices from: holding party offices, identifying themselves as members of parties, publicly endorsing a candidate for public office, attending political gatherings, accepting funds from political organizations, or announcing their views on “disputed legal or political issues.” 348 The challenge to Minnesota’s judicial canons was commenced in 1998 by a candidate for the state supreme court and resulted in a set of court opinions under the caption Minnesota Republican Party v. Kelly. 349 The district court that heard the dispute upheld the state’s restrictions on judicial candidates by finding that the state had a

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compelling interest in maintaining judicial independence (or its appearance) and that the canons were narrowly tailored to achieve that end. The Eighth Circuit Court of Appeals upheld the district court in a 2001 opinion. 350 The political parties involved in the Minnesota case raised an interesting equal protection claim based on the fact that the Minnesota scheme treated political parties differently from other “political organizations,” such as interest groups and political action committees (PACs). Under the Minnesota rules, judicial candidates could deal openly with interest groups but not with political parties. Both of the lower federal courts considered and rejected this equal protection argument and agreed with the state that there was sufficient evidence that “political parties have a negative effect on the independence of the judiciary.” 351 Judge Gibson of the Eighth Circuit explained the court’s rejection of the equal protection claim by comparing the roles of political parties and interest groups in the electoral process: Minnesota has historically viewed partisanship as a particular threat to the integrity of its courts. . . . Political parties specialize in the business of electing candidates and have a powerful machinery for achieving that end, including large membership and fund-raising organizations. Those parties are simply in a better position that other organizations to hold a candidate in thrall. Moreover, because political parties have comprehensive platforms, obligation to a party has a great likelihood of compromising a judge’s independence on a wide array of issues. . . . The danger of judicial candidates affiliating with singe-interest groups was adequately addressed by the provision of Canon 5 prohibiting announcement of the candidate’s views on disputed legal or political issues. 352

The Eighth Circuit thus accepted the position of the Minnesota legislature that parties pose a much more serious threat of political corruption than do interest groups. This belief appears to have been based on the view that political parties were much more involved and visible in the electoral process than interest groups and therefore need to be controlled by more restrictive regulations. The court’s confidence that interest groups could be sufficiently limited by the state’s “announce” clause alone seems somewhat at odds with modern campaign practices and developments. The role of interest groups in elections appears to be growing and to overlap increasingly with the traditional campaign activities of political parties. 353 Judge Beam, dissenting from the Eight Circuit opinion, presented a very different picture of the roles of political parties and interest groups in judicial elections: Of all the politically-oriented organizations around, the two major parties are both “big-tent” organizations—ideologically consistent only in their aggregate distinctions one from another. Within each party a variety of opinions on most issues may be found. . . . On the other hand, quasi-political organizations,

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Chapter 3 particularly those that focus on a single issue or only a few issues, are much more likely to demand and command a candidate’s attention and support. . . . The record reflects the increasing role in and influence over judicial election politics exerted by these groups. . . . If the Minnesota Supreme Court is truly worried about the appearance of or actual judicial bias, it ought to be concerned with more than political parties. By ignoring other political groups, Canon 5 leaves unregulated sources of funding, endorsements and pressures, which, if the court’s concerns about judicial partiality are justified, do much more to undermine public perceptions than political parties. 354

The Eight Circuit’s opinion was reversed and remanded by the U.S. Supreme Court in 2002 in a 5–4 decision under the caption Republican Party of Minnesota v. White. 355 The Supreme Court found that the announce clause of Minnesota’s judicial canons violated the First Amendment free speech principle. Unfortunately, the Court did not discuss whether the state’s disparate treatment of political parties and interest groups in its judicial elections violated equal protection. Although the case law on nonpartisan elections is sparse, it does appear to reflect the same divisions in judicial opinions found in other areas of electoral law. Once again, judges seem to fall broadly into two camps: those who regard political parties as corrupting and unnecessary to the electoral process, and those who see parties as important and inevitable linkage entities in our political system. This division among judges, based on broad characterizations of parties, seems to preordain how a particular judge will rule on any given state regulation. The nonpartisan election cases do not contribute much in deciding where to draw the line in state regulation of parties. Clearly, some lower federal court judges want to give greater weight to parties’ free association rights, but this could hardly be said to be a majority position. 356 The continued silence of the Supreme Court on this question leaves the matter unsettled and in the hands of state legislatures. C. State Primary Election Laws and the Parties Primary elections lie at the “crucial juncture” between political parties’ internal activities and their external responsibilities. 357 Primaries represent the most important function for parties since this is the time when they identify their candidates, refine the party’s political message, and rally behind their nominees. However, primary elections also have important external repercussions well beyond the party itself. The most obvious of these is the fact that primaries of the two major parties effectively winnow the field of candidates to their two nominees. In those states that are dominated by one political party, that party’s primary election is tantamount to the general election. Party primaries thus simultaneously implicate important party interests and

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important state or public interests. This situation is further complicated by the interplay between the important rights involved (voting, speech, and association) that are held by a variety of individuals and groups (candidates, voters, and parties). The dilemma for the courts has been to unscramble this Gordian knot of rights and rights-holders in light of a wide array of state regulations and circumstances. 358 The introduction of the direct primary was one of the major achievements of the Progressive Movement. Prior to that era, political parties chose their candidates through party caucuses or party conventions. As the states took over more of the electoral process in the mid-twentieth century, they began regulating not only the general election ballot but also the primary election process. As this regulation grew the states inevitably adopted a variety of primary models. Some states have opted to regulate primaries closely by requiring that the parties use only one type of primary system. Other states allow parties some discretion in how they go about selecting their candidates. A few states allow different nomination methods for minor, as opposed to major, political parties. The result is that today there is a great diversity among the states in how they regulate their parties’ nomination processes. 359 As the states took control of the nomination process through the adoption of direct primaries, they also necessarily had to decide who could vote in which party’s primary. This matter is obviously a critical one for the parties because it can heavily influence not only who will win the party nomination but also what the party itself will stand for publicly. 360 State laws controlling primary participation essentially allow the state to “define” the parties by determining who can vote in their primaries. Greater state regulation of primaries has brought them closer to controlling political parties in two of their most basic and important functions: nomination and campaigning. In many ways, the regulation of the nomination process is more important to political parties than regulation of the general election ballot because it is at the nomination stage where the party refines its ideological identity and its position on major public issues. 361 The primary election system in any given state is a complex interplay of state laws and party rules. Generally, primaries are deemed “open” if they are open to all registered voters regardless of party affiliation. They are considered “closed” if only registered party members may vote in a party’s primary. The states have divided about equally in recent years between these two basic forms of the primary. Between these two “pure” forms there is a wide range of primary types that vary greatly as to their degree of openness from state to state. The degree of openness is determined in part by how easily voters can change their party registration and how closely to Election Day they may do this. A state that allows easy and late party-switching has the effect of making an ostensibly “closed” primary much less closed. 362 By controlling who may participate in party primaries, a state is indirectly affect-

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ing the entire nomination process, the role of the political parties, and ultimately the composition of the general election ballot. The more “open” a primary is the greater the likelihood that the candidates will have electoral bases independent of the party leaders and the formal party organization. 363 More significantly, open primaries can dilute or blur the party’s message by burdening them with nominees who are not representative of the party. How a state structures its primary system therefore raises many of the same fundamental issues and problems as the more direct forms of ballot access do. Over time, the states have developed a complicated range of primary types that differ mostly on which voters may participate in the party primary. 364 These include the “semi-closed” primary where voters may affiliate with any party at the primary and participate in the selection of that party’s nominees. A more common variety is the “semi-closed” primary where often independent voters may opt to participate in any one party primary and unregistered voters may register with a party at the primary and vote in its election. This form of primary has been used in California, Oklahoma, Idaho, and Indiana. The legislative objective behind the adoption of the semi-closed primary appears often to be to give independent voters a chance to participate in the primary election which they would otherwise not be able to do. These independent voters who participate in a party primary under this system are often then subsequently registered with that party. A more extreme type is the “blanket” primary where all candidates appear on the ballot without party affiliation and the voters may vote for candidates from more than one party. After a blanket primary, the votes for each party’s candidates are tabulated separately and the top two vote-getters from each party then run in the general election. In the nonpartisan primary system in use in Louisiana, candidates appear on the ballot without party affiliation and the top votegetters, regardless of party, then compete against one another in the general election. The Supreme Court has long recognized the need for state regulation of elections. The standard rationale has been that the state possesses important interest in ensuring that elections are generally fair and open. The earliest state regulations were primarily aimed at eliminating or minimizing fraud in state and local elections. By the time of the White Primary cases in the 1940s the federal courts were extending this rationale to party primaries, which had previously been largely exempt from state regulation. Since that time, the Supreme Court has indicated repeatedly that party primaries are an “integral part” of the overall election process and therefore should be subject to state regulation. 365 This reasoning, however, glosses over the important differences between the two stages of the electoral process. In the early decisions, the courts were anxious to eradicate racial discrimination and fraud from primary elections, but today many of these concerns have largely disappeared. Racial discrimination, fraud and political corruption are no longer

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hallmarks of the primary system. The decline of these earlier problems at the primary stage coupled with the expansion in the right of free association means that the courts today should be able to treat the two stages of the electoral process differently when adjudging state electoral regulations. 366 In recent years, the Supreme Court has begun to take cases that involve the interpretation of different types of primary models. This development has the potential to lead to a much more finely tuned understanding of the fundamental rights involved at the primary phase. This could probably be best achieved by firmly recognizing a different and greater party interest at the primary phase of elections than at the general election phase. D. The “Blanket” Primary Controversy: California Democratic Party v. Jones The most controversial form of the primary has been the so-called “blanket” or “jungle” primary which has been used in various forms and at various times in the states of Alaska, Louisiana, Washington, and California. Under a blanket primary, all voters receive the same primary ballot and may vote for a mixture of Democratic, Republican and/or independent candidates listed on the ballot regardless of the voter’s own party registration. This ballot form is thus the most “open” of all primary voting systems. It allows, many would say encourages, voters to “split” their tickets by voting for candidates from more than one political party. Party leaders and party activists are typically critical of the blanket primary system, believing that it dilutes the party label, allows non-party members to affect the selection of the party’s nominees, and divorces candidates from the party and its policy positions. States adopting the blanket primary often argue that it makes elections more “representative” by keeping elected officials responsive to the voters rather than to party leaders. The adoption of the blanket primary in California by statewide initiative in 1996 set the stage for a major legal challenge to this balloting system and presented the courts with an opportunity to discuss the complex First Amendment issues involved. 367 California’s blanket primary law was immediately challenged by the state’s four political parties, each of which had party rules barring persons not registered with the party from participating in their primaries. In California Democratic Party v. Jones, federal District Court Judge David Levi heard this challenge and upheld the statute finding that it imposed a significant but not a “severe” burden on the parties’ rights of free association. 368 Judge Levi noted the inherent difficulty in evaluating the blanket primary, observing that “‘[t]he relative merits of closed and open primaries have been subject of substantial debate since the beginning of this century and no consensus has as yet emerged.’” 369 Nonetheless, he went on to apply the balancing test that had been set out by the Supreme Court in its decisions in Anderson and

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Timmons. He began his analysis by summarizing the parties’ arguments against the blanket primary: The parties contend that the cross-over vote, and the prospect of a large crossover vote, will affect the selection and behavior of party nominees and elected officials; weaken party discipline; increase the costs of primary elections by causing candidates to compete as if there were a general election; dampen the morale of party activists; and disrupt internal party structure and governance. 370

Judge Levi considered and rejected each of these party interests. He decided that the specter of large numbers of cross-over voters “raiding” another party’s primary was exaggerated and unlikely. He also dismissed the assertion that the blanket primary would endanger the internal governance of parties since the selection of party officers was exempt from the California primary law. 371 Judge Levi then turned to the interests propounded by the state of California in support of its adoption of the blanket primary: The open primary would permit voters to vote “for the best candidate for each office regardless of party affiliation” thereby giving voters greater choice. In addition . . . the blanket primary would increase voter participation in the primary election, restore healthy competition particularly in “safe” legislative districts in which one party clearly dominates, make elected officials more responsive to voters as opposed to party officials, reduce the power of special interest groups, and strengthen the political parties by assuring the nomination of candidates with broader bases of support. 372

Judge Levi decided that the debate over the California blanket primary turned largely on what view one held on the role that political parties and party primaries should play in our political system. On one hand, he identified a “party perspective” which viewed the parties as “autonomous organizations” for which the primary election served as “their opportunity to select their leaders and to define their positions on political questions.” 373 In contrast to this depiction of the parties and their primaries, he described the “state’s perspective” that considered primaries to be “the first step by which the electorate as a whole, regardless of party affiliation, chooses it leaders . . . the political parties, as they operate to frame the choice of candidates, are a part of a highly regulated governmental activity—the election process.” 374 These starkly contrasting images of parties and primaries laid bare the two fundamental judicial positions on many of the major questions involving political parties in this country. In 1998, the Ninth Circuit Court of Appeals heard an appeal in the Jones case and adopted the opinion of Judge Levi as its own. 375 In 2000, the Supreme Court heard California Democratic Party v. Jones on appeal and reversed the Ninth Circuit. 376 This was the first time that the

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Supreme Court had considered the constitutionality of a blanket or open primary law under First Amendment free association principles. 377 In an opinion authored by Justice Scalia, from which only Justices Stevens and Ginsburg dissented, the Supreme Court held that California’s blanket primary law violated the political parties’ freedom of association under the First Amendment. The Supreme Court followed the usual pattern by comparing the statute’s burden on the party’s rights with the interests asserted by the governing state. In its opinion, the majority went to considerable lengths to find that the burden of the blanket primary on the parties’ right of free association was severe. They began by reiterating the importance of the right of association for political parties. But they then went much further and stressed that this right, and its corollary the right not to associate, were especially critical to political parties during the nomination phase. On this point for the Court, Justice Scalia wrote: In no area is the political association’s right to exclude more important than in the process of selecting the nominee. That process often determines the party’s positions on the most significant public policy issues of the day, and even when those position 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. . . . 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 “selects a standard bearer who best represents the party’s ideologies and preferences.” 378

The majority considered California’s blanket primary statute to be a serious burden on the First Amendment rights of the parties since it effectively forced them to associate with, and have their nominees selected by, persons who had refused to affiliate with the party. They found that this balloting system would effectively force the parties to “adulterate” their nomination process by forcing them to open their candidate selection process to “persons wholly unaffiliated with the party.” 379 Describing the burden as a “clear and present danger” to the parties, the majority claimed that under blanket primary systems, it was not unusual for a quarter to one-third of the votes cast for a party’s nominees to come from voters unaffiliated with the party. The result was that a “party” primary decision could be hijacked or greatly diluted by nonpartisans. The majority reinforced its decision to apply the heightened form of strict scrutiny to California’s blanket primary law by comparing the law to state regulation of political parties’ internal affairs that had been struck down by the Court in earlier cases. It had been well established since the Court’s 1989 decision in Eu v. San Francisco County Democratic Central Committee that state regulation of parties’ internal processes had to meet a higher constitutional standard than regulations of the election process. 380 The majority

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therefore sought to liken the California blanket primary to a burden on an internal operation of the parties—viz., the selection of party nominees. 381 They believed this to be the case because the potential for a blanket primary to deprive the party of control over its political soul and ideological reputation. Justice Scalia even went so far as to predict that “a single election in which the party nominee is selected by nonparty members could be enough to destroy the party.” 382 The majority then turned to the numerous interests that California had advanced in support of its blanket primary legislation. The state interests in “producing elected officials who better represent the electorate” and “expanding candidate debate beyond the scope of partisan concerns” were summarily dismissed by the Court as “simply circumlocution for producing nominees and nominee positions other than those the parties would choose if left to their own devices.” 383 The Court was also unsympathetic to the state’s concern for what they labeled as “disenfranchised persons” in the state, meaning independent voters who could not vote in any party primary under a closed primary system. In this clash of competing claims of free association, the Court sided with the parties’ right to determine their own membership over the associational claims of nonmembers to participate in a party’s primary. 384 At the very end of his majority opinion in Jones, Justice Scalia noted an exception to the court’s ruling against blanket primaries by offering that a “nonpartisan blanket primary” would be constitutional. Scalia described this permissible form of the party primary thusly: 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 constitutionally crucial one: primary voters are not choosing the party’s nominee. 385

It is unclear from this description whether the ballots in such a primary would list candidates’ party affiliations. The term “nonpartisan” usually indicates that party labels are absent from the ballot. But the Court in Jones appears to be using the term to mean that party nominees are not being directly chosen. The closest existing system to the Jones “nonpartisan blanket primary” would be the electoral system currently in use in Louisiana. 386 Ballots in that state, however, list candidates’ party affiliations as did the California ballots struck down in Jones. The only significant difference between the two states’ electoral systems is that in Louisiana a candidate can be

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elected to office at the “primary” stage if he or she wins a majority of the vote. Louisiana essentially collapses the primary and general election phases together. In this situation, voters in Louisiana technically do not choose the party nominees as California voters did before Jones. This seems to be a rather slim distinction on which to strike down the California primary while approving the Louisiana form. The distinction between the two systems is even slimmer when no candidate wins a majority under the Louisiana system and the state then holds a run-off election. In this scenario, most of the voters appear to consider that the two candidates are nominees of their respective parties. 387 The Louisiana system hardly seems to have been an electoral system to hold up as a model given the impact it has had on political parties and the state’s political system generally. 388 Dissenting Justices Stevens and Ginsburg would have upheld California’s blanket primary law as constitutional. 389 They emphasized the breadth of state power over the entire electoral process and they minimized the burden imposed on the parties by the blanket primary. They also argued that, “[t]he reason a State may impose this significant restriction on a party’s associational freedoms is that both the general election and the primary are quintessential forms of state action.” 390 The majority had tried to analogize party primaries to other forms of internal party activities that had been given greater protection from government regulation. In response, the dissenters contended that party “primaries—as integral parts of the election process by which the people select their government—are state affairs, not internal party affairs.” 391 The dissenters contrasted primaries with party caucuses and party conventions that they said were internal party affairs enjoying greater freedom from government regulation. The Supreme Court has not revisited the free association issues in the context of open primary laws since the Jones decision. 392 However, several lower courts have contributed to this debate while interpreting open primary laws in other states. Most of these courts have followed the Supreme Court’s ruling in Jones. In 2003, the Ninth Circuit found Washington’s blanket primary, which dated from 1935, to be “indistinguishable” from the California statute struck down in Jones and therefore declared it to be unconstitutional. 393 Even the Alaska Supreme Court, which had upheld one of the nation’s oldest blanket primaries in 1996, fell into line and declared that state’s blanket primary unconstitutional in 2000. 394 The Alaska legislature, however, responded to Jones by amending the state’s election law. In order to conform to the Jones ruling, the new election law stipulated that Alaska’s voters could not vote for different parties’ candidates at the same primary election. 395 This ban on “joint” primary ballots was successfully challenged by two minor parties in 2005 and found to burden the parties’ associational rights under the Alaska state constitution. 396

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The Jones decision generated considerable speculation as to whether the other forms of the primary would be unconstitutional. Justice Scalia carefully limited his opinion in Jones to the partisan blanket primary, noting that, “This case does not require us to determine the constitutionality of open primaries.” 397 However, the district court judge who heard Jones, and Justice Stevens in his dissent, believed that the majority’s decision would “cast serious doubt on the schemes of 29 other states” that employed open party primaries at that time. 398 Law review commentators have also raised the possibility that Jones could mean that open primaries are unconstitutional, or even that all state-imposed primary elections are unconstitutional in its wake. 399 Most observers seem to agree that the Jones decision struck a new balance in favor of parties’ associational interests over states’ regulatory interests. 400 But commentators have shown little agreement on how to evaluate the associational burden on the blanket primary on a state’s political parties. 401 The blanket primary controversy raises many of the same issues as other forms of state regulation, including anti-fusion laws. But the imposition of such a system on the parties implicates some additional problems as well. One of these is the fact that this form of primary largely displaces the parties from the nomination process. As such, the blanket primary goes to the very heart of the most important function played by modern American parties. If we apply the tripartite model to these laws, it is quite clear the requiring the use of a blanket primary is a gross interference with both the internal and electoral functions of the parties. Where anti-fusion laws hamper minor parties in the general election, imposition of a blanket primary severely burdens the major parties in both the primary and general election phases. For this reason alone, the blanket primary should be found unconstitutional. E. The Semi-Closed Primary: Clingman v. Beaver The most recent Supreme Court discussion of the free association rights of political parties can be found in litigation over Oklahoma’s “semi-closed” primary, initially captioned as Beaver v. Clingman. 402 The Oklahoma form of the semi-closed primary allowed qualified political parties to “invite” independent voters, and only independent voters, to participate in their primaries. The Libertarian Party of Oklahoma (LPO) challenged that state’s semiclosed primary in 2003 as an unconstitutional burden on its right of free association because it prevented the party from inviting members of other parties to vote in its primary. The case presented the courts with a novel situation. The semi-closed primary was different from the fully open blanket primary that the Supreme Court struck down in Jones. It was also unlike the fully closed primary law that they had struck down in Tashjian. The case therefore presented the courts with an ideal opportunity to refine the concept

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of free association in the context of primary elections. The district court that first heard the dispute upheld the Oklahoma statute finding that it was not a “severe” burden on First Amendment rights and that the law served important state interests. On appeal to the Tenth Circuit that court reversed, finding that the semi-closed primary constituted a severe burden on associational rights and was not narrowly tailored to support compelling state interests. 403 The dispute reached the Supreme Court in 2005 under the caption Clingman v. Beaver. A closely divided Court reversed the Tenth Circuit, concluding that the state’s law did not violate the First Amendment right to free association. 404 There was no disagreement among the justices as to the standard applicable to the case. All members of the Court employed the two-level Anderson-Timmons test: electoral regulations imposing a severe burden on a fundamental right are to be judged by strict scrutiny; those imposing lesser burdens are constitution if they are reasonable and non-discriminatory. The differences among the justices were over whether the Oklahoma statute in question initially imposed a “severe” burden on associational rights. Writing for the Court, Justice Thomas found that the Oklahoma law did not severely burden such freedoms because voters could easily switch their party registration to either independent or to the Libertarian Party if they wished to participate in that party’s primary. Justice Thomas went to some length to try to distinguish the Court’s 1986 opinion in Tashjian where they had struck down a Connecticut law mandating that parties hold only closed primaries. He argued that the Oklahoma statute was less burdensome than the one in Tashjian because it allowed independent voters to participate in any party primary, where the Connecticut law had required that all participants in a party primary be registrants of that party. 405 The Clingman majority also accepted the state interests cited by Oklahoma as justifications for its semiclosed primary: preservation of political parties as “viable and identifiable” groups; enhancement of the parties’ “electioneering and party-building activities”; and, prevention of primary “raiding” and “sore loser” candidacies. 406 Of particular relevance here are the different ways in which the justices in Clingman described and applied the freedom of association. The majority opinion appeared to locate the freedom primarily in individual voters, particularly those who might want to associate with the Libertarian Party by voting in its primary. Justice Thomas did not seem to accord the parties much of a right to free association independent from their members/voters. This narrow interpretation of the freedom’s scope allowed Justice Thomas to easily find Oklahoma’s semi-closed primary imposed little burden on the associational right because voters in the state could simply switch their party registration if they wished to participate in the Libertarian Party’s primary. In his dissent to the Clingman ruling, Justice Stevens provided a much more expansive conceptualization of the free association rights involved. He noted that the dispute implicated two important rights: “the individual citi-

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zen’s right to vote for the candidate of her choice and a political party’s right to define its own mission.” 407 In assessing the extent of the burden that Oklahoma’s primary law placed on the parties, Justice Stevens noted how important primaries have become to political parties. He described party primaries as playing “a critical role in enabling a party to disseminate its message to the public,” and that “it is through its candidates that a party is able to give voice to its political views, to engage other candidates on important issues of the day, and to affect change in the government.” 408 For Stevens, the party primary is central to the party’s ability to define itself through its ideology, candidates, and membership. Justice Stevens argued that political parties themselves possess an independent right of free association. While political parties’ right to free association are well established in the context of purely internal party matters, such as party governance, the right is much less well established in the electoral context. 409 In order to bolster his argument, Stevens attempted to show that the law burdened that part of the right that protects parties’ internal activities. Stevens found that much of the burden of Oklahoma’s law fell on what many would consider internal party matters, such as recruitment of new members through open party primaries. Stevens made this connection thusly: Rightly or wrongly, the LPO feels that the best way to produce a viable candidate is to invite voters from other parties to participate in its primary. That may dilute what the Court believes to be the core of the Libertarian philosophy, but it is no business of the State to tell a political party what its message should be, how it should select its candidates, or how it should form coalitions to ensure electoral success. 410

This assessment of the Oklahoma statute’s burden on the Libertarian Party is reminiscent of some of the cases from chapter 2 dealing with state laws directly regulating the internal activities of parties. Justice Stevens’ dissent came very close to depicting the Oklahoma law as interfering with internal party decision-making concerning membership electoral participation. He seemed willing to extend free association principles to party interests in matters of party ideological coherence and member recruitment. These are clearly matters of “internal” party concern that the courts have often said lie beyond heavy state regulation. By characterizing the law as an interference with the party’s recruitment strategy, Stevens was able to conclude that this was a burden on the party’s associational rights. These recent cases on party primaries have helped to sharpen many of the issues in the debate over state regulation of political parties. Most judges hearing these disputes seem to begin from one of the two broad positions. One of these assumes that political parties are a vital part of our political system and make important contributions to democratic government. The other blames political parties for many of our political problems, including

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political corruption. Whether one views parties as vital links between the governed and the government or as corrupting intermediaries seems to predetermine how one regards various government regulations of parties. As the Clingman dispute makes abundantly clear, the Supreme Court itself is still sharply divided over the scope of free association in the context of primary elections. Some justices lean towards favoring state regulation of parties by minimizing the scope of free association. Others are quite willing to give priority to free association interests over state concerns. The twotiered Anderson-Timmons test for judging state election laws is a reflection of this split among judges. The test has had the effect of simply reformulating the key question in these cases into whether the burden of the state legislation on First Amendment rights is deemed “severe.” Given the close division among judges on the major question of party rights versus state interests, the ultimate decision may be left in the hands of individual state legislatures. F. A Comparison of Primary Models: Party Primaries and Rights of Free Association Today, virtually every state requires its parties to select their nominees through some form of the direct primary. But there is a wide variety of primary models currently in use among the states. At one extreme are the fully “closed” primaries where only registered party members are permitted to vote. At the other extreme are the “blanket” primaries where any voter can participate and split his or her vote among candidates from different parties. Between these two extremes there is a rich diversity of primary models that exhibit different degrees of “closure” in terms of who may participate in the primary. 411 One of the intermediate primary models is the “semi-closed” primary currently in use in about twenty states. 412 This differs from the full-closed primary by making it possible for unaffiliated voters to participate in a party’s primary. This is usually achieved by allowing voters to register with a party during the primary period or by considering the act of voting for a party to be the equivalent of registering with that party. 413 The semi-closed primary differs from a blanket primary in that a voter can participate in only one party’s primary per election cycle. Another primary type is the nonpartisan primary where all candidates appear on the same ballot and a candidate receiving at least 50 percent of the vote wins the election. If there is no majority winner under the nonpartisan model, then the top two vote-getters, regardless of party affiliation, compete in a run-off election. A relatively new version of the primary is the “party-option” model in which the state leaves it up to the party to decide whether to allow independent voters and/or members of other parties to participate in its primary. 414

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It is clear that primary elections implicate fundamental rights of free association and that some forms of the party primary are more restrictive of free association rights than others. However, it is less clear the extent to which different versions of the primary affect the associational rights of the various groups and individuals involved. 415 In table 3.1, I compare six of the major types of party primaries and how they burden the free association rights of the major parties, minor parties, voters in general, and independent voters. 416 The primary models in table 3.1 are ranked with those at the top appearing to place the least burden on the associational rights of the major parties and those at the bottom putting the maximum burden on the major parties’ rights of free association. The primary models at the top therefore put the greatest limitations on the ability of nonmembers to participate in the selection of a party’s nominee. The closed primary where only registered party members may participate in the selection of the party nominee would seem to place a minimal burden on the major parties and their members to associate among themselves in the selection of party nominees. At the other extreme is the “jungle” primary that was struck down by the Supreme Court in California Democratic Party v. Jones. This primary model probably represents the greatest affront to the associational rights of parties because it permits nonmembers to participate fully in the selection of the party’s nominees for the general election. 417 Between these two extreme versions of the primary lay others that have varying impact on voters and parties. The nonpartisan primary imposes somewhat less of an associational burden on major parties than the blanket primary because it technically does not allow nonmembers to participate in the selection of party nominees. The open and semi-closed versions of the primary place what might be characterized as a “substantial” burden on the association rights of the major parties because they open the primaries up to nonmember participation. I have characterized these burdens as “substantial” because they can force the party to admit nonmembers to its primaries, but not to the same extent as the jungle primary. The party option model is probably the model that presents the least burden to the major parties’ rights since it lets them choose which classes of voters can participate in their primary. The choice of primary model imposes different burdens on associational rights of voters than it does on the rights of the major parties. Whereas the “jungle” primary puts the greatest burden on associational interests of the parties it places a minimal burden on individual voters since it gives them maximum discretion as to which party’s candidates they will support. A similar divergence between the rights of parties and voters appears with some of the other primary models as well. For instance, the party option model maximizes the parties’ ability to decide who will participate in their primar-

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ies but in doing so it can substantially burdens the rights of individual voters if the major parties should decide to hold closed primaries. This incongruity between the association interests of the parties and those of the average voter poses a dilemma for those states wishing to select a primary model that generally maximizes citizen enjoyment of First Amendment rights. This situation may also mean that a party’s associational interests are sometimes at odds with those of its own members. This conflict of rights may be one of the reasons why state legislatures have so much trouble choosing an “ideal” type of party primary and why the courts have had such difficulty in adjudicating free association rights at the primary election stage. The varying impact of different primary models on minor parties can also be seen in table 3.1. A closed primary system imposes the most serious burden on third parties because it essentially prevents their members from participating in primaries of either of the two major parties. The closed primary also has the effect of preventing third parties from attracting new members by opening their primaries to non-affiliated voters. Third parties are usually growth-oriented and one of the best ways to accomplish this is to open their party primaries to nonmembers in the hopes of attracting new members. 418 This form of member recruitment is unavailable to third parties under a closed primary model. The minor parties would presumably not be as enthusiastic as their larger brethren for the party option model since it might mean that their members could be shut out of participating in the major parties’ primaries. Finally, the associational interests of independent voters can also be seen to vary across primary models. The fully closed primary would likely present the greatest associational burden to independent voters who would be effectively shut out of the primaries of the major parties and thus from an important part of the electoral process. This “primary disenfranchisement” problem has been one of the reasons that some states have abandoned the closed primary in favor of other models that allow greater electoral participation by independent voters. 419 Most other primary models would appear to pose a minimal burden on the associational rights of independents. The open, semiclosed, and blanket primary systems are quite receptive to independent voter participation and present little burden on their ability to associate with other parties and their candidates. Of course, the party option model could pose an associational burden on independent voters if the major parties exercised their option to close their primaries to independents. Beyond these six basic forms of the primary, there exist many other variations among the states. For example, some states have a “semi-open” primary where voters must publicly declare their choice of party by primary day. 420 Michigan has a “private choice” primary where all voters receive both parties’ primary ballots but then, in the privacy of the voting booth, choose which one party’s primary in which they will participate. 421 This sort

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Table 3.1. Major Varieties of Primary Elections and Rights of Free Association Burden on Associational Rights of: Primary Model

Major Features

Major Parties

Closed Primary1

Only voters registered with the Min. party may vote in its primary. The ease with which voters may switch party registration and the proximity of such changes to election day affect the degree of primary “closure.”

Max.

Max.

Party Option Primary

Each party may choose to open its Min. primary to independent voters and/ or members of other political parties.

Subst’l

Subst’l Subst.

SemiClosed Primary2

Independent (unaffiliated) voters may vote in one party’s primary election.

Subst’l

Subst’l

Med.

Min.

Open Primary

Any voter may vote in any one party’s primary.

Subst’l

Mod.

Min.

Min.

Nonpartisan Primary3

All candidates appear on one ballot and any voter may vote for any party’s candidates. A candidate who wins a majority is elected to the office without the need for a general election; otherwise, a run-off election held between the top two vote-getters regardless of party affiliation.

Subst’l

Mod.

Min.

Min.

Min.

Min.

Min.

“Jungle” or All candidates appear on one Max. Blanket ballot and any voter may vote for Primary1 any party’s candidates for different offices. Candidates for each party who receive the most votes are that party’s nominees in the general election.

General Minor Indep. Voters Parties Voters Max.

1. A state cannot force a party to hold a closed primary, Republican Party of Connecticut v. Tashjian, 479 U.S. 208 (1986). 2. This form of primary was upheld by the Supreme Court in Beaver v. Clingman, 161 L.Ed.2d 920 (2005). 3. This version of the primary is used in Louisiana and was the type approved by the Supreme Court in California Democratic Party v. Jones, 530 U.S. 567, 585-586 (2000). 4. This form of the primary was struck down as unconstitutional by the Court, id.

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of procedure ensures voter privacy while complying with the Jones holding that voters should not participate in more than one party’s primary at a single election. In 1998 Florida adopted a “universal” primary system that combines a closed primary with some elements of the blanket primary model. 422 Under this system, party members are permitted to vote for candidates in their own party’s primary and for a list of candidates in “nonpartisan” races. Within this latter category are the candidates in the state’s genuinely nonpartisan races for school boards and judgeships and those races where only one political party is fielding candidates. 423 All primary voters, regardless of party affiliation, may vote for candidates in both types of these “nonpartisan” races. For those races which are “nonpartisan” because candidates from only one political party are running, the winner is elected to office without having to run in a general election. The universal primary thus essentially merges uncontested party primary races with the general election. The universal primary does not appears to run afoul of the problems that brought down California’s blanket primary because Florida voters are not strictly selecting a “party nominee” but rather voting in a sort of accelerated general election. The range of primary types currently in use in the states would seem to present the courts with ideal opportunities for drawing some distinctions among types of primaries and thereby illuminating free association rights. However, the disparate, uncertain and varying impact that the different forms of the party primary have on different sets of voters and parties makes it extremely difficult to assess the associational rights involved. As shown in table 3.1, one type of primary might favor the associational interests of one set of political actors while disfavoring those of others. It appears impossible to say that any one form of the primary maximizes associational interests across the board. The version that comes closest to doing this would most likely be the party option model that allows parties to select how far they want to open up their primaries. Of course, even this model burdens some associational interests: if both of the major parties opt for fully closed primaries this would leave large numbers of independent voters essentially disenfranchised at the primary election phase. Another rather obscure way in which state laws can affect party primaries is by the choice of what proportion of the vote constitutes “victory” in a primary election. For example, many southern states have long required that in order to win a party primary, a candidate had to secure a majority of the votes cast. This requirement often necessitated run-off elections but it also had the effect of minimizing the likelihood that racial minorities would win party primaries. Florida was the first southern state to abolish this requirement, in 2005, by mandating that party primaries would be won by plurality vote. 424 However, the motive behind this change may not have been to help out minority candidates. Rather, the Republican controlled Florida legislature apparently wanted to eliminate run-off elections in primaries as a means of

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keeping the state’s notoriously disorganized Democrats from holding runoffs elections that might allow them to rally around a single, stronger candidate in the general election. 425 The Supreme Court’s most recent primary decisions in Jones and Clingman may be the beginning of an effort to use the adjudication of state primary laws to clarify basic First Amendment principles touching parties and elections. But there still remain considerable differences among the justices over how to assess both the past behavior of political parties and their potential for making future contributions to the political process. The case law on primaries has at least sharpened some of the issues involved. It is now fairly clear that most judges see an intimate, though not well understood, connection between party primaries and associational rights of party members and voters at large. There also seems to be some agreement that a balance must be struck between state interests in maintaining a fair and accessible electoral system and the preservation of some degree of party autonomy, including party control over the party label. There still remain many questions concerning the broader impact of different types of primaries on the political process. Some of the lingering questions include the impact of various types of primaries on: the electoral viability of third parties, voter turnout, competitiveness in elections, responsiveness of elected officials, internal party morale, and electoral problems such as “raiding.” Political scientists offer few definitive answers to these empirical questions, leaving state legislatures to rely on other considerations when selecting a primary model. 426 IV. THIRD-PARTY RIGHTS VERSUS STATE-SPONSORED PARTY DUOPOLY The proper role for third or minor political parties in the American political system presents a complex set of constitutional issues. As seen in many of the cases discussed earlier in this Chapter, third parties are frequent challengers of state election laws. This should not come as a surprise given that these laws often impose special burdens on third parties. In most states the two major political parties have enacted statutory exemptions and privileges for themselves while erecting legal roadblocks to the formation and activity of third political parties. Most of the barriers to third parties come in the form of ballot access laws. Such legislation has usually been justified by the states’ interests in preventing voter confusion, avoiding intra-party factionalism, and ensuring that political parties have a minimum level of public support. However, lurking behind these ostensibly pragmatic state concerns is often an unmentioned state determination to maintain its two-party electoral system. The pursuit of this state interest raises serious questions of free association

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and equal protection as well as deeper philosophical questions concerning the optimal number of parties in a democratic form of government. 427 Third political parties have made regular appearances over American political history. For much of our early history, these parties were unregulated and had unobstructed access to the general election ballot. The earliest state regulations affecting parties made no distinction between major and minor parties. However, by the end of the nineteenth century the introduction of official, state-prepared ballots made it possible for the states to begin treating the minor parties differently from major parties. It was at this time that many states started to demand that third parties meet additional requirements in order to gain access to the general election ballot. The most common type of barrier was a requirement that third parties demonstrate a specific level of public support before appearing on the general election ballot. In most states, this requirement could be fulfilled through the filing of signature petitions or by garnering a specified proportion of the statewide vote in a prior general election. 428 The earliest petition and filing requirements imposed on third parties were not burdensome but by the 1920s many of these requirements were becoming onerous. In the 1930s some states began limiting access to their ballots in order to prevent candidates of the newly formed communist and socialist political parties from appearing on their ballots. Since that time, the states have continued to develop additional statutory devices for limiting third parties’ access to the ballot. One such technique has been to require that third parties select their nominees by primary election rather than let them use the cheaper party caucus or convention method. Other tactics employed by states to discourage third parties have included the requirement that all petition signatures be notarized or that a certain number of signatures be collected from every county in the state. 429 Some states have set very early filing deadlines for third party petitions or barred third parties from obtaining petition signatures from voters who were already registered with another political party. Some states have even resorted to “ballot formulation” tactics such as printing the names of third-party candidates at the bottom of the official ballot as a way to hurt their electoral chances. Of course, the antifusion statutes discussed earlier in this Chapter were also directed in large part at discouraging third party participation in state elections. 430 A more subtle and indirect way that many states have used to discourage third parties is through the adoption of a specific statutory definition of what constitutes a “political party.” These laws usually distinguish parties from other “political organizations.” The significance of this, of course, is that only official “political parties” are able to nominate candidates for public offices and appear on the official ballot. Most state definitions of party base it on either voter turnout in a prior election or signatures on petitions. Many states also provide for the loss of this designation as well. Of course, these

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laws are also typically crafted carefully so that the major parties are always assured of their status as official parties. Some states even single out specifically named parties for special statutory recognition. 431 All of these barriers to third parties come atop the well-known structural disadvantages that these parties face due to the mechanics of our electoral system. Chief among these is the widespread use of single-member districts and plurality voting in the United States. 432 Some provisions of the federal campaign finance laws also work to the disadvantage of third political parties. For example, FECA treats major and minor political parties differently for purposes of qualifying for federal assistance including the requirement that third-party presidential candidates secure a minimum percentage of the national vote before they qualify for federal funding. 433 The “unit rule” by which most states require that all of their electoral votes go to only one presidential candidate also works to the disadvantage of independent and third party candidates for the highest office in the land. 434 By the early 1980s, the Court was expanding free association rights to give political parties constitutional protections in the conduct of their internal operations. 435 This line of cases benefited the two major parties who were interested in gaining protection for their internal operations. Third parties benefited little from these since their primary interest has usually been in securing access to the ballot. The expansion in free association principles to protect internal party activities was not matched by an application of this right to ballot access issues. This bifurcation in electoral case law highlights the important differences between the political interests of the major and minor parties. Since the 1980s, the major parties have seen their associational right expanded by a series of court decisions which minor political parties have seen little expansion in those constitutional rights that relate to their electoral interests. 436 Since the two major political parties control state legislatures, they have been able to enact party regulations over the year that discourage the appearance of new parties and burden existing third parties. 437 These laws are often supported by the “state interests” discussed earlier in this chapter, including such things as: keeping the ballot length manageable, avoiding voter confusion, ensuring that parties have a modicum of popular support before appearing on the ballot, etc. However, in addition to these traditional interests, state legislatures also appear to be motivated by a desire to maintain the party duopoly in state politics. This state interest is supported by the claim that two and only two parties are best for democratic elections. 438 Sometimes it is asserted that competition between two parties provides a more “stable” political system. The asserted state interest in preserving a two-party system is intertwined with the rights of third parties, indeed the two issues are really two sides of the same issue. While the rights of third parties raise issues of free association, equal protection, and voting rights, the question of state-

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sponsored duopoly raises the question whether this is a valid state interest and ultimately whether it is a “compelling” state interest. These questions place the courts once again in the position of having to balance the rights of third parties against the traditional interests of the states in exercising regulatory control over their official ballots. In attempting to resolve the complex mix of interests and rights here, the courts have usually sought to strike a balance to preserve some of the state interest involved while not trampling too heavily on the rights of third political parties. Over the years the justices have occasionally described and supported both third-party rights and state interest across a wide variety of cases. Judicial comments on the appropriateness of a state-sponsored party duopoly have been rare though the issue appears to be getting closer judicial attention in recent years. A. Judicial Treatment of Third Parties Judicial discussions dealing directly with the issues of third party rights and of state-sponsored party duopoly have been rare. Indeed, over the Court’s history only a handful of cases have reached the Supreme Court that are concerned primarily with third parties. In most instances, questions of the appropriate number of political parties and the state’s regulatory power over them have come up as only secondary issues in cases and therefore have not gotten an extended discussion by the Court. One of the earliest Supreme Court decisions mentioning the rights of third parties came in Sweezy v. New Hampshire. 439 This 1957 case raised the question whether a state investigation of subversive activities violated the due process rights of a witness who refused to cooperate with authorities. In his expansive discussion of the First Amendment rights involved, Chief Justice Earl Warren noted that these important rights extended beyond the two major parties: All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. 440

Throughout the 1960s, the Supreme Court heard cases that occasionally dealt with issues similar to those raised by third parties fighting stateendorsed duopolies. The Court showed diminishing patience during this time for burdens on First Amendment rights, particularly those imposed on groups with little political power. 441 The Supreme Court first recognized the right of third parties to challenge state electoral laws on free association grounds in 1968 with its decision in Williams v. Rhodes. 442 This case ruled that Ohio’s signature requirement law burdened third parties severely and therefore violated First Amendment free association. The Court struck down this Ohio

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law because they found that it made it virtually impossible for new parties to appear on the state’s presidential ballots. For the Williams majority, Justice Black made these remarks relevant to third political parties and state regulation of them: The fact is, however, that the Ohio system does not merely favor a “two-party system”; it favors two particular parties—the Republicans and the Democrats—and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past. 443

The Court in Williams applied strict scrutiny to Ohio’s election law; however, only three years later in Jenness v. Fortson the Court upheld Georgia’s signature requirement statute. 444 The Court strained to distinguish the two cases by asserting that in Jenness the state’s electoral scheme as a whole did not restrict third parties to the same extent as Georgia’s had done in Williams. 445 Throughout the 1970s, the Court continued to balance the competing interests here reaching not wholly consistent decisions. 446 The Court’s 1976 landmark decision in Buckley v. Valeo provided the first major case where several members of the Court discussed the role of third parties in our political system. 447 The Buckley suit was brought by an independent candidate for president and involved challenges to several provisions of the newly enacted Federal Election Campaign Act (FECA). The issue of third parties arose in the context of whether FECA’s public financing provisions disadvantaged third parties and independent candidates and thus violated equal protection guarantees. The first part of the Court’s lengthy per curiam opinion was supported by five justices and ultimately determined that, “[t]he charge of discrimination against minor-party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates . . . the Act on its face treats all candidates equally with regard to contribution limits.” 448 The majority reached this decision by applying a lower standard than strict scrutiny to resolve the equal protection challenges to FECA. While strict scrutiny had previously been the standard normally used to judge state electoral laws, the majority in Buckley decided that state ballot access laws, unlike FECA, imposed a direct burden on candidates’ ability to run and voters’ ability to voice preferences among candidates. On the basis of this difference, FECA was judged by the lesser standard. 449 In a partial concurrence to Buckley, Chief Justice Burger weighed in on how FECA would impact new and third political parties. He came out strong-

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ly against any sort of state-imposed party duopoly, writing that, “[t]he fact that there have been few drastic realignments in our basic two-party structure in 200 years is no constitutional justification for freezing the status quo of the present major parties at the expense of such future political movements.” 450 The Chief Justice seemed much more willing than other members of the Court’s majority to recognize that financial regulations can have significant impact on campaigns, political parties and candidates. He also noted some important differences between major and minor parties when it comes to campaign finances. He concluded that the “significant inequities” in FECA fell differently on different types of parties and candidates, noting that the ban on single-donor contributions could hurt third parties more than established large parties. 451 Justice Rehnquist also authored a partial concurrence to Buckley where he made remarks echoing Justice Black’s views in Williams concerning government-sponsored party duopolies: Congress, of course does have an interest in not “funding hopeless candidacies with large sums of public money,”. . . But Congress in this legislation has done a good deal more than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position, and has established requirements for funding minor-party and impendent candidates to which the two major parties are not subject. 452

This comment reminds us that while state creation of barriers to new and third parties acts to preserve a party duopoly some states have gone further and openly named the Republican and Democratic parties as the state’s two semi-permanent political parties. 453 Justice Rehnquist concluded by finding that FECA did impose constitutionally unequal burdens on non-major parties and candidates: “Congress has not merely treated to two major parties differently from minor parties and independents, but has discriminated in favor of the former in such a way as to run afoul of the Fifth and First Amendments to the United States Constitution.” 454 The next Supreme Court case to touch on these issues was Illinois State Board of Elections v. Socialist Workers Party in 1979. 455 In this unanimous decision, the Court used strict scrutiny to strike down Illinois’ signatory requirement for new parties on equal protection grounds. The Court stressed that the states must regulate their elections in ways that do not unnecessarily burden fundamental rights. For the Court, Justice Marshall summed up how the states should strike this balance: “The State interest in screening out frivolous candidates must be considered in light of the significant role that third parties have played in the political development of the Nation. Abolitionists, Progressives, and Populists have undeniably had influence, if not always electoral success.” 456

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In a 1982 plurality opinion, the Court upheld provisions of the Texas state constitution limiting public officials’ ability to be candidates for public offices against a First Amendment challenge in Clements v. Fashing. 457 In his opinion for the plurality here, Justice Rehnquist once again discussed the role that third parties should play in our electoral system. He noted that state ballot burdens on new minor parties and independent candidates can often burden First Amendment free association and then went on to write that “the State may not act to maintain the ‘status quo’ by making it virtually impossible for any but the two major parties to achieve ballot positions for their candidates.” 458 This appears to indicate that Rehnquist favored some sort of heightened scrutiny for state burdens on minor parties, but he nevertheless decided in Clements that the challenged Texas statute did not amount to an unconstitutional burden on minor parties. 459 By the time Anderson v. Celebrezze reached the Court in 1983, members of the Court were beginning to make bolder and more specific statements regarding the rights of third parties and the propriety of states protecting the existing two-party system. Justice Stevens, in particular, emerged as the Court’s leading supporter of third party rights and the Court’s major critic of state-sponsored duopolies. In Anderson he wrote the majority opinion and there described his view of the political situation facing minor parties under state laws: “[B]ecause the interests of minor parties and independent candidates are not well represented in state legislatures, the risk that the First Amendment rights of those groups will be ignored in legislative decision making may warrant more careful judicial scrutiny.” 460 In 1992, the Court revisited these issues briefly in its decision in Norman v. Reed where the Court struck down yet another Illinois election law. 461 The law imposed a petition signatory requirement on new political parties requiring that they secure 25,000 signatures in each of several electoral districts to gain access to the general election ballot. In striking this law, Justice Souter summed up the state of the law in this area: For more than two decades, this Court has recognized the constitutional right of citizens to create and develop new political parties. The right derives from the First and Fourteenth Amendments and advances the constitutional interest of like-minded voters to gather in pursuit of common political ends, this enlarging the opportunities of all voters to express their own political preferences. . . . To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, we have called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation, . . . and we have accordingly required any severe restriction to be narrowly drawn to advance a state interest of compelling importance. 462

Throughout this period questions concerning the role and rights of new and third political parties continued to simmer in the lower courts. Most of

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these courts followed the Supreme Court’s lead and upheld state laws imposing significant burdens on new or third partiers. 463 The Supreme Court returned to some of these issues again in 1997 with its decision in Timmons v. Twin Cities Area New Party, where the Court decided to uphold Minnesota’s anti-fusion law. 464 Chief Justice Rehnquist wrote the majority opinion in that case while Justice Stevens wrote a dissent in which he argued that the state’s fusion ban imposed a serious burden on third parties while not serving any significant state interests. The case provided the vehicle for these two justices to debate the proper role of third parties and state laws preserving two-party politics. For the majority, Chief Justice Rehnquist wrote: States also have a strong interest in the stability of their political systems. This interest does not permit a State to completely insulate the two-party system from minor parties’ or independent candidates’ competition and influence, nor is it a paternalistic license for States to protect political parties from the consequences of their own internal disagreements. That said, the States’ interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two-party system, and that temper the destabilizing effects of party splintering and excessive factionalism. The Constitution permits Minnesota to decide that political stability is best served through a healthy twoparty system. And while an interest in securing the perceived benefits of a stable two-party system will not justify unreasonably exclusive restrictions, States need not remove all hurdles third parties face in the American political arena today. 465

In his dissent, Justice Stevens found that the state’s asserted interests (promoting stability, preventing party factionalism and “raiding”) were insufficient to support the imposition of a substantial burden on third parties by banning fusion candidates. Stevens claimed that the true basis for the Court’s upholding the state’s ban on fusion was a desire to preserve the existing twoparty system. 466 He explained that: In most States, perhaps in all, there are two and only two major political parties. It is not surprising, therefore, that most States have enacted laws that impose burdens on the development and growth of third parties. The law at issue in this case is undeniably such a law. The fact that the law was both intended to disadvantage minor parties and has had that effect is a matter that should weigh against, rather than in favor of, its constitutionality. 467

Justice Stevens went on to expand his comments on state-sponsored duopoly. He conceded that states have an interest in preserving political stability and that they could pursue this interest through means that imposed reasonable and incidental burdens on the formation of minor parties. However, the state could not give “‘the two old, established parties a decided advantage

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over any new parties struggling for existence.’” 468 Stevens also criticized the state’s explanation that the use of single-member districts and plurality voting are the main reasons why third parties are disfavored in American elections. He distinguished this general feature of the political system from the state’s more direct legislative efforts to hamper third parties through such things as anti-fusion statutes. Stevens drew the distinction thusly: Nothing in the Constitution prohibits the States from maintaining single-member districts with winner-take-all arrangements. . . . But these laws are different from the fusion bans at issue here. First, the method by which they hamper third-party development is not one that impinges on the associational rights of those third parties; minor parties remain free to nominate candidates of their choice, and to rally support for those candidates. The small parties’ relatively limited likelihood of success on election day does not deprive them of the right to try. Second, the establishment of single-member districts correlates directly with the States’ interests in political stability. 469

The Supreme Court’s recent decision in Clingman v. Beaver provided Justice Stevens with his most recent opportunity to address the issues of third party rights and party duopoly. 470 In this case, the Court found that Oklahoma’s semi-closed primary system did not deprive third parties of their rights to free association. In a blistering dissent, Justice Stevens attacked both the state and his fellow justices as being motivated by a desire to preserve the existing two-party lock on political power. He charged that, “[t]he flimsy character of the state interests in this case confirms my view that today’s decision rests primarily on a desire to protect the two-party system.” 471 Stevens reiterated the importance of new and third political parties play in our political system, observing that, “[s]tates do not have a valid interest in manipulating the outcome of elections, in protecting the major parties from competition, or in stunting the growth of new parties.” 472 Stevens put the countervailing interests of states and parties in historical context: If, of course, States were able to protect the incumbent parties in the name of protecting the stability of the two-party system in general, we might still have the Federalists, the Anti-Federalists, or the Whigs. In any event, we would not have the evolution of thought or policies that are occasioned through the change of political parties. While no such change has occurred in recent memory, that is no reason to ossify the status quo. 473

Justice Stevens’ displeasure, however, went beyond the Supreme Court’s decision in Clingman and extended to what he considered to be a larger trend in Supreme Court opinions favoring the two established political parties at the expense of new and third parties. He listed several cases where he believed the Court had given “undue deference to the [state] interest in preserv-

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ing the two party system.” 474 He summed up his position on the question thusly: The decision in this case, like the misguided decisions in Timmons and Jones, attaches overriding importance in preserving the two-party system. In my view, there is over a century of experience demonstrating that the two major parties are fully capable of maintaining their own positions of dominance in the political marketplace without any special assistance form the state governments that they dominate or form this Court. Whenever they receive special advantages, the offsetting harm to independent voters may be far more significant than the majority recognizes. 475

Stevens’ sharp observations on third parties and how they have been treated by the Court were apparently not shared by other justices. His remarks regarding prior Supreme Court decisions may be overstated, but the fact remains that state legislatures dominated by the two major parties have gone to great lengths for many years to disfavor new and third parties as competitors. Inevitably, adjudication of the issues raised in these cases comes down to balancing the state’s electoral interests against the First Amendment rights of minor parties, independent candidates, and their supporters. There seems to be little agreement on whether third parties make a genuine contribution to democracy or whether they simply destabilize the political system, confuse voters, and increase the likelihood of run-off elections. Many believe that third parties are healthy for a political system by bringing new issues to public discussion, serving as important avenues for new participants in politics, and introducing new issues not addressed by the two major parties. 476 Since third parties have not been conspicuously successful at winning elections, their importance for the political system appears to be in their impact on campaign debates, platforms, and candidate positions. 477 One of the most commonly asserted state interests here has been that two party system are somehow more “stable” and therefore the state is justified in favoring the major two political parties and discouraging third parties. The party stability argument apparently rests on the belief that having two large parties will result in more stable elections and more stable governments. In particular, responsible party theorists have long argued that a political system with only two large parties will become moderate ideologically by aggregating diverse groups under each party banner. 478 It is also believed that the winning party in such a system will be more “accountable” to the electorate than is the case with a multi-party system. However, none of these theories has ever been conclusively proven. At the same time, there are some benefits to having third parties or the possibility that new parties can emerge in a political system. These include such things as the introduction of new ideas into the political debate, an increase in competitiveness between the two large parties, and increased voter participation. Another argument often as-

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serted in support of a state-created duopoly is that it provides a more comprehensible and reliable cue for voters. However, given the decline in partisan identification over the last few decades, this justification also appears to have been eroded considerably. 479 Today, there appears to be little reason for the state to indulge in practices that protect the two major parties or hamper new and third parties. While partisanship in the electorate has declined, party organizations and the hold of the two major parties on elected offices appear quite secure. In short, the two major parties really need little protection from new parties. The rise of interest groups as the real challengers to parties in recent years has enriched the political debate and forced the parties to modernize and adjust themselves to modern campaigning. There is no reason that third parties could not perform a similar function that would be salutary for the political system as a whole and even beneficial to the two major parties themselves in the long run. Certainly the courts should ensure that smaller parties are not discriminated against by the states. Whether the courts should go further and create a special exemption or special protections for third parties is another matter. At a minimum, new and third parties should be relieved of the special burdens placed on them by state legislation. 480 V. CONCLUSION: PARTIES IN THE ELECTORAL PROCESS The states have generated an extensive host of party regulations over the last few decades that directly and indirectly affect the electoral roles of political parties. For the most part, the courts have supported this trend, providing constitutional justifications as necessary. The early enactment of extensive state regulation of parties was well-founded on contemporaneous party behavior. However, these regulations have become unduly restrictive of parties. On the modern electoral scene, this web of regulations probably diminishes the possibility that the parties will be able to continue to provide the salutary benefits that only they can provide to the political system. Such regulations may also hamper the ability of parties to evolve and compete with new types of political organizations appearing in American elections. The time has come to consider whether we have now too much in the way of state regulations over the parties in the electoral process. The tripartite model provides some guidance here, though much still depends on being able to reliably disentangle the private and public sides of political parties. 481 This process is the hardest to do in the electoral arena where state interests and party rights come into their sharpest conflict. The party-in-the-electorate part of American parties has become the weakest leg of the party tripod due to the decline in partisan voting and the rise of competing political organizations. 482 Despite the decline of this aspect of the parties, the nominating function of

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parties is still vital to both the political system and the parties themselves. One way to preserve the parties would be to accord them greater legal responsibility over the primary phase of elections. This would certainly be difficult today given the decades of case law that have essentially merged the two phases of the election process for constitutional law purposes. 483 However, many of the initial reasons for heavy state regulation are no longer pertinent to modern elections where parties face considerable competition from PACs and other types of political organizations. The judicial assignment of the primary phase of elections to the states must be reassessed in light of historical and legal developments. Party excesses and corruption in the late twentieth century triggered a backlash in the form of the Progressive Reforms and in the process blackened the reputation of political parties. Racial discrimination by parties after 1900 triggered another wave of judicial opinions supporting state regulation of parties. But the momentum of these historical events has carried this process too far and for too long. The rampant political corruption and racial discrimination that led to the state takeover of primaries are much less threatening today. The likelihood of a reemergence of these sorts of party misdeeds is remote today given the appearance of more democratic party organizations, the decline of party patronage, a more vigilant mass media, and stricter civil rights laws. The courts should reestablish a distinction between how heavily the state may regulate parties during the primary as opposed to the general election phase. It is possible to argue that the competing interests between states and parties are significantly different between the two electoral phases. During the primary phase, the interests of parties, independent candidates and their electoral supporters are great and should be subject to minimal state regulation. At this first stage in the electoral process the political activity taking place is much more of a “private” affair than that during the general election. This is a time when parties are trying to unite themselves around candidates and party positions. This is a process that operates best with a minimum of state supervision. Extensive state regulation of primary elections should no longer be justified by such things as the state interest in the maintenance of a party duopoly, preservation of “party unity,” or vague concerns over “political stability.” Valid state concerns in management of the ballot itself can be achieved through regulation of the general election phase. The courts should establish a clearer and stronger barrier between the two electoral phases by adopting different standards for each. 484 It is time to roll back some of the judicial holdings that have essentially merged the primary and general election phases. By re-establishing this barrier, the courts would be able to help preserve the role that the parties play in recruitment, nomination, and campaigning for candidates. It would also help keep an important part of the electoral process largely beyond direct government control. Giving the parties a greater role at this stage of the electoral process would help

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both the parties and the overall political system by ensuring that a vital part of the selection process for public officials does not fall completely under the control of states. It would also reduce the likelihood that the incumbent party could legislate unfairly to their advantage, increase the openness of the selection process by leaving early electoral processes to the political marketplace, and leave this part of the process diffused so as to encourage greater public participation. NOTES 1. 415 U.S. 724, 730 (1974). See also, Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.”). 2. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986) (citations omitted). 3. See, Matthrew J. Streb, “Linking Election Law and Electoral Politics,” in Matthew J. Streb, ed., Law and Election Politics: The Rules of the Game (Boulder, CO: Lynne Rienner 2005). 4. E.g., Act of June 25, 1948, ch. 645, 62 Stat. 718-724 (80th Cong. 2d sess.) §§ 594, 597, 599–603, 606, 610 (outlawing fraud and bribery in elections). See also, William J. Crotty, Political Reform and the American Experiment (New York: Thos. Crowell, 1977) ch. 6. 5. See, Ruth S. Jones, “State Public Campaign Finance: Implications for Partisan Politics,” American Journal of Political Science, vol. 25, no. 2 (May 1981) pp. 342–361. 6. In recent years, political parties have contributed only about four to seven percent of the total cost of congressional campaigns. See, Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 8th ed. (Washington: Congressional Quarterly Press, 2002) p. 74. Assessing the financial role of the parties in presidential elections is much more complicated, given the existence of federal matching funds at the nomination stage, full funding for the general election, and the growing use of “soft money” expenditures by both national parties on behalf of their presidential candidate. See, Stephen J. Wayne, The Road to the White House 2000 (Boston: Bedford/St. Martin’s, 2001) ch. 2. 7. For a discussion of the evolving role of political parties in campaign finances in the United States, see, Frank J. Sorauf, “Political Parties and the New World of Campaign Finance,” in L. Sandy Maisel, ed., The Parties Respond: Changes in American Political Parties and Campaigns, 3rd ed. (Boulder, CO: Westview Press, 1998) pp. 225–242; Samuel J. Eldersveld and Hanes Walton, Political Parties in American Society, 2nd ed. (Boston: Bedford/St. Martin’s, 2000) ch. 12; and, William J. Keefe and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly Press, 2003) ch. 4. 8. The major legislation here is the Federal Election Campaign Act, 2 U.S.C. §§ 431 et seq., which was enacted in 1971 and has been amended repeatedly since that time. Many of the means used in this federal law have been copied by states seeking to regulate their parties finances. 9. E.g., Ohio Revised Code Annotated §§ 3517.10, 3517.10.7 (requiring filing and registration by federal political committees) (Page 1996 and supp. 2001); California Government Code § 84102 (requiring filing and statement of organization for political committees), California Elections Code § 20203 (West 1996 and supp. 2003); New York Election Law §§ 14-102 to 14110 (McKinney’s 1998 and supp. 2003); Connecticut General Statutes Annotated §§ 9-333e, 9333j (filing by campaign treasurers) (2002). 10. E.g., Ohio Revised Code Annotated §§ 3517.10.2, 3517.10.4 (Page 1996 and supp. 2001); New York Election Law § 14–114 (contribution limits also apply to elections to any party positions), § 14–116 (ban on political contributions by certain corporations), and § 14–130 (limitations on campaign expenditures) (McKinney’s 1998 and supp. 2003); California Government Code §§ 85300–85832 (limitations on campaign contributions), §§ 85400–85403

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(creating California’s Voluntary Expenditures Ceiling Law); and §§ 85500–85501 (limitations on independent expenditures) (West 1996 and supp. 2003); Connecticut General Statutes Annotated § 9–333b (contribution defined), §9–333c (expenditure defined), § 9–333m (limiting individual contributions to candidate committees), § 9–333n, and §§ 9–333q to 9–333v (limitations on contributions made or received by political committees) (West 2002). 11. E.g., California Government Code, § 85300 (limitations on campaign contributions) (West 1996 and supp. 2003); Ohio Revised Code Annotated § 3517.09.2 (Page 1996 and supp. 2001); Connecticut General Statutes Annotated § 9–333l (West 2002); 12. Ohio Revised Code Annotated § 3517.09 (regulating solicitation of campaign contributions from union members), § 3517.09.1 (regulating door-to-door campaign solicitations), § 3517.09.2 (ban on solicitation or acceptance of contributions by elected officials) (Page 1996 and supp. 2001); California Government Code §§ 3205, 3209 (solicitation by government employees banned); New York Election Law § 17–162 (judicial candidates may not make political contributions) (McKinney’s 1998 and supp. 2003). 13. E.g., Ohio Revised Code Annotated §§ 3517.08, 3517.10.3 (Page 1996 and supp. 2001); Georgia Code Annotated § 21–5–41 (g) (2003 and supp. 2005); California Government Code § 8503(d) (West 2005). 14. E.g. Ohio Revised Code Annotated § 3517.10.2 (restricting the transfer of money between various political organizations), § 3517.10.1 (regulating non-monetary gifts to political parties) (Page 1996 and supp. 2001); California Government Code § 85200 (requiring the designation of a single bank account through which campaigns funds must flow) (West 1996 and supp. 2003?); Ohio General Statutes Annotated §§ 9–333d, 9–333g, 9–333k (designation of and duties of campaign treasurers), § 9-333l (expense sharing by political committees; ban on certain lobbyists’ contributions) (West 2002). 15. E.g., Ohio Revised Code Annotated §§ 3517.15.1 to 3517.15.7 (Page 1996 and supp. 2001); New York Election Law §§ 3–200 to 3–224 (establishing an election board for each county) (McKinney’s 1998 and supp. 2003). 16. E.g., Ohio Revised Code Annotated § 3517.10.5 (requiring identification of campaign ad sponsors) § 3517.10.6 (requiring that campaign statements be available to public), § 3517.20 (identification of source of political communications), § 3517.22 (ban on advocacy of, or opposition to, ballot propositions) (Page 1996 and supp. 2001); California Government Code §§ 84100–84108 (organizational and accounting requirements for political committees), §§ 84501, 85310, 85704, 84302; California Elections Code § 20010 (creating California’s Truth in Political Advertising Law), § 20400 et seq. (creating California’s Code of Fair Campaign Practices) (West 1996 and supp. 2003); Connecticut General Statutes Annotated § 9–333w (regulation of political advertising) (West 2002). 17. E.g., see discussion of ballot access laws earlier in this chapter. 18. E.g., California Constitution Art. 2 § 6, California Elections Code § 334 (West 2005); Pennsylvania Statutes Annotated Title 25 § 291 (1995 and supp. 2005). See L. Sandy Maisel, Parties and Elections in America, 3rd ed. (New York: Rowman and Littlefield, 1999) ch. 11. See also the discussion of nonpartisan elections later in this Chapter. For years, many states have held nonpartisan elections for certain state and/or local offices, most often judges, local school boards and city councils. Nonpartisan elections are typically implemented through government preparation of the general elections ballot, and limitations on candidate advertising, party endorsements. 19. There are several good descriptions of early campaign finance legislation; see, e.g., United States v. UAW-CIO, 352 U.S. 567 (1957); McConnell v. Federal Election Commission, No. 02cv582 (D.C.D.C. decided May 1, 2003) pp. 15–42; Alexander Heard, The Costs of Democracy (Chapel Hill, N.C.: University of North Carolina Press, 1960); Robert E. Mutch, Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Laws (New York: Praeger, 1988); Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance Reform (Princeton, NJ: Princemton University Press, 2001) ch. 2; and, Frank J. Sorauf, Money in American Elections (Glenview, IL: Scott, Foresman, 1988). 20. Ch. 420, 34 Stat. 864-865 (1907). 21. A history of the campaign finance laws in the United States can be found in, McConnell v. F.E.C., 251 F. Supp.2d 176, 188-201 (D.D.C. 2003).

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22. Ch. 368, 43 Stat. 1070 (1925), codified as 2 U.S.C. §§ 241 et seq. (2000). Compare, 18 U.S.C. §610. The constitutionality of the Federal Corrupt Practices Act of 1925 was upheld in, Burroughs v. United States, 290 U.S. 534 (1934). In its twenty-five years of existence almost no prosecutions were brought under the Act. See, Statement of Fred Wertheimer before Senate Committee on Rules and Administration, July 13, 1979, reprinted in, Legislative History of the Federal Election Campaign Act Amendments of 1979 (Washington: Federal Election Commission, 1983) pp. 47–49. 23. The Hatch Act was originally enacted in two parts: ch. 73, 53 Stat. 1147 (1939) and ch. 640, 54 Stat. 767 (1940). The original Hatch Act’s limitation on political contributions at Ch. 64, 54 Stat. 767, 770 (1940) stated: “It is hereby declared to be pernicious political activity, and it shall hereafter be unlawful, for any person, directly or indirectly, to make contributions in an aggregate amount in excess of $5,000, during any calendar year, or in connection with any campaign for an elective Federal office . . . or to or on behalf of any committee or other organization engaged in furthering, advancing, or advocating the nomination or election of any candidate for any such office or the success of any national political party.” For the modern version of this legislation, see Hatch Act Reform Amendments of 1993, 107 Stat. 1001, P.L. 103–94 (1993), codified as 5 U.S.C. §§ 7321–7326 (2000). For a review of the Hatch Act, see, Henry Rose, “A Critical Look at the Hatch Act,” 75 Harvard Law Review 510–526 (1962). 24. Congress extended the Federal Corrupt Practices Act to labor unions in 1943 with passage of the Smith-Connally Act, ch. 144, § 9, 57 Stat. 163, 167 (1943). 25. Newberry v. United States, 256 U.S. 232, 258 (1921). 26. United States v. Classic, 313 U.S. 299, 317 (1941). 27. Ch. 120, 61 Stat. 136 (1947). See also, Buckley v. Valeo, 519 F.2d 821, 906 ( D.C. Cir. 1975), affirmed in part and reversed in part, 424 U.S. 1, 13 (1976) (per curiam). 28. P.L. 92-225, 86 Stat. 3 (1972) codified as, 2 USC §§ 432 et seq. 29. 2 USC § 441a(a). See also, The FEC and the Federal Campaign Finance Law, http:// www.fec.gov/pages/brochures/fecfeca.html, April 7, 2003. And McConnell v. FEC at 26. [251 F. Supp2d 176 and 948 (D.C.D.C. 2003)] 30. Report of the Committee on Rules and Administration to Accompany S. 3044 (93rd Congress 2d Session) S. Rep. No. 93-689, p. 7 (1974), reprinted in, Legislative History of Federal Election Campaign Act Amendments of 1974 (Washington: Federal Election Commission, 1977) p. 103. 31. For a more complete legislative history of Congress’ adoption of the 1974 amendments, see, Congress and the Nation, 1973-1976, vol. IV (Washington: Congressional Quarterly Press, 1977) ch. 14. 32. See, Victoria A. Farrar-Myers,” Campaign Finance: Reform, Representation, and the First Amendment,” in Matthew J. Streb, ed., Law and Election Politics: The Rules of the Game (Boulder, CO: Lynne Rienner, 2005). 33. 424 U.S. 1 (1976) (per curiam). 34. Id. at 21. The Court further sought to justify disparate constitutional treatment of campaign expenditures and contributions by noting that: the limitations on contributions do not foreclose other avenues for contributors to express themselves; and, “[w]hile contributions may result in political expression if spent by a candidate . . . to present views to voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 35. Id. at 23. Since the Buckley decision, the Court has repeatedly held that government restrictions on campaign contributions require less justification than those on independent expenditures. See, Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 497 (1985); Federal Election Commission v. Massachusetts Citizens for Life Committee, 479 U.S. 238, 259–260 (1986); and, California Medical v. Federal Election Commission, 453 U.S. 182, 196–197 (1981). 36. For more complete discussions of these review standards see, Buckley v. Valeo, 424 U.S. 1, 20–21 (1976); F.E.C. v. Beaumont, 539 U.S. 146, 161–162 (2003); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 386-388 (2000); and, McConnell v. F.E.C., 540 U.S. 93, 134–136 (2003).

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37. See, e.g., M. Margaret Conway, Joanne Connor Green, and Marian Currinder, “Interest Group Money in Elections,” in Allan J. Cigler and Burdett A. Loomis, eds., Interest Group Politics, 6th ed. (Washington: Congressional Quarterly Press, 2002) pp. 117–140. 38. See, Frank J. Sorauf, “Political Parties and the New World of Campaign Finance,” in L. Sandy Maisel, ed., The Parties Respond: Changes in American Parties and Campaigns, 3rd ed. (Boulder, CO: Westview Press, 1998) pp. 225–242. 39. 424 U.S. 1, 14 (1976) (per curiam). 40. Id. at 32–35, 68–74. 41. 90 Stat. 475, P.L. 94–283, codified as, 2 U.S.C. § 432. See, Congress and the Nation, 1973–1976, vol. IV (Washington: Congressional Quarterly Press, 1977) pp. 995–1000. Some evidence in the legislative history indicating Congress’ attitudes towards political parties can be found in, H.R. Conf. Rep. No. 94–1057, at pp. 58–59, reprinted in 1976 United States Code Congressional and Administrative Service 946, 973–974, and cited in Colorado II, 213 F.3d 1221, 1238 (10th Cir. 2000). 42. Under the old 1974 law, individuals could give up to $1,000 per election per candidate with an overall ceiling of $25,000 per year, with no specific sub-limitations set for party committees. Multi-candidate committees under the old law could give up to $5,000 per election per candidate. The 1976 amendments also eased some of the reporting requirements for national party committees. On limitations for contributions to Hill committees, see, Federal Election Commission v. National Republican Senate Committee, 761 F. Supp. 813, 821 (D.C.D.C. 1991), citing, H. Rep. 94-1057, 94th Cong. 2d Sess. 54 (1976). 43. P.L. 96-187 (96th Cong.), 93 Stat. 1339 (1980), codified as, 2 USC § 431 et seq. 44. S. Rep. 96-319 at 2 (1979). 93 Stat. 1339, tit. 1, § 301. 45. See, Congress and the Nation, 1977-1980, vol. V (Washington: Congressional Quarterly Press, 1981) pp. 950–951. 46. This description relies on, The FEC and the Federal Campaign Finance Law (Washington: Federal Election Commission, 1996), June 12, 2003, www/fec.gov/pages/brochures/fecfeca.htm. 47. 2 USC § 433. 48. See, 2 USC § 441a(d). The contribution limits by donors are: Table 3.2. Contribution Limits by Donor To a Candidate or Committee per Election

To a National Party Committee per Year

To any Other Political Committee per Year

Total Contribution per Year

$1000

$20,000

$5,000

$25,000

Multicandidate $5,000 Committee may give:

$15,000

$5,000

No Limit

Other Political $1,000 Committee may give:

$20,000

$5,000

No Limit

Individual may give:

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Source: The FEC and the Federal Campaign Finance Law (Washington: Federal Election Commission, 1996), http://www/fec.gov/pages/brochures/fecfeca.htm (June 12, 2003). Many of the contribution limits have been affected by the Bipartisan Campaign Reform Act of 2002, for an authoritative statement of the latest contributions limits, see, “BCRA Campaign Guide Supplement,” Record, vol. 29 (Washington: Federal Election Commission, 2003) p. 11. The Federal Election Commission is charged with implementing the BCRA through its rule-making authority. These rulings appear in the Code of Federal Regulations; see also the FEC’s Website: http://www.fec.gov (June 12, 2003). See this site for the latest information on campaign finance limitations. 49. 2 USC § 441a(d) 50. 2 USC § 431 (8) and (9). A list of things not considered to be “contributions” for the purposes of this Act are listed in § 431 (8)(B) and include: publishing of any news stories or editorials though media not controlled by the party; nonpartisan activity to encourage voters to vote or register to vote; payment by state or local party committees of costs of preparing, displaying, or distributing of any sample ballot; payment by state or local party committees of costs of campaign materials (signs, bumper stickers, handbills, etc.) in connection with volunteer activities. These exemptions have been repeatedly interpreted by the FEC. 51. For a review of the Court decisions interpreting FECA in recent years, see, Selected Court Case Abstracts, 1976–February 2001, 17th ed. (Washington: Federal Election Commission, 2001). On the link between campaign finance laws and the parties, see, Brian L. Porto, “The Constitution and Political Parties: Supreme Court Jurisprudence and Its Implications for Partybuilding,” 8 Constitutional Commentary 433 (1991); Nathan Persily and Bruce E. Cain, “Law and Political Parties: The Legal Status of Political Parties: A Reassessment of Competing Paradigms,” 100 Columbia Law Review 775 (2000); and, Stephen E. Gottlieb, “The Dilemma of Election Campaign Finance Reform,” 18 Hofstra Law Review 213–300 (1989). 52. 454 U.S. 27 (1981). 53. There is only a scant literature on the congressional Hill committees; see, Robin Kolodny, Pursuing Majorities: Congressional Campaign Committees in American Politics (Norman, OK: University of Oklahoma, 1998); Paul S. Herrnson, Congressional Elections: Campaigning at Home and in Washington (Washington: Congressional Quarterly Press, 1995) pp. 88–92; Paul S. Herrnson, “National Party Organizations at the Century’s End,” in L. Sandy Maisel, ed., The Parties Respond: Changes in American Parties and Campaigns, 3rd ed. (Boulder, CO: Westview Press, 1997) pp. 50–82. However, their financial role in congressional campaigns appears to be significant and growing, see, Gary C. Jacobson, The Politics of Congressional Elections, 5th (New York: Longman, 2002) pp. 71–77. 54. 2 USC § 431a (h). The Hill committees are not “national committees” for purposes of FECA, but are considered subordinate bodies of the national party committees, see 2 USC § 431 (14). 55. 450 U.S. 964 (1981). The DSCC complaint was summarily dismissed by a federal district court, Democratic Senatorial Campaign Committee v. Federal Election Commission, D.D.C. Civil Action No. 80–1903, August 28, 1980. The Circuit Court for the District of Columbia reversed, 660 F.2d 773 (D.C. Cir. 1980); and that opinion was in turn reversed by the Supreme Court under the caption, Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981). 56. 454 U.S. 27, 34-35 (1981). 57. Id. at 35–36, n. 12, citing congressional rejection of an amendment that would have expressly barred such intraparty fund-sharing agreements. But compare this congressional action with remarks made on the Senate floor in 1974 drawing a distinction between strengthening the national parties and regulating congressional campaign committees, cited in, Democratic Senatorial Campaign Committee v. Federal Election Commission, 660 F.2d 773, 780 (D.C. Cir. 1980). 58. See, e.g., Richard Briffault, “Law and Political Parties: The Political Parties and Campaign Finance Reform,” 100 Columbia Law Review 620, 626 (2000); and, William J. Keefe and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly Press, 2003) pp. 119–120.

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59. See, William F. Keefe and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly Press, 2003) pp. 119–120. 60. 761 F. Supp. 813 (D.D.C. 1991), reversed, 966 F.2d 1471 (D.C. Cir. 1992). 61. Id. at 822. 62. See, John F. Bibby, “State party Organizations: Strengthened and Adapting to Candidate-Centered Politics and Nationalization,” in L. Sandy Maisel, ed., The Parties Respond, 4th ed. (Boulder, CO: Westview Press, 2002), pp. 39–41. Compare, Paul S. Herrnson, “National Party Organizations at the Century’s End,” in L. Sandy Maisel, ed., The Parties Respond: Changes in American Parties and Campaigns, 3rd ed. (Boulder, CO: Westview Press, 1998) pp. 50–82, and 68–69, who estimates that the Democratic National Committee transferred about $76 million intraparty in the 1996 elections, and the Republican National Committee about $65 million. See also, Anthony Corrado, “Party Finance in the 2000 Election: The Federal Role of Soft Money Financing,” 34 Arizona State Law Journal 1025, 1037–1038 (2002). 63. See, William J. Keefe, and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly 2003) pp. 119–120. 64. Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado I), 839 F. Supp. 1448 (D. Colo. 1993) reversed and remanded, 59 F.3d 1015 (10th Cir. 1995) vacated and remanded, 518 U.S. 604 (1996); Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), 41 F. Supp. 2d 1197 (D. Colo. 1999), affirmed, 213 F.2d 1221 (10th Cir. 2000), reversed, 533 U.S. 431 (2001). The Party Expenditure Provision of FECA is, 2 USC § 441a(d). 65. 2 U.S.C. § 441a(d)(3). (Italics added). 66. 839 F. Supp. 1448, 1454-55 (D. Colo. 1993), citing, Orloski v. Federal Election Commission, 795 F.2d 156, 166–167 (D.C. Cir. 1986). (Emphasis added.) The district court also relied on F.E.C. v. Massachusetts Citizens for Life Committee, 479 U.S. 238, 249–250 (1986). 67. 59 F.3d 1015 (10th Cir. 1995). 68. Id. at 1022. 69. 518 U.S. 604 (1996). 70. Justices Breyer, O’Connor, Souter, Kennedy, Scalia, Thomas, and Chief Justice Rehnquist all found that the application of the Party Expenditure Provision was unconstitutional as applied to the facts of this case. 71. 518 U.S. 604, 607–626 (1996). 72. Id. at 626-631 (Kennedy, J. concurring in the judgment and dissenting in part). Justice Kennedy was joined by Chief Justice Rehnquist and Justice Scalia. Justice Thomas wrote a separate opinion in which he also found the Party Expenditure Provision to be facially unconstitutional. 73. Justice Thomas alone went further and argued that there was no constitutional difference at all between campaign contributions and campaign expenditures, a distinction originating in Buckley. Id. at 631–648 (Thomas, J., concurring in the judgment and dissenting in part) Such a position abolishing this fundamental distinction would probably vitiate FECA and government efforts to regulate money in American politics. 74. Id. at 825 (Stevens, J., dissenting). 75. Id. at 825–826. 76. The Federal Election Commission had long held the position that political parties were incapable of making independent expenditures because of their partisan nature. Some Supreme Court language had also indicated that political parties were incapable of making independent expenditures. This matter was apparently settled in Colorado I when the Court ruled that parties could make “independent expenditures.” This position was accepted by the Federal Election Commission, see, F.E.C. Final Rule, 61 Fed. Reg. 40, 961 (1996) deleting, 11 C.F.R. § 110.7(b)(4), that had forbidden parties from making these expenditures. See, Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 28–29 n. 1 (1981), and discussion and citations in, Colorado II, 533 U.S. 431, 438–439 (2001). Justice Breyer referred to the earlier position as mere dicta in Colorado I, 518 U.S. 604, 621 (1996). The decision to finally allow parties to make independent expenditures put them on a more equal footing with PACs, but did not settle how parties could adequately segregate their coordinated

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expenditures from their independent expenditures. See, Amanda G. Altman, “Party Poopers: The Supreme Court Overlooks Parties in F.E.C. v. Colorado Republican Federal Campaign Committee,” 46 Saint Louis University Law Journal 1001 (2002). 77. Buckley v. Valeo, 424 U.S. 1, 39–51 (1976) (per curiam). This was reaffirmed in, Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 299 (1981). 78. Federal Election Commission v. National Conservative Political Action Committee (NCPAC), 470 U.S. 480 (1985). The rationale given was that the likelihood of political corruption from PAC contributions was minimal, the Court noting that, “[t]he amounts given to the PACs are overwhelmingly small contributions . . . and are not coordinated with the campaign of a candidate.” Id. at 497. See also, California Medical Association v. Federal Election Commission, 453 U.S. 182 (1981). 79. Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado I), 518 U.S. 604, 630 (1996) (Kennedy, J., concurring in the judgment and dissenting in part) 80. Figure 3.2 is necessarily somewhat time-bound given the constant re-interpretation of FECA by the FEC and the courts. The transfer of money between party levels is not shown here as this was not at issue in the Colorado cases. For current limitation levels see the FEC’s Website, www.fec.gov. 81. Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), 41 F. Supp. 2d 1197 (D. Colo. 1999), affirmed, 213 F.3d 1221 (10th Cir. 2000), reversed, 522 U.S. 431 (2001). 82. 41 F. Supp. 2d 1197, 1209 (D. Colo. 1999). 83. See, Buckley v. Valeo, 424 U.S. 1, 24–25 (1976); Federal Election Commission v. National Conservative PAC (NCPAC), 470 U.S. 480, 496–497 (1985); and, Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 296–297 (1981). 84. 41 F. Supp. 2d 1197, 1210 (D.Colo. 1999), quoting, Colorado Party Facts, Exhibit E (Alexander Deposition, 111–112, 115). 85. 213 F.3d 1221 (10th Cir. 2000). 86. Id. at 1232–1233. 87. 213 F.3d 1221, 1226–1227 (10th Cir. 2000). The Circuit Court applied the review standard that was set forth in the intervening Supreme Court decision, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 387–388 (2000). This standard is whether the government restriction on a “political actor” is “closely drawn” to match a “sufficiently important” government interest. This standard had been applied to state campaign laws and is much less demanding than the “compelling state interest” standard usually applied to laws burdening First Amendment rights. See, Buckley v. Valeo, 424 U.S. 1, 25, 30 (1976); and, John C. Eastman, “Strictly Scrutinizing Campaign Finance Restrictions (And the Courts That Judge Them),” 50 Catholic University Law Review 46 (2000-2001). Compare, Colorado II, 533 U.S. 431, 474 (2001). 88. 213 F.3d 1221, 1227 (10th Cir. 2000). 89. 533 U.S. 431 (2001). 90. Justices Souter, Stevens, O’Connor, Ginsburg, and Breyer agreed that the Party Expenditure Provision should be upheld as constitutional. 91. 533 U.S. 431, 449–450 (2001), citing support from statements by political scientists in amici curiae briefs. The Court noted that, “Despite decades of limitation on coordinated spending, parties have not been rendered useless.” Id. at 455. The majority conceded that, “limiting coordinated expenditures imposes some burden on parties associational efficiency.” Id. at 450 n. 11. 92. Id. at 452. 93. Id. at 455 (Citation omitted.) 94. Id. at 456 n.18. 95. Id. at 465–482 (Thomas, J., dissenting). 96. Id. at 469, quoting, Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado I), 518 U.S. 604, 630 (1996). Compare this characterization of the party-candidate relationship with one from the Court’s opinion in Colorado II, describing the party and its candidates as being “‘joined at the hips.’” Federal Election Commission v. Repub-

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lican Federal Campaign Committee (Colorado II), 533 U.S. 431, 448 (2001), quoting Brief for Respondent 31. 97. Id. at 471–472. 98. Id. at 482. 99. Compare the limitations imposed on expenditures by “multicandidate political committees” by 2 U.S.C. § 441a(a), and the special higher limits placed on expenditures by party committees by 2 U.S.C. § 441a(d). Party organizations were expressly exempted from the definition of “multicandidate political committee” by Congress in 2 U.S.C. § 441a(a)(4) so that they could be given higher spending limits. 100. The liberal–conservative split on the Court over this issue is a bit unusual, but campaign finance questions often cut across the usual ideological fault lines, see, Jonathan Riehl, “Campaign Finance’s Paradox: Opposite Sides Unite for Legal Battles,” Congressional Quarterly Weekly, November 30, 2002, p. 3115; and, Anthony Corrado, “The Legislative Odyssey of BCRA,” in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) p. 22. 101. Both parties have made efforts to segregate independent from coordinated funds within the party. The Republicans sometimes call the former “I-Teams.” See, Samuel J. Eldersveld and Hanes Walton, Jr., Political Parties in American Society, 2nd ed. (New York: Bedford/St. Martin’s 2000) p. 264. 102. For a comparison of the contributions of interest groups and political parties to democracy see, Denise L. Baer and David A. Bositis, Politics and Linkages in a Democratic Society (Englewood Cliffs, NJ: Prentice Hall, 1993) chs. 2–3. The classic view of potentially strong political parties was set forth by: E.E. Schattschneider, The Semi-Sovereign People: A Realist View of Democracy in America (reissued by: Hinsdale, IL: The Dryden Press, 1974); V.O. Key, Jr., Politics, Parties, and Pressure Groups, 5th ed. (New York: Thomas Y. Crowell, 1964); and, Grant McConnell, Private Power and American Democracy (New York: Alfred A. Knopf, 1967). See also, Sidney Milkis, “Parties versus Interest Groups,” in Inside Campaign Finance, eds. Anthony Corrado, Thomas E. Mann, and Trevor Potter (Washington: Brookings Institution Press, 2003) pp. 40–48; and, Edward B. Foley, “The ‘Major Purpose’ Test: Distinguishing Between Election-Focused and Issue-Focused groups,” 31 Northern Kentucky Law Review 341 (2004). 103. Descriptions of the decline of political machines in America can be found in, Paul Allen Beck and Frank J. Sorauf, Party Politics in America, 7th ed. (New York: HarperCollins, 1992) pp. 78–82; and, Samuel J. Eldersveld and Hanes Walton, Jr., Political Parties in American Society, 2d (Boston: Bedford/St. Martin’s, 2000) pp. 137–143. See also, Chapter Four, infra. 104. Compare, David J. Lekich, “Still Blinking at Political Reality: Colorado Republican Federal Campaign Committee v. Federal Election Commission,” 75 North Carolina Law Review 1848, 1870–1890 (1997). On the judicial balancing of these competing interests, see, Colorado II, 213 F.3d 1221, 1237 (10th Cir. 2000). 105. 213 F.3d 1221, 1231 (10th Cir. 2000). 106. This description of parties is an amalgam drawn from the opinion of Judge Nottingham in Colorado II, 41 F. Supp. 2d 1197 (D. Colo. 1999); Justice Thomas’ dissent in Colorado II, 533 U.S. 431, 465-482 (2001) (Thomas, J. dissenting); Justice Kennedy’s opinion in Colorado I, 518 U.S. 604, 626-631 (1996) (Kennedy, J., concurring in the judgment and dissenting in part); and Judge Tacha’s opinion in Colorado II, 213 F.3d 1221, 1227 n. 5, 1230–1231 (10th Cir., 2000) (“. . . we do not conclude that parties and their candidates share an identity of interest. . . . We simply make the common sense observation that limiting a party’s speech through its identified candidates imposes more than a marginal restriction upon that party’s First Amendment freedoms.”). 107. This description of parties is based largely on the majority opinion of Justice Souter in Colorado II, 533 U.S. 431, 437–465 (2001); and, Chief Judge Seymour’s dissent in Colorado II, 213 F.3d 1221, 1238 (10th Cir. 2000) (Seymour, C.J., dissenting) (“While there is no doubt that parties play an important role in American politics, there is also ample support for the legislative determination that if left unchecked, parties can exert a corrupting influence on democratic processes or, equally importantly, appear to do so.”).

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108. See, e.g., Lillian R. BeVier, “Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform,” 73 California Law Review 1045, 1063 (1985); Jeffrey M. Blum, “The Divisible First Amendment: A Critical Functionalist Approach to Freedom of Speech and Electoral Campaign Spending,” 58 New York University Law Review 1273, 1355 (1983); Cass R. Sunstein, “Political Equality and Unintended Consequences,” 94 Columbia Law Review 1390, 1395 (1994); John C. Eastman, “Strictly Scrutinizing Campaign Finance Restrictions (and the Courts That Judge Them),” 50 Catholic University Law Review 13, 14 (2001). 109. For an excellent summary of the evolution of campaign finance laws and the role of the parties, see, Anthony Corrado, “Contributions: Party Finance in the 2000 Elections: The Federal Role of Soft Money Financing,” 34 Arizona State Law Journal 1025 (2002). Law review commentators have been critical of the FECA regulatory scheme for years; see, e.g., David J. Lekich, “Still Blinking at Political Reality: Colorado Republican Federal Campaign Committee v. Federal Election Commission,” 75 North Carolina Law Review 1848, 1850 (1997) (Buckley’s “piecemeal approach” to FECA “has undermined Congress’s attempt to provide a balance between the potential evils of corruption and protection of First Amendment rights.”); Kirk J. Nahra, “Political Parties and the Campaign Finance Laws: Dilemmas, Concerns and Opportunities,” 56 Fordham Law Review 53 (1987) (judicial interpretations of FECA violate the First Amendment and have failed to create an integrated scheme of regulation; these limitations on parties should be abolished); Douglas J. Feichtner, “Campaign Finance Reform—Whether Money Talks Depends on Who’s Talking: F.E.C. v. Colorado Republican Federal Campaign Committee,” 70 University of Cincinnati Law Review 789 (2000) (arguing that the courts should respect FECA’s coordinated spending limitations because they are necessary to prevent political corruption). For a defense of Buckley, see Eugene Volokh, “Why Buckley v. Valeo is Basically Right,” 34 Arizona State Law Journal 1095 (Winter 2002). 110. Parties must now report soft money receipts to the FEC. On how parties use soft money, see, Michael Franz and Kenneth Goldstein, “Following the (Soft) Money: Party Advertisements in American Elections,” and Paul S. Herrnson, “State Party Organizations: Strengthened and Adapting to Candidate-Centered Politics and Nationalization,” both in L. Sandy Maisel, ed., The Parties Respond, 4th ed. (Lanham, MD: Westview Press, 2002), pp. 57, 139–162; and, Jonathan Krasno and Kenneth Goldstein, “The Facts About Issue Advertising and the McCainFeingold Bill,” in Kenneth M. Goldstein, ed., Television Advertising and American Elections (Upper Saddle River, NJ: Prentice-Hall, 2002). 111. See, Raymond J. La Raja, “Political Parties in the Era of Soft Money,” in L. Sandy Maisel, ed., The Parties Respond, 4th ed. (Boulder, CO: Westview, 2002) pp. 163–188. See 11 Code of Federal Regulations §100.8; and Anthony Corrado, “Party Finance in the 2000 Elections: The Federal Role of Soft Money Financing,” 34 Arizona State Law Journal 1025, 10301034 (2002). 112. Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981). The amount of soft money that the national party committees may transfer to their state and local counterparts is now regulated by a formula based on the number of offices up for election in a given year. 113. See, John F. Bibby, “State Party Organization: Strengthened and Adapting to CandidateCentered Politics and Nationalization,” in L. Sandy Maisel, ed., The Parties Respond, 4th ed. (Boulder, CO: Westview Press, 2002) p. 39–41; and, Gary Jacobson, Politics of Congressional Elections, 3rd ed. (New York: Addison Wesley Longman, 2001) pp. 71–77, 93–94. 114. The original FECA provisions, 2 U.S.C. § 608(e)(1) (1971) had limited party campaign expenditures “relative to a clearly identified candidate.” In Buckley v. Valeo, 424 U.S. 1, 41 (1976) (per curiam) the Court found this standard too vague and replaced it with one that said that the FECA limitations can apply only to “expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” In a footnote, the Court identified the so-called “magic words” which, if used in the advertisement, would trigger FECA limitations, including: “vote for,” “elect,” “support,” “cast your ballot for,” “vote against” and “defeat.” Other important cases in this area are, Federal Election Commission v. Massachusetts Citizens for Life, 479 U.S. 238, 259–260 (1986) that eased the

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use of issue ads on First Amendment grounds, and Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir. 1987). 115. See, F.E.C. v. Colorado Republican Federal Campaign Committee (Colorado I), 518 U.S. 604 (1996). Section 213 of BCRA tries to overturn this decision, codified as 2 U.S.C. § 441a(d). 116. It is worth mentioning that parties were not the only ones taking advantage of changes in the campaign laws to raise and direct more money to politicians. Various types of “quasi-party” groups have sprung up, including “section 527” groups. See, Robert G. Boatright, Michael J. Malbin, Mark J. Rozell, Richard Skinner, and Clyde Wilcox, “BCRA’s Impact on Interest Groups and Advocacy Groups,” and Diana Dwyre and Robin Kolodny, “National Parties After BCRA,” both in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) pp. 43–60 and 85–88. Congress has attempted to crack down on these groups, see, Congress and The Nation 1997–2000, vol. X (Washington: Congressional Quarterly Press, 2001) pp. 786. 117. For an overview of issue advocacy by several leading commentators, see, Anthony Corrado, Thomas E. Mann, and Trevor Potter, eds., Inside the Campaign Finance Battle (Washington: Brookings Institution Press, 2003), part II. 118. A favorite ploy used in issue advertising is to urge viewers or listeners to “Call candidate X and tell him you oppose his position on policy Y.” See, Paul S. Herrnson and Diana Dwyre, “Party Advocacy in Congressional Elections,” in John C. Green and Daniel M. Shea, eds., The State of the Parties, 3rd ed. (Lanham, MD: Rowman and Littlefield, 1999). 119. For evaluations of the FECA campaign finance system, see, William J. Keefe and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly Press, 2003) pp. 120–129; and, F. Christopher Arterton, “Political Money and Party Strength,” in Joel Fleishman, ed., The Future of American Political Parties (Englewood Cliffs, NJ: Prentice Hall, 1982). 120. In the 2002 election cycle, the Democrats raised more soft money ($250 million) than they did hard money ($225 million), but the Republican continued to be able to raise more hard money ($400 million) than they did soft money ($250 million). See, Diana Dwyre and Robin Kolodny, “National Parties After BCRA,” in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) pp. 85–86. 121. On the problems posed by “soft money” in American politics, see, Elizabeth Drew, Whatever It Takes: The Real Struggle for Political Power in America (New York: Viking Press, 1997) p. 117 (“By 1996 soft money had grown into a monster, overwhelming the original reform laws, and it was put to uses that were legally questionable.”). See also, Elizabeth Drew, Politics and Money: The New Road to Corruption (New York: Macmillan, 1983); and, Frank J. Sorauf, Inside Campaign Finance (New Haven, CT: Yale University Press, 1992) pp. 146–152. 122. P.L. 107–155, formerly H.R. 2356 (H. Rept. 107–131, Part 1). 123. For the complete story of the adoption of the BCRA see, Anthony Corrado, “The Legislative Odyssey of BCRA,” in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003); Karen Foerstel, “Campaign Finance Passage Ends a Political Odyssey,” Congressional Quarterly Weekly, March 23, 2002, p. 799; and, Congress and the Nation, 1997–2000, vol. X (Washington: Congressional Quarterly Press, 2001) pp. 776–790. 124. For a full discussion of the impact of BCRA on the parties, see, Diana Dwyre and Robin Kolodny, “National Parties After BCRA,” and, Raymond J. La Raja, “State Political Parties After BCRA,” both in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) pp. 83–99, 101–120. Most campaign reform legislation introduced in Congress during the period 1985–1995 did not target political parties but rather focussed on problems associated with PACs or campaign contributions generally. See Anthony Corrado, “The Legislative Odyssey of BCRA,” in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) p. 27.

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125. For a summary of the provisions of BCRA, see, Michael J. Malbin, “Thinking About Reform,” in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) pp. 6–15. 126. Public Law 107–155, § 101, 116 Stat. 81, 82, codified as 2 U.S.C. § 441i. This is the socalled Levin Amendment to BCRA. 127. Public Law 107-155, § 101(b), 116 Stat. 81, 82, codified as 2 U.S.C. § 441i. However, BCRA’s so-called Levin Amendment allows state and local party organizations greater latitude in spending fund for state and local party-building activities. See, Donald Green, “The Need for Federal Regulation of State Party Activity,” in Anthony Corrado, Thomas E. Mann, and Trevor Potter, eds., Inside the Campaign Finance Battle (Washington: Brookings Institution Press, 2003), pp. 97–115. 128. Public Law 107–155, § 213, 116 Stat. 81, 94, codified as 2 U.S.C. § 441a(d). 129. Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado II), 518 U.S. 604 (1996). In essence, this BCRA provision was meant to “fix” Supreme Court decisions in this area by forcing parties to choose between “coordinated expenditures” on behalf of candidates that are limited or making “independent expenditures” that are unlimited in amount but may not be coordinated with a candidate. See, Dwyre and Kolodny, “National Parties after BCRA,” in Michael J. Malbin, ed., When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) p. 91. 130. See, Allan J. Cigler, “The Role of Money and Organized Interests,” in Matthew J. Streb, ed., Law and Elections Politics: The Rules of the Game (Boulder, CO: Lynne Rienner, 2005). 131. Buckley v. Valeo, 424 U.S. 1, 44 n. 52 (1976) (per curiam). The Court expanded the definition of “express advocacy” beyond the use of magic words in, Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986). 132. Public Law 107-155, §§ 201–204, 116 Stat. 81, 88-92, codified as 2 U.S.C. 434. 133. Public Law 107–155, § 201, 116 Stat. 81, 88, codified as 2 U.S.C. § 434. This ban of “electioneering communications” applies to advertising made 60 days before a general election and 30 days before a primary election, with some exceptions. 134. Id. The sponsors of BCRA anticipated that this definition would be attacked on First Amendment grounds, so the Act provides an alternate, narrower definition of “electioneering communications” that is limited to any communication that “promotes or supports” a federal candidate. 2 U.S.C. § 201(3)(A)(ii). An excellent summary of BCRA’s origin and provisions can be found in, Gregory Comeau, “Recent Development: Bipartisan Campaign Reform Act,” 40 Harvard Journal on Legislation 253 (Winter 2003). 135. 26 U.S.C. § 527. Tax-exempt 527 committees may raise and spend money on things like GOTV drives and television advertisements that express political views, but they may not explicitly endorse a candidate nor give money directly to candidates. Democrats have made greater use of 527s to date, in part to offset the fund-raising advantages of the Republicans. Some of the most visible 527s in the 2004 presidential campaign are: MoveOn.org, Media Fund, and America Coming Together (ACT). See, Anthony Corrado, “Contributions: Party Finances in the 2000 Elections: The Federal Role of Soft Money Financing,” 34 Arizona State Law Journal 1025, 1054–1056 (2002); and, Donald B. Tobin, “Anonymous Speech and Section 527 of the Internal Revenue Code,” 37 Georgia Law Review 611 (Winter 2003). 136. Public Law 107-155, § 213, 116 Stat. 81, 94, codified as 2 U.S.C. § 441a(d). This section is a response to the Supreme Court’s ruling in Colorado I, 518 U.S. 604 (1996), discussed earlier. 137. This discussion relied heavily on Diana Dwyre and Robin Kolodny, “National Parties After BCRA,” in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) pp.83–99. See also, Jonathan S. Krasno and Frank Sorauf, “Evaluating the Bipartisan Campaign Reform Act (BCRA),” 28 New York University Review of Law and Social Change 121, 181 (2003) describing how BCRA may help the parties “rededicate themselves to developing membership rolls and publicizing their agendas. . . . BCRA is a reasonable first step to help parties and interest groups achieve these goals. . . . reform may nudge them back towards their historical emphasis on mobilizing citizens and activists.” See also, Gregory Comeau, “Recent Developments: Bipartisan Campaign Reform Act,” 40 Harvard Journal on Legislation, 253, 280 (2003) arguing

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that BCRA “should be found constitutional by the Supreme Court because it is narrowly tailored to further a compelling government interest in reducing the corruption created by soft money and sham issue ads.”; Robin Kolodny, “Symposium: Political Parties Likely Response to the Constitutional Challenges to BCRA,” 6 University of Pennsylvania Journal of Constitutional Law 132 (2003); Andrew Pratt, “Comment: The End of Sham Issue Advocacy: The Case to Uphold Electioneering Communications in the Bipartisan Campaign Reform Act of 2002,” 87 Minnesota Law Review 1663 (2003); Bradley A. Smith, Unfree Speech: The Folly of Campaign Finance Reform (Princeton, NJ: Princeton University Press, 2001), and, W. Parker Baxter, “Note: Recent Developments in Campaign Finance Law: Implementing the Bipartisan Campaign Finance Reform Law of 2002,” 6 New York University Journal of Legislation and Public Policy 589, 600-601 (2002/2003) criticizing the FEC regulations relevant to BCRA. Judge Kollar-Kotelly cites expert testimony in support of the view that BCRA will not divert soft money from parties to interest groups, McConnell v. F.E.C., 251 F. Supp. 2d 176, 520 (D.D.C. 2003) (Kollar-Kotelly, J. concurring in part and dissenting in part). 138. Public Law 107–155, § 101, 116 Stat. 81, 86, codified as 2 U.S.C. § 441i. 139. This discussion relies heavily on, Raymond J. La Raja, “State Political Parties After BCRA,” in Michael J. Malbin, ed., Life After Reform: When the Bipartisan Campaign Reform Act Meets Politics (Lanham, MD: Rowman and Littlefield, 2003) pp. 101–120. See also, Anthony Corrado, Thomas E. Mann, and Trevor Potter, eds., Inside the Campaign Finance Battle (Washington: Brookings Institution Press, 2003); Denise Roth Barber, A Changing Landscape: Life After McCain-Feingold for Florida’s Political Parties (Helena, MT: The Institute on Money in State Politics, 2004); and, Paul S. Herrnson, “The Bipartisan Campaign Reform Act and Congressional Elections,” in Lawrence C. Dodd and Bruce I. Oppenheimer, eds., Congress Reconsidered, 8th ed. (Washington, Congressional Quarterly 2005). 140. One unexpected consequence of BCRA appears to be its impact on federal officials who decide to run for state office. This limited class of candidates have already found that they are limited in the amount of soft money that they can raise for their state party relative to their opponents. See, Adam Smith, “Federal Law Adds Crimp in Campaign,” St. Petersburg Times, February 22, 2006, p. B1. 141. There were eleven lawsuits filed by eighty plaintiffs challenging BCRA, these were eventually consolidated as, McConnell v. Federal Election Commission, 251 F. Supp. 2d 176 (D.D.C. 2003). See, Record, vol. 28, no. 6 (June 2002) (Washington: Federal Election Commission, 2002) p. 4–5; and, John Cochran and Jonathan Riehl, “Campaign Finance Debate Turns to the Courts for Closure,” Congressional Quarterly Weekly, November 30, 2002, p. 3110. 142. In a rare instance of bipartisan cooperation, the California Democratic and Republican parties joined forces to challenge BCRA. See, California Democratic Party v. Federal Election Committee, No. 02cv875 (D.C. filed May 7, 2002), consolidated May 13, 2002, with McConnell v. Federal Election Commission, 251 F. Supp. 2d 176 (D.D.C. 2003). See also, Jonathan Riehl, “Campaign Finance’s Paradox: Opposite Sides Unite for Legal Battle,” Congressional Quarterly Weekly, November 30, 2002, p. 3115. 143. This statement of party objections to BCRA relies on the complaints filed by the California Democratic Party and the Republican National Committee in, Republican National Committee v. Federal Election Commission, No. 02cv874 (D.D.C. filed May 7, 2002) consolidated May 13, 2002, with McConnell v. Federal Election Commission 251 F. Supp. 2d 176 (D.D.C. 2003). See also, John Cochran and Jonathan Riehl, “Campaign Finance Debate Turns to the Courts for Closure,” Congressional Quarterly Weekly, November 30, 2002, p. 3110. 144. McConnell v. Federal Election Commission, 251 F. Supp. 2d 176 (D.D.C. 2003). See also, 251 F. Supp. 2d 919 (D.D.C. 2003). 145. The three judges split on the constitutionality of the Act’s ban on soft money contained in § 323 (a). Judge Henderson favored striking the provisions in its entirety; Judge KollarKotelly wanted to uphold the soft money ban in its entirety. Thus, Judge Leon’s opinion controlled, viz.: soft money was banned for federal election activity described in § 302(20)(A)(iii). 146. 251. Supp. 2d 176, 334–340 (D.D.C. 2003) (Henderson, Cir. J. concurring in judgment in part and dissenting in part).

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147. McConnell v. Federal Election Commission, 540 U.S. 93 (2003). 148. Id. at 134-142, citing, F.E.C. v. Beaumont, 539 U.S. 146, 162 (2003); and Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 387–388 (2000). See also, Colorado II, 533 U.S. 431, 456 (2001). 149. McConnell v. F.E.C., 540 U.S. 93, 157–158 (2003). 150. Id. at 173. The Court wrote that to be successful in such a claim the state and local parties would have to meet a very high burden, namely, “so radical in effect as to . . . drive the sound of [the recipient’s] voice below the level of notice,” quoting Nixon v. Shrink Missouri PAC, 528 U.S. 377, 397 (2000). 151. Id. at 139. See also the Court’s comment later that, “The fact that party committees and federal candidates and officeholders must now ask only for limited dollar amounts or request that a corporation or union contribute money through its PAC in no way alters or impairs the political message ‘intertwined’ with the solicitation.” Id. at 140. 152. Id. at 141. 153. Id. at 171. 154. Id. at 172. 155. Id. at 131. The Court also quoted approvingly from former Senator Warren Rudman: “The fact is that much of what state and local parties do helps elect federal candidates. The national parties know it; the candidates know it; the state and local parties know it. If state and local parties can use soft money for activities that affect federal elections, then the problem will not be solved at all.” Id. at 163 n. 59. 156. Id. at 162–163. 157. Id. at 165 (“Having been taught the hard lesson of circumvention by the entire history of campaign finance regulation, Congress knew that soft-money donors would react to § 323(a) by scrambling to find another way to purchase influence. It was ‘neither novel nor implausible,’ . . . for Congress to conclude that political parties would react to § 323(a) by directing soft money contributors to the state committees, and that federal candidates would be indebted to these contributors . . .”) (Citation omitted); and at 176 (“Experience under the current law demonstrates that Congress’ concerns about circumvention are not merely hypothetical.”). Compare, Colorado II, 533 U.S. 431, 460–461 (2001). 158. Id. at 173. Compare, Colorado II, 533 U.S. 431, 450 n. 11, and 479–480 (2001). 159. Id. at 129–130, 146, 150 (“The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations.”), and 154–155. 160. Id. at 129, citing, S. Rep. No. 105-167 (1998). Compare, Colorado II, 533 U.S. 431, 463–464 (2001) (discussing the role of parties in “corruption by conduit”), and 458–459 (discussing the examples of “earmarking” and the “tallying system” for party donors). 161. Id. at 130. 162. Id. at 143, quoting in part, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 389 (2000), and citing, Colorado II, 533 U.S. 431, 441 (2001). 163. Id. 187–188. Compare, Colorado II, 533 U.S. 431, 455 (2001). 164. Id. at 188. 165. 533 U.S. 431 (2001). The five members who comprised the majority in both cases were: Justices Souter, Stevens, O’Connor, Ginsburg, and Breyer. 166. McConnell v. F.E.C., 540 U.S. 93, 352 (2003) (Rehnquist, C.J., dissenting as to BCRA Titles I and V) (Citations omitted). 167. Id. at 351 (Italics in original). 168. Id. at 354. 169. Id. at 351–352 (Citations omitted). 170. Id. at 355–356. 171. Id. at 310 (Kennedy, J., concurring in the judgment and dissenting in part with respect to BCRA Titles I and II). 172. Id. at 312. 173. Id. at 272 (Thomas, J., concurring in part and dissenting in part).

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174. See, for example, Colorado II, 533 U.S. 431, 469 (2001) (Thomas, J., dissenting), citing, Colorado I, 518 U.S. 604, 630 (1996) (Kennedy, J., concurring in the judgment and dissenting in part). 175. The Party Expenditure Provision is codified at 2 U.S.C. § 441a(d)(2) – (3). The electioneering communication restrictions are BCRA § 203 codified as, 2 U.S.C. § 441b. The Act defines “electioneering communication” as any broadcast that refers to a candidate for a federal office and that is aired in the relevant jurisdiction within thirty days of a federal primary or sixty days of a general election. The “soft money” restrictions are in § 323, codified as 2 U.S.C. § 441i. 176. 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). 177. BCRA § 203, codified as 2 USC § 441b. 178. 130 S.Ct. 876 (2010), reversing, 530 F. Supp. 2d 274 (D.D.C. 2008) (per curiam), which had found that the movie was the functional equivalent of express advocacy and therefore subject to regulation under BCRA. 179. Id. at 890. 180. Id. at 897. 181. Id. at 899–904, citing Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam), and, First National Bank v. Bellotti, 435 U.S. 765, 784–785 (1978) for the First Amendment principle “that the Government cannot restrict political speech based on the speaker’s corporate identity.” 182. 494 U.S. 652 (1990). Justice Kennedy had written a vigorous dissent to the Austin decision twenty years earlier, id. at 695–713 (1990) (Justice Kennedy, J., dissenting). 183. Citing, Buckley v. Valeo, 424 U.S. 1, (1976) (per curiam), and First National Bank v. Bellotti, 435 U.S. 765 (1978). 184. 130 S.Ct. 876, 913 (2010). The portion of the McConnell v. F.E.C. decision favoring such regulations is found at 540 U.S. 93, 203–209 (2003). 185. Justice Kennedy criticized the rationale, 130 S.Ct. 876, 903–909, while Justice Stevens defended it, id. at 972–977 (Stevens, J., concurring in part and dissenting in part). 186. See, Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 659–660 (1990); Buckley v. Valeo, 424 U.S. 1, 48 (1976). 187. 494 U.S. 652, 660 (1990) (italics supplied) citing F.E.C. v. Massachusetts Citizens for Life, 479 U.S. 238, 257 (1986), and Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480, 497, 500–501 (1985). 188. 130 S.Ct. 876, 940 (2010) (Stevens, J., concurring in part and dissenting in part) (footnote omitted). Justice Stevens continued to criticize the majority’s decision in Citizens United after he left the bench, agreeing with an interviewer that it was one of the “worst examples” of the Court “legislating from the bench.” See, “Supreme Court Justice John Paul Stevens Opens Up” 60 Minutes (CBS televisions broadcast, Nov. 28, 2010) interview with correspondent Scott Pelley. In the interview, Justice Stevens reiterated his belief that the Citizens United decision would harm the Court as an institution. Id. at 931 (2010) (Stevens, J., concurring in part and dissenting in part). 189. Id. at 974 (2010) (Stevens, J., concurring in part and dissenting in part) (Citations omitted). 190. Buckley v. Valeo, 424 U.S. 1, 48–49 (1976). This statement was quoted approvingly by Justice Scalia in F.E.C. v. Wisconsin Right to Life, 551 U.S. 449, 487 (2007) (Scalia, J., dissenting). 191. For a discussion of the comparative treatment of parties and PACs, see Judge Berrigan, Cao v. F.E.C., 688 F. Supp. 2d 498, 546–547 (E.D. La. 2010). 192. 2 U.S.C. § 441i. 193. 130 S.Ct. 3543 (2010), affirming 698 F. Supp. 2d 150, 153, 160–161 (D.D.C. 2010). 194. Citizens United v. F.E.C., 175 L.Ed.2d 753, 828 n. 22 (2010) (Stevens, J., dissenting). 195. 688 F. Supp. 2d 498 (E.D. La. 2010). 196. U.S.C. § 441a(d)(2) – (3). 197. 688 F. Supp. 2d 498, 530–531, 539–542 (E.D. La. 2010). The argument was derived from Justice Thomas’s dissent in FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 421, 467–468 (2001) (Thomas, J., dissenting), which likens such

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speech to unlimited independent expenditures by parties. The Republican Party also found support for this position in Buckley v. Valeo, 424 U.S. 1, 20–21 (1976). 198. Cao v. F.E.C., 688 F. Supp. 2d 498, 530 (E.D. La. 2010). 199. Id. 200. Id. at 541, citing FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431, 464 (2001). 201. The case was re-captioned, Republican National Committee v. Federal Election Commission (In Re Cao), 619 F.3d 410 (5th Cir. 2010). 202. Id. at 425–431 (5th Cir. 2010). The “own speech” claim was also discussed by the dissenters, id. at 442, 449–450 (2010) (Jones, C.J. concurring in part and dissenting in part). 203. Id at 428, citing FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431, 456 (2001). 204. Id. at 430–431. 205. Id. at 421–423 (5th Cir. 2010). 206. Id. at 421–423. 207. Id. at 422, citing FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431, 455 (2001). (Italics added) The Court in Cao also distinguished Randall v. Sorell, 548 U.S. 230, 256–259 (2006) where the Supreme Court had struck down Vermont’s campaign finance law partly on the grounds that it imposed the same limits on political parties as on other electoral entities. 208. This summary of state campaign finance laws relies on, Campaign Finance Laws 2002 (Washington: Federal Election Commission, 2002). For discussion of recent efforts by several states to reform their campaign laws, see, Michael J. Malbin and Thomas L. Gais, The Day After Reform: Sobering Campaign Finance Lessons from the American States (Albany, NY: The Rockefeller Institute Press, 1998), ch. 6; and, David Schultz, ed., Money, Politics, and Campaign Finance Reform Laws in the States (Durham, NC: Carolina Academic Press, 2002). 209. States that impose minimal regulation on campaign finance include: Illinois, Oregon, Utah, Virginia, and Minnesota. States with some of the most complex and burdensome regulatory schemes include: Colorado, Wisconsin, New York, and Louisiana. See, Campaign Finance Laws 2002 (Washington: Federal Election Commission, 2002); and, William J. Keefe and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly Press, 2003) ch. 4. 210. See, Campaign Finance 2002 (Washington: Federal Election Commission, 2002), Chart 2-A. 211. Id. 212. Id., Chart 3-A. 213. 424 U.S. 1, 19-21 (1976) (per curiam). 214. The states are preempted from regulating federal elections by, 2 U.S.C. § 453. The Constitution leaves the regulation of the “Times, Places and Manner” of federal elections to the states, subject to subsequent legislation by Congress, U.S. Constitution, Art. I § 4. On campaign finance generally in state legislative elections, see, Joel A. Thompson and Gary F. Moncrief, Campaign Finance in State Legislative Elections (Washington: Congressional Quarterly Press, 1998). 215. Buckley v. Valeo, 424 U.S. 1, 24–25 (1976) (per curiam), citing Cousins v. Wigoda, 419 U.S. 477, 488 (1975); NAACP v. Button, 371 U.S. 415, 438 (1963); and, Shelton v. Tucker, 364 U.S. 479, 488 (1960). This standard reflects the Court’s emphasis on free association rather than free expression in cases involving state limitations on campaign contributions. Questions remain whether a higher standard should be applied to limitations on campaign expenditures since they have been seen as imposing a greater burden on First Amendment rights. See, e.g., International Black Police Association v. District of Columbia Board of Elections, 924 F. Supp. 270, 281 (D.D.C. 1996); and, Richard Briffault, “Symposium: The Freedom of Expression: Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?” 85 Minnesota Law Review 1729 (2001). 216. E.g., F.E.C. v. National Conservative Political Action Committee (NCPAC), 470 U.S. 480, 496–497 (1985) (applying strict scrutiny to find unconstitutional a federal law limiting the amount of money that independent political committees could expend in presidential cam-

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paigns); and, F.E.C. v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252–256 (1986) (using strict scrutiny to strike a federal ban on corporate election expenditures as a violation of First Amendment free speech). See also, John F. Wagner, “Annotation—Government Regulation of Financing of Political Campaign as Violating Free Speech or Press Clause of Federal Constitution’s First Amendment—Supreme Court,” 108 L. Ed.2d 1017–1031. 217. 435 U.S. 765, 786 (1978), citing, Bates v. Little Rock, 361 U.S. 516, 524 (1960) (striking local ordinances requiring submission of membership lists as a violation of free association); NAACP v. Button, 371 U.S. 415, 438–439 (1963) (striking state laws that regulated the giving of legal assistance as a violation of both free expression and free association); NAACP v. Alabama, 357 U.S. 449, 463 (1958) (upholding free association right of a group to withhold its membership list from state); and, Shelton v. Tucker, 364 U.S. 479, 488 (1960) (holding invalid a state law requiring state teachers to list all organizations to which they belonged). 218. 435 U.S. 765, 789–790 (1978). Three years later the Supreme Court applied the standard to strike a local ordinance that placed restrictions on the monetary amount that could be contributed to PACs organized to support or oppose ballot measures, Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 294–296 (1981). 219. A couple representative cases from this period dealing with state campaign finance laws: Kentucky Educators Public Affairs Council v. Kentucky Registry of Election Finance, 677 F.2d 1125 (6th Cir. 1982) (affirming district court ruling that upheld Kentucky campaign regulation that required PACs to use a payroll deduction procedure as valid under First Amendment); and, Service Employees International Union v. Fair Political Practices Commission, 721 F. Supp. 1172, 1177–1178 (E.D. Calif. 1989), affirmed, 955 F.2d 1312 (9th Cir. 1992), certiorari denied, sub nom., California Fair Political Practices Commission v. Service Employees International Union, 505 U.S. 1230 (1992) (district court finding that California’s campaign finance law regulating the use of campaign funds gathered before a certain date to be unsupported by a compelling state interest and therefore an unconstitutional burden on First Amendment). 220. 643 F. Supp. 397 (W.D. Mich. 1986) reversed, 856 F.2d 783 (6th Cir. 1988) reversed sub nom., Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990). 221. 856 F.2d 783, 787 (6th Cir. 1988). 222. 479 U.S. 238 (1986). 223. 856 F.2d 783, 786–787 (6th Cir. 1988), interpreting, F.E.C. v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 257–260 (1986). 224. 494 U.S. 652, 660 (1990). 225. Id. at 661–665. 226. A few lower courts during this period debated whether to apply strict scrutiny or a lower review standard from other Supreme Court cases such as that set out in, Colorado I, 518 U.S. 604, 609 (1996), or Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358–359 (1997). Brief discussions of the appropriate standard of review can be found in, Russell v. Burris, 146 F.3d 563, 573 (8th Cir. 1998); and, Carver v. Nixon, 72 F.3d 633, 637 (8th Cir. 1995). 227. Buckley v. Valeo, 424 U.S. 1, 30 n. 3 (1976) (per curiam). The Court indicated that the precise dollar amount need not be “fine tuned.” 228. Id. at 21. 229. See, Deborah Goldberg, “Federal and State Campaign Finance Reform: Lessons for the New Millennium,” 34 Arizona State Law Journal 1143, 1155 n. 65, 67 (2002); and, Richard Briffault, “The Freedom of Expression: Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?” 85 Minnesota Law Review 1729–1771, 1729 (2001). Some cases from this period that dealt with the question of how low state campaign finance limitations could be set include: Kentucky Right to Life v. Terry, 108 F.3d 637, 648 (6th Cir. 1997); California Prolife Council PAC v. Scully, 989 F. Supp. 1282, 1299 (E.D. Cal. 1998); Citizens for Responsible Government State PAC v. Buckley, 60 F. Supp. 1066, 1099 (D. Colo. 1999); Florida Right to Life, Inc. v. Mortham, No. 6:98-770-CV. ORL-19A, 2000 WL 33733256 (M.D. Fla. Mar. 17, 2000); Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994), certiorari denied, 513 U.S. 1127 (1995); Rosenstiel v. Rodriguez, 101 F.3d 1544, 1552 (8th Cir. 1996), certiorari denied, 520 U.S. 1229 (1997); and, Shrink Missouri Government PAC v. Adams, 161 F.3d 519, 523 (8th Cir. 1998), reversed sub nom. Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). Compare, Opinion of the Justices to the House of Representatives, 637

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N.E.2d 213 (Mass. 1994) an advisory opinion from the Massachusetts Supreme Court finding that a bill imposing limitations on political contributions violated First Amendment free expression and free association. 230. 882 F. Supp. 901 (W.D. Mo. 1995) reversed, 72 F.3d 633 (8th Cir. 1995), certiorari denied, 518 U.S. 1033 (1996). 231. 72 F.3d 633, 642–643 (8th Cir. 1995). 232. Id. at 639, 643–644. 233. 528 U.S. 377 (2000). 234. Id. at 90–392. 235. Id. at 397 (Citation omitted), quoting in part, Buckley v. Valeo, 424 U.S. 1, 21 (1976) (per curiam). 236. 227 F.3d 1070 (8th Cir. 2000). 237. See, Deborah Goldberg, “Federal and State Campaign Finance Reform: Lessons for the New Millennium,” 34 Arizona State Law Journal 1143 (2002); and, Richard Briffault, “The Freedom of Expression: Nixon v. Shrink Missouri Government PAC: The Beginning of the End of the Buckley Era?” 85 Minnesota Law Review 1729 (2001). See description of the Shrink Missouri test in, Montana Right to Life Association v. Eddleman, 343 F.3d 1085, 1091–1092 (9th Cir. 2003). 238. 100 F. Supp. 2d 990 (E.D. Mo. 2000), reversed, 227 F.3d 1070 (8th Cir. 2000) cert. granted and opinion vacated sub nom., Nixon v. Missouri Republican Party, 533 U.S. 945 (2001) for reconsideration in light of FEC v. Colorado Republican Federal Campaign Committee, on remand, sub nom. Missouri Republican Party v. Lamb, 270 F.3d 567 (8th Cir. 2001). 239. 227 F.3d 1070, 1072 (8th Cir. 2000). 240. See, Colorado I, 518 U.S. 604, 626–631 (1996) (Kennedy, J., concurring in the judgment and dissenting in part); and Colorado II, 533 U.S. 432, 445–465 and 465–482 (2001) (Thomas, J., dissenting). See discussion, supra, accompanying footnotes 101–104. 241. On remand, 270 F.3d 567 (8th Cir. 2001). 242. See, e.g., Landell v. Sorrell, 118 F. Supp. 2d 459, 486 (D. Vt. 2000) (upholding Vermont’s campaign limitation for statewide offices), withdrawn pending further proceedings before and amendment by the panel, 300 F.3d 129 (1st Cir. 2002); Daggett v. Commission on Governmental Ethics and Elections Practices, 205 F.3d 445, 461–462 (1st Cir. 2000) (upholding Maine’s $250 limitation on contributions to legislative candidates); Montana Right to Life Association v. Eddleman, 343 F.3d 1085, 1092–1092 (9th Cir. 2003) (upholding Montana’s campaign limitations on contributions under the Shrink Missouri standard and also noting that the state’s showing of “political corruption” can be satisfied as long as it is “not illusory” or “mere conjecture”); Martin v. Commonwealth of Kentucky, 96 S.W.2d3d 38, 48 (Ky. 2003) (upholding Kentucky’s campaign finance law); and, Frank v. City of Akron, 290 F.3d 813, 818 (6th Cir. 2002) (upholding limits on contributions in city elections). See also, “Symposium: The Federal Election Laws, Campaign Finance, Free Speech, Soft Money, Hard Choices,” 34 Arizona State Law Journal no. 4 (2002). 243. Even Congress evidenced some interest in preserving the financial independence of state political parties by adopting the Levin Amendment to the BCRA. This provision, 2 U.S.C. § 441i, exempts expenditures of state and local party committees from some of BCRA’s limits if the money is used only for certain grassroots campaign activities that do not make reference to federal candidates. 244. For a review of early state public finance laws, see, Ruth S. Jones, “State Public Campaign Finance Implications for Partisan Politics,” 25 American Journal of Political Science 343 (1981); and, Campaign Money: Reform and Reality in the States, David W. Adamany, ed. (NY: Free Press, 1976). See also, Richard Briffault, “Public Financing and Democratic Elections,” 148 University of Pennsylvania Law Review 563, 567 (1999); and, Michael Malbin and Benjamin Gais, The Day After Reform: Sobering Campaign Finance Reform Lessons from the American States (Albany, NY: The Rockefeller Institute Press, 1998) ch. 4. Most other nations that have public financing of elections give the funds directly to the parties. 245. Maine’s Clean Elections Law, Me. Rev. Stat. Ann. Tit. 21-A §§ 1001–1020(A), 11211128 (2002), was upheld as constitutional by, Daggett v. Webster, 74 F. Supp. 2d 53 (D. Me. 1999), affirmed, 205 F.3d 445 (1st Cir. 2000), order clarifying opinion, 81 F. Supp. 2d 128, 137

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(D. Me. 2000) (Court declined to rule on constitutionality of Act’s impact on political parties since neither of Maine’s major parties challenged the Act). See also, Theodore Lazarus, “The Maine Clean Election Act: Cleansing Public Institutions of Private Money,” 34 Columbia Journal of Law and Social Problems 79 (2000); Karen Foerstel, “States’ Publicly Funded Campaigns Provide Future Federal Model,” Congressional Quarterly Weekly, May 25, 2002, p. 1381; Fred Wertheimer and Susan Weiss Maner, “Campaign Finance Reform: A Key to Restoring the Health of Our Democracy,” 94 Columbia Law Review 1126 (1996); and, Sue O’Connell, Clean Elections: The Arizona Experience (Helena, MT: The Institute on Money in State Politics, 2003). Public funding of campaigns generally was upheld as constitutional in Buckley v. Valeo, 424 U.S. 1, 92–93, 97 (1976)(per curiam). For the latest on the public finance movement, see, “Public Campaign: A New Kind of Reform Politics,” http:// www.publiccampaign.org (March 16, 2004). 246. A detailed listing of states with special campaign finance laws can be found in, Campaign Finance 2002 (Washington: Federal Election Commission, 2002), Chart 4. See also, Deborah Goldberg, “Contributions: Federal and State Campaign Finance Reform: Lessons for the New Millennium,” 34 Arizona State Law Journal 1143, 1158 (2002); Benjamin Black, “Developments in State Regulation of Major and Minor Parties,” 82 Cornell Law Review 109 (1996); Michael Malbin and Benjamin Gais, The Day After Reform: Sobering Campaign Finance Lessons from the American States (Albany, NY: The Rockefeller Institute Press, 1998), ch. 2; and, David Schultz, Money, Politics, and Campaign Reform Laws in the States (Durhan, NC: Carolina Academic Press, 2002). 247. The term “ballot access” can refer to a wide range of state legislation aimed at regulating the format and composition of the state ballot. Concentration here will be on those state ballot access laws that have had the greatest impact political parties and that have generated the most litigation and court commentary. For a survey of the law of equal protection in this area, see, George V. Burke, “Annotation—Fourteenth Amendment Equal Protection Clause as Affecting Nomination or Election to State Office—Federal Cases,” 59 L.Ed.2d 852 (1980). See, “Developments in the Law—Elections,” 88 Harvard Law Review 1111, 1121–1151 (1975). 248. Much of the history of ballot access laws in the United States is recounted in: Adam Winkler, “Voters’ Rights and Parties’ Wrongs: Early Political Party Regulation in the State Courts, 1886–1915,” 100 Columbia Law Review 873 (2000). The question of how ballot access laws affect the parties is discussed in: The Appleseed Center for Electoral Reform and the Harvard Legislative Research Bureau, “Statute: A Model Act for the Democratization of Ballot Access,” 36 Harvard Journal on Legislation 451 (1999); Scott Ryan Nazzarine, “A Faceless Name in the Crowd: Freedom of Association, Equal Protection, and Discriminatory Ballot Access Laws,” 72 University of Cincinnati Law Review 309 (2003); Richard Winger, “How Ballot Access Laws Affect the Party System,” 16 American Review of Politics 321–350 (1995); Lubin v. Panish, 415 U.S. 409, 712–713; and, Herbert Croly, Progressive Democracy (New Brunswick, NJ: Transaction Books, 1998). 249. Some representative state ballot access laws: New York Election §§7–100 et seq.; Florida Statues, title IX, chs. 100, 101; California Election Code §13200 et seq. 250. E.g., Storer v. Brown, 415 U.S. 724, 729–730 (1974). 251. Judicial summaries of the evolution electoral laws can be found in, The Patriot Party of Pennsylvania v. Mitchell, 826 F. Supp. 926, 933–934 (E.D. Penn. 1993); and, Pizzingrilli v. Belitskus, 343 F.3d 632, 641–647 (3rd Cir. 2003). 252. Since 1968, the Supreme Court has stricken state ballot access laws in: Williams v. Rhodes, 393 U.S. 23 (1968) (struck Ohio law requiring new parties to file signature petitions of 15 percent of state’s electors as violation of equal protection and burden on First Amendment rights); Lubin v. Panish, 415 U.S. 709 (1974) (State may not require indigent candidate to pay filing fee without providing alternate means to ballot); Anderson v. Celebrezze, 460 U.S. 780 (1983) (striking state law requiring independent candidates to file early as violation of supporters’ rights of free association and voting); Norman v. Reed, 502 U.S. 279 (1992) (striking ordinance requiring new parties to gather signatures, citing Fourteenth Amendment right to form parties and absence of a compelling state interest); Illinois State Board of Elections v. Socialists Workers Party, 440 U.S. 173 (1979) (state signature requirement for new parties and independent candidates to secure ballot access found in violation of equal protection); and

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McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (striking state law that banned the distribution of anonymous political campaign literature as violation of First Amendment free speech). During this same time, the Court upheld state ballot access legislation in: Jenness v. Fortson, 403 U.S. 431 (1971) (upholding Georgia law requiring independent candidates and new parties to gather signature petitions of 5 percent of electorate as permissible under First and Fourteenth Amendments); American Party of Texas, 415 U.S. 767 (1974) (upholding law that imposed requirements on minor parties to qualify for ballot as permissible under First and Fourteenth Amendments); Storer v. Brown, 415 U.S. 724 (1974) (upholding state’s sore loser law barring persons who had been affiliated with a political party from later running as an independent candidate); Timmons v. Twin Cities Party, 520 U.S. 351 (1997) (upholding Minnesota’s anti-fusion law under First Amendment free association); and, Clements v. Fashing, 457 U.S. 957 (1982) (upholding Texas law that limited the ability of certain public officeholders to run for other public offices). See also, Kevin Cofsky, “Comment: Pruning the Political Thicket: The Case for Strict Scrutiny of State Ballot Access Restrictions,” 145 University of Pennsylvania Law Review 353, 355–356 (1996) for reference to confusion in this area. 253. 415 U.S. 724, 730 (1974). See also, Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections.”). 254. See, e.g., Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); Bullock v. Carter, 405 U.S. 134, 135 (1972); Storer v. Brown, 415 U.S. 724, 733 (1974); Lubin v. Panish, 415 U.S. 709, 712–713 (1974); and, Buckley v. Valeo, 424 U.S. 1, 96 (1976) (en banc). 255. The courts have occasionally recognized that there may be lesser, or at least different, state interest in regulating primary elections as opposed to the regulation of general elections. See, Anderson v. Celebrezze, 460 U.S. 780, 801 n. 29 (1983); and, American Party of Texas v. White, 415 U.S. 767, 786 (1974). 256. 393 U.S. 23, 25, 32 (1968). Justice Harlan dealt with the issue of freedom of association in this case, id. at 41–48 (Harlan, J., dissenting). 257. Id. at 30–31. 258. See, Lubin v. Panish, 415 U.S. 709, 716 (1974), declaring that “voters can assert their preferences only through candidates or parties or both.” (Emphasis added). 259. 403 U.S. 431, 439 (1971). 260. Id. at 442. Two years later the Court handed down its campaign finance landmark decision in Buckley v. Valeo. While construing federal law, this opinion also recognized the important state interests in “limiting places on the ballot to those candidates who demonstrate substantial popular support.” 424 U.S. 1, 96 (1976). Compare, Justice Rehnquist’s comments, Id. at 292–293 (Rehnquist, J. concurring in part and dissenting in part). 261. 405 U.S. 134 (1972). 262. Id. at 143. (Citations omitted). 263. Id. at 144. 264. 414 U.S. 51 (1973). 265. Id. at 58–59 (Citations omitted). 266. 415 U.S. 767 (1974). 267. 415 U.S. 709 (1974). 268. 415 U.S. 724 (1974). 269. 415 U.S. 767, 780-781 (1974). 270. Id. at 781–784, finding that the state’s combined requirements for third parties did not “impose insurmountable obstacles to fledgling political parties efforts to generate support among the electorate and to evidence that support within the time allowed.” 271. Id. at 787–788. 272. 415 U.S. 724 (1974). 273. Id. at 730, quoting, Dunn v. Blumstein, 405 U.S. 330, 348 (1972). 274. Id. at 736. 275. Id. at 738–746.

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276. 415 U.S. 709 (1974). On state filing fee laws, see, “Comment: The Constitutionality of Qualifying Fees for Political Candidates,” 120 University of Pennsylvania Law Review 109 (1971). Even presidential candidates face these state access barriers. 277. Id. at 718. 278. 440 U.S. 173 (1979). 279. 460 U.S. 780 (1983). In 1980 John Anderson spent more than half his federal funds just trying to get on all fifty state ballots. William J. Keefe and Marc J. Hetherington, Parties, Politics, and Pubic Policy in America, 9th (Washington: Congressional Quarterly Press, 2003) p. 50. 280. Id. at 788 n. 9. 281. Id. 282. Id. at 789. 283. 479 U.S. 189 (1986). 284. Id. at 194–195. 285. Id. at 196, quoting, Storer v. Brown, 415 U.S. 724, 735 (1974). 286. 502 U.S. 279 (1992). The Supreme Court also applied the Anderson test in Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214 (1986). This case is not strictly a ballot access case and is discussed later in this chapter. 287. Id. at 288-289, citing Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); and Illinois State Elections Board v. Socialist Workers Party, 440 U.S. 173, 184 (1979). 288. 504 U.S. 428 (1992). 289. Id. at 434. 290. E.g., Burdick v. Takushi, 504 U.S. 428, 433–434 (1992); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 403 (2000) (Breyer, J. concurring); Torres-Torres v. Puerto Rico, 353 F.3d 79, 82 (1st Cir. P.R. 2003) (finding that state requirement that independent candidates file by a certain date does not violate rights); Tarpley v. Salerno, 803 F.2d 57, 60–61 (2nd Cir. 1986) (using Anderson test to uphold state law regulating joint-designating petitions for access to the ballot to be constitutional); Pizzingrilli v. Belitskus, 343 F.3d 632, 643 (3rd Cir. 2003) (using Anderson to strike a mandatory filing fee for ballot access); Wood v. Meadows, 207 F.3d 708, 710–711 (4th Cir. 2000) (finding that a state requirement that independent file by a certain date to not violate candidate’s right); Hatten v. Rains, 854 F.2d 687, 694–695 (5th Cir. 1988) (ruling that a mandatory retirement age of 75 for state judges did not violate equal protection as a restriction on ballot access); Schrader v. Blackwell, 241 F.3d 783, 787–788 (6th Cir. 2001) (Ohio statute denying use of party label on general election ballot to an unqualified candidate found to not violate equal protection of free association); Miller v. Lorain County Board of Elections, 141 F.3d 252, 256 (6th Cir. 1998) (State signature requirement on nominating petitions for ballot access constitutional under Anderson test); Valenti v. Mitchell, 962 F.2d 288, 299 (3rd Cir. 1992) (deadline for obtaining signatures on nomination petitions not an unconstitutional burden on free association rights); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 222 (1989) (California ban on pre-primary endorsements by parties found to be in violation of their free speech and free association rights); Libertarian Party of Illinois v. Rednour, 108 F.3d 768, 773–774 (7th Cir. 1997) (invoking the Anderson test to uphold Illinois’ statutory burdens on new parties seeking ballot access); Libertarian Party of Maine v. Diamond, 799 F. Supp. 1, 5–6 (D. Me. 1992) (upholding Maine’s ballot access scheme under the Anderson test); The Patriot Party of Pennsylvania v. Mitchell, 826 F. Supp. 926, 933–934 (E.D. Penn. 1993) (upholding Pennsylvania’s requirement that minor parties show a modicum of support to gain ballot access under Anderson test). 291. E.g., Biddulph v. Mortham, 89 F.3d 1491, 1494 (11th Cir. 1996) (upholding Florida’s single subject and unambiguous title requirements for ballot initiatives to amend state constitution); and, Taxpayers United v. Austin, 994 F.2d 291, 293–294, 296–297 (6th Cir. 1993) (upholding Michigan’s procedures for verifying voter signatures on initiative petitions). 292. E.g., Citizens to Establish a Reform Party in Arkansas v. Priest, 970 F. Supp. 690, 695–697 (E.D. Ark. 1996) (finding Arkansas’ law to be a “severe” and hence an unconstitutional burden on new political parties); Patriot Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party I), 95 F.3d 253, 256–258 (3rd Cir. 1996) (striking state

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law that “severely burdened” party’s right to build a political organization without compelling countervailing state interests); and, Reform Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party II), 174 F.3d 305 (3rd Cir. 1999) (en banc) (reaffirming earlier ruling that state’s anti-fusion law violated equal protection despite the Supreme Court’s intervening decision in Timmons). 293. 450 U.S. 107 (1981). 294. Id. at 121–122. (Citations omitted). 295. 954 F.2d 1526 (11th Cir. 1992). 296. Id. at 1532. See also, Ray v. Blair, 343 U.S. 214, 221–222 (1952) (upholding party rule requiring voters to pledge support for the party as a prerequisite to participating in its primary); Rosario v. Rockefeller, 410 U.S. 752, 760 (1973) (upholding an anti-fusion statute as a means to preserve party integrity); and, Belluso v. Poythress, 485 F. Supp. 904, 912 (N.D. Ga. 1980). 297. E.g., Ohio Revised Code Annotated § 3517.10.5 (requiring identification of campaign ad sponsors) § 3517.10.6 (requiring that campaign statements be available to public), § 3517.20 (identification of source of political communications), §3517.21 (ban on “campaign infiltration” and false campaign statements), § 3517.22 (ban on advocacy of, or opposition to, ballot propositions) (Page 1996 and supp. 2001); California Government Code, §§ 84200 (campaign statements), 84501, 85310, 85704, 84302; California Elections Code § 20010 (creating California’s Truth in Political Advertising Law), § 20400 et seq. (creating California’s Code of Fair Campaign Practices); California Elections Code § 20500 (West 1996 and supp. 2003); Connecticut General Statutes Annotated § 9-333w (regulation of political advertising) (West 2002). 298. See, e.g., McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (striking Ohio’s ban on anonymous campaign literature as not justified by the state’s interest in preventing fraud and libel or in informing voters); Talley v. California, 362 U.S. 60 (1960) (striking a municipal ordinance that banned all handbills unless they had the name and address of the sponsor as a violation of free speech); and, Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) (striking Colorado’s statute requiring that persons circulating initiative petitions be registered voters and wear name tags). See also, Mark A. Whitt, “McIntyre v. Ohio Elections Comm’n: ‘A Whole New Boutique of Wonderful First Amendment Litigation Opens Its Doors,’” 29 Akron Law Review 423 (1996); Amy Constantine, “What’s in a Name? McIntyre v. Ohio Elections Commission: An Examination of the Protection Afforded to Anonymous Political Speech,” 29 Connecticut Law Review 459 (1996) (arguing that McIntyre renders state election laws more vulnerable to constitutional challenge). 299. See, e.g., Burson v. Freeman, 504 U.S. 191 (1992) (upholding a Tennessee law forbidding the display and distribution of campaign material and the solicitation of votes within 100 feet of a polling place, the state having demonstrated a compelling interest in preventing voter intimidation and electoral fraud). But compare, Florida Committee for Liability Reform v. McMillan, 682 F. Supp. 1536 (M.D. Florida 1988) (striking Florida’s ban on the solicitation of votes within 150 feet of a polling place). 300. See, Peter Brien, “Voter Pamphlets: The Next Best Step in Election Reform” 28 Journal of Legislation 87–112 (2002). On the impact of such guides, see, Peverill Squire and Eric R.A.N. Smith, “The Effect of Partisan Information on Voters in Nonpartisan Elections,” 50 Journal of Politics 169–179 (1988). 301. See, Levine v. Fair Political Practices Commission, 222 F. Supp. 2d 1182, 1189–1190 (E.D. Calif. 2002) (indicating in dicta that California’s law would fail strict scrutiny as a form of compelled speech). 302. Broadrick v. Oklahoma, 413 U.S. 601, 604–605 n. 2. (1973). This decision also upheld the constitutionality of state laws limiting the political activity of their employees. 303. August 2, 1939, 53 Stat. 1147, amended July 19, 1940, ch. 640, 54 Stat. 767, codified as 5 U.S.C. §§ 1501 et seq., 7321 et seq. and 18 U.S.C. §§ 594, 595, 598, 600, 601, 604, 605, 1918. The limitations imposed by the Hatch Act were upheld by the Supreme Court in, Civil Service Commission v. National Association of Letters Carriers, 413 U.S. 548 (1973); and, United Public Workers v. Mitchell, 330 U.S. 75 (1947). See also, 5 U.S.C. § 734(a)(2). 304. In its first major decision interpreting the Hatch Act, the Supreme Court made this link between the Act and political parties: “Congress may reasonably desire to limit party activity of federal employees so as to avoid a tendency toward a one-party system. It may have considered

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that parties would be more truly devoted to the public welfare if public servants were not overactive politically.” United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947). 305. I will use terms “third party,” “minor party,” and “new party” interchangeably since the courts generally do not make a distinction between them. Of course, not all third parties are “new” and where this distinction is important it will be made clear. Ohio has defined by statute “major” parties, “intermediate” parties, “minor” parties, and “party dominant in a precinct,” see, Ohio Revised Code Annotated §§ 3501.01, 3517.01 (Anderson 2005). 306. For the history and politics of anti-fusion statutes, see, Peter H. Argersinger, “‘A Place on the Ballot’: Fusion Politics and Antifusion Law,” 85 American Historical Review 287 (1980); Howard A. Scarrow, “Duverger’s Law, Fusion, and the Decline of American ‘Third Parties’,” 39 Western Political Quarterly 634 (1986); William R. Kirschner, “Note, Fusion and the Associational Rights of Minor Political Parties,” 95 Columbia Law Review 683 (1995); James Gray Pope, “Fusion, Timmons v. Twin Cities Area New Party, and the Future of Third Parties in the United States,” 50 Rutgers Law Review 473 (1998); and, Timmons v. Twin Cities Area New Party, 520 U.S. 351, 356–357 (1997). See also the discussion of party duopoly and third party rights later in this Chapter. 307. Compare Pennsylvania’s justifications for its anti-fusion laws: “(1) preventing ‘sore loser’ candidacies; (2) preventing individual candidates from ‘monopolizing’ the ballot and causing voter confusion; (3) preventing a candidate from ‘bleeding off votes of independent voters to bolster his or her major party endorsement’; and (4) encouraging new candidates to run as independents.” Patriot Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party I), 95 F.3d 253, 264 (3rd Cir. 1996). 308. E.g., Mrazek v. Suffolk County Board of Elections, 630 F.2d 890 (2nd Cir. 1980) (ruling that cross-filing is a public function of parties not an internal one and therefore must comport with the Fourteenth Amendment). 309. 863 F. Supp. 988 (D. Minn. 1994). 310. Id. at 993. 311. Twin Cities Area New Party v. McKenna, 73 F.3d 196 (8th Cir. 1996). 312. Id. at 198–199. 313. 520 U.S. 351 (1997). 314. Id. at 363. 315. Id. at 361. 316. Id. at 363. “[T]hese provisions reduce the universe of potential candidates who may appear on the ballot as the Party’s nominee only by ruling out those few individuals who both have already agreed to be another party’s candidate and also, if forced to choose, themselves prefer that other party. They also limit slightly the Party’s ability to send a message to the voters and to this preferred candidate. We conclude that the burdens . . . on the Party’s First and Fourteenth Amendment rights—though not trivial—are not severe.” 317. Id. at 362–363, citing, Burdick v. Takushi, 504 U.S. 428, 438 (1992) and 445 (Kennedy, J., dissenting). 318. Id. at 370–382 (Stevens, J., dissenting) and 382-384 (Souter, J. dissenting). 319. Id. at 371. 320. Id. at 375–376. 321. Id. at 380–381 (footnote omitted). 322. See, e.g., Schrader v. Blackwell, 241 F.3d 783, 790 (6th Cir. 2001); Campbell v. Buckley, 203 F.3d 738, 744–746 (10th Cir. 2000); Russell v. Burris, 146 F.3d 563, 568 (8th Cir. 1998); Van Valkenburgh v. Citizens for Term Limits, 15 P.3d 1129, 1135 (Idaho 2000); McDonald v. Grande Traverse County Election Commission, 662 N.W.2d 804, 814 (Mich. 2003); Council of Alternative Political Parties v. State of New Jersey, 781 A.2d 1041, 1047, 1052 (N.J. Super. 2001) and, New Jersey Conservative Party v. Farmer, 753 A.2d 192, 198 (N.J. Super. 1999). The Seventh Circuit had reached a conclusion similar to that of the Supreme Court several years earlier in, Swamp v. Kennedy 950 F.2d 383 (7th Cir. 1991) certiorari denied, 505 U.S. 1204 (1992). The Alaska Supreme Court struck down a state law that prevented two parties from mutually agreeing to share a primary ballot in State of Alaska v. Green Party of Alaska, 118 P.3d 1054 (Alaska 2005).

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323. Patriot Party of Pennsylvania v. Mitchell, 826 F. Supp. 926 (E.D. Penn. 1993), reversed, Patriot Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party I), 95 F.3d 253 (3rd Cir. 1996), reheard and reaffirmed on different grounds, sub nom., Reform Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party II), 174 F.3d 305 (3rd Cir. 1999) (en banc). 324. Patriot Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party I), 95 F.3d 253 (3rd Cir. 1996). 325. Id. at 258–264. 326. Id. at 262. 327. 489 U.S. 214 (1989). 328. 95 F.3d 253, 264 (3rd Cir. 1996), citing, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 222 (1989). 329. 174 F.3d 305 (3rd Cir. 1999) (en banc). 330. But see, id. at 312 n. 7 (“Some degree of the associational rights analysis in Patriot Party I may remain viable because the Pennsylvania laws, in contrast to the Minnesota laws in Timmons, facially discriminate between major and minor parties, thus exacerbating the burdens imposed on minor parties.”) 331. Id. at 312–318. 332. Alaska v. Green Party of Alaska, 118 P.3d 1054 (Alaska 2005). 333. Id. at 1060–1061. 334. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 361–364 (1997). This decision came after the Supreme Court’s ruling in California Democratic Party v. Jones, 530 U.S. 567 (2000), so the Alaska Court also had to navigate around that decision as well. In particular, the Court had to show that the sharing of ballots by Alaska parties was not allow nonmembers of a party to participate in the selection of party nominees—the fatal flaw that the Supreme Court identified in striking down California’s “blanket” primary in Jones. 335. 118 P.3d 1054, 1062 (Alaska 2005). 336. Id. at 1064. For a similar position, see, California Democratic Party v. Jones, 530 U.S. 567, 575 (2000). 337. See, Charles R. Adrian, “A Typology for Nonpartisan Elections,” 12 Western Political Quarterly 449 (1958); and, Nancy Northup, “Local Nonpartisan Elections, Political Parties and the First Amendment,” 87 Columbia Law Review 1677, 1682–1684 (1987), where the author argues that California’s “absolute” nonpartisan election law is incompatible with the First Amendment. See also, Geary v. Renne, 911 F.2d 280 (9th Cir. 1990) (striking California’s “absolute” nonpartisan election scheme). 338. California requires that all judicial, county, and city officials be chosen through nonpartisan elections, see California Constitution, Art. 2 § 6. Ohio provides for nonpartisan election of judges, local boards of education, and municipal officials, see Ohio Revised Code Annotated §§ 3505.01, 3505.04 (Page, 1988 and supp. 2005). Illinois allows municipalities to choose nonpartisan elections, see 10 Illinois Compiled States §§ 5/3.1-20–45 and 5/10–3.1 (West 2005). Florida provides for nonpartisan election of judges and puts limits on their political activities, campaigns, and campaign finances, see Florida Statutes, ch. 105 (2004). 339. State “announce” clauses have not fared well in the courts, see, e.g., Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993); Stretton v. Disciplinary Board of the Supreme Court of Pennsylvania, 944 F.2d 137 (3rd Cir. 1991); ACLU of Florida v. The Florida Bar, 744 F. Supp. 1094 (N.D. Fla. 1990); In Re Chmura, 608 N.W.2d 31 (Mich. 2000) certiorari denied, 531 U.S. 828 (2000); Minnesota Republican Party v. White, 536 U.S. 765 (2002); and, J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky. 1991). 340. For a history of nonpartisan elections in the U.S., see, Eugene C. Lee, The Politics of Nonpartisanship (Berkeley, CA: University of California Press, 1960). On the Progressive Movement generally, see, Richard Hofstadter, The Age of Reform: From Bryan to FDR (New York: Knopf, 1955); and, Lewis L. Gould, The Progressive Era (Syracuse, NY: Syracuse University Press, 1974). 341. See, Nancy Northup, “Local Nonpartisan Elections, Political Parties and the First Amendment,” 87 Columbia Law Review 1677 (1987); and, Karen I. Chang, “The Party’s Over:

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Establishing Nonpartisan Municipal Elections in New York City,” 11 Journal of Law and Policy 579 (2003). 342. For more on the impact of nonpartisan elections on voter behavior, see, Chandler Davidson and Luis Ricardo Fraga, “Slating Groups as Parties in ‘Nonpartisan’ Setting,” 41 Western Political Quarterly 373 (1988); Edward L. Lascher, Jr., “The Case of the Missing Democrats: Reexamining the ‘Republican Advantage’ in Nonpartisan Elections,” 44 Western Political Quarterly 656 (1991); Carol A. Cassel, “The Nonpartisan Ballot and the Decline of American Politics,” 9 Political Behavior 246–256 (1987); Willis D. Hawley, Nonpartisan Elections and the Case for Party Politics (NY: John Wiley and Sons, 1973) ch. 3; Brian F. Schaffner, Matthew Streb, and Gerald Wright, “Teams Without Uniforms: The Nonpartisan Ballot in State and Local Elections,” 54 Political Research Quarterly 7 (2001); and, Perverill Squire and Eric R.A.N. Smith, “The Effect of Partisan Information on Voters in Nonpartisan Elections,” 50 Journal of Politics 169 (1988). For a critique of nonpartisan elections, see, Kenneth Sherrill, “The Dangers of Non-Partisan Elections to Democracy,” 2 Social Policy 15 (1998). 343. For a discussion of the early case law upholding nonpartisan elections generally, see, “Annotation: Constitutionality, Construction and Application of Statutes Providing that Candidates for Certain Offices Shall be Placed Upon Nonpartisan Ballots,” 125 American Law Reports 1044 (Rochester, NY: Lawyer’s Co-operative Publishers, 1919–1948). See also, American Jurisprudence 2d Elections § 288 (Minneapolis, MN: West Publishing, 2004). 344. There is a large and rapidly growing literature on judicial elections. See, e.g., Philip Dubois, From Ballot to Bench: Judicial Elections and the Quest for Accountability (Austin, TX: University of Texas, 1980); “Symposium: Perspectives on Judicial Independence,” 64 Ohio State Law Journal 1 (2003); “Symposium: The Ethics of Judicial Selection,” 43 South Texas Law Review,” 1d (2001); Jacob McCrea, “The First Amendment Allows a Candidate for Judicial Election to Announce His or Her Views on Disputed Legal or Political Issues: Republican Party of Minnesota v. White,” 41 Duquesne Law Review 425 (2003); Karen L. Luchka, “Judicial Independence and State Judicial Selection Methods,” 15 The Eckerd Scholar 46 (St. Petersburg, FL: Eckerd College Ford Apprentice Scholar Program, 2003); Elizabeth Larkin, “Judicial Selection Methods: Judicial Independence and Popular Democracy,” 79 Denver Law Review 65 (2001); Michelle Friedland, “Disqualification or Suppression: Due Process and the Response to Judicial Campaign Speech,” 103 Columbia Law Review 563 (2004); Matthew J. Streb, “Judicial Elections: A Different Standard for the Rulemakers,” in Matthew J. Streb, ed., Law and Elections Politics: Rules of the Game (Boulder, CO: Lynne Rienner, 2005); Kelley Armitage, “Denial Ain’t Just a River in Egypt: A Thorough Review of Judicial Elections, Merit Selection and the Role of State Judges in Society,” 29 Capital University Law Review 625 (2002); and, Philip Dubois, “Accountability, Independence, and the Selection of State Judges: The Role of Popular Judicial Elections,” 40 Southwest Law Journal 31 (1986). 345. In recent years, at least seventeen states have used nonpartisan elections to fill their state courts of general jurisdiction. Apparently, many of these “elected” judges are initially appointed to their seats. See, Harry P. Stumpf, American Judicial Politics (NY: Harcourt Brace Jovanovich, 1988) ch. 5. For the history of judicial elections, see, Republican Party of Minnesota v. White, 536 U.S. 765, 785–786, and 790–791 (2002) (O’Connor, J., dissenting); and, Roy A. Schotland, “Symposium: Selection of State Appellate Judges: Political Party Affiliation in Partisan and Nonpartisan Judicial Elections: To the Endangered Species List, Add: Nonpartisan Judicial Elections,” 39 Willamette Law Review 1397, 1413–1419 (2003). 346. See, Chisom v. Roemer, 501 U.S. 380, 400 (1991) (recognizing a “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.”); Republican Party of Minnesota v. White, 536 U.S. 765 734 (2002) (Ginsburg, J., dissenting) (“States like Minnesota have endeavored, through experiment tested by experience, to balance the constitutional interests in judicial integrity and free expression within the unique setting of an elected judiciary.”); Stephen B. Burbank, “What Do We mean by ‘Judicial Independence’?,” 64 Ohio State Law Journal 323 (2003); and, James Andrew Wynn, Jr. and Eli Paul Mazur, “Perspectives: Judicial Elections Versus Merit Selection: Judicial Diversity: Where Independence and Accountability Meet,” 67 Albany Law Review 775 (2004). 347. See, Republican Party of Minnesota v. White, 536 U.S. 765, 788-792 (O’Connor, J., concurring); Deborah Goldberg, “Symposium: Perspectives on Judicial Independence: Public

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Funding of Judicial Elections: The Roles of Judges and the Rules of Campaign Finance,” 64 Ohio State Law Journal 95 (2003); and, Charles Gardner Geyh, “Why Judicial Elections Stink,” 64 Ohio State Law Journal 43 (2003). The larger debate over methods of judicial selection can be traced back to the Constitutional Convention where the comparative merits of appointment versus election were discussed, see Republican Party of Minnesota v. Kelly, 247 F.3d 854, 886–887 (8th Cir. 2001) (Beam, J., dissenting); and, The Federalist No. 78 (Alexander Hamilton). 348. See a description of the Minnesota canons of judicial behavior in, Republican Party of Minnesota v. Kelly, 63 F. Supp. 2d 967, 970–972 (D. Minn. 1999). 349. Republican Party of Minnesota v. Kelly, 63 F. Supp.2d 967 (D. Minn. 1999). There was a parallel case brought under the same caption in the previous year and reported at, 996 F. Supp. 875 (D. Minn. 1998). The district court opinion was affirmed by the Eighth Circuit Court of Appeals, 247 F.3d 854 (8th Cir. 2001). That decision was reversed and remanded by the U.S. Supreme Court sub nom., Republican Party of Minnesota v. White, 536 U.S. 765 (2002). On remand, the Eighth Circuit entered another opinion, 361 F.3d 1035 (8th Cir. 2004), which they subsequently vacated en banc, 416 F.3d 738 (8th Cir. 2005), finding that the partisan-activities and solicitation clauses of the state’s canons of judicial conduct violated the First Amendment). 350. 247 F.3d 854 (8th Cir. 2001). 351. Republican Party of Minnesota v. Kelly, 63 F. Supp. 2d 967, 975 (D. Minn. 1999). On appeal, the Eighth Circuit agreed, 247 F.3d 854, 870–871 (8th Cir. 2001). The parties also argued that the U.S. Supreme Court precedent, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989), that struck down California’s ban on party endorsements of candidates should apply to Minnesota’s judicial canons. However, both courts in this litigation distinguished Eu on the rather slim basis that California’s statute had limited parties whereas the Minnesota canon limited judicial candidates in soliciting or publicly accepting party endorsements. Republican Party of Minnesota v. Kelly, 63 F. Supp. 2d 967, 978–979 (D. Minn. 1999) and, 247 F.3d 854, 863 (8th Cir. 2001). Compare, Renne v. Geary, 708 F. Supp. 278 (N.D. Calif. 1988), reversed, 880 F.2d 1062 (9th Cir. 1989), affirmed en banc, 911 F.2d 280 (9th Cir. 1990), vacated and remanded, 501 U.S. 312 (1991), where the Supreme Court found that California’s ban on party endorsement in nonpartisan elections to be nonjusticiable under the circumstances. 352. 247 F.3d 854, 875–876 (8th Cir. 2001). On the role of political parties and partisanship in judicial elections, see, Anthony Champagne, “National Summit on Improving Judicial Selection: Political Parties and Judicial Elections,” 34 Loyola of Los Angeles Law Review 1411 (2001); Roy A. Schotland, “Symposium: Selection of State Appellate Judges: Political Party Affiliation in Partisan and Nonpartisan Judicial Elections: To the Endangered Species List, Add: Nonpartisan Judicial Elections,” 39 Willamette Law Review 1397 (2003); and, David A. Adamany, “The Party Variable in Judges’ Voting: Conceptual Notes and a Case Study,” 63 American Political Science Review 57 (1969). 353. See, e.g., L. Sandy Maisel, Parties and Elections in America: The Electoral Connection, 3d (NY: Rowman and Littlefield, 1999) ch. 8. And compare, Anthony Champagne, “National Summit on Improving Judicial Selection: Interest Groups and Judicial Elections,” 34 Loyola of Los Angeles Law Review 1391 (2001); and, Anthony Champagne, “Political Parties and Judicial Elections,” 34 Loyola of Los Angeles Law Review 1411 (2001). 354. Id. at 901–902 (Beam, J., dissenting). 355. 536 U.S. 765 (2002). 356. See, e.g., Geary v. Renne, 911 F.2d 280, 286 (9th Cir. 1990) (“’The Constitution grants to the States broad power . . . over the election process for state offices. . . . But as the Supreme Court has emphasized, the state’s power to protect the integrity of its electoral processes ‘does not justify, without more, the abridgement of fundamental rights, such as . . . the freedom of political association.’” citing, Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986)). 357. Justice Marshall noted the importance of primary elections for the parties, describing primaries as “the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.” Id. at 216.

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358. See, Nathaniel Persily, “Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws,” 89 Georgetown Law Journal 2181, 2182 (2001) where he describes this situation well. 359. For a brief history of the direct primary in the U.S., see, Gary D. Allison, “Symposium: 1999–2000 Supreme Court Review: Protecting Party Purity in the Selection of Nominees for Public Office: The Supreme Strike Down California’s Blanket Primaries and Endanger the Open Primary of Many States,” 36 Tulsa Law Journal 59, 61–71 (2000). See also, Peter F. Galderisi and Marni Ezra, “Congressional Primaries in Historical and Theoretical Context,” in Peter F. Galderisi, Marni Ezra, and Michael Lyons, eds., Congressional Primaries and the Political of Representation (New York: Rowman and Littlefield, 2001); William J. Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington, DC: Congressional Quarterly, 1998) ch. 3; and, Allan Ware, The American Direct Primary: Party Institutionalization and Transformation in the North (New York: Cambridge University press, 2002). 360. See, John Kenneth White and Daniel M Shea, New Party Politics: From Jefferson and Hamilton to the Information Age (New York: Bedford/St. Martin’s, 2000) pp. 184–189. 361. Government regulation of the nomination process in the United States is much more extensive that it is in most other Western democracies. See, Alan Ware, Political Parties and Party Systems (New York: Oxford University Press, 1996) pp. 259–261. 362. See, Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986); Paul Allen Beck, Party Politics in America, 9th ed. (New York: Longman, 1997), ch. 3; Leon D. Epstein, Political Parties in the American Mold (Madison, WI: University of Wisconsin Press, 1986), ch. 6. On the relationship between state regulation and party strength and behavior, see, David E. Price, Bringing Back the Parties (Washington: Congressional Quarterly Press, 1984), ch. 5; David Mayhew, Placing Parties in American Politics (Princeton, NJ: Princeton University Press, 1986) chs. 2 and 7; and, William J. Keefe and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly Press, 2003) ch. 1. 363. See, William J. Keefe and Marc J. Hetherington, Parties, Politics, and Public Policy in America, 9th ed. (Washington: Congressional Quarterly Press, 2003) ch. 3; and, California Democratic Party v. Jones, 984 F. Supp. 1288, 1301 (E.D. Calif. 1997). 364. See, Kristin Kanthak and Jeffrey Williams, “Parties and Primaries: The First Electoral Round,” in Matthew J. Streb, ed., Law and Election Politics: The Rules of the Game (Boulder, CO: Lynne Rienner, 2005). 365. See, e.g., Storer v. Brown, 415 U.S. 724, 735 (1974); Monro v. Socialist Workers Party, 479 U.S. 189, 196 (1986); U.S. v. Classic, 313 U.S. 299, 318 (1941); Smith v. Allwright, 321 U.S. 649, 659–660 (1944); and, Foster v. Love, 522 U.S. 67 (1987). 366. There is some evidence that a few courts are beginning to make a distinction between the two phases of the electoral process when it comes to assigning rights of free association and speech. 367. For more background on the blanket primary see, Thomas A. Kazee, “The Impact of Electoral Reform: ‘Open Elections’ and the Louisiana Party System” 13 Publius 132 (1983); Paul Allen Beck, Party Politics in America, 8th (New York: Longman, 1996) pp. 201–203; Gerald McBeath, “Transformation of the Alaska Blanket Primary System,” 15 Comparative State Politics 25–41 (1994); Samuel Issacharoff, “Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition,” 101 Columbia Law Review 274 (2001). For the story of California’s use of the blanket primary, see, Bruce E. Cain and Elisabeth R. Gerber, eds., Voting at the Political Fault Line: California’s Experiment with the Blanket Primary (Berkeley, CA: University of California Press, 2002); and, Elisabeth R. Gerber, “California’s Experience with the Blanket Primary,” in Peter F. Galderisi, Marni Ezra, and Michael Lyons, eds., Congressional Primaries and the Politics of Representation (New York: Rowman and Littlefield, 2001). 368. 984 F. Supp. 1288 (E.D. Calif. 1997). 369. Id. at 1292, quoting Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 222 (1986). 370. Id. at 1297. 371. Id. at 1297–1300.

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372. Id. at 1290, quoting Defense Exhibits. Judge Levi reiterates and explains these state interests, id. at 1302-1303, adding that, “[A] blanket primary protects voters by permitting voters to participate in the primary election without publicly declaring a party affiliation as is the case in closed primary state.” He also briefly invoked the state interest in preventing party factionalism, id. at 1303. 373. Id. at 1293. 374. Id. 375. 169 F.3d 646 (9th Cir. 1999). 376. 530 U.S. 567 (2000). 377. In Foster v. Love, 522 U.S. 67 (1997), the Court had stricken Louisiana’s open primary law as an infringement on Congress’ power to override state regulations and establish uniform rules for federal elections. The Supreme Court sidestepped the issue of the constitutionality of Wisconsin’s open primary law in Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981), deciding the case on other grounds. The blanket primary laws in Alaska and Washington had previously been upheld in the face of First Amendment challenges by their respective state supreme courts: O’Callaghan v. Alaska, 914 P.2d 1250 (Alaska 1996), certiorari denied, 520 U.S. 1209 (1997); and, Heavey v. Chapman, 611 P.2d 1256 (Wash. 1980). 378. 530 U.S. 567, 575 (2000) quoting Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 224 (1989). 379. Id. at 581. 380. 489 U.S. 214, 224–226 (1989). 381. California Democratic Party v. Jones, 530 U.S. 567, 572–573 (2000). Compare the district court’s opinion on the same subject, 984 F. Supp. 1288, 1299–1300 (E.D. Calif. 1997). 382. Id. at 579 (2000) citing, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 231 n. 21 (1989) 383. Id. at 582. Compare, id. at 580, where the Court claims that the “whole purpose of Proposition 198 [adopting the blanket primary] was to favor nominees with ‘moderate’ positions.” 384. Id. at 583. Other state interests that had been considered by the lower courts in this litigation—promoting fair elections, giving voters greater electoral choice, increasing voter turnout, and protecting voter privacy—were also dismissed as not “compelling.” 385. Id. 585–586 (Italics in original). 386. Louisiana Revised Statutes, ch. 18 (2005). 387. See, John R. Labbe, “Comment: Louisiana’s Blanket Primary After California Democratic Party v. Jones,” 96 Northwestern University Law Review 721, 749 (2002). 388. For a description of the impact that Louisiana’s primary system has had on that state’s politics and parties, see, Gary D. Allison, “Symposium: 1999-2000 Supreme Court Review: Protecting Party Purity in the Selection of Nominees for Public Office: The Supremes Strike Down California’s Blanket Primaries and Endanger the Open Primaries of Many States,” 36 Tulsa Law Journal 59, 112–114 (2000). 389. 530 U.S. 567, 590–603 (2000) (Stevens, J., dissenting). 390. Id. at 594. 391. Id. at 594 n. 5. 392. However, the Court has cited Jones in recent years, including: F.E.C. v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 448 n.11 (2001), for the proposition that the First Amendment rights of parties may be more than the sum of their members’ rights; and, Vieth v. Jubelirer, 158 L.Ed.2d 546, 581 (2004), for the principle that the states may not legislate so as to disfavor a particular political group. 393. The Ninth Circuit struck down Washington’s blanket primary in, Democratic Party of Washington State v. Reed, 343 F.3d 1198, 1203 (9th Cir. 2003), certiorari denied, 540 U.S. 1213 (2004). In response, the Washington state legislature passed a new election law that adopted the Louisiana style (“top two”) primary system, or in the alternative, the “Montana style” primary. Washington’s Governor Gary Locke vetoed the Louisiana version in the legislation and the Washington State Supreme Court upheld the adoption of the Montana version in, Washington State Grange v. Locke, 105 P.3d 9 (Washington 2005) (en banc).

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394. O’Callaghan v. State of Alaska, 6 P.3d 728 (Alaska 2000) (per curiam), overturning, 914 P.2d 1250 (Alaska 1996). See, Brian M. Castro, “Note, Smothering Freedom of Association: The Alaska Supreme Court Errs Upholding the State’s Blanket Primary Statute,” 14 Alaska Law Review 523 (2000). 395. Alaska Statutes §§ 15.25.010, 15.25.014, and 15.25.060 (Lexis-Nexis 2004 and supp. 2005). For a description of Alaska’s response to the Jones decision, see, Alaska v. Green Party of Alaska, 118 P.3d 1054, 1057–1058 (Alaska 2005). 396. See, Alaska v. Alaska Green Party, 118 P.3d 1054 (Alaska 2005). 397. California Democratic Party v. Jones, 530 U.S. 567, 578 n. 8 (2000). 398. Id. at 598 (Stevens, J., dissenting); and in Judge Levi’s opinion at the district court level, 169 F.3d 646, 654 (1999). 399. See, e.g., Sean M. Ramaley, “Comment: Is the Bell Tolling: Will the Death of the Partisan Blanket Primary Signal the End for Open Primary Elections?” 63 University of Pittsburgh Law Review 217 (2001); John R. Labbe, “Comment: Louisiana’s Blanket Primary After California Democratic Party v. Jones,” 96 Northwestern University Law Review 721, 740–741 (2002); Gary D. Allison, “Symposium: 1999-2000 Supreme Court Review: Protecting Party Purity in the Selection of Nominees for Public Office: The Supremes Strike Down California’s Blanket Primaries and Endanger the Open Primaries of Many States,” 36 Tulsa Law Journal 59, 114 (2000); Charles E. Borden, “Primary Elections,” 38 Harvard Journal on Legislation 263 (2001); Brian Patrick Bronson, “Recent Decision: The California Open Primary Act Unconstitutionally Burdens Political Parties’ Associational Rights: California Democratic Party v. Jones,” 39 Duquesne Law Review 845, 863 (2001); and, Aimee Dudovitz, “California Democratic Party v. Jones: The Constitutionality of Blanket Primary Laws,” 44 New York Law School Law Review 13 (2000). Compare, Lauren Hancock, “The Life of the Party: Analyzing Political Parties’ First Amendment Associational Rights when the Primary Election Process Is Construed Along a Continuum,” 88 Minnesota Law Review 159 (2003), arguing that the open primary could still be constitutional in the wake of Jones by drawing a careful distinction between party “membership” and party “affiliation.” 400. For example, Gary D. Allison, “Symposium: 1999-2000 Supreme Court Review: Protecting Party Purity in the Selection of Nominees for Public Office: The Supremes Strike Down California’s Blanket Primaries and Endanger the Open Primaries of Many States,” 36 Tulsa Law Journal 59, 60 (2000); and, Sean M. Ramaley, “Comment: Is the Bell Tolling: Will the Death of the Partisan Blanket Primary Signal the End for Open Primary Elections?” 63 University of Pittsburgh Law Review 217, 220 (2001). 401. Compare, Seamus K. Barry, “Stealing the Covers: The Supreme Court’s Ban on Blanket Primary Elections and Its Effects on a Citizen’s First Amendment Rights to Petition the Government for Redress of Grievances,” 9 CommLaw Conspectus 71, 81–82 (2001) (arguing that Jones was wrongly decided because California’s blanket primary did not “severely burden” free association rights); and, Samuel Issacharoff, “Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition” 101 Columbia Law Review 274, 312 (2001) (“the California blanket primary can be sustained under neither the rightsbased analysis put forward by the Court, nor under a functional approach to protecting the procompetitive function of political parties in the electoral process.”). 402. Memorandum Opinion, Case No. CIV-00-1071-F (W.D. Okla., Jan. 24, 2003); reversed, 363 F.3d 1048 (10th Cir. 2004); reversed and remanded, sub nom., Clingman v. Beaver, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005). Compare, Cool Moose Party v. Rhode Island, 183 F.3d 80 (1st Circuit 1999) where the First Circuit struck down Rhode Island’s semi-closed primary law that prohibited members of one party from voting in the primary of another party on free association grounds; and, Arizona Libertarian Party v. Bayless, 351 F.3d 1277 (9th Cir. 2003) where the Ninth Circuit struck down that part of Arizona’s semi-closed primary that allowed nonmembers to vote for party precinct committeemen on First Amendment free association ground. 403. 363 F.3d 1048 (10th Cir. 2004). 404. 161 L.Ed.2d 920 (2005). 405. Clingman v. Beaver, 161 L.Ed.2d 920, 932–933 (2005). 406. Id. at 935–937 (2005).

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407. Id. at 944 (2005) (Stevens, J., dissenting). 408. Id. at 947. 409. See chapter 2, supra, and, Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989). 410. 161 L.Ed.2d 920, 949 (2005) (Stevens, J., dissenting). 411. For a discussion of types of primaries, see, Kristin Kanthak and Jeffrey Williams, “Parties and Primaries: The First Electoral Rounds,” in Matthew J. Streb, ed., Law and Election Politics: The Rules of the Game (Boulder, CO: Lynne Rienner, 2005); and Kristin Kanthak and Rebecca Morton, “The Effects of Electoral Rules on Congressional Primaries,” in Peter F. Galderisi, Marni Ezra, and Michael Lyons, eds., Congressional Primaries and the Politics of Representation (New York: Rowman and Littlefield, 2001). 412. The Supreme Court in Clingman v. Beaver identified 23 states that use some form of the semi-closed primary, 161 L.Ed.2d 920, 930 n. 1 (2005); see also, Charles E. Borden, “Primary Elections,” 38 Harvard Journal on Legislation 263, 266 n. 24 (2001), who counts nineteen states in 2001 using semi-closed primaries. 413. On the distinction between “affiliating” and “registering” with a political party, see, Lauren Hancock, “The Life of the Party: Analyzing Political Parties’ First Amendment Associational Rights When the Primary Election Process Is Construed Along a Continuum,” 88 Minnesota Law Review 159, 161 n. 10 (2003); and, Charles E. Borden, “Primary Elections,” 38 Harvard Journal on Legislation 263, 265 (2001). Texas defines and regulates party affiliation in great detail by statute, see, Texas Elections Code Annotated §§ 162.003 to 162.010 (West 2005). 414. This type of primary is sometimes also called the “party-option open primary.” It is currently is use in Utah (Utah Code Annotated § 20A-9-403) and Alaska (Alaska Statutes § 1525-010). See, Beaver v. Clingman, 363 F.3d 1048, 1051 n. 1 (10th Cir. 2004). 415. See, Nathaniel Persily, “Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws,” 89 Georgetown Law Journal 2181 (2001). The Court noted intertangled nature of rights of association in Bullock v. Carter, 405 U.S. 134, 143 (1972) (“the rights of voters and rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.”). 416. There is no universally accepted typology for party primaries. The Supreme Court recognized several types in Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 222 n. 11 (1986). See also, William J. Keefe, Parties, Politics, and Public Policy in America, 8th ed. (Washington, DC: Congressional Quarterly Press, 1998) pp. 83–87; Kristin Kanthak and Rebecca Morton, “The Effects of Electoral Rules on Congressional Primaries,” in Peter F. Galderisi, Marni Ezra, and Michael Lyons, eds., Congressional Primaries and the Politics of Representation (New York: Rowman and Littlefield, 2001); and, Charles E. Borden, “Primary Elections,” 38 Harvard Journal on Legislation 263, 266 n. 23 (2001). 417. California Democratic Party v. Jones, 530 U.S. 567, 578 (2000). 418. This was the strategy employed by the Libertarian Party of Oklahoma in Clingman which sought to open its primary to nonmembers because the party believed that “attracting a more diverse group of voters in its primary would enable it to select more mainstream candidates who would be more viable in the general election.” 161 L.Ed.3d 920, 948 (2005) (Stevens, J., dissenting). Compare the strategy of the party in Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 212 (1986). 419. See, California Democratic Party v. Jones, 530 U.S. 567, 583 (2000), discussing the state’s interest in providing more avenues for independent voters to participate in the electoral process. 420. Versions of the semi-closed primary are currently used in Illinois, Ohio, Texas, Tennessee, and Virginia. This can be achieved by easy re-registration provisions or by allowing independent voters to easily participate in major party primaries. Texas in particular has elaborate regulations on primary participation, even making it a misdemeanor to participate in more than one primary per election cycle, see, Texas Elections Code Annotated § 162.014 (West 2005). 421. Michigan Compiled Laws Service § 168.795 (2005).

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422. The Florida Constitution provides for the universal primary thusly: “If all candidates have the same party affiliation and the winner will have no opposition in the general election, all qualified electors, regardless of party affiliation, may vote in the primary elections for that office.” Florida Constitution, Art. VI § 5(b). See also, Florida Statutes §§ 101.021, 105.041 (2005). The adoption of this provision seems to have been motivated largely by fiscal concerns—the state hoping to save money by dispensing with the general election for uncontested offices. 423. This latter type of race might better be termed “unipartisan.” The official ballots do not list party affiliation for those candidates in the genuinely nonpartisan races but, interestingly, they do list the party affiliation of candidates in those races where only one party is fielding candidates. 424. Florida Statutes § 100.061. 425. See, “Senate Writes Obituary for Runoff Elections,” St. Petersburg Times, April 29, 2005, p. 5B; and, Stephen C. Craig, “Politics and Elections,” in Robert J. Huckshorn, ed., Government and Politics in Florida (Gainesville, FL: University of Florida Press, 1991) ch. 4. 426. Kristin Kanthak and Rebecca Morton, “The Effects of Electoral Rules on Congressional Primaries,” in Peter F. Galderisi, Marni Ezra, and Michael Lyons, eds., Congressional Primaries and the Politics of Representation (New York: Rowman and Littlefield, 2001). 427. John F. Bibby and L. Sandy Maisel, Two Parties—or More? The American Party System (Boulder, CO: Westview Press, 1998). For summaries of the federal case law on equal protection claims raised in the electoral context, see, Gregory V. Burke, “Annotation: Fourteenth Amendment Equal Protection Clause as Affecting Nomination or Election to State Office— Federal Cases,” 69 L. Ed.2d 852 (1982); and, “Annotation: Fourteenth Amendment As Affecting Nomination or Election to State Office—Federal Cases,” 23 L.Ed.2d 782 (1969). For a discussion of the First Amendment free association case law on parties, see, Daniel A. Klein, “Annotation: Supreme Court’s Views Regarding Federal Constitution’s First Amendment Right of Association as Applied to Elections and Other Political Activities,” 116 L.Ed.2d 997 (1996). On the link between third parties and election laws, see, Marjorie Randon Hershey, “Third Parties: The Power of Electoral Laws and Institutions,” in Matthew J. Streb, ed., Law and Election Politics: The Rules of the Game (Boulder, CO: Lynne Rienner, 2005). 428. See, David Mazmanian, Third Parties in Presidential Elections (Washington: Brookings Institution, 1974) ch.4; Steven J. Rosenstone, Roy L. Behr, and Edward H. Lazarus, Third Parties in America (Princeton, NJ: Princeton University Press, 1996) ch. 2; and, David Gillespie, Politics at the Periphery: Third Parties in Two-Party America (Columbia, SC: University of South Carolina Press, 1993). The Supreme Court has occasionally noted the importance of third parties in American political history. See, e.g., Illinois Board of Elections v. Socialist Workers Party, 440 U.S. 173, 185–186 (1979); and Anderson v. Celebrezze, 460 US 780, 794 (1983). 429. See, Moore v. Ogilvie 394 U.S. 814 (1969) where the Court struck down an Illinois signature requirement on equal protection grounds because the formula discriminated against residents in more populous counties of the state; Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979), where the Court struck down another Illinois law that imposed different signatory requirements on candidates seeking election to state and urban offices on equal protection grounds; and, Norman v. Reed, 502 U.S. 279 (1992) where the Court struck down another Illinois signature law that required collection of signatures in multiple electoral districts. 430. Bradley A. Smith, “Judicial Protection of Ballot-Access Rights: Third Parties Need Not Apply,” 28 Harvard Journal on Legislation 167 (1991); Note, “Legal Obstacles to Minority Party Success,” 57 Yale Law Journal 1276 (1948); and, David Mazmanian, Third Parties in Presidential Elections (Washington: Brookings Institution, 1974) p. 91. The oft-repeated state justifications for state elections laws of preventing “party-splintering” or “party factionalism” are really just indirect ways to preserve a state’s party duopoly. Compare Justice Stevens’s remarks in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364, 367, 374–377 (1997) (Stevens, J., dissenting). 431. See, California Election Code § 7000 et seq. (West 2003 and supp. 2006). See also, Beaver v. Clingman 363 F.3d 1048, 1053 (10th Cir. 2004).

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432. See, Maurice Duverger, Political Parties: Their Origin and Activity in the Modern State (New York: John Wiley and Sons, 1954) pp. 216–228, explaining what has come to be known as “Duverger’s Law.” See also, Samuel Issacharoff and Richard H. Pildes, “Politics as Markets: Partisan Lockups of the Democratic Process,” 50 Stanford Law Review 643, 675 n. 121 (1998); and, William H. Riker, “The Two-Party System and Duverger’s Law: An Essay on the History of Political Science,” 76 American Political Science Review 753 (1982). 433. Federal election laws define a “minor party” as one whose presidential candidate received 5–25 percent of popular vote in last presidential election, 26 USC § 9002(7); and a “new party” as one that received less than 5 percent in last election, 26 U.S.C. § 9002(8). See, Buckley v. Valeo, 424 U.S. 1, 88–89 (1976) (per curiam). On the disparate financial treatment of “major” versus “minor” party candidates and of their nominating conventions, see, 26 USC §§ 9003, 9004, 9008. See also Justice Rehnquist’s comment in Buckley v. Valeo that public financing of presidential races “has enshrined the Republican and Democratic Parties in a permanently preferred position” over new or minor parties. 424 U.S. 1, 293 (1976) (per curiam) (Rehnquist, J., concurring in part and dissenting in part). 434. Kay Lawson, “How State Laws Undermine Parties,” in A. James Reichley, ed., Elections American Style (Washington: Brookings Institution Press, 1987); Lawrence D. Longley and James D. Dana, Jr., “The Biases of the Electoral College in the 1990s,” 25 Polity 123 (1992); and, Stephen J. Wayne, The Road to the White House 2004 (Belmont, CA: Wadsworth/ Thomson Learning, 2004) pp. 322–323. 435. E.g., Eu v. San Francisco County Democratic Committee, 489 U.S. 214 (1989); and Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). See also Chapter Two, supra. 436. See, Benjamin D. Black, “Developments in State Regulation of Major and Minor Political Parties,” 82 Cornell Law Review 109 (1996); and, Gregory P. Margarian, “Regulating Political Parties Under a ‘Public Rights’ First Amendment,” 44 William and Mary Law Review 1939, 1943–1944 (2003). 437. Justice O’Connor recognized this political reality in her concurrence to the Court’s decision in Clingman v. Beaver, 161 L.Ed.2d 920, 941 (2005) (O’Connor, J., concurring in part and concurring in the judgment) (“Although a State has a legitimate—and indeed critical—role to play in regulating elections, it must be recognized that it is not a wholly independent or neutral arbiter. Rather, the State itself is controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit.”) 438. Justice Sandra Day O’Connor was of this view, see her concurrence to Davis v. Bandemer, 478 U.S. 109, 144 (1986) (O’Connor, J., concurring), where she notes: “There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change.” 439. 354 U.S. 234 (1957). 440. Id. at 250–251. Compare Justice Stevens’ comments in Anderson v. Celebrezze, 460 U.S. 780, 794 (1983). 441. See, e.g., Talley v. California, 362 U.S. 60, 64–65 (1960) (finding a local ordinance void on its face that made it a crime to distribute handbills without sponsors’ names on it, noting the importance of anonymity for some groups); NAACP v. Button, 371 U.S. 415, 429 (1963) (recognizing associational rights of political groups and striking a state law that banned them from soliciting legal clients); and, Reynolds v. Sims, 377 U.S. 533, 570 (1964) (noting that the state’s electoral malapportionment “had resulted, with the passage of years, in the perpetuated scheme becoming little more that an irrational anachronism”). 442. 393 U.S. 23 (1968). 443. Id. at 32. 444. 403 U.S. 431 (1971). In 1974 the Court handed down two more important cases in this area: Storer v. Brown, 415 U.S. 724 (1974) (upholding California’s disaffiliation statute finding that it was supported by compelling state interest in protecting the state’s direct primary and maintaining stability of the political system); and, American Party of Texas v. White, 415 U.S.

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767 (1974) (upholding Texas’ law on ballot position for third parties as not violating either free association rights nor equal protection and as pursuit to vital state objectives with no reasonable less burdensome alternative available). 445. Id. at 438. 446. E.g., Bullock v. Carter, 405 U.S. 134, 144–145 (1972) (applying strict scrutiny to strike down Texas’ large filing fee for candidates who sought to appear on a party’s primary ballot because the filing scheme had “a real and appreciable impact on the exercise of the franchise”); American Party of Texas v. White, 415 US 767, 780–781 (1974) (upholding Texas’ ballot access laws—requiring, inter alia, that third parties hold conventions to select their nominees—as not imposing impermissible burdens on the party’s right to associate and as supported by valid state interests); and, Storer v. Brown, 415 US 724 (1974) (upholding California’s disaffiliation statute since it was supported by compelling state interests in protecting the primary process and in maintaining stability of the electoral process and presented no discrimination against independent candidates). In the lower courts, compare, Lippitt v. Cipollone, 337 F. Supp. 1405–1406 (N.D. Ohio 1971) affirmed, 404 U.S. 1032 (1972): (upholding Ohio nonaffiliation law that barred candidates from running in a party primary if they had voted in another party’s primary in the prior four years! Court found that law was not “invidious discrimination”); Bendinger v. Ogilvie 335 F. Supp. 572, 575 (N.D. Ill. 1971) (upholding Illinois’ two-year non-affiliation law, finding that it was supported by compelling state interests, including the preservation of the integrity of the party system. Court distinguished candidate and voter associational rights); and, Restivo v. Conservative Party of New York State, 391 F. Supp. 813 (S.D.N.Y. 1975) (dismissing complaint challenging New York regulation that candidates must be affiliated with a party before appearing on its primary ballot). 447. 424 U.S. 1 (1976) (per curiam). 448. Id. at 33. The Court of Appeals in this case was not bothered by the unequal treatment of parties: “Equal treatment of differently circumstanced parties is not always appropriate, but here we approve in the broad Congress’s consistent and long-standing approach of providing uniform treatment.” Buckley v. Valeo, 519 F.2d 821, 867 (D.C. Cir. 1975) (per curiam). More recently, the Supreme Court itself has reiterated the view that campaign finance regulations apply to all political parties, regardless of size, see, McConnell v. Federal Election Commission, 540 U.S. 93, 158–159 (2003). 449. Id. at 94–95. 450. Id. at 251 (Burger, C.J., concurring in part and dissenting in part). 451. Id. at 253. Compare the remarks of Chief Judge Bazelon of the District of Columbia Court of Appeals who was troubled by the impact of FECA’s disclosure requirements on new and third parties. He feared that these requirements would fall more heavily on new and third parties and would thereby stifle political debate in elections. Buckley v. Valeo, 519 F.2d 821, 907–912 (D.C. Cir. 1975) (Bazelon, C.J., concurring in part and dissenting in part). 452. Id. at 293 (Rehnquist, J., concurring in part and dissenting in part). 453. See, e.g., California Election Code § 7000 et seq. (West 2003 and supp. 2006). 454. 424 U.S. 1, 294 (1976) (per curiam). 455. 440 US 173 (1979). 456. Id. at 185–186. 457. 457 U.S. 957 (1982). 458. Id. at 965. 459. Id. On the question of special rights for third parties, compare Patriot Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party I), 95 F.3d 253, 256–258 (3rd Cir. 1996). 460. 460 U.S. 780, 793 n.16 (1983). 461. 502 U.S. 279 (1992). 462. Id. at 288–289 (Citations omitted). 463. Lightfoot v. Eu, 964 F.2d 865 (9th Cir. 1992) (third party unsuccessfully challenged California’s statute requiring the use of primaries); McLaughlin v. North Carolina Board of Elections, 65 F.3d 1215 (4th Cir. 1975) (upheld state signature requirement that third parties secure petition signatures of 2 percent of voters and that party’s gubernatorial candidate receive at least 10 percent of statewide vote to continue on ballot); and, Libertarian Party of Florida v.

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Florida, 710 F.2d 790 (11th Cir. 1983) (upholding a signature-verification fee requirement). But compare, Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992) (upholding right of a third party to petition for waiver of burdensome signature-verification fee on equal protection grounds). The rights of parties to free association were furthered expanded by a 1992 decision from the Eleventh Circuit in Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992) which recognized a party’s right to not associate with a potential presidential candidate. 464. 520 U.S. 351 (1997). 465. Id. at 366–367 (Citations and other references removed.) 466. Id. at 377 (Stevens, J., dissenting). Chief Justice Rehnquist responded to this charge in a footnote. Id. at 367 n. 10. 467. Id. at 378 (Footnote omitted). 468. Id. at 379, quoting Williams v. Rhodes, 393 U.S. 23, 31 (1968). 469. Id. at 379–380. 470. 161 L.Ed.2d 920 (2005). 471. Id. at 952. 472. Id. at 945. 473. Id. at 950 n. 8 (citations omitted). 474. Id. at 952 n. 12 citing, Rosario v. Rockefeller, 410 U.S. 752 (1973) (permitting lengthy registration periods); Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (approving bans on fusion candidates); and Burdick v. Takushi, 504 U.S. 428 (1992) (banning write-in candidates). See also, Richard L. Hasen, “Do the Parties or the People Own the Political Process?” 149 University of Pennsylvania Law Review 815 (2001). 475. Id. at 952 (citations omitted). 476. There has been considerable discussion in the law reviews on how the courts should treat third parties and state duopolies, see, e.g., Terry Smith, “A Black Party? Timmons, Black Backlash and the Endangered Two-Party Paradigm,” 48 Duke Law Journal 1 (1998); Gregory Margarian, “Regulating Political Parties under a ‘Public Rights’ First Amendment,” 44 William and Mary Law Review 1939 (2003) (arguing that the courts should foster “vigorous, broadly participatory electoral discourse” through substantial regulation of major parties and strengthened First Amendment protections for minor parties); and, Daniel Ortiz, “Duopoly versus Autonomy: How the Two-Party System Harms the Major Parties,” 100 Columbia Law Review 753 (2000). 477. See, Paul R. Abramson, John H. Aldrich, Phil Paolina, and David W. Rohde, “ThirdParty and Independent Candidates in American Politics: Wallace, Anderson, and Perot,” 110 Political Studies Quarterly 349 (1995) 478. V.O. Key, Politics, Parties, and Interest Groups, 5th ed. (New York: Crowell, 1964); E.E. Schattschneider, Party Government (New York: Holt, Rinehart and Winston, 1942); American Political Science Association, “Toward a More Responsible Two-Party System: A Report of the Committee on Parties,” 44 American Political Science Review (supplement 1950); Austin Ranney, The Doctrine of Responsible Party Government (Urbana, IL: University of Illinois Press, 1962). Compare, Davis v. Bendemer, 478 U.S. 109, 144–145 (1986) (O’Connor, J., concurring). 479. Bruce E. Cain, “Party Autonomy and Two-Party Electoral Competition,” 149 University of Pennsylvania Law Review 793 (2001); Richard L. Hasen, “Do the Parties or the People Own the Political Process?” 149 University of Pennsylvania Law Review 815 (2001); Richard L. Hasen, “Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition,” 1997 Supreme Court Review 331 (1997); Daniel Ortiz, “Duopoly Versus Autonomy: How the Two-Party System Harms the Major Parties,” 100 Columbia Law Review 753 (2000); and, Lisa Jane Disch, The Tyranny of the Two-Party System (NY: Columbia University Press, 2002). On the question of political stability under various types of party systems, see, Alan Ware, Political Parties and Party Systems (New York: Oxford University Press, 1996) pp. 154–168, ch. 7. 480. See, Richard L. Hasen, “Do the Parties or the People Own the Political Process?” 149 University of Pennsylvania Law Review 815, 838 (2001). Creation of a special constitutional exemption for third parties would of course run into some problems. Chief among these would be how to define a “new” or “minor” party so as to not open the door to a deluge a very small

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political “parties” crowding state ballots. While this nightmare has rarely if ever occurred, some minimum showing of support would probably still be necessary if minor parties were to be given easier access to ballots. 481. See chapter 2, supra; and, Nancy Northup, “Local Nonpartisan Elections, Political Parties and the First Amendment” 87 Columbia Law Review 1677, 1688-1690 1987) (attempting to disentangle the “process” and “political” roles of parties). 482. Well-known trends have led to decline of political parties and their role in elections, including: the rise of the independent voter, establishment of civil service systems, greater use of the direct primary, personalization of campaigns, loss of much political patronage, adoption of campaign finance laws favoring PACs, and the shift from labor-intensive campaigns to technology-intensive campaigns. See, Martin Wattenburg Decline of American Political Parties, 1952–1984 (Cambridge, MA: Harvard University Press, 1986). 483. The trend since the 1940s has been to view the electoral process as a single unit and to apply constitutional rules equally to both primaries and general elections. The Court has repeatedly stated that primaries are an integral part of the overall election process. See, e.g., Monro v. Socialist Workers Party, 479 U.S. 189, 196 (1986); Storer v. Brown, 415 U.S. 724, 735 (1974); U.S. v. Classic, 313 U.S. 299, 318–319 (1941); Smith v. Allwright, 321 U.S. 649, 659–660 (1944); Terry v. Adams, 345 U.S. 461 (1953); Nixon v. Condon, 286 U.S. 73 (1932); Bullock v. Carter, 405 U.S. 134, 140 n. 16 (1972); Foster v. Love, 522 U.S. 67 (1987); Morse v. Republican Party of Virginia, 517 U.S. 116, 205–206 (1996); Newberry v. U.S., 256 U.S. 232, 286 (1921); and, American Party v. Texas, 415 U.S. 767, 782 (1974). 484. The courts have occasionally recognized that there may be lesser, or at least different, state interest in regulating primary elections as opposed to the regulation of general elections. See, Anderson v. Celebrezze, 460 U.S. 780, 801 n. 29 (1983); and, American Party of Texas v. White, 415 U.S. 767, 786 (1974). See also the discussion in Beaver v. Clingman, 363 F.3d 1048, 1057 (10th Cir. 2004).

Chapter Four

The Regulation of Incumbent Political Parties

This chapter will review the law as it applies to political parties in their role as governors. While American political parties never take over the apparatus of government as do parties in some other political systems, their influence is nonetheless felt through the actions of their elected partisans. Like the party roles seen in earlier chapters, the party-in-government lacks precise boundaries but is usually described as being composed of the victorious party’s elected and appointed public officials. This governmental presence is closely connected to the party organization and the party-in-the-electorate. Most government officials owe their election in part to the support of a party organization and a core of partisan voters. Party organizations also play major roles in recruiting and running candidates for public office. The relationship between a party organization and the party’s public officials varies considerably over time and levels of government. 1 Even when they win an election, American political parties do not “enter” government in the same sense as their European counterparts do. One of the major reasons for this difference is that the separation of power doctrine discourages political cooperation between the legislative and executive branches of American government. The separation of the branches is reinforced by the staggered election schedules for the national political institutions and their responsiveness to different electoral constituencies. 2 Different terms of office and different constituencies mean that members of the House, senators and presidents often run on different issues. The separation of powers doctrine makes it much less likely that any one political party will be able to capture both houses of the Congress and the White House in a single election. Therefore the routine situation found in parliamentary democracies where a single party (or party coalition) controls both the legislative and 255

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executive branches is much less likely under the American system. The constitutional structure hampering party control of government in the United States is reinforced by a strong tradition of decentralized parties and the widespread use of the direct primary. Taken together, these features of the political system make it very difficult for a party to successfully coordinate a takeover of government or to implement a party program once in office. The federated nature of the American political system further complicates the situation and lessens the likelihood that a single political party could gain control over the entire apparatus of government. 3 Although both history and constitutional structure militate against a strong party orientation among elected American officials, political parties and partisanship are still very relevant for elected officials. The party-ingovernment “leg” of American parties is in relatively good shape, particularly in comparison with the party-the-electorate portion of American parties. The strength of the party-in-government is reflected in the party voting cohesion statistics for American legislatures where party affiliation remains the single most important predictor of legislators voting patterns. Once elected, a party’s officeholders remain dependent to some degree on their party organization and a core of partisan supporters (electors and donors). 4 While the membership of the party-in-government is relatively easy to identify, it is much more difficult to assess the extent to which party loyalty and partisanship motivate these government officials. Much of this difficulty stems from the fact that government officeholders typically act from a variety of motives. But officials often have considerable loyalty to their party organization and the party’s ideology. But elected officials are also interested in maximizing their personal power while in office and ensuring their own reelection. This mixture of political goals makes it very difficult to assess the degree of party influence on the behavior of political incumbents. 5 An example of this mix of political motives can be found in most partisan gerrymandering cases where members of the legislature’s majority party work to facilitate their party’s continued control of the legislature. Such efforts obviously help the party but also benefit the individual members by facilitating their reelection and the likelihood that they will be members of the majority party with its greater influence over the selection of committee chairs, budgetary decisions, and the scheduling of legislation. In most instances the practice of political patronage springs from a similar mix of motives. An elected official who appoints fellow partisans to office does so in order to reward supporters and ensure their future support. But these appointments are often made through the party organization particularly at the local level of government. 6 These overlapping motivations behind ostensibly partisan conduct make it difficult to determine whether a political decision is driven primarily by party loyalty or simply by political selfinterest.

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The tripartite model points towards according the party-in-government a minimum degree of constitutional protection relative to the treatment afforded the other two legs of the party tripod. The balance of rights and interests here favors firm regulation of incumbent partisans. The rationale for this treatment is that an incumbent party is in need of much less judicial or constitutional protection because it controls the apparatus of government. In addition, the interests of the public are at their greatest when facing a powerful and possibly entrenched incumbent political party. The rights of government employees, contractors, and job-seekers who are not allied with the incumbent party are also in need of their greatest protection under this scenario. Finally, the overall interest of the public in efficient, open and honest government would also appear to be at its strongest here. Since the party-ingovernment will control either or both of the elected branches of government, it has fallen to the independent judiciary to fashion the limits on these incumbent political parties. 7 Application of the tripartite model to the party-in-government however is not as straightforward as its application to the party organization or to the party-in-the-electorate. This is the case because there is little direct state regulation of incumbent political parties. State laws that have a regulatory effect on incumbent parties include such things as anti-bribery laws, campaign finance laws, and term limits legislation. Perhaps the single most important state laws affecting incumbent parties are those that establish state civil service systems. The details of such systems essentially set the balance between civil service jobs allotted on the basis of merit and those available for political appointment by the incumbent party. These laws are important to the parties because they typically determine not only how many jobs are available to the parties but also which jobs are available. Beyond these laws, there is minimal state regulation of the party-in-government. Given the paucity of state laws regulating incumbent parties, the role of the courts in establishing constitutional limitations is perhaps more important than the role of the courts in regulating the other legs of the party tripod. The remainder of this chapter will investigate the constitutional status of the partisan activities of elected officials in the two major contexts where conflicts most often arise. The first of these is the practice of party patronage which has long been used by parties to recruit and reward loyal party workers. Political patronage implicates important constitutional issues including the rights of free speech and free association and the right to equal protection of the laws. 8 The adjudication of patronage disputes has given the courts some important opportunities to think about the proper roles that parties and partisanship should play in government institutions. The other broad area where these questions have arisen has been in the legislative practice of partisan gerrymandering. Like patronage, this has been a political game played over much of American history. This practice also raises important

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constitutional questions of equal protection and the right to vote as well as how far an incumbent political party can go in using its majority status to further purely partisan goals. I. POLITICAL PATRONAGE AND THE PARTIES “Party is the madness of many, for the gain of a few.” —Alexander Pope, Thoughts on Various Subjects 9

One of the most venerable political traditions in America has been the practice of political patronage whereby a victorious political party rewards its supporters. The practice of political patronage pre-dates the Constitution and was even mentioned in the Declaration of Independence. Early presidents engaged extensively in political patronage but the practice was largely noncontroversial and unnoticed by the general public. From the time of Andrew Jackson, political patronage began appearing at the state and local levels of government and was an important factor in helping the early parties builds their organizations. But by the mid-nineteenth century, with the appearance of political machines, calls to curb political patronage and political corruption in government became much louder. The assassination of President Garfield in 1881 by a disgruntled office-seeker helped to spur the reform drive that culminated in the adoption of the Pendleton Act in 1883. This legislation established a merit-based federal civil service system that has expanded gradually to include ever larger proportions of federal employees. 10 Despite the establishment of a civil service system, presidents continued to make extensive use of political patronage. Franklin Roosevelt probably made the greatest use of patronage. He initially filled about 100,000 jobs with political appointees and through New Deal programs created another 100,000 positions that could be similarly filled. During this time there were renewed efforts by reform groups to extend the federal civil service system. In 1939, Congress passed the Hatch Act that sought to limit the political activity of government employees. 11 Since that time, most states have also enacted their own versions of a civil service system as well as laws limiting the political activity of their public employees. Today, about 99 percent of federal employees are covered by the civil service system, leaving modern president with more than five thousand jobs to fill through political appointment. Political patronage has survived better at the state and local levels of government where there has usually been less public scrutiny of the activity. The persistence of patronage at subnational levels also appears to still be important for the strength of the party organizations. 12 It is clear that the scope of political patronage has also undergone considerable evolution over the nation’s history. Traditional or classic patronage is

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usually thought of as the provision of government jobs in return for political support. Indeed, over most of our history this was the predominant form that patronage took. This basic form of patronage has declined with the rise of modern civil service systems that has reduced the number of jobs available for political appointment. Traditional patronage has also suffered in the modern era with the decline of political machines that have been weakened by the development of an extensive public welfare system and the greater use of the direct primary. Patronage has long included many government benefits beyond public employment. But the rise of civil service systems and the consequential decline in patronage jobs has shifted the definition of patronage more sharply in this direction. Today, political patronage commonly includes a wide range of government “preferments” such as zoning variances, government contracts (service, consulting, and purchase), government franchises and subsidies, tax abatements, “judicial patronage” (trusteeships, guardianships, and refereeships), appointments to advisory boards, and even non-material “ceremonial patronage” such as photo opportunities and invitations. Many of these newer forms of patronage are directed at businesses (law firms, accounting firms, construction companies, etc.) rather than at individuals. The expected support has also shifted from individual votes to financial contributions. As the role of government in the economy has grown, more opportunities have appeared for government officials to hand out benefits to friends and supporters. The changing definition of political patronage has made it more difficult to determine the extent of the practice and what role political parties play in the process. The older traditional forms of patronage are more easily linked to partisan behavior. In a process most often associated with political machines, government jobs and other preferments were allocated on a case-bycase basis often by party leaders in return for electoral support. Modern forms of patronage are more subtle and diverse and appear to be less connected with the parties themselves. The evolution of patronage into less overt forms has “masked” much of the influence that party leaders can still exercise over the allocation of local jobs and other benefits. 13 The tradition view of political patronage has been that it provides “fuel” for political parties by giving them a way to recruit and reward party members. This understanding of patronage was probably more accurate in the past when patronage was largely the giving out of government jobs and political machines were viable forces in many areas of the country. With the evolution of patronage to “softer” forms of reward, the link between the two is less certain. Even if one accepts the view that patronage is helpful to party organizations, it is unclear the degree to which party patronage actually benefits the party as a whole as opposed to helping the individual incumbent official. 14 The extent to which patronage helps the parties is also a matter of

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dispute among justices with conservative members of the Supreme Court usually adhering to the older view that patronage is an important ingredient in maintaining viable parties in this country. A. The Classic Debate over Political Patronage As long as political patronage has existed there has been a debate over whether it is a desirable feature in a democracy. At first glance, there seems to be little redeeming value in a practice that gives out political jobs in return for votes or other political support. In its most basic form, patronage appears to undermine the principle of merit selection by placing otherwise unqualified political appointees into government jobs. For many, patronage looks simply to be a precursor to widespread corruption in government. Some critics have argued that the practice encourages mediocrity in government by rewarding individuals on the basis of something other than qualifications for the jobs they are receiving. Since at least the time of the Progressives there have been calls for a politically neutral, professional government bureaucracy to operate government programs in an efficient manner. When patronage is judged in light of First Amendment issues by the courts, additional problems come to light. Chief among these is the tendency of patronage to squelch the exercise of free speech and free association by government employees. In the words of one critic of political patronage: Patronage, therefore, is anathema to three recognized First Amendment functions. First, patronage reduces the freedom of certain individuals to think and believe as they wish. Second, this reduced freedom of thought correspondingly reduces the ability of opposing political associations to form, thereby reducing the total amount of information and associations available to the electorate. Finally, patronage allows a current government to insulate itself from criticism by removing those individuals who could most effectively expose official abuses. 15

However, political patronage does have its defenders who usually point to two related arguments in support of the practice. The first of these is that patronage helps political parties recruit and motivate party workers. If political parties are vital to democracy, then they must be able to attract supporters to the party organization as well as to their candidates. While there are many reasons for people to join and support political parties, material rewards are still among the most potent incentives. 16 The second argument in favor of political patronage is closely linked to democratic theory and the responsible party model. This position argues that a victorious party has a responsibility to its electoral supporters to implement the policies that the party ran on during the election campaign. In order to carry out this electoral mandate, the elected party officials need to be able to hire loyal (partisan) personnel to

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help them implement the party’s platform and policies. Under this interpretation, patronage is regarded as an important ingredient in responsive and representative government. 17 Patronage is also justified by more practical arguments from a managerial perspective. Here it is argued that political patronage is necessary for political leaders to be able to maintain discipline or harmony among co-workers and to preserve confidentiality and loyalty in the administration. This position holds that the efficient management of government offices is enhanced by a workforce that is responsive to its political leadership. 18 Both sides in this debate advance some persuasive arguments though there is little empirical evidence to support either set of arguments. 19 The result has long been to compromise by combining elements of both political patronage and merit selection in the staffing model for government. This compromise, however, leaves unsettled the more difficult issue of where to strike the balance between these two methods of appointment. What proportion of government positions, and which types of government positions, should be available for political appointment? The answer to this question seems to depend greatly on the role that one envisions political parties playing in our political system. If parties are seen as habitually corrupt political entities then it is easy to conclude that their patronage activities should be sharply curbed. If parties are seen as playing a vital role in representative government then the opposite conclusion is reached. As this debate moved into the courts in the 1970s, judges were forced to confront many of these difficult theoretical issues in the context of actual disputes. 20 The question as to which branch should determine the proper balance between the patronage and merit systems adds yet another complication to this debate. Legislatures have typically made the initial decision as to how extensively political appointments should be used and to which positions they should apply. But the argument can be made that the courts are less overtly partisan than legislatures and should therefore play a role in adjudicating the proper balance. The expansion in the First Amendment rights of expression and association and their extension to public employees has meant that the courts today have many more constitutional “tools” with which to participate in this debate. 21 The entry of the courts into the battle over the scope of political patronage has laid bare many of the key issues, including: 1) the role of parties (and other political organization) in a democratic system of government, 2) how the rights of parties articulate with the rights of other political organizations and individuals, and 3) how far states may go in regulating their parties when they are serving as the incumbent government. 22

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B. The Supreme Court Addresses Political Patronage: The Elrod and Branti Decisions The Supreme Court did not directly deal with the many issues raised by political patronage until 1976. But before that time the courts had taken many cases dealing more generally with the constitutional rights of public employees outside the context of political patronage. 23 The traditional view that public employees enjoy few constitutional protections is often traced to Justice Holmes’s famous comment that, “[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” 24 For many years the courts remained unwilling to extend constitutional protections, including the First Amendment, to public workers. 25 The rationale for much of this early thinking this was that public employment was a “privilege” rather than a “right.” 26 This view eventually gave way to the modern position that public employees enjoy constitutional protection for most of their First Amendment activities in much the same way as do other citizens. 27 For instance, the Court has ruled that states may not require their public employees to subscribe to loyalty oaths, 28 that government may not deny employment based on a person’s prior membership, 29 and that public workers are entitled to First Amendment rights of free expression on matters of public concern. 30 Despite the general expansion in the constitutional rights of public employees during the 1960s and 1970s there was very little judicial consideration of political parties or the party system during this time. As constitutional rights were recognized for the public workforce the stage was set for the courts to consider the more difficult questions of political patronage itself. By the early 1970s, a split appeared among courts in this country over the question of whether some public employees could be dismissed on purely partisan grounds. Most court at this time supported the patronage system by turning away claims brought by public employees alleging partisan dismissals. 31 However a few courts, led by the Seventh Circuit Court of Appeals, were willing to recognize the broad rights of public employees to constitutional protection from partisan reprisals. 32 This split brought to the fore most of the major arguments for and against the practice of political patronage. It also helped force the Supreme Court to address some of the issues in this debate. The growth in the First Amendment rights of public employees inevitably meant that there would come a time when the courts would have to reconcile the extensive use of patronage, particularly at the state and local levels, with other political values. That time came in 1976 when the Supreme Court heard a challenge to the patronage system in Cook County, Illinois. This dispute, captioned Elrod v. Burns, 33 presented the Court with an ideal vehicle for its first major ruling on the propriety of patronage in American government since it raised many of the major issues in the debate over the practice. The

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claim arose out of a common fact pattern: the lead plaintiff was a Republican political appointee in a sheriff’s office who had been dismissed after an election brought in a sheriff affiliated with the Democratic Party. The plaintiff’s challenge was based on the First Amendment rights of free association and free speech as well as a statutory claim brought under section 1983. 34 The defendants included not only the new sheriff but also the Central Committee of the Cook County Democratic Party thus making the link between partisan officeholders and the local party organization. The district court dismissed the complaint but the Seventh Circuit reversed finding that the dismissed workers did state a claim upon which relief could be granted. 35 The case presented a perfect opportunity for the members of the Supreme Court to discuss the role of patronage in government, its links to the viability of the party system, and the relationship between patronage hiring and civil service systems. In a closely divided opinion the Supreme Court affirmed the ruling of the Seventh Circuit. Justices White and Marshall joined in Justice Brennan’s plurality opinion for the Court which held that patronage dismissals imposed severe restrictions on the First Amendment freedoms of belief and association. They noted that the burden might only be indirect but was nonetheless real: “The threat of dismissal for failure to provide [political] support unquestionably inhibits protected beliefs and association, and dismissal for failure to provide support only penalizes its exercise. The belief and association which government may not ordain directly are achieved by indirection.” 36 Their opinion went on to state that a standard of “exacting scrutiny” should be applied in such cases with the government bearing the burden of showing that the dismissal furthered a “paramount” government interest or one of “vital importance” that could not be achieved through means less restrictive of employees’ constitutional rights. 37 In the course of his opinion for the Court, Justice Brennan considered each of the classic arguments in support of political patronage systems. The first of these is the argument that patronage enhances government “efficiency” through the hiring of employees more likely to support the elected administrators and their policies. The Court stated flatly that it was not convinced that this would be the result of wholesale patronage appointments. In fact, Justice Brennan argued that efficiency could be harmed by large-scale turnovers in government personnel every time there was a change of party control. He also questioned whether the newly appointed political employees would really be better than the more experienced workers that they were replacing and whether holdovers from a prior administration would really try to sabotage the new administration. Finally, Justice Brennan suggested that efficiency in government could be achieved through less burdensome means, namely the discharge of insubordinate or inefficient workers regardless of their political affiliation. 38

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Justice Brennan then turned to another well-worn argument in support of patronage: that the practice fosters representative government by ensuring that elected officials are served by loyal underlings who will help them implement their electoral mandate. He found more substance to this argument but ultimately rejected it, stating what was to become the new standard for settling disputes in this area: The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end. Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party. 39

The Court thus established its rule that “policymaking” public employees were subject to patronage reprisals while non-policymakers were not. Justice Brennan conceded that the distinction between policymakers and non-policymakers would be a difficult one to draw in practice. He offered this definitional guidance: “In determining whether an employee occupies a policymaking position, consideration should be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” 40 In a very brief concurrence, Justice Stewart added to the definition of the class of protected workers the concept that they were also distinguished by being “non-confidential” employees, but offered no examples or clarification. 41 The plurality’s recognition of two classes of public workers was an effort to strike a balance between patronage and merit in government employment. Those who served as policymakers or confidential employees would traditionally be political appointees and therefore have less need for constitutional protection in the exercise of their First Amendment freedoms. Other government workers, inelegantly identified as “non-policymakers,” would be the civil servants who would be given greater constitutional protection. This distinction between classes of government workers was not given extended discussion in Elrod, but it was destined to become a major issue in this debate and one that would be revisited by the Court. Finally, Justice Brennan turned to the claim that patronage helps to support the democratic process in this country by strengthening the party system. This argument triggered some of the most revealing discussions on the Court over the role that parties can or should play in our political system. Justice Brennan cautioned that, “care must be taken not to confuse the interest of partisan organizations with governmental interests.” 42 He offered these observations on political patronage and the party system: [H]owever important preservation of the two-party system or any system involving a fixed number of parties may or may not be . . . we are not persuaded that the elimination of patronage practice or, as is specifically involved here,

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the interdiction of patronage dismissals, will bring about the demise of party politics. Political parties existed in the absence of active patronage practice prior to the administration of Andrew Jackson, and they have survived substantial reduction in their patronage through the establishment of merit systems. 43

Justice Brennan made a few other observations on parties and patronage that pointed out some other potentially negative repercussions of the practice. One of these adverse effects was that political patronage could lessen political competition by giving the incumbent party too much control over the pool of political volunteers. Justice Brennan described the scenario thusly: The free functioning of the electoral process also suffers. Conditioning public employment on partisan support prevents support of competing political interests. Existing employees are deterred from such support, as well as the multitude seeking [public] jobs. . . . Patronage thus tips the electoral process in favor of the incumbent party, and where the practice’s scope is substantial relative to the size of the electorate, the impact on the process can be signficiant. 44

These remarks are not supported by any facts in the Elrod case or by any empirical studies, but are still quite revealing of the attitude of this wing of the Court. It shows that some justices do envision some kind of incumbent political party even in the American political system. It also indicates that some member of the Court appreciate the link between the behavior of elected officials and their party’s organization. The Court also showed some concern here for the possibility that an incumbent political party might use its powers to unfairly perpetuate its hold on power. 45 Justice Powell wrote a sharp dissent to the plurality decision in Elrod in which Chief Justice Burger and Justice Rehnquist concurred. 46 This dissent responded to most of the major points set forth in Brennan’s opinion, including his interpretation of the role that political parties play in American politics. Justice Powell believed that the patronage system was a longtime contributor to the democratization of politics in this country. He described the role that patronage has played in these terms: Patronage practices broadened the base of political participation by providing incentives to take part in the process, thereby increasing the volume of political discourse in society. Patronage also strengthened parties, and hence encouraged the development of institutional responsibility to the electorate on a permanent basis. 47

The dissenters claimed that patronage was an important component in maintaining the health of the parties. Justice Powell believed that he was taking a more realistic and practical view of patronage and its contributions

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to democracy than did the plurality opinion. Instead of focusing on the “modest intrusion on First Amendment rights” he gave greater weight to the benefits that patronage supplied to both the democratic system indirectly and to the parties directly. 48 Justice Powell described the relationship between parties and patronage thusly: “[P]atronage hiring practices have contributed to American democracy by stimulating political activity and by strengthening parties, thereby helping to make government accountable. . . . We have recognized the strong government interests in encouraging stable political parties and avoiding excessive political fragmentation.” 49 Justice Powell agreed with Chief Justice Burger that the decision as to where to strike the balance between patronage and merit system should be left to legislatures. 50 He believed that this was especially important for local governments where he claimed that patronage made its greatest contribution to the “democratic process.” 51 Justice Powell believed that at the local level of government party activities “are often the principal source of political information for the voting public. The ‘robust’ political discourse that the plurality opinion properly emphasizes is furthered—not restricted—by the time-honored system.” 52 The dissenters thus focused on the larger, systemic contributions of parties, minimizing the practice’s burden on individual First Amendment rights. Justice Powell seemed unimpressed by the plurality’s reservation of political appointments for a class of government “policymakers.” He predicted that this would mean, in practice, that very few local jobs would be available for patronage appointments and that this would eventually erode the contributions that patronage makes to democratic politics locally. 53 As it turned out, this critical distinction between classes of public employees was to become the most difficult part of the plurality’s opinion to implement. But Justice Powell was right in his belief that how the courts interpreted and applied this distinction would be decisive. Finally, Justice Powell bolstered his argument by noting that the plaintiffs in this case were themselves beneficiaries of the patronage system since they had been hired by a prior partisan regime. By implication, their claims to deprivation of First Amendment rights of speech, belief or association were merely convenient pretexts for challenging a system which was not currently working to their advantage. 54 This was apparently an effort to minimize the First Amendment aspects of negative patronage actions. He also noted in passing the common argument that patronage systems help political minorities, particularly new ones, enter the political system and participate in the electoral process. 55 In 1978, the Court briefly revisited the distinction between policymakers and non-policymakers in government in Foley v. Connelie. 56 This case involved the application of the distinction to the hiring of aliens to serve as New York State troopers. At the time, New York barred non-citizens from

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serving as state troopers. The Supreme Court turned down the plaintiffs’ equal protection claim, stating that since police officers fall within the category of important non-elective officers who participate directly in the execution of broad public policy there was a rational relationship between the state’s citizenship requirement and the position’s responsibilities. 57 In dissent, Justice Stevens took issue with the use of this distinction, noting that it had not been applied consistently and that the Court should expressly identify “the group characteristic that justifies the discrimination.” 58 The questions over the distinction between classes of public employees remained unsettled. Four years after its decision in Elrod the Court heard its second major political patronage case in Branti v. Finkel. 59 This 1980 case provided an opportunity for the Court to speak again on the difficult distinction between types of public employees which the Court had adopted in Elrod. The Branti case arose from a familiar partisan dismissal scenario: a newly elected public defender in New York decided to terminate several assistant public defenders in his office, including the plaintiff in the case. The basis for the terminations was the fact that the assistant public defenders did not support the party of the newly elected public defender. The federal district court and Court of Appeals for the Second Circuit both ruled in the plaintiff’s favor on the basis of Elrod. 60 When this case reached the Supreme Court six justices were willing to affirm that assistant public defenders could not be discharged solely on the basis of their political beliefs. The opinion was written by Justice Stevens who had been on the Court in 1976 but had not participated in deliberations over the Elrod dispute. Justice Stevens refined the standard from the Elrod decision into a new one that placed an even greater burden on the public employer seeking to discharge employees on partisan grounds. Whereas the Elrod plurality had relied heavily on the distinction between policymaking and non-policymaking employees in assigning constitutional rights, the Court in Branti took a new tactic. The majority admitted that it was very difficult in practice to clearly draw this distinction between classes of public employees, particularly given variations among jurisdictions. They therefore recast the standard for determining the application of constitutional protections in patronage dismissal cases in these terms: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 61 This new standard was clearly calculated to put a significant burden of proof onto the public employer seeking to discharge employees. This higher standard for patronage dismissals was supported by a larger majority on the Court and appeared to indicate that the Court was determined to tighten the

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constitutional noose around the practice of political patronage. Chief Justice Burger, who had joined Justice Powell’s dissent in Elrod, effectively switched sides in the patronage debate by joining in Justice Stevens’s majority opinion in Branti which was even more restrictive of the practice. Once again, Justice Powell voiced his opposition to what he regarded as the Court’s “evisceration of patronage practices” by writing a dissent to the Branti decision in which Justices Rehnquist and Stewart joined. 62 Reiterating many of the same argument that he had made four years earlier in Elrod, Justice Powell criticized the majority for ignoring “almost 200 years of American tradition,” 63 impinging on the prerogatives of the legislative and executive branches, 64 and ignoring the “substantial governmental interests served by patronage.” 65 But Justice Powell seemed most upset over the expansion of the Court’s war on patronage by the adoption of a new, harsher standard. He claimed that the new standard was “framed in vague and sweeping language certain to create vast uncertainty.” 66 As an example, he noted that presidential appointment of U.S. attorneys, which had long been a largely partisan process, would be difficult to prove under the new Branti standard. He believed that the Court’s new standard would “cast doubt on the propriety of dismissing United States attorneys, as well as thousands of other policymaking employees at all levels of government, because of their membership in a national political party.” 67 In place of the majority’s refined Elrod standard, Justice Powell offered his own standard that he believed would take into account the government interests in maintaining a patronage system. He stated his standard in this way: “No constitutional violation exists if patronage practices further sufficiently important [governmental] interests to justify tangential burdening of First Amendment rights.” 68 This standard is more of a traditional balancing test commonly used in First Amendment areas of the law. But it also seems to build in a denigration of the First Amendment rights often raised in these cases by referring to “tangential burdening.” If the test is simply a straightforward balancing test, it would seem that members of the majority would probably reach the same conclusion in Branti simply because they assessed a greater burden on the First Amendment rights implicated. Perhaps for this reason, Justice Powell went on to catalog at length the other side of the equation, namely, the important benefits to government from the existence of political patronage. The core of Justice Powell’s assertion that patronage provides important benefits to government was the connection he made between patronage practices and what he termed “stable political parties.” 69 He claimed that party stability brings a large number of important benefits to the political system. For instance, he argued that patronage helped avoid “party factionalism” and thus kept the parties healthy. He also argued that patronage enhanced the fund-raising abilities of the parties and thereby helped them communicate

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with the public in the era of modern political campaigns. He believed that maintenance of strong parties was also healthy for our system of separation of powers since parties provide one of the few bridges between the legislative and executive branches of government. Strong parties would also strengthen the ideological coherence and message of parties which would in turn give greater meaning to party labels, thereby helping voters better comprehend political campaigns and evaluate candidates. On a larger scale, Justice Powell saw the preservation of strong parties as an important ingredient in stemming the growing power of interest groups. He believed that strong parties would enhance the “quality of political debate” in this country by preserving parties which serve as broad-based “coalitions of different interests” against the “narrow concerns of unrepresentative special interest groups.” 70 He also raised the familiar argument that patronage was a necessary component in government responsiveness, stating that parties served the public interest “by facilitating the implementation of policies endorsed by the electorate.” 71 Justice Powell described the role that political appointees, in contrast to civil servants, play in helping to implement voters’ electoral preferences. He feared that the majority’s decision in Branti adopting a more anti-patronage standard would tip the balance between the two types of government employees, weakening both parties and the representativeness of elected governments. Finally, Justice Powell raised some federalism concerns by asserting that the majority opinion would “impair the right of local voters to structure their own government.” 72 The Branti decision shifted the emphasis away from a definitional category to one where the government entity had to show the link between the employment position and partisan needs. No longer would the categorization of government workers as policymakers carry a talismanic effect. 73 This change no doubt was intended to narrow the field of public employees who would be subject to political hiring and firing. However, the new standard continued to imply that there were still some government jobs that should be filled using political or partisan basis. The continued existence of this class of public employees remained largely undefined in the wake of the Court’s decisions in Elrod and Branti. The difficulty in drawing a bright line between those public workers who are subject to political appointment and those who are not has remained the most difficult issue in this area. 74 The Court in Branti admitted that the class of public jobs for which party affiliation is “relevant” is not necessarily congruent with those positions which are considered to be “policymaking” or “confidential.” 75 This apparently meant that the class of workers identified by the Elrod test could be different from the group of employees defined by the Court’s test in Branti. The fact that the Court’s two tests identify potentially different sets of government workers was not a helpful refinement of the law in this area. The one thing that most

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of the justices agreed upon was that such a class of public employees, though difficult to define, does exist. 76 C. The Lower Courts’ Response to Elrod and Branti In the wake of the Elrod and Branti decisions there was considerable confusion among the lower courts as to a number of issues. 77 Most fundamentally, there remained the question of which public employees were covered by the Elrod-Branti exceptions. This was essentially a definitional problem: which workers should be considered “confidential” and/or “policymakers” and thus subject to patronage-based employment actions. But other thorny issues also persisted in this area. One of these was how to treat independent contractors who worked for government entities. 78 Should these workers be accorded the same rights under Elrod-Branti as formal government employees? Another important question was whether the protections of Elrod-Branti should apply to adverse government actions short of outright dismissal, such as transfers, failures to promote, and recalls after layoff. Still another problem at this time was whether the Elrod-Branti test, which had been developed in cases involving actions based only partisan affiliation, should be extended to cases where public employees had been dismissed for reasons of political expression unconnected with partisan activity or membership. For years following Branti, the adjudication of these sub-issues allowed lower federal courts to tilt the constitutional protections either for or against political patronage in their own circuits. 79 The first problem facing the lower courts was how to reconcile the differing standards set forth in Elrod and Branti themselves. The decision in Elrod had relied on definitional categories of employees (“policymakers” versus “non-policymakers”) as the way to identify those public employees who were entitled to constitutional protections. In Branti, however, the Court had pulled back from this position and ruled that these labels were merely guidelines and offered another standard. 80 Lower courts were left to select the standard that was most compatible with their own views on the appropriate balance between merit and patronage-based employment systems. The Third and Fourth Circuits eventually adopted the Branti rule, 81 the Second Circuit refused to expand constitutional protections to more public employees, 82 and the First Circuit devised its own two-step test for such cases. 83 Some lower courts tried to refine the Elrod-Branti decisions by clarifying what types of public employees should fall under the labels “policymakers” or “confidential” employees. Some of these lower court opinions tried to list a wide range of municipal jobs as being on one side or the other of the ElrodBranti line of protection. 84 Other courts tried to add sharper definitional language or identify factors that would help distinguish the two sets of public employees. 85 The Seventh Circuit probably went the furthest in trying to

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sharpen the Branti test, re-stating it as, “whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decision-making on issues where there is room for principled disagreement on goals or their implementation.” 86 This Circuit thus reinforced the Supreme Court’s attempts to segregate those public employees who were entitled to constitutional protection from those who would generally be subject to patronage hiring and firing. Each judge considering this question applied his or her own views on how broad the class of protected employees should be. Those who were hostile to partisan patronage could narrow the class of potential patronage appointees by narrowing the definition of the class of those employees protected. The lower courts also split sharply over the difficult question of whether the judiciary should protect all political activities of public employees or merely their political affiliation. 87 Both Elrod and Branti had dealt with situations where the plaintiffs had been dismissed because of their party identification and therefore involved primarily the rights to free association and political belief. However, many cases appearing in the lower courts involved an adverse action by the government against public employees for expressing political opinions that ran counter to their superior’s views. These latter cases raised First Amendment free speech issues and involved actions that were motivated by political differences rather than solely on the basis of different partisan affiliations. 88 This is obviously an important distinction as it directly implicates the scope of the constitutional protection. The Supreme Court itself had created a balancing test for political expression with its 1968 decision in Pickering v. Board of Education. 89 But the Elrod-Branti decisions set forth a categorical test for judging cases of political affiliation. The applicability of these two tests, and their relationship to one another, continued to confound the lower courts through the 1980s. 90 The most vexing aspect of this problem was the choice of tests in those cases of public employee discharge where there was mix of motives on the part of the employer. 91 In these disputes, the adverse action was grounded partly on the employee’s partisan affiliation and partly on his or her political expression (usually campaign activity). One of the most thorough judicial attempts to resolve this dilemma was written by Judge Phillips of the Fourth Circuit Court of Appeals in his 1984 decision in Jones v. Dobson. 92 This case involved the dismissal of several employees in a sheriff’s office based on a wide range of motives including both expressive conduct and party affiliation. The Fourth Circuit wrestled with this problem and decided that the trier of fact should initially decide if the dismissal was motivated by partisan affiliation or overt expressive conduct. If the former situation was found to be the case then the Branti test would be applied, if the latter situation was found then the Pickering balancing test would be used. In those cases presenting a mixture of motives, the Fourth Circuit decided that the employer

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could, “avoid liability for violation of protected first amendment rights by proving that the discharge would have been made in any event for reasons unrelated to any exercise of protected first amendment rights.” 93 This meant that if the employer could show that the dismissal was based solely on jobrelated misconduct or poor job performance then the action would be upheld. Only a few lower courts reached the broader theoretical questions concerning political parties that the Supreme Court had discussed in both its Elrod and Branti opinions. One of the more thoughtful of these opinions was handed down by Judge Ruggero Aldisert of the Third Circuit in a 1980 dissent in Loughney v. Hickey. 94 Judge Aldisert attacked the Elrod-Branti decisions, that he felt were “incorrectly decided,” 95 and presented a lengthy defense of the practice of political patronage in American politics. Judge Aldisert agreed with much of Justice Powell’s dissenting comments from Elrod and Branti, particularly on the point that patronage was an important component in responsive democratic government. But he went further in advocating the advantages of patronage over a system solely reliant on meritappointed bureaucrats, stating that: One very important question not yet seriously investigated is whether an independent civil service, an unbridled bureaucracy, was too great a price to pay for the elimination of an undetermined amount of public corruption. . . . I advance the thesis that the reform zeal that caused the replacement of patronage with an all-pervasive civil service has given us little improvement and much cause for concern. From the standpoint of democratic government, the result of replacing patronage with civil service, in my view, has been disastrous. 96

Judge Aldisert noted that the costs of modern bureaucracy in a democracy were considerable, including the employment of an intransigent workforce unresponsive to elected officials. 97 He complained that elected officials had come to be burdened with a bureaucracy filled with merit-appointed civil servants who were protected by civil service laws and powerful unions. He believed that this led to ineffective and unresponsive government. He explained that: No law review article or political science treatise adequately responds to the uniform views of beleaguered mayors, county executives, governors, and federal cabinet officers concerning the difficulties of producing a government responsible to an electorate, but dependent for its implementation on the headless fourth branch of government. These leaders now have the responsibility, but not the authority to govern. 98

Judge Aldisert would have struck a different balance between the two sets of competing First Amendment claims here. He noted that, “My view of the balance . . . is that the destruction of important political traditions and prac-

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tices essential to successful self-government is too great a price to pay for the sole purpose of protecting unbridled freedom of association as an end in itself.” 99 Another significant discussion of the competing rights involved in patronage cases came from then-Circuit Judge Stephen Breyer in a concurring and dissenting opinion to the First Circuit’s decision in Agosto-de-Feliciano v. Padilla in 1989. 100 Judge Breyer identified two sets of free association interests that co-exist in these cases: On the one hand, the First Amendment protects a government employee’s association with others in a political party. On the other hand, a major reason the Constitution protects associational interests is so that individuals can join together in working to elect a government that will create practical programs of administration to carry out the policies they advocate. Thus when courts apply the First Amendment to protect political associational interests of government employees, they must recognize not only that the lack of any protection can open the door to unwarranted, politically based victimization, but also that too much judicial intervention may unjustifiably interfere with the electorate’s ability see its political aims translated into action. 101

Judge Breyer thus identified one of the key problems in this area of constitutional law, namely, the clash between the protection of individuals’ liberties and the structural support for our representative form of government. In the patronage situation these goals can come into conflict with one another. 102 This happens when patronage appointees are removed from office for political reasons. Such actions may help elected officials respond to their constituents but can simultaneously infringe the First Amendment rights of individual employees or job applicants. This First Amendment dilemma remains unresolved. Federal judges have divided sharply over the composition of the class of public employees subject to adverse politically based actions and how this class should be identified. However, virtually all of them agree that there is a need for at least a few political appointees in government. 103 This fact means that there will probably be continued efforts to identify the parameters of this class. Judge Coffin of the First Circuit described this dilemma well in 1986: [R]epresentative government needs a certain amount of leeway for partisan selection of agents in order to work. These agents may be policy-makers, confidential employees, or others for whom party affiliation is an equally “appropriate” requirement. . . . In order for the new administration to be given an opportunity to fulfill expectations, it must have available and also appear to have available significant facilitators of policy, people who have the personal and partisan loyalty, initiative, and enthusiasm that can make the difference between the acclaimed success of a government agency or program and its failure or, more typically, its lackluster performance. The presence of such

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The fact that most judges see a need for such policy “facilitators” in government ensures that political patronage will probably not be eliminated entirely and that the courts will continue to wrestle with adequately defining the parameters of this class of public employees. While the courts continued to refine the Elrod-Branti cases, new problems were emerging in the lower courts over how to handle other types of cases involving the dismissal of public employees. In 1990, the Supreme Court would re-enter the debate over patronage and employee dismissal. D. The Rutan Decision: Extending Constitutional Protections The question of which adverse government actions should trigger constitutional protections for public employees had arisen many times since Branti. Both of the Supreme Court’s earlier patronage decisions had dealt exclusively with situations of outright job dismissal and provided no guidance on whether less severe government actions should be protected. 105 In the 1980s some of the lower courts read the Supreme Court precedents as being limited to cases of outright dismissal while others were willing to extend the protections to employees who had been subjected to lesser adverse actions. 106 The Supreme Court explicitly left this issue open in its Branti decision. 107 As a result, the issue continued to percolate in the lower courts until 1990 when the Supreme Court finally addressed this question in Rutan v. Republican Party of Illinois. 108 In its 5–4 decision the Court held that the First Amendment prohibits public employers from basing decisions of “promotion, transfer, recall after layoff, and hiring” on political party affiliation or support. 109 In so holding, the Court expanded considerably the protections of Elrod and Branti that had concerned only outright dismissals. The dispute in Rutan had its origin in a 1980 executive order issued by Illinois governor James Thompson that froze hiring for all state jobs under his control. The goal of the order was to establish a patronage system that would allow the governor’s office to screen public job applicants on partisan grounds. Several plaintiffs brought suit alleging that they had been denied public employment or had suffered other adverse employment actions. The federal district court dismissed their complaint and the case proceeded to the Seventh Circuit Court of Appeals. 110 That court held that patronage practices violate First Amendment protections when they are the “substantial equivalent of dismissal.” 111 Applying this standard, the Seventh Circuit extended the Elrod-Branti protections to claims of partisan-based employment actions of promotion, transfer and recall but refused to extend it to partisan hiring claims.

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The Supreme Court upheld the Seventh Circuit opinion, agreeing that the Elrod-Branti protections should be extended to government actions short of dismissal. The Supreme Court majority was also willing to go further and extent the protections to patronage hiring. 112 Led by Justice Brennan, five members of the Court found that: [O]ur conclusions in Elrod and Branti are equally applicable to the patronage practices at issue here. A government’s interest in securing effective employees can be met by discharging, demoting, or transferring staff members whose work is deficient. A government’s interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views. 113

The Brennan majority rejected the Seventh Circuit test of whether the adverse government action was the “substantial equivalent of dismissal” because that test “fails to recognize that there are deprivations less harsh than dismissals that nevertheless press state employees and applicants to conform their beliefs and associations to some state-selected orthodoxy.” 114 The Supreme Court in Rutan dealt only with the issue of what government action triggers Elrod-Branti protections. The Court provided no discussion of what classes of government employees should be entitled to such protections since it was conceded at trial that none of the plaintiffs were either policymakers or “confidential employees.” 115 The majority in Rutan briefly addressed the claim that patronage was salutary for the political system or the parties, noting that: “[P]reservation of the democratic process” is no more furthered by the patronage promotions, transfers, and rehires at issue here than it is by patronage dismissals. First, “political parties are nurtured by other, less intrusive and equally effective methods.” Political parties have already survived the substantial decline in patronage employment practices in this century. . . . Second, patronage decidedly impairs the elective process by discouraging free political expression by public employees. 116

While the majority in Rutan gave only scant attention to political parties, Justice Scalia wrote a lengthy dissenting opinion in which he restated many of the standard arguments in defense of the practice of patronage. 117 He reiterated the arguments favoring patronage that Justice Powell had raised in his dissents to Elrod and Branti. Like Justice Powell, Justice Scalia believed that the Court’s decisions were undermining political parties and the role they play in our political system as linkage entities between the government and the governed, and as bridges between the elected branches of government. Justice Scalia shared Justice Powell’s vision of American politics that considered patronage to be a venerable practice that helps parties, fosters

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healthy duopolistic competition, and enhances the overall stability of the political system. 118 He also asserted that the erosion of patronage would foster the continued rise of interest groups and discourage “the social and political integration of excluded groups.” 119 Justice Scalia went beyond Justice Powell’s earlier dissents by raising some additional points including whether the federal judiciary should dictate how state and local governments apportion their employees between civil servants and patronage appointments. He took the position that the “desirability of patronage is a policy question to be decided by the people’s representatives.” 120 Thus questions of federalism and the role of the federal courts in mandating state employment systems were added as issues in this debate. Justice Scalia also took issue with the Rutan majority over the appropriate test for these sorts of cases. Where the majority favored a standard that would require government to demonstrate a “vital government interest” in order to sustain patronage appointments, Justice Scalia favored a balancing test. In this balance, he would weigh the costs and benefits of patronage against one another. Not surprisingly, he would also accord much less weight to the burden placed on First Amendment rights by patronage practices. He asserted that a “patronage system does not have as harsh effect upon conscience, expression, or association as the Court suggests.” 121 The Rutan decision showed that a majority of the Supreme Court was willing to continue the steady erosion of political patronage that had begun in 1976 with Elrod v. Burns. But little new thinking was offered in Rutan as a justification for this major policy decision on the Court’s part. A majority of the Court was intent on further restricting the class of public employees who could be treated as political appointees in a traditional patronage sense but they offered no additional guidance in determining the membership of this class. The Rutan court touched only lightly on the question of public employee classifications by making a passing refer to the Rutan plaintiffs as “lowlevel employees.” 122 This matter was mitigated on remand to the district court which approved a settlement whereby the state of Illinois would generate a list of government positions that would be “exempt” from the Rutan ruling, thereby giving future job applicants notice of which jobs were covered by patronage. 123 E. The Fate of Political Patronage after Rutan The reaction of most politicians to the Rutan decision was negative. Illinois Governor Thompson, whose 1980 executive order had triggered the Rutan litigation, reacted to the decision by claiming that, “This will strike a blow at whatever is left of political parties in America. The Supreme Court is naïve when it thinks that patronage has no basis in strengthening political parties. That’s just wrong. It brings willing adherents to your cause.” 124 Evasion of

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the spirit of the Rutan decision continued in Illinois for some time after the decision. In 1991, the state’s new governor, Jim Edgar, determined that Rutan did not reach workers in temporary public jobs and proceeded to fill these jobs with party loyalists. Later these “temporary” jobs could be made permanent thereby giving the temporary job-holder an advantage over other applicants in the form of on-the-job experience. 125 The Rutan decision did not fare much better in the lower courts. 126 This was due in part to the Court’s failure to clarify its earlier discussions identifying the class of public employees who should receive Elrod-Branti protections from adverse employment actions. It was clear from Rutan that a majority of the Court wanted to expand these protections to a greater range of retaliatory circumstances. But the opinion also necessarily implied that not all government employees could be so protected and that there would still be an ill-defined class of public workers who could be subject to traditional patronage rewards and sanctions. The Rutan decision also failed to resolve any of the other major problems in this area including which test to apply in cases involving mixed-motive dismissals. Another opportunity for the Court to address the role of patronage in government arose in the mid-1990s in a pair of cases that posed the question whether independent contractors should enjoy the same protections as permanent government employees did under Elrod-Branti. This question had been simmering in the lower courts for years. 127 In 1996, the Supreme Court finally stepped in and rendered two rulings on this topic: O’Hare Truck Service, Inc. v. City of Northlake 128 and Board of County Commissioners, Wabaunsee County v. Umbehr. 129 In both of these cases the plaintiffs were independent contractors who had opposed their incumbent political superiors. The Supreme Court found in favor of the plaintiffs in both cases and extended the protections afforded public employees in Elrod and Branti to independent contractors. The Court had little difficulty analogizing the status of independent contractors with regular public employees. 130 However, the Court found it much more difficult to enunciate a standard in this area, despite having already handed down three major decisions on political patronage. In Umbehr seven members of the Court agreed that “the Pickering balancing test, adjusted to weigh the government’s interests as contractor rather than employer, determines the extent of [independent contractors’] protection.” 131 However, in O’Hare the Court discussed both tests, assigning the Elrod-Branti test to those cases of “raw” political affiliation and the Pickering test for those involving free speech. 132 As for those cases where there was a mix of employer motives behind the adverse action, Justice Kennedy offered this cryptic guidance to the lower courts:

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This statement would seem to indicate that some sort of balancing test (“reasonableness analysis”) applies in mixed motive situations, though this is not entirely clear. The Court decided to treat the situation in O’Hare as “simply an affiliation case,” and went on to analyze it under the Elrod-Branti standard. 134 And in the end the Court simply remanded the case back to the lower courts to let them decide which test to apply! 135 Taken together, these two cases offer very little to the lower courts in deciding when to use which test in cases of mixed motives. The Supreme Court in this pair of cases seemed divided as to how to proceed. The ElrodBranti test appears to still be viable, particularly for cases involving political affiliation. But the Pickering test appears to be preferred for cases of retaliation against more general forms of political expression. It is also difficult to predict whether the choice of tests would even make a difference in the scope of political patronage at the state and local levels. It seems that the Pickering balancing test would allow more partisan-based employment decisions than the Elrod-Branti test because the latter puts such an explicit burden on employers taking such actions. Furthermore, it has been shown through decisions like Rutan that the Elrod-Branti test is quite easily expanded by the courts to new sets of public employees and to new types of government actions. The discussions of First Amendment rights of public service-providers in these two cases said very little about political parties or the need for incumbent party regimes to be able to fulfill their electoral mandates. 136 Another topic that arose during this time period was what constitutional protections should be accorded to “temporary” government employees. This issue arose in the Seventh Circuit in the mid-1990s in lawsuits challenging the plan of Illinois’ governor to use temporary appointments in an apparent effort to circumvent the ruling in Rutan. 137 Once again, the Seventh Circuit took the lead. In its 1996 decision in Tarpley v. Jeffers, the court turned away a challenge to the political appointment of temporary workers ruling that the plaintiff had failed to show an injury or a scheme to circumvent the Rutan decision. 138 On appeal, the Seventh Circuit Court of Appeals refused to extend the earlier patronage rulings of the Supreme Court to the situation of temporary workers. 139 The Seventh Circuit explained that the filling of temporary jobs was different from that for permanent positions because: [T]emporary jobs can rarely be awarded fully on the basis of “merit” since time to determine it is frequently not available, nor does the subject often

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justify the sort of inquiry required for “merit selection.” Thus family relationships, friendship, lodge membership or any one of a thousand other factors may affect the selection. 140

The Seventh Circuit went on to note that temporary workers are very important for state and local governments, suggesting that perhaps their hiring should not be held to such strict hiring standards as permanent employees. 141 The court also recognized a broad First Amendment protection for the right of political parties to recommend persons for government jobs, noting that: “Just as the Constitution protects the right of Party Defendants to advocate that a specific person be elected to a particular office, the Party Defendants are entitled to advocate the hiring of a specific person to perform a governmental function.” 142 This is one of the rare instances where a court has openly recognized the collective First Amendment rights of political parties. A couple years later in Vickery v. Jones, the Seventh Circuit heard another patronage dispute concerning temporary public employees. 143 This plaintiff sued on the basis of the Supreme Court’s Rutan decision, alleging that he had not been re-appointed to his temporary position because the public employer relied on advice from state party officials. The federal district court dismissed the complaint against the party officials finding that their advocacy of persons for government jobs is protected by the First Amendment: In this case, the political party is advocating that a particular person should be hired, as opposed to elected, for a government position. However, the fact remains that the political party is expressing its views on a governmental matter and, therefore, is engaged in political expression. Accordingly, the Court concludes that it is not unconstitutional for a political party to compile information, make it available to state officials or advocate that the state hire a particular individual. What Rutan prohibits is the use of that political information by the state hiring authority. 144

The Court of Appeals affirmed this decision dismissing the charges against the party defendants and refusing to find that their recommendations amounted to “state action” necessary for liability under § 1983. 145 The Seventh Circuit concluded that: [T]he party defendants were merely involved in expressing their opinion when they made recommendations with respect to hiring of certain employees based on political considerations. As with other types of associations, the protections of freedom of speech and association is provided to the Party Defendants by the Constitution. . . . Just as the Constitution protects the right of the Party Defendant to advocate that a specific person be elected to a particular office, the Party Defendants are entitled to advocate the hiring of a specific person to perform a governmental function. 146

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Three years later in the related case of Tarpley v. Keistler, 147 the Seventh Circuit bolstered its position on constitutional protections for party advocacy in patronage positions. Writing for the Court, Judge Cudahy characterized the county party chairman in the case as “just an old-timer engaged in an oldtime political activity at the core of rights protected by the First Amendment.” 148 The court then presented a rather novel rationale for expanding these rights: they ruled that the party chairman’s First Amendment right to petition “circumscribed” the right of the unsuccessful job applicant to free association. 149 For the Court of Appeals, Judge Cudahy described the court’s reasoning: Government hiring on the basis of political affiliation is one thing; Rutan and other cases embrace the First Amendment right of association and accordingly limit this practice. Recommending that the government hire someone (of, perhaps, the same political affiliation) is altogether different because the act of recommending implicates another First Amendment right—the right to petition. Thus, before circumscribing this practice, we must balance the competing constitutional concerns. On the one side is [the plaintiff’s] asserted right to freedom of political association; on the other is [the party chairman’s] right to petition the government for action favorable to his interests. In this case, [the plaintiff] may not be accorded a remedy that stifles [the party chairman’s] right. 150

This appears to be the first instance that a court has relied explicitly on the right to petition in a case involving political patronage. It draws on the NoerrPennington doctrine from anti-trust law which protects those who petition the government even though their intent is to induce officials to take action in their favor and even if its effect is anti-competitive. 151 This new approach to patronage disputes opens up yet another front in the battle over the scope of the practice. The Supreme Court had for years been expanding the right of association in such cases to favor plaintiffs denied public employment, thus circumscribing political patronage. In this case, the Seventh Circuit was moving in the opposite direction trying to preserve a role for the parties in political patronage. Ironically, the Seventh Circuit claimed that its decision would actually enhance the right of association because: [T]he right of association has some content. People who associate, especially those who enter the political fray, have grander, even if selfish, aspirations: they want to speak, assemble, petition, or publish in support of something. Political association would be an empty right if partisans were not free to associate. Thus the right of political association is integral to republican government. . . . So, far from belittling the right to association, we think that we are promoting its vibrancy. 152

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Several courts of appeal since the 1990s have tried to further the Supreme Court’s jurisprudence on the difficult question of which test—or what combination of tests—should be applied in the so-called “mixed motive” cases that implicate rights to both political expression and partisan association. The most popular course has been to use parts of both tests while keeping them analytically separate. 153 This approach deals with the free association aspect of the claim by using the test set forth in the Elrod and Branti decisions. These two cases require that the court determine whether the plaintiff was a “policymaker” or “confidential” employee. If the plaintiff is found to be a policymaker then the employer must “demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 154 If the employee is found not to be a policymaker then his or her rights of free association are typically upheld. However, if the court finds that the employee was a policymaker then he or she will typically be denied First Amendment protection. These courts then analyze the dismissed employee’s free speech claim separately using the Pickering test. 155 Under this test the initial inquiry is whether the employee’s expression concerned a matter of “public concern.” 156 If the speech did not concern such matters then the inquiry would normally be at an end and the employee would not receive First Amendment protection. However, if the employee spoke on a matter of public concern then most courts will apply the Pickering balance test weighing the employee’s interest in free speech against the government’s interests in an efficient and effective workplace. 157 Some courts have gone further and adopted a “corollary” to this test which states that if the policymaker was “engaged in speech on a matter of public concern in a manner that [was] critical of superiors or their stated policies,” then he could be dismissed as a matter of law. 158 The position that has been developed in the Circuit Courts seems to be an improvement over the state of the law when the Supreme Court last considered these tests in the Umbehr and O’Hare cases. Unfortunately, these newer cases have contributed almost nothing to the larger discussion of the relationship between political parties and patronage. Instead, these courts have focused on balancing First Amendment rights and government interests in efficient government. 159 Some observers see the lower courts’ greater reliance on the Pickering test as an effort to evade the earlier Supreme Court case law that set forth a test that was less hospitable to political patronage. 160 A more direct way for the Circuit Courts to affect the scope of patronage has been to expand or contract the list of government jobs that are classified as “policymakers.” A kind of battle of the lists has continued for years among the Circuits with each trying to categorize specific government jobs as policymakers or not. 161 In recent years, the circuit courts generally seem to have

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been intent on preserving, or even expanding, the class of high-level public employees who remain subject to patronage hiring and firing. 162 The judiciary in this country has considered questions involving political patronage for about thirty years. The early court opinions often debated broad theoretical questions including the connection between patronage and political parties. Some judges went further and considered whether there was a link between patronage and democracy. These early cases revealed a judiciary sharply divided over the nature of this relationship and whether there even was a link. In more recent years, courts dealing with patronage disputes have tended to focus on the First Amendment rights of the individuals involved. These courts have given little consideration to the broader impact that their decisions might have on either the parties or the political system as a whole. This trend in court opinions may simply be a reflection of the inherent difficulty in assessing these links or a preference for using First Amendment analysis. There is little agreement on whether, or to what extent, modern political parties are dependent on patronage. 163 This situation is complicated further by the evolving definition of “patronage” which now includes many things besides government employment. Whether political patronage is good, bad or irrelevant to the health of the political system remains unsettled. At the national level in particular, parties and their candidates appear to have shifted to alternative means for motivating supporters, including a greater focus on personalities and public policy issues. There also remain important differences between the role of patronage at the national level as opposed to the state and local levels of government. In some parts of the country, it appears that that patronage is still an important tool for parties to motivate and reward party workers. But here too, we have seen major changes in patronage and the behavior of parties and candidates. 164 II. PARTISAN GERRYMANDERING “[T]his Court should restrain politicians attempting to choose their constituents.” —League of United Latin American Citizens v. Perry 165

The second great area where American political parties may be considered as acting from a position of incumbency has been when they have engaged in the partisan gerrymandering of electoral districts. 166 For our purposes, partisan gerrymandering will refer to that activity which uses the redistricting process as a means to preserve or expand the electoral fortunes of the incumbent political party or its members. 167 “Redistricting” should be distinguished from the process of “reapportionment” though the two are often

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intertwined in both parlance and practice. The former term refers to the actual drawing of the geographic boundary lines of the districts and thus determines who resides in a given district. The latter term refers to the numerical allocation of legislative seats and therefore concerns the number of persons residing in each district. 168 Thus districts can be “gerrymandered” and still be of equal population, thereby satisfying apportionment rules. When the populations of districts are widely disparate the term “malapportionment” is often applied. Legislatures have long sought to control their own composition, often at the expense of representative government. In the seventeenth century the British House of Commons tried to exclude John Wilkes from serving in that body and when he was subsequently re-elected the House declared him “incapacitated” from serving at all. 169 Various forms of gerrymandering have been present on the American political scene since the beginning of the Republic. Even James Madison was the target of an attempted gerrymander by Patrick Henry when he was running for a congressional seat in Virginia in 1789. 170 Gerrymandering is made possible in the United States by the widespread use of single-member districts and plurality voting in legislative elections. The practice takes its name from the efforts of Massachusetts Governor Elbridge Gerry in 1812 to re-draw that state’s senate boundaries to favor his own party’s fortunes over those of the opposition. The resulting geographic figure was thought to resemble the shape of a salamander, hence the term. Since that time, state and local legislatures have regularly employed the technique to achieve a variety of political goals. 171 By the middle of the twentieth century many state legislatures had become seriously malapportioned with great population disparities between electoral districts in the same state. 172 This situation was often due to the postponement of decennial redistricting by incumbent state legislators hoping to preserve their own seats. Rapid urbanization of the United States exacerbated malapportionment and left the rural areas of many states with substantially greater legislative representation than their urban counterparts. Racist motivations were also present in many states contributing further to the development of malapportioned legislatures. 173 The federal government was slow to deal with these problems. This reluctance was due in part to the language contained in Article One of the Constitution which strikes an ambiguous balance between Congress and the states over the regulation of the electoral process: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time make or alter such Regulations . . . 174

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As a result of this language, the Congress has generally respected the primary role of the states in electoral matters. However, Congress has occasionally exercised its power over election-related issues, including: the regulation of federal campaign finance, 175 voting fraud, 176 voting age requirements, 177 and primary elections. 178 The federal courts have played a more limited role in regulating the electoral process traditionally been willing to leave most electoral matters to the states. 179 Both state and federal courts have long preferred to leave these matters for legislatures. 180 For many years, the courts labeled both redistricting and reapportionment as “inherently political” activities that the courts should avoid. 181 This early position was summed up by Justice Frankfurter in 1946 when he wrote that, “It is hostile to a democratic system to involve the judiciary in the politics of the people.” 182 Federal courts have generally become involved in these disputes only when state mechanisms are unable to devise a plan or they produce one that violates the constitutionally mandated equal population among districts. 183 In the mid-1960s, the federal government began to move rapidly and decisively against malapportionment and racial gerrymandering through both court decisions and legislation. 184 In its 1962 landmark decision in Baker v. Carr, the Court lifted the nonjusticiability ban on electoral matters and began adjudicating disputes over apportionment. 185 A year later the Court enunciated its one-person, one-vote requirement for all legislative districts, requiring that districts be of equal population. 186 In the following year, the Supreme Court handed down no fewer than seventeen reapportionment decisions directed at state legislatures. 187 In 1965, the Congress took up the battle against racial gerrymandering by enacting the Voting Rights Act which included elaborate provisions for combating the problem. 188 This series of federal actions eventually brought an end to most malapportionment and racial gerrymandering. However, partisan gerrymandering would persist for many years and would prove to be a much more elusive target for the courts. A. From Racial Gerrymandering to Partisan Gerrymandering With the rapid elimination of most overt racial gerrymandering after 1960, the states have shifted increasingly to partisan gerrymandering, though these two phenomena have continued to be intertwined in the some recent cases. 189 Ironically, the growth in partisan gerrymandering may have been facilitated by the Supreme Court’s establishment of the one-person, one-vote doctrine. This requirement has meant that the states must redistrict more frequently thereby creating more opportunities to engage in partisan line-drawing. The Court’s reluctance to permit even slight numerical variations from nearperfect apportionment also appears to have encouraged the states to resort to partisan gerrymandering as an alternative way to achieve their political

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goals. 190 Partisan gerrymandering has also been facilitated by the improved availability of detailed census data on voters’ party affiliation and the development of sophisticated computer programs that can produce optimal cartographic results for partisan gerrymandering. 191 Partisan gerrymandering, like most racial gerrymandering, has been achieved through a “crack and pack” methodology where the supporters of the targeted opponent are either “packed” into a few districts or spread out (“cracked”) among many districts. The first technique minimizes the number of seats the opposition can win by concentrating their supporters into a few electoral districts as possible. The latter technique dilutes the opposition’s voting strength by spreading them out among many districts where they become unrepresented minorities. Necessarily, this process requires that a delicate balance be struck in order to maximize the number of seats won by the incumbent party. Such efforts often backfire or produce only a temporary victory. Indeed, even Governor Elbridge Gerry’s original gerrymander of 1812 failed to achieve its partisan objectives. 192 Another technique used in partisan gerrymanders is a practice known as “pairing” whereby the party in control of the redistricting process puts two incumbents of the opposing party into the same electoral district. 193 Like political patronage, partisan gerrymandering has sprung from a variety of political motives over its long history. Most cases of ostensibly “partisan” gerrymandering are in fact the result of a complex interplay of political motives, including such things as race, incumbency protection, and the observance of local political, historic and natural boundaries. 194 The Supreme Court itself has acknowledged the difficulty in assessing legislative motivations in this field. Justice Kennedy, writing for the Court in the 2006 Texas redistricting case, described the legislative motives underlying that dispute: [P]artisan motives did not dictate the plan in its entirety. The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew. As the District Court found, the contours of some contested district lines were drawn based on more mundane and local interests. . . . Evaluating the legality of acts arising out of mixed motives can be complex, and affixing a single label to those acts can be hazardous, even when the actor is an individual performing a discrete act. When the actor is a legislature and the act is a composite of manifold choices, the task can be even more daunting. 195

In most instances of modern gerrymandering a leading motive seems to have been the protection of incumbent legislators. These arrangements are sometimes labeled “bipartisan” or “sweetheart” gerrymanders since incumbents of both political parties participate in—and benefit from—efforts to preserve existing electoral boundaries. 196 Incumbency-protecting gerryman-

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ders highlight the complex admixture of competing motives and interests often found in these situations. Each incumbent legislator has a personal interest in facilitating his or her own re-election by packing as many partisan supporters as possible into his or her own district. The majority party, however, is usually focused on retaining control of the legislature as a whole. This latter objective is usually best achieved by dispersing partisan supporters among as many winnable districts as possible in order to maximize the total number seats that the party as a whole can win. This can create a conflict for legislators who are also members of the majority party. The majority party will typically favor giving its incumbent members comfortable winning margins but not necessarily guaranteeing them re-election by overwhelming margins. Thus a member of the majority party might have to take a redistricting plan that makes re-election likely but neither easy nor certain. 197 One of the most intriguing and persistent questions raised by partisan gerrymanders has been whether such efforts are successful in advancing their electoral goals. Political scientists have devoted much energy in trying to answer this question which is critical for assessing the need for judicial intervention. 198 If gerrymandering is an essentially futile exercise then it may not warrant any judicial intervention. If the process is effective at entrenching the incumbent party and undermining representative government, then it may be something that the courts should consider adjudicating under traditional principles of constitutional law. Political science research has not produced a definitive answer to the question whether partisan gerrymandering is usually successful at furthering the goals of the incumbent party. However, most research has found that the practice does produce at least a small benefit in the number of legislative seats won by the party controlling the redistricting process though this gain is often transitory and is frequently masked by incumbency advantage. 199 Despite the wide range of possible motives behind gerrymandering, it is not unreasonable to consider that the interests of the incumbent party are typically a major, if not the dominant, stimulus behind most modern gerrymanders. 200 This assumption is supported by that fact that the redistricting process in most states is dominated by the leaders of the legislature’s majority party. 201 The starkly partisan results of most recent gerrymanders also seem to confirm this assumption. 202 If the effectiveness of the partisan gerrymander is accepted, then the practice can be assessed under the tripartite party model. Since partisan gerrymandering is typically undertaken by incumbent political parties the tripartite model dictates that the practice should be judged by a fairly demanding constitutional standard. Under this scheme, the activities of incumbent parties should be given a minimal amount of constitutional protection since they are, in effect, the government and are probably more in need of limitation than protection.

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Like political patronage, partisan gerrymanders are fraught with possibilities for abuse since the process is dominated by a majority party which can derive substantial benefits for itself and its members. The process of partisan gerrymandering may be an even clearer expression of party interests than political patronage because it is so closely linked to the incumbent party’s central concern of winning elections. Both practices also raise serious questions of representative democracy if they serve to entrench one political party in office and deprive the other party of significant governmental benefits or representation. Partisan gerrymandering might also be deemed the more threatening practice because it can successfully entrench one party in power beyond its electoral mandate. Since there are few natural checks on either practice, it seems appropriate that the courts should scrutinize both of these practices very closely. B. The Regulation of Partisan Gerrymandering Congress’ direct involvement in the redistricting process has been through several reapportionment acts applicable to federal elections. 203 Some of these early laws specified that congressional districts be both “compact” and “contiguous.” However, the last congressional legislation to impose such requirements was enacted in 1911. Since that time, Congress has not renewed legislation requiring compactness or contiguity in the drawing of districts for federal elections. 204 There has been virtually no congressional interest in regulating state and local electoral redistricting. The paucity of federal regulation in this field has left the way open for state legislatures to engage in the gerrymandering of legislatures on both racial and partisan grounds. Despite the willingness of federal courts through the 1960s to strike down gerrymanders based on race, the courts continued to be reluctant to extend this work to political or partisan gerrymandering. 205 Redistricting continued to be frequently regarded as a state legislative responsibility or as a nonjusticiable “political question.” 206 In its major 1964 reapportionment decision in Reynolds v. Sims, the Court made only passing reference to partisan gerrymandering, indicating that it was probably an undesirable situation that the states might be able to regulate. 207 The Court first began considering cases involving non-racial gerrymanders in the context of multi-member districting schemes used in some states. In most of these situations the electoral districts were of substantially equal population but there was some evidence that there was an effort to dilute the voting strength of non-racial minorities through the drawing of district lines. These non-racial minorities were initially referred to as “cognizable minority interest groups” or groups of “persons of low income.” 208 In 1965, the Supreme Court handed down its decision in Fortson v. Dorsey that directly addressed political gerrymandering in multi-member electo-

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ral districts. 209 This decision grew out of a challenge to Georgia’s districting plan for its state senate. The plan apportioned the state’s fifty-four senate seats by drawing district boundaries along county lines as much as possible. However, when there was more that one senate district inside a county, all of that county’s senators were to be elected by all the voters in the county. Plaintiffs challenged the at-large part of the Georgia plan as a violation of equal protection. A three-judge district court granted summary judgment in the plaintiffs’ favor finding that the plan “causes a clear difference in the treatment accorded voters in each of the two classes of senatorial districts.” 210 The district court went on to find that this dilution (debasement) in the right of some voters amounted to “invidious discrimination” in violation of the equal protection clause of the Fourteenth Amendment. 211 On appeal, the Supreme Court reversed the lower court opinion in Fortson and held that there was no constitutional violation. The Court based this decision on the fact that the districts in question were substantially equal in population and that there was no evidence that the plan “would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” 212 The Court’s insertion of a reference to “political elements” here was significant because it appeared to recognize that nonracial groups might benefit from constitutional protections similar to those that had been accorded to racial minorities. The Fortson reference to these groups would become part of the debate over whether the Court should recognize a constitutional right to proportional representation for all demographic groups. 213 The Supreme Court continued to debate the justiciability of purely political gerrymandering cases in both multi-member and single-member districts for the next seventeen years. The Court summarily dismissed at least seven cases between 1965 and 1982 that dealt with political gerrymandering. 214 In four of these instances the Court upheld lower court decisions ruling that political gerrymanders were nonjusticiable. 215 But in at least three other instances during this time the Court upheld lower court decisions that had found such disputes to be justiciable. 216 Since these were all summary affirmances they yielded little insight into what members of the Court were thinking at the time or how they were divided. However, Justices Brennan, Stevens, and Douglas each noted separately in at least one of these summary affirmances that he would have granted probable jurisdiction. 217 However, these three justices apparently remained in the minority throughout this seventeen-year period as the Court did not deliver any full opinions on the topic during this time. Confusion over the Supreme Court’s position on the justiciability of partisan gerrymanders was rampant among lower court judges during the 1960s and 1970s. This confusion is exemplified well by the opinions in Sincock v. Gately. 218 This case was handed down in 1967 by a three-judge district court

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in Delaware adjudicating a challenge to that state’s redistricting of its legislature. The majority in Sincock believed that the Supreme Court had found partisan gerrymandering to be a nonjusticiable matter but they were “not certain of the correctness” of that position. 219 A concurrence to Sincock found that Supreme Court had “not yet spoken on the question of [partisan] gerrymandering.” 220 And a partial dissent by a third judge claimed that the Supreme Court had determined that partisan gerrymandering was a justiciable matter and that Delaware’s plan was in fact an unconstitutional gerrymander! 221 Some lower courts at this time tried to nudge the Supreme Court to take up the issue of partisan gerrymandering by considering the question themselves. In 1965, the Michigan Supreme Court considered a partisan gerrymandering challenge to that state’s redistricting plan that had been drawn up by a bipartisan commission. The Michigan court’s decision, Badgley v. Hare, remarked that, “a fair reading of recent [U.S. Supreme Court] cases can only conclude that a plan which intentionally operates to nullify the fair and effective representation of members of one particular party is as much a denial of equal protection of the laws as districts of grossly disparate population.” 222 Michigan’s highest court concluded that while there was no federal case law at the time that dealt with partisan gerrymandering this would not prevent them from adhering to a “higher standard” under Michigan law. 223 This attempt to tie partisan gerrymandering to earlier decisions on malapportionment would have been a large leap at the time and would have linked the former to a long line of precedents and judicial interventions. The decision of the Michigan court was appealed to the U.S. Supreme Court but they declined the opportunity to make this connection and dismissed the case for want of a federal question. 224 Most other lower courts at this time seemed content to await the Supreme Court’s decision on whether such claims were justiciable. 225 The most important opinion during this time where the Supreme Court gave extended attention to political (or partisan) gerrymandering was in the 1973 reapportionment case Gaffney v. Cummings involving the Connecticut state legislature. 226 The state redistricting commission there was guided by three considerations: population equality, a desire to not split towns, and maintenance of a “fair partisan balance” in each legislative district. The last goal, referred to as a “political fairness” doctrine, was directed at preserving the relative strength of the two major parties in the state legislature as reflected in the last three statewide elections. 227 The plaintiffs attacked this goal as being an unconstitutional “political gerrymandering” in violation of the equal protection clause. The district court refused to decide whether claims based purely on partisan criteria were justiciable, but nonetheless struck down the Connecticut plan because the precedents indicated that:

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The Gaffney case was appealed directly to the Supreme Court which reversed in a 6–3 decision. 229 The Court found that the minor mathematical deviations from perfect apportionment were insufficient of make out a claim under the equal protection clause. The majority, led by Justice White, noted that redistricting was primarily a matter for state legislatures and should be sustained as long as the state made “an honest and good-faith effort to construct its districts ‘as nearly of equal population as is practicable.’” 230 On the matter of the state using its “political fairness” doctrine to draw district boundaries, the Court stated that: [M]ultimember districts may be vulnerable, if racial and political groups have been fenced out of the political process and their voting strength invidiously minimized. Beyond this, we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States. Even more plainly, judicial interest should be at its lowest ebb when a State purports to allocate power to the parties in accordance with their voting strength and, within tolerable limits, succeeds in doing so. 231

Several cases dealing with racial gerrymandering made their way to the Supreme Court in the early 1980s. However, the Supreme Court declined these opportunities for discussing the complex set of issues inherent in partisan gerrymandering. At the time, the Court seemed more interested in cleaning up its jurisprudence on apportionment and districting involving race than tackling the much thornier cluster of issues raised by partisan gerrymandering. 232 C. Davis v. Bandemer: The Supreme Court Finds Partisan Gerrymandering Justiciable The threshold question in partisan gerrymandering cases has long been whether these disputes are even justiciable by the federal courts. The justiciability issue delayed the adjudication of electoral disputes in general until the Court’s decision in Baker v. Carr in 1962. 233 After this landmark, the courts took cases involving reapportionment disputes and racial gerrymanders but refused to hear cases involving partisan gerrymandering questions. This judicial reluctance is understandable since partisan gerrymandering

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raises a veritable Gordian knot of constitutional issues. Among the central questions in partisan gerrymandering cases are: what specific “injury” have the claimants suffered, can the courts fashion standards and remedies to resolve these disputes, should gerrymandering be regulated by legislatures or courts, is the practice of partisan gerrymandering best governed by state institutions or by the development of national standards, and finally, can states redistrict at times other than immediately after a decennial census? 234 If partisan gerrymandering disputes are deemed appropriate for federal adjudication, the central problem then becomes how far the federal courts should go in prescribing the processes and standards by which the states undertake the redistricting process. 235 A deeper theoretical problem in many of these cases is how gerrymandering relates to democracy and representative government. Some argue that the partisan gerrymander, like political patronage, is one of the spoils of victory by which the electoral winners may reward themselves and their supporters. Under this view, the courts should generally stay clear of these disputes and let them be decided through the political processes. This position considers partisan gerrymandering as a “natural” by-product of healthy inter-party competition that is as generally desirable in a democracy. 236 Some have argued that redistricting can actually enhance representative government. 237 Others claim that the process unfairly entrenches a winning party by perpetuating its power beyond a single election and call for greater judicial intervention. The complex issues and problems raised in the typical partisan gerrymander have long frustrated quick judicial resolution of these disputes. In 1986, after years of procrastination, the Supreme Court finally accepted a major partisan gerrymandering dispute and launched the modern discussion over the constitutional issues raised by the practice. The vehicle for the Court’s entry into this field was the case of Davis v. Bandemer which involved a dispute over the redistricting of the Indiana state legislature after the 1980 census. 238 At that time Republicans controlled both chambers of the state legislature and their leaders reapportioned that body through a process that was “unashamedly partisan” in its methods and goals. 239 The plaintiffs alleged that the redistricting plan discriminated against Democratic voters in violation of Fourteenth Amendment equal protection. The district court that first heard the dispute in Bandemer found the matter to be justiciable and went on to announce a detailed set of guidelines for adjudicating such disputes. The three-judge panel set aside arguments that the gerrymander was racially motivated and instead ruled that the state had deprived the plaintiffs of their constitutional rights under the equal protection clause through impermissible “partisan discrimination.” 240 The district court was guided in large part by the concurring opinion of Justice Stevens one year earlier in Karcher v. Daggett. 241 In that case the Supreme Court had held that New Jersey’s reapportionment plan violated Article I § 2

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of the Constitution because it was not a good faith attempt to achieve population equality among congressional districts. In his concurrence, Justice Stevens stated that he believed that New Jersey’s plan violated the equal protection clause. In order to evaluate challenges to redistricting plans he wrote that the Court should: [C]onsider whether the plan has a significant adverse impact on an identifiable political group, whether the plan has objective indicia of irregularity, and then, whether the State is able to produce convincing evidence that the plan nevertheless serves neutral, legitimate interests of the community as a whole. 242

The district court in Bandemer applied Justice Stevens’s thinking on congressional districts to the state districting plan in the case before them. Once the court had found that equal protection extended to cases involving state political gerrymanders, they then needed to decide what standard to apply in order to determine whether there had been a violation of equal protection. For this purpose, the district court looked to the Supreme Court’s 1980 decision in City of Mobile v. Bolden. 243 That case involved gerrymandering based on racial discrimination rather than political or partisan motives. The district court minimized this factual distinction by simply noting that the Supreme Court “has recognized that under the proper facts the Equal Protection clause accords protection to individuals who are being discriminated against because of their political affiliation, or factors other than race, as each voter is entitled to fair and effective representation.” 244 The district court in Bandemer then proceeded to apply the standard that the Supreme Court had adopted to combat the racial discrimination in Bolden to the facts of the partisan gerrymander in the Indiana dispute. Under Bolden, in order to make out an equal protection claim against discriminatory gerrymandering, the plaintiffs had to first prove that they belonged to an identifiable political group whose voting strength had been diluted and whose geographic distribution was sufficiently ascertainable so that it could have been taken into account in the drawing of district boundaries. 245 Next, the plaintiffs had to show that “their proportionate voting influence has been adversely affected by the challenged scheme.” 246 And finally, the plaintiffs had to make out a prima facie case of racial discrimination. 247 This last requirement could be proven in part by showing that the districts were drawn in a manner that violated norms of compactness and resulted in “bizarre” or “uncouth” shapes or that they had been drawn without regard to political subdivisions or other natural or historical boundaries. 248 Once the plaintiff had made out this prima facie case, the burden would then shift to the defendant to demonstrate that the “‘plan as a whole embodies acceptable, neutral objectives.’” 249 This bold decision of the district court in Davis v. Bandemer was directly appealed to the Supreme Court which took the opportunity to deliver its most

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extensive opinion on partisan gerrymandering to date. 250 Writing for six members of the Court, Justice White found partisan gerrymandering to be a justiciable matter. 251 This decision represented a major shift for the Court that had resisted conceding this point for decades. However, in order to find partisan gerrymandering justiciable, Justice White had to weave together several precedents and judicial principles. In this enterprise he was only able to command only a plurality of the Court’s members, being joined by Justices Brennan, Marshall, and Blackmun. 252 Justice White first reviewed the Court’s precedents on gerrymandering relying in particular on the Gaffney decision. He admitted that Gaffney did not expressly find partisan gerrymandering to be justiciable but still believed that: [O]ur consideration of the merits of the claim in Gaffney in the face of a discussion of justiciability in appellant’s brief, combined with our repeated reference in other opinions to the constitutional deficiencies of plans that dilute the vote of political groups, at the least supports the inference that these cases are justiciable. 253

Justice White then reviewed the Court’s decision in Baker v. Carr setting forth criteria for determining when a dispute presented a nonjusticiable “political question.” 254 He concluded that none of the factors barring justiciability was present in the Indiana case before the Court. Justice White then turned to the Court’s “one-person, one-vote” ruling in Reynolds v. Sims. 255 Although that case dealt with malapportionment, Justice White extended its reasoning to partisan gerrymandering because he believed that the key issue was one of representation. 256 He also noted that the Court had adjudicated cases of racial gerrymandering where there was no significant population variation among districts. 257 Justice White summed up this complex assembly of cases and constitutional principles thusly: These decisions support a conclusion that this case is justiciable. As Gaffney demonstrates, that the claim is submitted by a political group, rather that a racial group, does not distinguish it in terms of justiciability. That the characteristics of the complaining group are not immutable or that the group has not been subject to the same historical stigma may be relevant to the manner in which the case is adjudicated, but these differences do not justify a refusal to entertain such a case. 258

Once Justice White had found partisan gerrymandering to be justiciable the Court then had to turn to the more difficult task of enunciating a standard to guide lower courts in adjudicating such disputes. The plurality agreed generally with the lower court that in order to make out a successful claim of partisan gerrymandering plaintiffs had “to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect

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on that group.” 259 However, they disagreed with the lower court’s relatively permissive standard that would allow such plaintiffs to make out an equal protection claim against “any apportionment scheme that purposely prevents proportional representation.” 260 The Court believed that more should be required of partisan gerrymandering plaintiffs because “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.” 261 Joined by three other justices, Justice White opted instead for a standard that required a substantially greater showing of discrimination by plaintiffs bringing such claims than the lower court had demanded. 262 Justice White’s test focused on the “representative government” aspect of redistricting. He stated the plurality’s test for partisan gerrymanders thusly: [U]nconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political system as a whole. . . . [A]n equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process. 263

The Bandemer plurality also ruled that those challenging partisan gerrymanders must couple their showing of discriminatory effect with other factors (“indicia”) that would be indicative of a serious deprivation of political power and participation in the relevant polity. This requirement was an additional and distinct one from the required showing of a diminished voting power resulting from the specific redistricting plan being challenged. The plurality borrowed heavily from the Court’s earlier decisions involving multi-member electoral districting which had required that plaintiffs show that they had “less opportunity to participate in the political processes and to elect candidates of their choice,” and that they had experienced a “lack of responsiveness by those elected to the concerns of the relevant groups.” 264 Drawing on these precedents, the plurality concluded with this comparison: In the individual multimember cases, we have found equal protection violations only where a history of disproportionate results appeared in conjunction with strong indicia of lack of political power and the denial of fair representation. . . . In those cases, the racial minorities asserting successful equal protection claims had essentially been shut out of the political process. In the statewide political gerrymandering context, these prior cases lead to the analogous conclusion that equal protection violations may be found only where a history (actual or projected) of disproportionate results appears in conjunction with

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similar indicia. The mere lack of control of the General Assembly after a single election does not rise to the requisite level. 265

This requirement of a showing of indicia of a lack of political power appeared to be in addition to and beyond the showing of a loss of voting power due to the challenged redistricting plan. Although the precedents underlying this part of the Court’s test concerned multi-member districts and racial gerrymandering, the Court simply noted in a footnote that “we believe that the principles developed in these cases would apply equally to claims by political groups in individual districts.” 266 The plurality’s statement of its standard included virtually all of the hurdles that earlier cases had erected for plaintiffs challenging redistricting schemes. A checklist of requirements for partisan gerrymander plaintiffs after the Bandemer decision would include at least the following: • Proof of discriminatory intent on the part of redistricting body • Proof of discriminatory effect of the gerrymander on an identifiable group or its members • Showing that the redistricting plan does more than prevent proportional representation • Showing that the plan consistently degrades the influence of the group on the political process as a whole • Showing that the plan substantially disadvantages members of the group • Showing that the group’s voting power was diminished in more than one election • Showing that the plan will either continually frustrate the will of the majority or that it denies a minority a fair chance to influence the political process • Showing of additional indicia of a lack of political power and denial of fair representation • Showing of a history (actual or projected) of disproportionate electoral results In a separate opinion Justices Powell and Stevens agreed with the plurality on the question of justiciability but argued for an easier standard for plaintiffs seeking to challenge partisan gerrymanders. Justice Powell emphasized the importance of developing appropriate judicial standards in order to distinguish constitutional gerrymanders from those that were unconstitutional. 267 To this end, he offered a standard that focused on whether electoral boundaries had been intentionally distorted in order to achieve illegitimate ends. He believed that courts adjudicating partisan gerrymanders should look to a set of “factors” to reach their decision. These factors included consideration of the shape of electoral districts, whether there had been observance of

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established political boundaries, the legislative procedures that had been used to apportion seats, and the contemporaneous legislative goals. 268 Justice Powell’s test thus focused almost exclusively on the intent of the redistricting body with little attention to the actual effects of the purported gerrymander on the political power of groups. 269 Applying this standard and these factors, Justices Powell and Stevens concluded that the Indiana redistricting scheme challenged in Bandemer was an unconstitutional gerrymander. Three conservative members of the Court authored two concurring opinions in Bandemer, expressing their belief that partisan gerrymandering was nonjusticiable. 270 Justice O’Connor thought the matter was a “political question” that should be left to the legislative branch of government. 271 She also warned that the plurality’s decision would lead to “political instability” since the adoption of a proportionality test would open the door to countless groups coming forward challenging reapportionments. 272 Justice O’Connor expressed little sympathy for the major political parties when they are in a legislative minority, writing that: [M]embers of the Democratic and Republican Parties cannot claim that they are a discrete and insular group vulnerable to exclusion from the political process by some dominant group: these political parties are the dominant groups, and the Court has offered no reason to believe that they are incapable of fending for themselves through the political process. Indeed, there is good reason to believe that political gerrymandering is a self-limiting enterprise. 273

While the Court granted justiciability to partisan gerrymandering claims in Bandemer, the standard that the plurality enunciated proved to be so demanding that it drained virtually all of the value out of the grant of justiciability. Even the members of the plurality acknowledged this difficulty when they concluded their opinion by noting that, “[d]etermining when an electoral system has been ‘arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole,’ is of necessity a difficult inquiry.” 274 This statement proved to be something of an understatement. The Bandemer standard would subsequently prove to be a virtually insurmountable hurdle for plaintiffs challenging state redistricting plans on the grounds that there had been an unconstitutional partisan gerrymander. D. Applying the Bandemer Standard: 1986-2004 The Supreme Court did not hand down another major decision on partisan gerrymandering for nearly twenty years after its decision in Bandemer. Although many partisan gerrymandering cases were brought in the lower courts during this time the Supreme Court granted summary dismissals of these appeals. 275 But judicial comments relating to partisan gerrymanders contin-

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ued to appear in cases of racial gerrymander throughout the 1990s, usually in the context of comparing the standards that should be applied in the two types of controversies. 276 As a result of the Court’s silence during these years, most of the discussion and analysis of the Bandemer test took place in lower federal courts. The majority of lower courts that considered partisan gerrymandering cases after Bandemer were willing to follow the Court’s decision that these cases were justiciable. But the Supreme Court’s test for adjudicating such disputes led to considerable confusion and debate. Discussion in the lower courts took place primarily around three interrelated questions left unanswered by Bandemer: 1) how do plaintiffs show that a partisan gerrymander degraded their political power in the political system “as a whole”; 2) what are the additional “indicia” of a lack of political power that plaintiffs bringing a claim of partisan gerrymander must demonstrate; and, 3) when and how are the First Amendment rights of plaintiffs implicated in cases of partisan gerrymander. Other subsidiary questions that persisted in the wake of Bandemer included a definition of “identifiable groups” for First Amendment purposes, uncertainty as to what circumstances constituted a “shut out” from the political process, and whether groups alleging partisan gerrymanders had to carry the same burden of proof as plaintiffs bringing racial gerrymandering lawsuits. A key element of the Bandemer test required that plaintiffs demonstrate that they had experienced a degradation of their political influence “on the political process as a whole.” 277 This was in addition to the showing of discriminatory intent and effect in the particular redistricting plan being challenged. It seemed clear that such influence over the political system was not limited to simply winning elections, but it was unclear how much more had to be proven to satisfy this standard. 278 Lower courts split over how extensive the loss of political power had to be to meet this part of the Bandemer test. Some lower courts thought that the requirement referred only to the influence of the party on the process of redistricting in the challenged plan, others thought that it referred more broadly to the power of the party in the state’s politics. 279 The first major case where this issue was raised was a dispute over the redistricting of California’s congressional seats in Badham v. Eu. 280 The district court, after awaiting the Supreme Court’s decision in Bandemer, ruled that the plaintiff-Republican Party had failed to show degradation in its power in the political system as a whole because the party was still a potent force in California state politics despite the Democrats’ successful gerrymander of legislative seats in this particular instance. 281 Most lower courts at this time appeared to adopt this broader view of the requirement and ask that partisan plaintiffs show a fairly widespread dilution of political power in the state’s politics in addition to their showing of a loss of voting power due to the challenged gerrymander. 282

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The leading case for taking a more restrictive view of the requirement that a partisan gerrymandering plaintiff show a degradation of influence in the political system “as a whole” is a 1992 decision from the Fourth Circuit Court of Appeals captioned Republican Party of North Carolina v. Martin. 283 In that case North Carolina Republicans claimed that a scheme to elect judges statewide instead of through districts would dilute their voting power and amount to a political gerrymander. 284 The Fourth Circuit Court of Appeals found that the party had met the part of the Bandemer test that required a showing that the voting scheme diluted their group’s voting power on the political process “as a whole.” The Court of Appeals reached this conclusion by giving this phrase a narrower interpretation, writing that, We read the phrase “the political process as a whole,” [in Bandemer] to speak to the alleged unconstitutional effects of the challenged electoral scheme on the relevant political sphere. Thus, we confine our analysis to evaluation of the claimed effect of the method of electing superior court judges on the political process of election of superior court judges within North Carolina. 285

By confining their search for diminished political power to the “relevant political sphere” the Fourth Circuit in Martin greatly eased the burden of proof on these plaintiffs. If they had been required to demonstrate a loss of political power within the broader political system then they would have been faced with a much more demanding showing. 286 Obviously, those courts favoring successful claims against gerrymandered electoral districts would be satisfied with a showing of a loss of political power in only the gerrymandered contests themselves. A few courts at this time tried to find a middle course in describing what partisan gerrymandering plaintiffs had to show in order to demonstrate a loss of power in the “political process as a whole.” One of these was Terrazas v. Slagle where plaintiffs challenged a legislative districting scheme in Texas. 287 The district court in this case undertook a thorough review of the “as a whole” requirement from Bandemer and concluded that: We think the true focus of the second prong of Bandemer’s effects test should be on analyzing the perpetuation of power within the structures of the state’s political system. Therefore, the term “political process as a whole” means straightforwardly all the structures of the state governmental system, but not the internal structures of the partisan group. Under this framework, a partisan group will have satisfied the second prong of the discriminatory effect requirement under Bandemer if it presents evidence of a group perpetuating its power through gerrymandering in one political structure and that the wronged partisan group cannot over the long haul counteract this tactic through its influence in another relevant political structure or structures. 288

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This interpretation of the Bandemer test directs the assessment of the loss of power away from considering the “internal structure of the partisan group.” This is a reference to the practice of some courts at this time of requiring party plaintiffs to demonstrate their loss of political power by showing that there had been interference with the party’s “registration, organizing, voting, fund-raising, or campaigning.” 289 This requirement had been previously imposed on plaintiffs in racial gerrymandering cases. Requiring that parties complaining of partisan gerrymander demonstrate such a broad reduction in political power and participation in a state was clearly an almost impossible hurdle. The Terrazas court wanted to ease the burden by requiring that these plaintiffs show only a loss of political power in the “relevant” political structures and not be required to show that the party itself had been unable to participate in the political life of the state. 290 In conjunction with their showing of a history of disproportionate electoral results, the Bandemer ruling also required partisan gerrymander plaintiffs point to a “strong indicia of lack of political power and the denial of fair representation.” 291 This part of the test is closely related to the requirement that plaintiffs show a loss of power in the political process “as a whole.” The indicia requirement appeared to demand that partisan gerrymandering plaintiffs point to other circumstances in the political system that indicated that they had been “shut out” from political participation. This requirement was thus distinct from the required showing of a diminished voting power resulting from the specific redistricting plan being challenged. 292 The Bandemer Court offered little guidance as to what these indicia might be or what constituted a “shut out” from the political process beyond citing some earlier cases of race discrimination. 293 In their search for guidance on these questions, some lower courts looked to the Supreme Court’s decision in Thornburg v. Gingles that had been handed down the same day as Bandemer. 294 The dispute in Gingles was brought under the 1965 Voting Rights Act and was a challenge to multimember districting scheme on grounds of racial discrimination. The Supreme Court there set forth what have since become known as the “Gingles preconditions” for plaintiffs bringing such cases. These three preconditions are: 1) the minority had to be sufficiently large and geographically compact enough to constitute a majority in a single-member district, 2) the minority had to be politically cohesive, and 3) the white majority had to vote as a bloc to enable it to defeat the minority’s preferred candidate. 295 In addition to these preconditions, the Gingles Court drew at length from parts of the 1982 Report of the Senate Judiciary Committee on Section 2 of the 1965 Voting Rights Act. 296 This Report identified a number of circumstances or factors that the Senate Committee felt might be probative of a violation of 1965 Voting Rights Act. These factors included:

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• • • • •

A history of racial discrimination against the group Voting that is racially polarized Use by the state of techniques to enhance discrimination against the group Denial of access to the candidate slating process Members of the group bearing the effects of discrimination in education, employment, and health that in turn hinders their participation in the political process • Campaigns that are characterized by overt racial appeals • Extent to which members of the group have been elected to public office 297 Despite the fact that Gingles involved a statutory challenge to racial gerrymandering, lower courts were willing to apply the Gingles factors to constitutional challenges of partisan gerrymandering. 298 Whether the Gingles preconditions were meant to apply to cases of partisan gerrymandering was not clear in 1986. It is obvious that several of the factors cited in Gingles are not readily applicable to cases involving partisan gerrymandering. If this list of additional factors were made part of the plaintiff’s burden in cases of partisan gerrymandering it would increase an already substantial burden. Discussion of what factors a court should look to in evaluating partisan gerrymandering cases would continue among lower court judges for years. The question of when the indicia of diminished political power amounted to a “shut out” from the political process also proved to be a divisive issue in the lower courts. If partisan gerrymandering plaintiffs were required to show that they had been kept out of state politics to the same extent as earlier plaintiffs challenging racial gerrymanders, then there would be very few successful challenges to partisan gerrymandering. Neither major political party (nor many minor parties) has ever suffered the sort of absolute “shut out” from the political processes that Blacks have frequently faced in the past. 299 As with the other parts of the Bandemer test, some courts took a literal interpretation of “shut out” while others gave it a more liberal meaning. The Badham court required that partisan plaintiffs show that they had faced interference with “registration, organizing, voting, fund-raising, or campaigning,” or that there had been “impediments to their full participation in the ‘uninhibited, robust, and wide-open’ public debate on which our political system relies.” 300 Some courts have emphasized the representative government issues in making their determination whether a party had been shut out of the political process. These courts have often asked that the plaintiff show that the government was not “responsive” to their interests in order to demonstrate that they have been “excluded” from the state’s political processes. 301 Some other courts have asked whether the group’s political participation has been “consistently degraded” as a way of trying to determine whether they had

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been shut out. 302 This representative-focused approach to evaluating redistricting plans was based on some of the Supreme Court’s language in Bandemer where the plurality advanced this rather optimistic view of representative government: [T]he power to influence the political process is not limited to winning elections. An individual or a group of individuals who votes for a losing candidate is usually deemed to be adequately represented by the winning candidate and to have as much opportunity to influence that candidate as other voters in the district. We cannot presume in such a situation, without actual proof to the contrary, that the candidate elected will entirely ignore the interests of those voters. This is true even in a safe district where the losing group loses election after election. Thus, a group’s electoral power is not unconstitutionally diminished by the simple fact of an apportionment scheme that makes winning elections more difficult, and a failure of proportional representation alone does not constitute impermissible discrimination under the Equal Protection Clause. 303

Some lower courts echoed this view of representative government by requiring that plaintiffs in partisan gerrymandering cases “demonstrate that their interests will in fact be ‘entirely ignored’ by their representatives.” 304 Once again, this would appear to set the evidentiary bar at an almost impossible height for party-plaintiffs. A final area where the lower courts diverged in their interpretation of the Bandemer test was over the First Amendment claims asserted by some of these plaintiffs. These arguments have usually been based on the claim that free speech and free association rights were impinged by partisan gerrymandering because partisans were being penalized on the basis of their group affiliation. 305 The Badham court in 1988 declined to accept this argument, noting that the complaining party had been able to elect many of its candidates despite the alleged gerrymander. 306 That court also turned away plaintiff’s effort to analogize partisan gerrymandering to the ballot-access precedents of the Court. These arguments were rejected because the plaintiff’s party had not been prevented from fielding candidates nor were its members prevented from voting for these candidates. 307 A closely related First Amendment question that has come up in some of these cases has been whether the party-plaintiff and its members represented an “identifiable group” to which First Amendment rights might attach. The question of what constitutes an “identifiable group” thus became critical for determining which groups would enjoy First Amendment protection. The plurality opinion in Bandemer provided no help with this matter. 308 However, Justice O’Connor did discuss the question of group rights versus individual rights in her concurrence to Bandemer. 309 She believed that there was no “general group right” to protection from vote dilution. Instead, she saw this

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as an individual right that could not be extended to groups without inviting a deluge of lawsuits from “every identifiable group that possesses distinctive interests and tends to vote on the basis of those interests.” 310 Justice O’Connor believed that if the Court treated group vote dilution cases as they had cases of individual rights that this “would effectively collapse the ‘fundamental distinction between state action that inhibits individual’s rights to vote and state action that affects the political strength of various groups that compete for leadership in a democratically governed community.’” 311 The Court’s decision in Gingles provided some guidance on the identification of groups entitled to claim First Amendment protection even though the case dealt with racial gerrymandering in a multi-district context. The Gingles decision set out both the conditions and a vocabulary for certifying plaintiffs in districting disputes, requiring that they be “geographically compact” and “politically cohesive” as demonstrated by voting patterns. 312 While these preconditions would typically not be difficult for racial or ethnic plaintiffs, they represented significant barriers for partisan plaintiffs given the uncertain and fluctuating nature of party membership. The party-plaintiffs in the 1991 Hastert case challenging Illinois’ districting plan claimed to represent a “community of interest” that was entitled to assert First Amendment rights, but the district court rejected this characterization as being “both subjective and elusive of principled application.” 313 In contrast, the Fourth Circuit in the Martin case was willing to accept the claim of the plaintiff Republican Party that it was an identifiable group entitled to First Amendment guarantees even though the plaintiffs included persons from both political parties: [The State Board of Elections] further contends that [the Republican Party] fails to satisfy the intent element because inclusion of Democrats as plaintiffs prevents [the Republican Party] from constituting an “identifiable political group.” . . . Nonetheless, we consider the inclusion of two Democrats as plaintiffs to be unobjectionable. The complaint states that these plaintiffs have and will continue to vote for Republican candidates for superior court judgeships, thus alleging a sufficient degree of cohesiveness between the Democratic and Republican plaintiffs in order to withstand a motion to dismiss. Moreover, the Republican Party of North Carolina alone would be sufficient to constitute an identifiable group. 314

Throughout the 1990s, political parties advanced a variety of other First Amendment claims against gerrymanders though these arguments seldom got very far in the courts during this time. 315 One such argument was that unfair districting produced a “chilling effect” on the First Amendment rights of the losing party because it diminished the desire of its members to engage in vigorous political debate. This claim has typically been rejected because while the partisan plaintiffs might be “discouraged by their lack of electoral

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success, they cannot claim that [the redistricting plan] regulates their speech or subjects them to criminal or civil penalties for engaging in protected expression.” 316 Free association claims have also been asserted based on the argument that partisan gerrymandering impairs the ability of the losing partisans to participate in elections. 317 These party-plaintiffs have argued that the Court’s ballot-access precedents support their claim but this approach has also been rejected. 318 Some parties have even tried to argue that the Court’s decisions on political patronage apply to the partisan gerrymander situation. These claims have been denied on the grounds that patronage involves appointment rather than an electoral setting. 319 Despite the cool reception given to First Amendment claims against partisan gerrymandering during these years, this set of issues was not fully resolved and would reappear in later Supreme Court opinions. 320 In the end, application of the Bandemer test proved virtually impossible for parties to overcome. There are simply too many elements that cumulatively impose much too great of a burden. 321 This difficult standard reflects the general reluctance of the courts to employ judicial power to combat partisan gerrymandering. This is in sharp contrast to the courts’ willingness to rein in political patronage. The differing judicial treatment given to the two primary political activities of incumbent parties is probably due more to the difficulty of developing adequate standards for gerrymandering than a belief that patronage is a greater affront to constitutional rights. E. Vieth v. Jubelirer: The Court Reconsiders the Justiciability of Partisan Gerrymanders Eighteen years after Bandemer the Supreme Court was finally ready to reconsider the justiciability of partisan gerrymandering. In the years following the Bandemer decision, the composition of the Court changed considerably with the addition of six new justices. By 2004, only Justice Stevens remained of the original six justices who had found partisan gerrymandering to be a justiciable matter. The vehicle for the Court’s reconsideration was Vieth v. Jubelirer which began as a dispute over a redistricting plan for congressional seats in Pennsylvania. 322 The controversy started in 2000 when the Pennsylvania legislature redrew that state’s congressional districts, allegedly under pressure from national figures in the Republican Party. 323 Democratic voters challenged the plan claiming that it was a partisan gerrymander in violation of the Equal Protection clause. This claim was unsuccessful in lower federal courts which found that the plaintiffs had failed to show that they had been “shut out” of the political process or that they had been discriminated against. 324 The Supreme Court affirmed this dismissal and, in a plurality opinion authored by Justice Scalia, went on to find that not only was the standard of

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Davis v. Bandemer unmanageable but that all claims of partisan gerrymandering were nonjusticiable. 325 While not formally overruling Bandemer, the plurality opinion eviscerated the earlier decision. Justice Scalia reviewed the eighteen-year history of lower courts attempting to apply the test of Bandemer and concluded that, “the [Bandemer] standard was misguided when proposed [and] has not been improved in subsequent application . . .” 326 Justice Scalia spent the remainder of his opinion attacking the alternative standards for the adjudication of partisan gerrymanders offered by the Vieth appellants and his fellow justices. Justice Kennedy concurred in the judgment of the Court upholding Pennsylvania’s redistricting plan because he felt that a “decision ordering the correction of all election district lines drawn for partisan reasons would commit the federal and state courts to unprecedented intervention in the American political process.” 327 But he refused to join Justice Scalia’s plurality opinion that no judicially manageable standard could ever be formulated for partisan gerrymandering cases. Justice Kennedy believed that the core difficulty with these cases derived from the absence of a “comprehensive and neutral principle for drawing electoral boundaries,” and the “absence of rules to limit and confine judicial intervention.” 328 As a possible solution to these problems, he suggested that the First Amendment might “offer a sounder and more prudential basis for intervention that does the Equal Protection Clause.” 329 Justices Stevens, Souter, and Breyer each wrote a dissenting opinion in Vieth. None of the dissenters came to the defense of the Bandemer standard itself, but instead offered proposals that drew upon that decision as well as other precedents. Justice Stevens strongly believed that the Court could still develop workable judicial standards for handling these redistricting challenges. 330 He favored the adoption of a test that would focus on whether one political party had been excluded from the redistricting process, the shape of resulting districts, and the motives of the legislature undertaking the redistricting. He had no problem drawing guidance from the Court’s precedents on racial gerrymandering, noting that “the critical issue in both racial and political gerrymandering cases is the same: whether a single non-neutral criterion controlled the districting process to such an extent that the Constitution was offended.” 331 Justice Stevens described the problem in both types of gerrymandering as resulting in “representational harm.” He explained that: [The] danger of a partisan gerrymander is that the representative will perceive that the people who put her in power are those who drew the map rather than those who cast ballots, and she will feel beholden not to a subset of her constituency, but to no part of her constituency at all. The problem, simply put, is that the will of the cartographers rather than the will of the people will govern. 332

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To prevent this damage to representative government, Justice Stevens favored applying a test derived from the Court’s racial gerrymandering cases that would focus on whether partisan considerations dominated the linedrawing process to the exclusion of other traditional considerations. 333 Justice Stevens summed up his approach thusly: Under my analysis, if no neutral criterion can be identified to justify the lines drawn, and if the only possible explanation for a district’s bizarre shape is a naked desire to increase partisan strength, then no rational basis exists to save the district from an equal protection challenge. Such a narrow test would cover only a few meritorious claims, but it would preclude extreme abuses, such as those disclosed by the record in Badham v. Eu, and it would perhaps shorten the time period in which the pernicious effects of such a gerrymander are felt. This test would mitigate the current trend under which partisan considerations are becoming the be-all and end-all in apportioning representatives. 334

In his dissenting opinion Justice Souter, joined by Justice Ginsburg, wrote that partisan gerrymandering was justiciable, but characterized the Bandemer test as combining “a very demanding burden with significant vagueness.” 335 He found the test to be simply too difficult for major parties to meet and proposed that the Court make a “fresh start” and devise a workable standard that would allow the judiciary to regulate the worst of partisan gerrymandering. To that end, he proposed that plaintiffs in such cases be required to make out a prima facie case of unconstitutional gerrymandering after which the burden of proof would shift to the redistricting body. 336 In order to make out a prima facie case of partisan gerrymandering a plaintiff would have to: • “identify a cohesive political group to which he belonged.” 337 • show that the proposed district “paid little or no heed to those traditional districting principles whose disregard can be shown straightforwardly: contiguity, compactness, respect for political subdivisions, and conformity with geographic features.” 338 • “establish specific correlations between the district’s deviations from traditional districting principles and the distribution of the population of his group.” 339 • “present the court with a hypothetical district including his residence, one in which the proportion of the plaintiff’s group was lower (in a packing claim) or higher (in a cracking one) and which at the same time deviated less from traditional districting principles than the actual district.” 340 And, • “show that the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group.” 341 Once a plaintiff had cleared these hurdles, the burden of proof would shift to the defendants to “justify their decision by reference to objectives other

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than naked partisan advantage.” 342 This standard was meant to ease the burden on party-plaintiffs by helping identify the most egregious cases of partisan gerrymandering. In his plurality opinion in Vieth, Justice Scalia ridiculed Justice Souter’s test, commenting that, “the last four steps require a quantifying judgment that is unguided and ill suited to the development of judicial standards.” 343 Justice Breyer also dissented to Vieth, writing a general opinion in which he identified several scenarios “in which the use of purely political criteria could conflict with constitutionally mandated democratic requirements.” 344 Justice Scalia dismissed Justice Breyer’s suggestions as well, declaring that “he never tells us what he is testing for, beyond the unhelpful ‘unjustified entrenchment’” of one political party. 345 Two months after the Supreme Court handed down its decision in Vieth, they heard an appeal in the case of Cox v. Larios. 346 This dispute involved a challenge to Georgia’s redistricting of its state legislature claiming that the process had favored rural and inner-city interests over suburban interests, and Democratic incumbents over Republican incumbents. The district court dismissed the partisan gerrymander claims despite finding that the “efforts at selective incumbent protection through the use of population deviations and creative district shapes led to a significant overall partisan advantage for Democrats in the electoral maps.” 347 While giving extensive discussion to the reapportionment issues, the district court in Cox avoided any consideration of the key issues implicated by partisan gerrymander claims. On appeal the Supreme Court affirmed the dismissal of the partisan claims. 348 In a concurrence to this decision, Justice Stevens claimed that “had the Court in Vieth adopted a standard for adjudicating partisan gerrymandering claims, the standard would likely have been satisfied in this case.” 349 The Supreme Court’s opinions in Vieth offered little assistance to lower courts in how to handle cases involving partisan gerrymanders. Law review commentators were mostly puzzled by and critical of the decision. 350 A district court judge in Texas commented that “[t]he light offered by Vieth is dim, and the search for a core holding elusive.” 351 The Vieth opinions showed that members of the Court remained far apart on many of the basic issues here, including: justiciability, which constitutional rights were implicated (equal protection and/or First Amendment freedoms), and the extent to which guidance may be drawn from the Court’s precedents on racial gerrymandering. In Bandemer six justices agreed on justiciability and four were able to agree on a standard. 352 Eighteen years later in Vieth the Court was even less united on how to handle these issues. The Court’s next set of pronouncements on partisan gerrymandering came only two years later in a complicated redistricting case out of Texas.

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F. The Texas Gerrymander Case: L.U.L.A.C. v. Perry The Supreme Court’s most recent foray into the issues surrounding partisan gerrymandering came in its 2006 decision in League of United Latin American Citizens (L.U.L.A.C.) v. Perry. 353 This dispute involved the redistricting of congressional seats in Texas after the 2000 federal census. By 2002, the Republican Party had gained control of both houses of the Texas state legislature and quickly proceeded to redistrict the state to their partisan advantage. In order to forestall this legislation by denying the legislature a quorum, fifty Democratic state legislators fled the state in May of 2003. The Republicans responded by ordering the capture and arrest of the wayward Democrats but were unsuccessful. In July of 2003, Texas Governor Rick Perry called a special session of the state legislature but Democratic legislators again left the state. Finally, at a third special session in October, the state legislature passed the Republicans’ mid-decade redistricting plan. 354 The final Texas plan affected significant African-American and Latino populations in the state. A variety of plaintiffs including Texas municipalities, members of Congress, and ethnic groups immediately challenged this plan on several grounds, including: the right of the state to redistrict middecade, racial discrimination violative of Equal Protection, unconstitutional partisan gerrymandering, and dilution of minority voting strength in violation of Section 2 of the Voting Rights Act of 1965. In 2004, a three-judge district court denied plaintiffs relief and they appealed to the U.S. Supreme Court. 355 While this appeal was pending before the Supreme Court that court rendered its decision in Vieth v. Jubelirer and the Texas case was remanded back to the district court for reconsideration of its decision in light of this recent ruling. 356 On remand, under the caption Henderson v. Perry, the district court limited its consideration to the political gerrymandering claims. 357 For a second time, this court turned down the plaintiff’s challenge to the Texas redistricting plan. Judge Higginbotham identified the key problem for plaintiffs in gerrymandering disputes as being the inability to identify the point at which the inherently political process of redistricting becomes “too political” and thus unconstitutional. He concluded that the plaintiffs’ contentions were “conspicuous for want of any real measure of substantive fairness, one that can sort plans ‘fair or unfair’ by something other than a judge’s vision of how the judiciary ought to work.” 358 This dispute was again appealed to the Supreme Court which responded with six divergent opinions. Justice Kennedy announced the judgment of the Court which rejected the constitutional gerrymander challenges but held that the state’s redrawing of the formerly majority-Latino areas of the state violated the 1965 Voting Rights Act. 359 Justice Kennedy refused to reconsider the justiciability holding of Vieth v. Jubelirer, but was willing to consider “whether appellants’ claims offer the Court a manageable, reliable measure

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of fairness for determining whether a partisan gerrymander violates the Constitution.” 360 He then proceeded to consider the plaintiff’s two theories of partisan gerrymandering. The first claim was that the state’s “mid-decade redistricting when solely motivated by partisan objectives violates equal protection and the First Amendment because it serves no legitimate public purpose and burdens one group because of its political opinions and affiliations.” 361 Justice Kennedy, writing only for himself, rejected this claim because it failed to “show a burden, as measured by a reliable standard, on the complainant’s representational rights.” 362 The plaintiff’s second theory of unconstitutional gerrymandering was based on the claim that “mid-decade redistricting for exclusively partisan purposes violates the one-person, onevote requirement.” 363 Justice Kennedy, joined here by Justices Souter and Ginsburg, rejected this theory and the appellants’ argument that “a legislature’s decision to override a valid, court-drawn plan mid-decade is sufficiently suspect to give shape to a reliable standard for identifying unconstitutional political gerrymanders.” 364 These three justices found this second argument to be simply a restatement of the question of the power of the Texas legislature to redistrict and rejected it as well. Justice Stevens wrote an opinion partially concurring with and partially dissenting to the Court’s decision in L.U.L.A.C. 365 He continued to argue that there were “judicially manageable standards” by which to judge political gerrymanders. 366 Justice Stevens set out a test that drew on the Court’s racial gerrymandering precedents which required that plaintiffs prove both intent and effect. Under this test plaintiffs had initially to show that partisanship was the predominate factor motivating the redistricting decision. Justice Stevens would then apply strict scrutiny and the state would have to demonstrate that its plan was narrowly tailored to serve a compelling state interest. 367 Justice Stevens further explained that “any decision to redraw district boundaries . . . must at the very least, serve some legitimate governmental purpose. . . . A purely partisan desire ‘to minimize or cancel out the voting strength of racial or political elements of the voting population,’ is not such a purpose.” 368 Stevens reviewed the history of the Texas plan and easily found that it failed this test because the legislature had sought to create its own “impermissible stranglehold on political power.” 369 Since the “sole purpose” of the legislature here was to gain a partisan advantage the entire resulting plan was unconstitutional for Justice Stevens. 370 The other members of the Court who wrote opinions in L.U.L.A.C. focused on the racial gerrymandering claims and provided no new thinking on partisan gerrymandering. Justice Souter refused to even bother applying his test for assessing political gerrymandering claims since the Court had yet to agree on a single standard. 371 Justice Breyer wrote that he believed that the entire Texas plan violated equal protection because it had been shown that the plan “overwhelmingly relies upon the unjustified use of purely partisan

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line-drawing considerations.” 372 The Court’s two newest members, Chief Justice Roberts and Justice Alito, took no position on the justiciability of partisan gerrymandering. Instead, they joined in an opinion supporting the district court’s finding that plaintiffs had failed to show a section 2 violation. 373 Justice Scalia wrote a separate opinion reiterating his view that partisan gerrymandering was not a justiciable matter. 374 The presence of other complex issues, especially the racial discrimination claims and the mid-decade timing of the redistricting, made L.U.L.A.C. an imperfect vehicle for resolving the questions relating to partisan gerrymandering. Nonetheless, there was considerable disappointment when the L.U.L.A.C. decision was handed down that the Court was not able to make some progress on developing a standard for adjudicating partisan gerrymanders. Most commentators continued to believe that partisan gerrymanders were justiciable, but divided over what constitutional basis should be used by the courts. 375 Many commentators continued to believe that the practice of partisan gerrymandering presents a serious and worsening threat to our democratic government. 376 Most also agree that application of Equal Protection doctrine and the requirements that plaintiffs show both partisan “effect” and legislative “intent” render this route nearly impossible as a means for resolving the issue. Equal protection analysis here has put the courts in an almost impossible situation. While the one-person, one-vote standard with its numerical objectivity has worked well in the realm of malapportionment these standards have not been workable with the more difficult problem of partisan gerrymandering. The “crux of the problem” has been the judiciary’s inability to effectively discern invidious legislative motivations from legitimate electoral victories. 377 As one commentator has described it: [U]nlike malapportionment, an effects-based test is not sufficient for purposes of gerrymandering, because, regardless of whether a gerrymander has occurred, one political party will always lose. In other words, the effects of a partisan gerrymander may be similar in many respects to a validly drawn redistricting plan that simply happens to contain a majority of one political party. The Court therefore finds itself taking a “how far is too far” approach, which assumes that particularly egregious effects may be unconstitutional. 378

Given the obvious problems with the current approach to partisan gerrymanders, a number of alternatives have been suggested. 379 Most of these suggestions try to escape the need to prove partisan effects and legislative intents that have underpinned the Court’s reliance on the Equal Protection clause in these cases. Some have suggested that the Congress should step in and regulate the redistricting process at the state level. 380 This alternative involves the Congress outlawing mid-decade reapportionments and/or requiring that the states make use of bipartisan commissions to re-draw their congressional boundaries. Little progress has been made on this route and it

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seems unlikely that it would be able to reach the redistricting for non-federal offices. The Congress has shown some interest in dealing with this topic through legislation attempting to regulate the redistricting process in the states. 381 Other observers would follow Justice Kennedy’s concurring opinion in Vieth v. Jubelirer and make use of the First Amendment for adjudicating partisan gerrymandering. 382 Use of the First Amendment free association would be based on the right of voters to “associate” with their chosen political party and its candidates through the electoral process. 383 This approach would evaluate gerrymandering in individual electoral districts rather than trying to assess its impact on political parties statewide under Equal Protection. This might make judicial supervision of alleged political gerrymanders easier. It would also avoid relying on the Equal Protection clause that many regard as a vehicle for protecting “weak political minorities,” a description that fits neither of our major political parties. A few have argued that the courts should use the Constitution’s Guarantee Clause as an alternative vehicle for adjudicating partisan gerrymanders. 384 A more modest reform suggestion is that state legislatures adopt such plans only by super-majority votes. 385 The most popular solution to the Court’s dilemma in handling these disputes is simply to have the states resort to neutral redistricting commissions to redraw legislative boundaries rather than relying on unavoidably partisan state legislatures. 386 The slow judicial progress on partisan gerrymandering has already led some states to turn to commissions as a way to redistrict in a more even-handed fashion. 387 G. From Racial Gerrymandering to Partisan Gerrymandering: Sharing Standards The continued reliance on equal protection doctrine to resolve partisan gerrymandering disputes inevitably raised the question of whether principles developed in racial gerrymandering cases could be transferred to those involving partisan gerrymandering. This issue has percolated in the courts for many years, with members of the Supreme Court taking a variety of stances on the transferability of the Court’s precedents on racial gerrymandering to those involving partisan gerrymandering. 388 Liberal members of the Court have generally been more receptive to employing at least some of the judicial techniques developed in racial gerrymandering disputes to partisan gerrymandering cases. Conservatives on the Court have been less willing to make this connection. The key difference between racial and partisan gerrymanders is that the courts now start with the proposition that virtually all negative race-based districting is unconstitutional, but assume that some but not all partisan gerrymandering is unconstitutional. This key difference means that the courts have to decide what degree of partisan-based motivations (and/or

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results) rise to the level of being “unconstitutional.” This difficulty is not present with racial gerrymanders since such motives, once proven, are presumed invidious. Partisan gerrymander plaintiffs are thus left to make the “too far” argument in attacking a state redistricting plan. Given the long and largely successful history of judicial intervention in cases of racial gerrymandering, it might be expected that the courts would be able to easily repeat this success with partisan gerrymandering. However, a simple transplantation of the standards and guidelines from the Court’s racial precedents has proven to be much more complicated. The plurality in Bandemer implied strongly that most of the guidelines developed in racial gerrymandering cases were transferable to those involving partisan gerrymandering. 389 However, the Court has indicated elsewhere that racial discrimination cases should be judged by a different standard. 390 In the years immediately after Bandemer, the majority of lower courts hearing cases of partisan gerrymandering appeared to be willing to apply racial gerrymandering precedents to partisan causes. 391 A typical comment came from a district court in Florida in 2002 noting that, “[a]ll that is clear from the [Bandemer] plurality’s opinion is that the test for political gerrymandering is strongly linked to the line of cases involving racial vote dilution.” 392 Some courts, however, have found that the tests from race discrimination cases would be inappropriate, in part, because they would place a virtually impossible burden on partisan plaintiffs. The district court in Terazzas made the point: [I]t serves no useful purpose to graft the requirements for that sort of racial gerrymandering case onto partisan gerrymandering cases because the concern in the latter, unlike the former, is not whether a particular group may participate in a political party but whether the political party as a whole may participate in the governing of the state’s affairs. In a partisan gerrymandering case there will rarely, if ever, be a showing of outside interference in “registration, organizing, voting, fund-raising, or campaigning,” because the dominant partisan group need not and likely would not dilute another group’s influence in this manner. 393

Despite the similarities between the two types of gerrymandering the differences between them in motives, techniques, and impact have hampered the application of racial guidelines to cases of partisan gerrymandering. In the case of partisan gerrymandering there is no clearly defined “suspect class” that deserves heightened judicial protection. 394 In the language of the Court, discrimination against partisan opponents lacks the “invidious” motivations typically underlying racial gerrymandering. Political parties also lack many of the attributes of racial and ethnic groups such as a history of discrimination beyond the electoral process and the immutability of the trait. Some justices have been reluctant to extend the Court’s vote dilution princi-

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ples beyond race discrimination for these reasons. 395 It can also be argued that competition between parties, unlike inter-racial tensions, is a healthy phenomenon in a democracy. Inter-party disputes can be seen as fostering competitive elections, reinforcing the separation of powers, and enhancing our system of checks and balances. Few would make similar claims for competition between the races. The most recent Supreme Court discussion of these issues came in Vieth v. Jubelirer. 396 In his dissent to the Court’s decision, Justice Stevens laid out the argument for importing lessons and tests from the racial gerrymandering case law with these remarks: Given this clear line of precedents, I should have thought the question of justiciability in cases such as this—where a set of plaintiffs argues that a single motivation resulted in a districting scheme with discriminatory effects—to be well settled. The plurality’s contrary conclusion cannot be squared with our long history of voting rights decisions. Especially perplexing is the plurality’s ipse dixit distinction of our racial gerrymandering cases. Notably, the plurality does not argue that the judicially manageable standards that have been used to adjudicate racial gerrymandering claims would not be equally manageable in political gerrymandering cases. 397

Justice Stevens noted that the Court’s cases on political patronage had shown that political motives can be just as bad as racial ones when it comes to government-sponsored discrimination. He noted that, “[T]he critical issue in both racial and political gerrymandering cases is the same: whether a single non-neutral criterion controlled the districting process to such an extent that the Constitution was offended.” 398 This approach was part of Justice Stevens’ larger theory that such cases should be analyzed in terms of the “representational harm” that is done to the plaintiffs. 399 As might be expected, Justice Scalia took a very different view of this matter. In his opinion for the Court, he answered Justice Stevens by writing that: Justice Stevens’s confidence that what courts have done with racial gerrymandering can be done with political gerrymandering rests in part upon his belief that “the same standards should apply.” But in fact the standards are quite different. A purpose to discriminate on the basis of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on the basis of politics does not. “[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.” 400

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Justice Scalia further noted that “the reality that setting out to segregate voters by race is unlawful and hence rare, and setting out to segregate them by political affiliation is (so long as one doesn't go too far) lawful and hence ordinary.” 401 Justice Scalia also attacked the standard proposed by the plaintiffs in the Vieth case. They had tried to argue the applicability of the “predominant intent” standard derived from racial gerrymandering cases. 402 He believed that this test offered the plaintiffs “no comfort” here because the test is meaningless when applied to statewide political gerrymanders and that gerrymandering inevitably involve some politics. Justice Kennedy in his concurrence to Vieth tried to strike a position just slightly more moderate then Justice Scalia’s. He explained as follows: That courts can grant relief in districting cases where race is involved does not answer our need for fairness principles here. Those controversies implicate a different inquiry. They involve sorting permissible classifications in the redistricting context from impermissible ones. Race is an impermissible classification. Politics is quite a different matter. 403

Many of the problems of racial and ethnic groups in the electoral process have been solved by the imposition of the one-person, one-vote rule. However, this judicial device is of little help in the case of partisan gerrymandering where the issue is an almost never one of malapportionment. Instead, partisan gerrymandering claims are, by definition, ones involving redistricting. But whereas malapportionment has been dealt with through the one-person, one-vote doctrine, redistricting has proven to be a much more difficult subject for the courts to identify and to remedy whatever the motivation. III. SUMMARY AND CONCLUSIONS ON INCUMBENT POLITICAL PARTIES American courts have faced a discouraging number of complex problems in trying to adjudicate the role of political parties in power. In handling the wide range of fact scenarios in which these problems arise, judges have routinely divided over how to accommodate parties in our democratic system. Most judges acknowledge that political parties are integral elements in our political system and that they make some important contributions to a functioning democracy. However, many judges are suspicious of the motives and techniques of political parties. The central problem here, of course, is that while incumbent parties typically represent an electoral majority, they are also inevitably partisan organizations that will seek to advance their own power. How to strike a balance between these competing objectives is at the core of the courts’ difficulty in defining the boundaries of the power of parties in government.

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In the case of political patronage the courts’ main problem has been one of how many political appointees should be permitted relative to the number of merits appointments and what types of jobs they should receive. There is some sympathy for the argument that elected officials need to bring some supporters into government to assist them in implementing their electoral mandate. But this justification runs contrary to the goal of having a government meritocracy. In the case of partisan gerrymandering the issue comes down to how far incumbent parties should be allowed to go in strengthening their electoral prospects through redistricting. This process has long been deemed a primarily legislative responsibility but most judges now seem to believe that legislatures (controlled by majority parties) cannot be given unlimited power of redistricting. The argument that parties need things like political patronage and partisan gerrymandering in order to preserve themselves and carry out their functions within our democratic system have received little sympathy from the courts. This argument is most often asserted in favor of patronage, and claims that in order to survive the parties need patronage as an inducement to recruit and retain party workers. Courts have more often shown some concern over the possibility that political parties will become unjustly entrenched in government if they have a significant advantage over the party out of power. Differences among judges on the role of parties in a democracy are exacerbated by such things as whether these matters, especially redistricting, are too political for the courts. While concerns over justiciability have been overcome in the patronage area, many judges are still unsure on their role in adjudicating instances of alleged partisan gerrymandering. In the venerable realm of political patronage, the courts have moved increasingly in the direction of circumscribing the ability of electoral victors to reward their supporters. This trend seems to be grounded in the perception that such activity fosters corruption in government and that it erodes the representative process. Despite the trend against patronage, there remains some judicial desire to not eliminate the practice entirely. This may be due to practical political considerations or a hope that some benefits might occasionally flow from such activities. The judiciary’s handling of partisan gerrymandering has been more difficult and has not progressed much beyond a thorough exposition of the issues and choices involved. Partisan gerrymandering raises more fundamental question than political patronage, including issues of justiciability, separation of powers, and federalism. Traditional constitutional tools, including equal protection and First Amendment analysis, have not been very useful in resolving questions of partisan gerrymandering. The divide among judges on the questions of partisan gerrymandering remains very wide. Some have considered partisan gerrymandering cases in light of larger question of the role of political parties in our system of government.

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I would argue that a proper consideration of the role of parties in government must also give attention to their role in both primary and general elections. Only in this comparative overview can the locus of parties, their place in constitutional law, be properly set. If the courts are going to allow greater regulation of both the internal activities and the electoral activities of parties, then they should consider lightening the regulation of parties after they move into government. If greater regulation of incumbent political parties is deemed appropriate—as the tripartite model would dictate—then the regulation of internal and electoral aspects of parties should be eased. Either of these scenarios would allow for the balanced control of parties, avoiding the dangers of unregulated party activities or the elimination of them. NOTES 1. The relationship that has been studied the most is that between presidents and their party organizations. In the modern era, most presidents have tended either to dominate or to ignore their party’s formal organization. See, Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System Since the New Deal (New York: Oxford University Press, 1993). See also, Morris P. Fiorina, “Parties and Partisanship: A 40-Year Rertrospective,” 24 Political Behavior 93 (2002) discussing the rise and fall of parties and partisanship. 2. The staggered terms of office for representatives, senators and presidents diminish considerably the likelihood that a single party could “sweep” the elections for all three of these national institutions. U.S. Constitution, Art. I §§ 2, 3; Art. II § 1. All members of the House stand for re-election every two years, only one-third of the Senate is up for re-election at each House election, and presidential elections coincide with every other House election. 3. See, Gary W. Cox and Samuel Kernell, eds., Politics of Divided Government (Boulder, CO: Westview Press, 1991); and, Morris Fiorina, Divided Government, 2nd ed. (Boston: Allyn and Bacon, 1996). 4. See, Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 10th ed. (Washington: Congressional Quarterly Press, 2006) pp. 283–287. For a discussion of party unity in state legislatures, see, William J. Keefe and Morris S. Ogul, The American Legislative Process: Congress and the States, 9th ed. (Upper Saddle River, NJ: Prentice Hall, 1997) pp. 291–293. On the strength of party identification as a guide to legislators’ voting decisions, see, Julius Turner, Party and Constituency: Pressures on Congress (Baltimore: Johns Hopkins Press, 1951). See also, Richard L. Hasen, “Do Parties or the People Own the Electoral Process?” 149 University of Pennsylvania Law Review 815, 822 (2001) (“In contrast to the rise of the other two elements of the parties, the party-in-the-electorate has died all but in name. This is not merely because patronage employment has declined over time, lessening the connection between party organizations and the voters who register with the parties. Voters are also both less likely to have strong identification with parties and more likely to see the parties as irrelevant.”) 5. See, e.g., Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 10th ed. (Washington: Congressional Quarterly Press, 2006) ch. 9; and, John W. Kingdon, Congressmen’s Voting Decisions, 3rd ed. (Ann Arbor, MI: University of Michigan Press, 1989). 6. For a brief description of the role that the party organization can play in allocating local patronage jobs, see, Avery v. Jennings, 786 F.2d 233 (6th Cir. 1986). See also, Martin and Susan Tolchin, To the Victor (New York: Random House, 1971); and, William L. Riordan, Plunkett of Tammany Hall (New York: Signet Classic, 1995). 7. On the exercise of power by incumbent political parties, see Bruce E. Cain, “Party Autonomy and Two-Party Electoral Competition,” 149 University of Pennsylvania Law Review 793, 807 (2001). For a discussion of “party entrenchment” in government, see, Jack M. Balkin

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and Sanford Levinson, “Understanding the Constitutional Revolution,” 76 Virginia Law Review 1045 (2001). 8. See, e.g., Louis Commarosano, “Application of First Amendment to Patronage Employment Decisions” 58 Fordham Law Review 101 (1989); Brian Porto, “The Constitution and Political Patronage: Supreme Court Jurisprudence and the Balancing of First Amendment Interests,” 13 Pace Law Review 87 (1993); and, Megan Glasheen, “Patronage Employment Practices and the First Amendment,” 34 Howard Law Journal 663 (1991). 9. Alexander Pope, “Thoughts on Various Subjects,” in William Roscoe, ed., The Works of Alexander Pope (Charleston, SC: BiblioBazaar, 2008). 10. This description of the history of patronage relies on Anne Freedman, Patronage: An American Tradition (Chicago: Nelson Hall Publishers, 1994) ch. 1. See also, Martin and Susan Tolchin, To the Victor (New York: Random House, 1971); Mike Royko, Boss: Richard J. Daley of Chicago (Barrie and Jenkins, 1971); and, William L. Riordan, Plunkett of Tammany Hall (New York: Signet Classic, 1995). For a brief judicial summary of this history, see, McCormick v. Edwards, 646 F.2d 173, 175–177 (5th Cir. 1981). On the early development of the civil service system, see, Carl Russell Fish, The Civil Service and the Patronage (New York: Russell and Russell, 1963). 11. 5 U.S.C. § 7324, which bans some political activities by federal employees. 12. As late as 1991, leading patronage scholars were able to write that, “Although not united by ideology, American political parties are united by patronage, which uses the machinery of government on all levels (federal, state and local) to enforce party discipline.” Martin and Susan Tolchin, “Political Patronage,” in L. Sandy Maisel, ed., Political Parties and Elections in the United States, vol. 2 (NY: Garland Publishing Company, 1991) p. 837. Compare, Raymond E. Wolfinger, “Why Political Machines Have Not Withered Away and Other Revisionist Thoughts,” 34 Journal of Politics 365 (1972). 13. Some consider “pork barrel” projects to be a part of modern political patronage, see, Martin and Susan Tolchin, “Political Patronage,” in L. Sandy Maisel, ed., Political Parties and Elections in the United States, vol. 2 (NY: Garland Publishing Company, 1991) pp. 829–838. I will not include pork barrel benefits in my discussion of patronage since they tend to be used by individual legislators to build generalized electoral support rather than being used by the parties to motivate and reward supporters in their electoral base. 14. For a discussion of the link between parties and patronage, see, Cynthia Grant Bowman, “Public Policy: ‘We Don’t Want Anybody Anybody Sent’: The Death of Patronage Hiring in Chicago,” 86 Northwest University Law Review 57, 83–98 (1991). 15. See, Bryan A. Schneider, “Comment: Do Not Go Gentle into that Good Night: The Unquiet Death of Political Patronage,” 1992 Wisconsin Law Review 511, 526 (1992). 16. The classic discussion of what motivates individuals to join political parties is James Q. Wilson, Political Organizations (Princeton, NJ: Princeton University Press, 1995) ch. 6. 17. See, David K. Ryden, Representation in Crisis: The Constitution, Interest Groups, and Political Parties (Albany, NY: State University of New York Press, 1996) chs. 1, 9; and, Glen S. Howard, “Patronage Dismissals: Constitutional Limits and Political Considerations,” 41 University of Chicago Law Review 297, 321–328 (1974). 18. See, Illinois State Employees Union v. Lewis, 473 F.2d 561, 574 (7th Cir. 1972), citing, Donahue v. Staunton, 471 F.2d 475, 481 (7th Cir. 1972); and, Bryan A. Schneider, “Do Not Go Gentle into that Good Night: The Unquiet Death of Political Patronage,” 1992 Wisconsin Law Review 511, 515–517 (1992). 19. See, Martin H. Brinkley, “Despoiling the Spoils: Rutan v. Republican Party of Illinois,” 69 North Carolina Law Review 719, 729–730 (1991). 20. Discussions of the link between patronage and democratic theory can be found in, James A. Gardner, “Giving the Gift of Public Office,” 53 Buffalo Law Review 859 (2005); and, Michael Patrick Burke, “Political Patronage and North Carolina Law: Is Political Conformity with the Sheriff a Permissible Job Requirement for Deputies?” 79 North Carolina Law Review 1743, 1768 (2001). 21. The role of the courts in fostering a civil service system is discussed in, Illinois State Employees Union v. Lewis, 473 F.2d 561, 567 (7th Cir. 1972) (“Neither this court not any other court may impose a civil service system upon the State. . . . recognition of plaintiff’s claims [of

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unjust dismissal for partisan reasons] will not give every public employee civil service tenure and will not require the state to follow any set procedures . . . for every termination. . . . There is a clear distinction between the grant of tenure to an employee—a right which cannot be conferred by judicial fiat—and the prohibition of a discharge for a particular impermissible reason.”). See also the discussions in, Rutan v. Republican Party of Illinois, 497 U.S. 62, 113–114 (1990) (Scalia, J., dissenting); and, Elrod v. Burns, 427 U.S. 347, 372 n. 28 and 375–376 (1976) (Burger, C.J., dissenting). 22. For some skeptical views of how well the judiciary has dealt with the issues surrounding state regulation of parties, see, David K. Ryden, ed., The Supreme Court and the Electoral Process (Washington: Georgetown University Press, 2000). 23. For a descriptions of the development of the law in this area, see, Illinois State Employees Union v. Lewis, 473 F.2d 561, 568–573 (7th Cir. 1972); Connick v. Myers, 461 U.S. 138, 143–147 (1983); and, Glen S. Howard, “Patronage Dismissals: Constitutional Limits and Political Justifications,” 41 University of Chicago Law Review 297 (1974). 24. McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517 (Mass. 1892). Before the Elrod decision, the general rule was that beneficiaries of patronage could not sue when fired on partisan grounds, see, Nunnery v. Barber, 503 F.2d 1349, 1359–1360 (4th Cir. 1974) certiorari denied, 420 U.S. 1005 (1975); and, Illinois State Employees Union v. Lewis, 473 F.2d 561, 573 (7th Cir. 1972). 25. See, Bailey v. Richardson, 182 F.2d 46, 59 (D.D.C. 1950) affirmed, 341 U.S. 918 (1951) (“the plain hard fact is that as far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affiliations.”); Adler v. Board of Education, 342 U.S. 485 (1952); United Public Workers v. Mitchell, 330 U.S. 75 (1947) (upholding the Hatch Act ban on certain political activities by public employees); Garner v. Los Angeles Board of Public Workers, 341 U.S. 716 (1951); United States v. Wurzbach, 280 U.S. 396 (1930); and, Ex Parte Curtis, 106 U.S. 371 (1882). 26. The Court rejected the rights-privilege distinction in the area of public employment in, Graham v. Richardson, 403 U.S. 365 (1971). 27. See, e.g., Board of Regents v. Roth, 408 U.S. 564 n. 9 (1972); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979); Pickering v. Board of Education of Township High School Dist. 205, Will County, 391 U.S. 563 (1968); and, Connick v. Myers, 461 U.S. 138 (1983). See also, Peter C. McCabe III, “Connick v. Myers: New Restrictions on the Free Speech Rights of Government Employees,” 60 Indiana Law Journal 339 (1984). 28. Wieman v. Updegraff, 344 U.S. 183 (1952); and, Shelton v. Tucker, 364 U.S. 479 (1960). 29. Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). 30. Pickering v. Board of Education of Township High School Dist. 205, Will County, 391 U.S. 563, 574 (1968); and, Perry v. Sindermann, 408 U.S. 593 (1972). 31. Early court decisions supporting political patronage by turning away challenges from public employees included: Alomar v. Dwyer, 447 F.2d 482 (2nd Cir. 1971) (affirming the dismissal of a municipal employee who refused to change party affiliation, finding no First Amendment violation); American Federation of State, County and Municipal Employees, AFLCIO v. Shapp, 280 A.2d 375, 377 (Penn. 1971) (“Plaintiffs have been unable to establish a Constitutional right to their retention of a job obtained through the system of political patronage. Absent the establishment of such a Constitutional right, their claim of protection under procedural Due Process of a right to notice and a hearing is without merit. It has long been the established law, in both the Federal Courts and the Courts of our Commonwealth, that a public employer, including as such the Government, may summarily discharge a person in the employ of the Government, absent controlling legislation.”), certiorari denied, 404 U.S. 1020 (1972); Norton v. Blaylock, 409 F.2d 772 (8th Cir. 1969) (upholding the discharge of a public employee because she engaged in political activity); Burns v. Elrod, 71 C 607 (N.D. Ill. Eastern Division, July 1983) (dismissing a claim based on partisan firing of public employee); and, Shakman v. Democratic Organization of Cook County, 356 F. Supp. 1241, 1248 (N.D. Ill. 1972) (holding

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on remand from 7th Circuit Court of Appeals that patronage employee may be hired or fired unless the decision affects the rights of voters, candidates, or taxpayers). 32. Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972), certiorari denied sub nom., Lewis v. Illinois State Employees Union, 410 U.S. 928 (1973) (reversing and remanding the dismissal of a public employee who had been dismissed for failing to support the political activities of his political superior); Donahue v. Staunton, 471 F.2d 475, 481 (7th Cir. 1972) (holding that a state could not fire an employee for comments on matters of public concern because the “plaintiff’s individual interest in being free to speak out on matters of concern to him, outweigh those of the State as an employer.”); Kiiskila v. Nichols, 433 F.2d 745, 749 (7th Cir. 1970) (“A citizen’s right to engage in protected expression or debate is substantially unaffected by the fact that he is also an employee of the government and, as a general rule, he cannot be deprived of his employment merely because he exercises those rights.”). 33. 427 U.S. 347 (1976). 34. 42 U.S.C. § 1983. 35. The dispute began as, Burns v. Elrod, No. 71 C 607 (N.D. Illinois May 31, 1972), reversed and remanded, 509 F.2d 1133 (7th Cir. 1975); affirmed sub nom., Elrod v. Burns, 427 U.S. 347 (1976). 36. 427 U.S. 347, 359 (1976) (footnote omitted). 37. Id. at 362-363. 38. Id. at 364–366. 39. Id. at 367. The distinction between policymakers and non-policymakers appears to have been drawn from the Court’s decision in, Sugarman v. Dougall, 413 U.S. 634 (1973). Four years later, the Court would add “spokespersons” or those engaged in government “communicative” work to the class of public employees who would typically be subject to political appointment and removal. See, Branti v. Finkel, 445 U.S. 507, 518 (1980). 40. Id. at 368. 41. “The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Id. at 375 (Stewart, J., concurring) (Italics added.) 42. Id. at 362. 43. Id. at 368-369 (citations omitted). 44. Id. at 356. 45. Id. at 368-370. 46. Id. a 376-389 (1976) (Powell, J., dissenting). The Chief Justice also wrote a separate dissenting opinion, id. at 375–389 (Burger, C.J., dissenting). 47. Id. at 379 (Powell, J., dissenting). 48. Id. at 389 (Powell, J., dissenting). 49. Id. at 382–383 (footnote omitted). 50. This position favoring legislative determination of the line between “political” and “nonpolitical” positions is sometimes referred to as the “Rice canon.” See, Rice v. Ohio Department of Transportation, 14 F.3d 1133, 1142–1143 (6th Cir. 1994), certiorari denied, 512 U.S. 1207 (1994); Cope v. Heltsley, 128 F.3d 452, 459–460 (6th Cir. 1997); McCloud v. Testa, 97 F.3d 1536, 1542 (6th Cir. 1996); and, Jenkins v. Medford, 119 F.3d 1156, 1163–1164 (4th Cir. 1997). 51. 427 U.S. 347, 384 (1976) (Powell, J., dissenting). 52. Id at 384–385 (Powell, J., dissenting). 53. Id. at 386 n. 10 (Powell, J., dissenting). 54. Id. at 380 (Powell, J., dissenting). 55. Id. at 382 n. 6 (Powell, J., dissenting). 56. 435 U.S. 291, 309–310 (1978). 57. Id. at 300, citing, Sugarman v. Dougall, 413 U.S. 634, 647 (1973). 58. Id. at 311–312 (Stevens, J., dissenting). 59. 445 U.S. 507 (1980). 60. 457 F. Supp. 1284 (S.D.N.Y. 1978), affirmed, 598 F.2d 609 (2nd Cir. 1979).

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61. 445 U.S. 507, 518 (1980). 62. Id. at 521 (Powell, J., dissenting.) Justice Stewart joined only part of the Powell dissent and wrote his own brief dissenting opinion in which he asserted that the Elrod distinction was inapplicable to the situation in Branti because the respondents were not non-confidential employees, Id. at 520–521 (Stewart, J., dissenting). 63. Id. at 521 (Powell, J., dissenting). 64. Id. at 525 n. 5 (Powell, J., dissenting). 65. Id. at 522 (Powell, J., dissenting). 66. Id. at 524 (Powell, J., dissenting). 67. Id. at 525 (Powell, J., dissenting). 68. Id. at 527, citing Buckley v. Valeo, 424 U.S. 1 (1976) (Powell, J., dissenting). 69. Id. at 527–532 (Powell, J., dissenting). 70. Id. at 532 (Powell, J., dissenting). 71. Id. at 529 (Powell, J., dissenting). 72. Id. at 532 (Powell, J., dissenting). 73. Tamczak v. Chicago, 765 F.2d 633, 641 n. 2 (7th Cir. 1985), certiorari denied, 474 U.S. 946 (1985). 74. For some candid judicial remarks admitting this difficulty, see, Branti v. Finkel, 445 U.S. 507, 517–518 (1980); Lohorn v. Michal, 913 F.2d 327, 332–335 (7th Cir. 1990); Jiminez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st Cir. 1986) (en banc); and, Elrod v. Burns, 427 U.S. 347, 367–368 (1976). 75. Branti v. Finkel, 445 U.S.507, 518 (1980). 76. For more on the effects of the new Branti test, see, Branford S. Moyer, “The Future of Rutan v. Republican Party of Illinois: A Proposal for Insulating Independent Contractors from Political Patronage,” 28 Valparaiso Law Review 375 (1993); and, Martin H. Brinkley, “Despoiling the Spoils: Rutan v. Republican Party of Illinois,” 69 North Carolina Law Review 719, 734–737 (1991). The Supreme Court in Branti recognized the continuing need for patronage appointees, 445 U.S. 507, 517 (1980) (“party affiliation may be an acceptable requirement for some type of government employment.”). 77. On the confusion in the lower courts after Elrod and Branti, see, Rutan v. Republican Party of Illinois, 497 U.S. 62, 111–112 (1990) (Scalia, J., dissenting); and, Louis Commarosano, “Application of the First Amendment to Political Patronage Employment Decisions,” 58 Fordham Law Review 101 (1989). For a thorough, circuit-by-circuit review of the responses to Elrod and Branti in the lower courts, see, Susan Lorde Martin, “A Decade of Branti Decisions: A Government Official’s Guide to Patronage Dismissals,” 39 American University Law Review 11 (1989). 78. See, Horn v. Kean, 796 F.2d 668 (3rd Cir. 1986) (en banc); Sweeney v. Bond, 669 F.2d 542 (8th Cir. 1982), certiorari denied, sub nom., Schenberg v. Bond, 459 U.S. 878 (1982); LaFalce v. Houston, 712 F.2d 292 (7th Cir. 1983); Abercrombi v. Catoosa, 896 F.2d 1228 (10th Cir. 1990); Ashutosh Bhagwat, “Patronage and the First Amendment: A Structural Approach,” 56 University of Chicago Law Review 1369, 1377 (1989); and, Thomas G. Dagger, “Political Patronage in Public Contracting,” 51 University of Chicago Law Review 518 (1984). 79. Other issues, such as the immunity from suit for government officials, have also complicated the consideration of broader policy questions in these cases. See, e.g., Matherne v. Wilson, 851 F.2d 752, 756–759 (5th Cir. 1988); Anderson v. Creighton, 483 U.S. 635 (1987); and, Upton v. Thompson, 930 F.2d 1209, 1213 (7th Cir. 1991). 80. The Branti standard stated: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. 507, 518 (1980) 81. See, Loughney v. Hickey, 635 F.2d 1063 (3rd Cir. 1980); Brown v. Trench, 787 F.2d 167 (3rd Cir. 1986); Horn v. Kean, 796 F.2d. 668 (3rd Cir. 1986) (en banc); Jones v. Dodson, 727 F.2d 1329 (4th Cir. 1984); and, McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987). 82. See, Savage v. Gorski, 850 F.2d 64, 68–69 (2nd Cir. 1988) (Branti reformulation of the Elrod rule found to be mere dictum); and, Ecker v. Cohalan, 542 F. Supp. 896, 903 (E.D.N.Y. 1982) (“It is not necessary that defendants show that plaintiff actually functioned in a policy-

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making capacity in order to justify his use of political affiliation as a qualification for the positioning questions. It is sufficient that defendant show he is legally empowered to delegate his own authority to the occupant of this position and intends to do so.”) 83. The First Circuit provided a detailed set of guidelines for how to judge the severity of an adverse government action. See, Jimenez Fuentes v. Gaztambide, 807 F.2d 236, 241–242 (1st Cir. 1986) (“A threshold inquiry, which derives from Branti, involves examining whether the position at issue, no matter how policy-influencing or confidential it may be, relates to ‘partisan political interests. . . . [or] concerns.’ [citation omitted] That is, does the position involve government decisionmaking on issues where there is room for political disagreement on goals or their implementation? Otherwise stated, do party goals or programs affect the direction, pace, or quality of governance? If the first inquiry is satisfied, the next step is to examine the particular responsibilities of the person to determine whether it resembles a policymaker, a privy to confidential information, communicator, or some other officer whose function is such that party affiliation is an equally important requirement.”). See also, Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1219–1220 (1st Cir. 1989) (en banc); Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985); Brown v. Trench, 787 F.2d 167, 168 (3rd Cir. 1986); Ness v. Marshall, 660 F.2d 517, 522 (3rd Cir. 1981); and, Ecker v. Cohalan, 542 F. Supp. 896, 901 (E.D.N.Y. 1982). 84. Lists of various government jobs that courts have ruled to be either protected or unprotected can be found in, Susan Lorde Martin, “A Decade of Branti Decisions: A Government Official’s Guide to Patronage Dismissals,” 39 American University Law Review 11, 43–45 (1989); Brown v. Trench, 787 F.2d 167, 169 (3rd Cir. 1986); and, Jimenez Fuentes v. Gaztambide, 807 F.2d 236, 241 (1st Cir. 1986) (en banc). 85. E.g., Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir. 1981) (position is protected if duties “purely clerical”); Visser v. Magnarelli, 530 F. Supp. 1165, 1171 (N.D.N.Y. 1982) (position protected if “nondiscretionary and technical” but not if employee participates in council discussions); DeLaCruz v. Pruitt, 590 F. Supp. 1296, 1304 (N.D. Ind. 1984) (Branti protects worker who is head bookkeeper with no power to hire or fire others); Ecker v. Cohalan, 542 F. Supp. 896, 901 (E.D.N.Y. 1982) (consider person’s relative salary, technical competence, power to control others, power to speak for policymakers, public perceptions, influence over programs, contact with elected officials, and responsiveness to partisan politics and political leaders); Jimenez Fuentes v. Gaztambide, 807 F.2d 236, 242 (1st Cir. 1986) (en banc) (consider whether employee has responsibilities that are not well defined or are of broad scope); and, Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981) (position not protected if person has meaningful input into decision-making concerning the nature and scope of major programs). This definitional challenge continued for years, see, e.g., McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996), for a more recent attempt to sort out which employees are “policymakers.” 86. Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1309 (7th Cir. 1983), citing Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981), and drawing from, Illinois State Employees Union v. Lewis, 473 F.2d 561, 564 (7th Cir. 1972), certiorari denied, 410 U.S. 928 (1973); Elrod v. Burns, 427 U.S. 347, 367–68 (1976); and, Jimenez Fuentes v. Gaztambide, 807 F.2d 236 (1st Cir. 1986) (en banc). 87. See, e.g., McCormick v. Edwards, 646 F.2d 173, 178 (5th Cir. (1981) (limiting ElrodBranti protections to public employees who are discharged solely for their political affiliation or beliefs), certiorari denied, 454 U.S. 1017 (1981); Avery v. Jennings, 786 F.2d 233 (6th Cir. 1986) (extending rule of Elrod-Branti to hiring of public workers solely on political affiliation); and, Messer v. Curci, 881 F.2d 219 (6th Cir. 1989) (holding that a claim that another applicant for a government job was given preference based on that applicant’s political activities does not state a cause of action for § 1983.) 88. E.g., McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir. 1984) (applying a balancing test to a sheriff’s refusal to rehire deputies after an election); McCormick v. Edwards, 646 F.2d 173 (5th Cir. 1981); and, Matherne v. Wilson, 851 F.2d 752 (5th Cir. 1988) (applied ElrodBranti test to deputy sheriff who was fired for campaigning for sheriff’s opponent). 89. 391 U.S. 563 (1968).

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90. For a comparison of these tests, see, James Kimmell, “Politics and the Non-Civil Service Employee: A Categorical Approach to First Amendment Protections,” 85 Columbia Law Review 558, 566–573 (1985). 91. On the question of how to handle “mixed motive” cases, where both free speech and party affiliation elements are present, see, Mount Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977); and, Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981) certiorari denied, 455 U.S. 1021 (1982). See also, Craig D. Singer, “Comment: Conduct and Belief: Public Employees’ First Amendment Rights to Free Expression and Political Affiliation,” 59 University of Chicago Law Review 897 (1992); Jonathan Epstein, “Comment: You Have No Right to Remain Silent: The Strange Case of elected Officials and Coerced Campaigning,” 1995 Chicago Legal Forum 339 (1995); and, Michael Patrick Burke, “Comment: Political Patronage and North Carolina Law: Is Political Conformity with the Sheriff a Permissible Job Requirement for Deputies?” 79 North Carolina Law Review 1743, 1752–1753 (2001). The Supreme Court itself used pieces of both tests in its 1987 decision in, Rankin v. McPherson, 483 U.S. 378, 392 (1987). 92. 727 F.2d 1329 (4th Cir. 1984). 93. Id. at 1335, citing, Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977). See also, Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981), certiorari denied, 455 U.S. 1021 (1982); and, Tanner v. McCall, 625 F.2d 1183 (5th Cir. 1980), certiorari denied, 451 U.S. 907 (1981). 94. 635 F.2d 1063, 1065–1071 (3rd Cir. 1980) (Aldisert, J., dissenting). 95. Id. at 1065. 96. Id. at 1065–1066 (footnotes omitted). 97. Id. at 1066. 98. Id. (footnote omitted). 99. Id. at 1070-1071 (footnote omitted). 100. 889 F.2d 1209, 1223–1227 (1st Cir. 1989) (Breyer, J., concurring and dissenting). 101. Id. at 1224. (Italics in original.) 102. See, John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1980) ch. 5; Pickering v. Board of Education of Township High School Dist. 205, Will County, 391 U.S. 563 (1968) (setting forth a balancing test for cases where government employees are punished for engaging in political expression); and, Ashutosh Bhagwat, “Patronage and the First Amendment: A Structural Approach,” 56 University of Chicago Law Review 1369, 1377 (1989). 103. The Supreme Court has long recognized the existence of two classes of presidential appointees, one “political” and thus generally subject to presidential removal. See, e.g., Marbury v. Madison, 5 U.S. 137, 166 (1803); and, Myers v. U.S., 272 U.S. 52, 132–135 (1926). 104. Jiminez Fuentez v. Gaztambide, 807 F.2d 236, 241 (1st Cir. 1986) (en banc). Compare, Shakman v. Democratic Organization of Cook County, 722 F.2d 1307 1310 (7th Cir. 1983) (The purpose of the policy-maker exception “is to ensure that the first amendment’s protection not interfere with the working of democratic governments and the ability of duly elected officials to implement their policies.”). See also, Robert C. Wigton, “The Supreme Court and Political Patronage: The Rutan Decision in Context,” 2 George Mason University Law Review 273 (1992). 105. Elrod v. Burns, 427 U.S. 347, 353 (1976); and, Branti v. Finkel, 445 U.S. 507, 513 (1980). Most lower courts during the 1980s treated “failure to rehire” as the equivalent of outright dismissal, see, e.g., Cheveras Pacheco v. Rivera Gonzalez, 809 F.2d 125, 127–128 (1st Cir. 1987); Furlong v. Gudknecht, 808 F.2d 233, 237–238 (3rd Cir. 1986); McBee v. Jim Hogg County, 730 F.2d 1009, 1015 (5th Cir. 1984); Soileau v. Zerangue, 553 F. Supp. 845, 848 (W.D. La. 1982); and, Brady v. Paterson, 515 F. Supp. 695, 698–699 (N.D. N.Y. 1981). 106. Cases applying the Elrod-Branti protections to situations short of outright dismissal include: Bennis v. Gble, 823 F.2d 723, 731 (3rd Cir. 1987) (urging application of the Branti rule to demotions); McConnell v. Adams, 829 F.2d 1319, 1323–1324 (4th Cir. 1987) (applied Branti to a failure to reappoint situation); Visser v. Magnarelli, 530 F. Supp. 1165, 1167 (N.D.N.Y. 1982) (applying Branti rule to failure to re-hire situations). Other courts were reluctant to extend Elrod-Branti protections beyond dismissals, see, e.g., Avery v. Jennings 604

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F. Supp. 1356, 1362 (S.D. Ohio, 1985) (refusing to extend the Elrod-Branti rule to patronage hiring), affirmed, 786 F.2d 233 (6th Cir 1986) (only patronage hiring based solely on political affiliation is unconstitutional), certiorari denied, 477 U.S. 905 (1986). See also, Roy E. Hoffinger, “First Amendment Limitations on Patronage Employment Practices,” 49 University of Chicago Law Review 181 (1982) (arguing that all adverse employment actions are unconstitutional). See also, Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1217–1218 (1st Cir. 1989) (en banc) (“insubstantial changes in an employee’s work conditions and responsibilities, even when politically motivated” should not trigger protections); Messer v. Curci, 881 F.2d 219, 221 (6th Cir. 1989) (allegations of patronage hiring alone does not state a § 1983 cause of action); and, Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1404–1405 (7th Cir. 1988) (favoring placing limitations on application of Elrod-Branti to situations that are the substantial equivalent of dismissal). 107. 445 U.S. 507, 513 n. 5 (1980). 108. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). See, Ashutosh Bhagwat, “Patronage and the First Amendment: A Structural Approach,” 56 University of Chicago Law Review 1369, 1373–1376 (1989). 109. Id. at 79. To emphasize the breadth of First amendment protections for public employees, Justice Brennan, noted in Rutan, that, “Moreover, the First Amendment, as the courts below noted, already protects state employees not only from patronage dismissals but also from ‘even acts of retaliation as trivial as failing to hold a birthday party for a public employee . . . when intended to punish her for exercising her free speech rights.’” Id. at 75 n. 4, quoting Rutan v. Republican Party of Illinois, 868 F.2d 943, 954 n. 4 (7th Cir. 1989). 110. 641 F. Supp. 249 (C.D. Ill. 1986); affirmed in part and reversed in part, 848 F.2d 1396 (7th Cir. 1988), reheard and remanded, 868 F.2d 943 (7th Cir. 1989) (en banc). 111. 868 F.2d 943, 955 (7th Cir. 1989). Compare, Delong v. United States 621 F.2d 618, 623 (4th Cir. 1980) (finding that Branti should be confined to actions that are the “substantial equivalent of dismissal”). 112. 497 U.S. 62, 76–79 (1990). On the application of the Elrod-Branti rule to patronage hiring, see, Thomas A. Pantalion, “Republicans Only Need Apply: Patronage Hiring and the First Amendment in Avery v. Jennings,” 71 Minnesota Law Review 1374 (1987). 113. 497 U.S. 62, 74 (1990) (citations omitted). 114. Id. at 75. 115. Id. at 71, n. 5. 116. Id. at 74–75. (citations omitted). 117. 497 U.S. 62, 92-115 (1990) (Scalia, J., dissenting). For an assessment of Justice Scalia’s arguments in this dissenting opinion, see, Cynthia Grant Bowman, “Public Policy: ‘We Don’t Want Anybody Anybody Sent’: The Death of Patronage Hiring in Chicago,” 86 Northwest University Law Review 57, 75–95 (1991). 118. Id. at 105–106 (Scalia, J., dissenting). 119. Id. at 108 (Scalia, J., dissenting). 120. Id. at 104 (Scalia, J., dissenting). 121. Id. at 109. (Scalia, J., dissenting). 122. 497 U.S. 62, 65 (1990). 123. See, Vickery v. Jones, 100 F.3d 1334, 1336-1337 (7th Cir. 1996). 124. Quoted in Anne Freedman, Patronage: An American Tradition (Chicago: Nelson Hall, 1994) pp. 5-6. For a contrary view, see, Cynthia Grant Bowman, “Public Policy: ‘We Don’t Want Anybody Anybody Sent’: The Death of Patronage Hiring in Chicago,” 86 Northwest University Law Review 57, 83–98 (1991), who finds that patronage may not help political parties perform their traditional activities. 125. For a description of events in Illinois at this time, see, Tarpley v. Keistler, 188 F.3d 788, 790–791 (7th Cir. 1999); Tarpley v. Jeffers, 96 F.3d 921 (7th Cir. 1996); and, Vickery v. Jones, 100 F.3d 1334, 1345–1346 (7th Cir. 1996) certiorari denied, 520 U.S. 1197 (1997). 126. See, Bryan A. Schneider, “Comment: Do Not Go Gentle into that Good Night: The Unquiet Death of Political Patronage,” 1992 Wisconsin Law Review 511, 538–542 (1992) for a description of the confusion among lower courts in applying the Court’s standards. See also,

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Cynthia Grant Bowman, “The Law of Patronage at a Crossroads,” 12 Journal of Law and Politics 341 (1996). 127. Most courts before 1996 were reluctant to extend Elrod-Branti protections to independent contractors: Downtown Auto Parks, Inc. v. Milwaukee, 938 F.2d 705, 708–710 (7th Cir. 1991) certiorari denied 502 U.S. 1005 (1991); Triad Associates, Inc. v. Chicago Housing Authority 892 F.2d 583, 586–587 (7th Cir. 1989) certiorari denied, 498 U.S. 845 (1990); Horn v. Kean, 796 F.2d 668 (3rd Cir. 1986) (en banc); Sweeney v. Bond, 669 F.2d 542 (8th Cir. 1982) certiorari denied sub nom. Schenberg v. Bond, 459 U.S. 878 (1982); LaFalce v. Houston, 712 F.2d 292, 294 (7th Cir. 1983) (“To attempt to purge government of politics to the extent implied by an effort to banish partisan influences from public contracting will strike some as idealistic, others as quixotic, still others as undemocratic, but all as formidable.”) certiorari denied, 464 U.S. 1044 (1984); Fox and Co. v. Schoemehl, 519 F. Supp. 849 (E.D. Mo. 1981). For a different view, see, Branford S. Moyer, “The Future of Rutan v. Republican Party of Illinois: A Proposal for Insulating Independent Contractors from Political Patronage,” 28 Valparaiso Law Review 375 (1993). 128. 518 U.S. 712 (1996). 129. 518 U.S. 668 (1996). 130. O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 720–721, 726 (1996); and, Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 673-674 (1996). See also, Thomas G. Dagger, “Comment: Political Patronage in Public Hiring,” 51 University of Chicago Law Review 518 (1984); and, Brian Jackson, “Comment: First Amendment Rights and Independent Contractors: The Law of Political Patronage and Protected Speech in the Wake of Umbehr and O’Hare Truck Service,” 45 Kansas Law Review 1299 (1997). 131. 518 U.S. 668, 673 (1996). 132. 518 U.S. 712, 718–719. Most of the majority opinion dealt with the Elrod-Branti decisions, leading some, including Justice Scalia, to conclude that this was the test the majority favored in O’Hare. 133. Id. at 719. Compare Justice Scalia’s comments on this, Board of County Commissioners v. Umbehr, 518 U.S. 668, 705–706 (1996) (Scalia, J., dissenting). 134. Id. at 720. 135. Id. at 726. 136. The O’Hare decision gave only passing mention to political patronage, reiterating the Court’s earlier position that, “We need not inquire, however, whether patronage promotes the party system or serves to entrench parties in power. . . . for Elrod and Branti established that patronage does not justify the coercion of a person’s political beliefs and associations.” 528 U.S. 712, 718 (1996). 137. See, Tarpley v. Keistler, 188 F.3d 788, 790–791 (7th Cir. 1999); Tarpley v. Jeffers, 96 F.3d 921 (7th Cir. 1996); and, Vickery v. Jones, 100 F.3d 1334, 1345–1346 (7th Cir. 1996). 138. Tarpley v. Jeffers, 96 F.3d 921, 931 (7th Cir. 1996). 139. Compare, Vickery v. Jones, 100 F.3d 1334, 1339 (7th Cir. 1996) (“The plaintiff’s attempt to analogize Branti, Elrod, Perry, and Lewis to the facts of this case is not persuasive. We seriously question whether the Supreme Court and this Court really believed that they were addressing the constitutionality of patronage hiring for positions like the temporary highway maintainer in this case, which positions are clearly defined as a short term, when they were deciding the constitutionality of patronage hiring or firing for full-time non-civil service positions in Branti, Elrod, Perry, and Lewis.”); and, Tarpley v. Jeffers, 96 F.3d 921, 924, 927 (7th Cir. 1996). 140. Tarpley v. Jeffers, 96 F.3d 921, 924 (7th Cir. 1996). Compare, Vickery v. Jones, 856 F. Supp. 1313, 1323–1325 (S.D. Ill. 1994). 141. Id. 142. Vickery v. Jones, 100 F.3d 1334, 1345–1346 (7th Cir. 1996) (Citations omitted). 143. 856 F. Supp. 1313 (S.D. Ill. 1994), affirmed, 100 F.3d 1334 (1996), certiorari denied, 520 U.S. 1197 (1997). 144. 856 F. Supp. 1313, 1319 (S.D. Ill. 1994). 145. 100 F.3d 1334, 1343–1346 (7th Cir. 1996).

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146. Id. at 1345–1346. (Citations omitted.) 147. 188 F.3d 788 (7th Cir. 1999). 148. Id. at 795. 149. Id. at 795. 150. Id. Compare, Vickery v Jones, 856 F. Supp. 1313, 1318–1319 (S.D. Ill. 1994), affirmed, 100 F.3d 1334, 1345 (7th Cir. 1996). 151. See, James Filkins, “Note and Comment: Tarpley v. Keistler: Patronage, Petition, and the Noerr-Pennington Doctrine,” 50 DePaul Law Review 265 (2000); Gregory A. Mark, “The Vestigial Constitution: The History and Significance of the Right to Petition,” 66 Fordham Law Review 2153 (1998); and, Norman B. Smith, “‘Shall Make No Law Abridging . . .’: An Analysis of the Neglected, But Nearly Absolute, Right of Petition,” 54 University of Cincinnati Law Review 1153 (1986). 152. Tarpley v. Keistler, 188 F.3d 788, 796 n. 6 (7th Cir. 1999) (Citations omitted.) (Italics in original.). 153. This approach has been adopted, with some variations, by the First, Sixth, Seventh, Ninth, and Tenth Circuits. See, Rose v. Stephens, 291 F.3d 917, 921–922 (6th Cir. 2002); Barker v. City of Del City, 215 F.3d 1134, 1139 (10th Cir. 2000); Bonds v. Milwaukee County, 207 F.3d 969, 978-979 (7th Cir. 2000); Flynn v. City of Boston, 140 F.3d 42, 47 (1st Cir. 1998); Fazio v. County and City of San Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997); Jantzen v. Hawkins, 188 F.3d 1247, 1251 (10th Cir. 1999); Kiddy-Brown v. Blogjevich, 408 F.3d 346, 354–360 (7th Cir. 2005); Biggs v. Best, Best, and Krieger, 189 F.3d 989, 994–995 (9th Cir. 1999); and, Vargas-Harrison v. Racine Unified School District, 272 F.3d 964, 971–972 (7th Cir. 2001). 154. This has come to be known as the “Branti exception.” See, Branti v. Finkel, 445 U.S. 507, 518 (1980); and, Elrod v. Burns, 427 U.S. 347, 367 (1976). 155. Some of these courts have also tried to sharpen the Pickering balancing test through the adoption of “factors” to help guide other courts in reaching their decision. See, Kiddy-Brown v. Blagojevich, 408 F.3d 346, 358 (7th Cir. 2005), citing, Vargas-Harrison v. Racine Unified School District, 272 F.3d 964, 971 n. 2 (7th Cir. 2001); Hyland v. Wonder, 972 F.2d 1129, 1139 (9th Cir. 1992); Fazio v. City and County of San Francisco, 125 F.3d 1328, 1331 n. 1 (9th Cir. 1997); Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 1999); and, Bonds v. Milwaukee County, 207 F.3d 969, 981 (7th Cir. 2000). 156. See, Connick v. Myers, 461 U.S. 138, 144–147 (1983); and, Barker v. City of Del City, 215 F.3d 1134, 1139–1140 (10th Cir. 2000). 157. Pickering v. Board of Education, 391 U.S. 563, 568 (1968). 158. This is sometimes referred to as the policymaking “corollary” or “exception” to the Pickering test. See, Kiddy-Brown v. Blagojevich, 408 F.3d 346, 358 (7th Cir. 2005); Bonds v. Milwaukee County, 207 F.3d 969, 977 (7th Cir. 2000), certiorari denied, 531 U.S. 944 (2000); Wright v. Illinois Department of Children & Family Services, 40 F.3d 1492 (7th Cir. 1994); Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993); and, Rose v. Stephens, 291 F.3d 917, 921–922 (6th Cir. 2002). 159. E.g., Terry v. Cook, 866 F.2d 373, 375 (11th Cir. 1989); Rutan v. Republican Party, 497 U.S. 62, 66 (1990), Branti v. Finkel, 445 U.S. 507, 517 (1980); Elrod v. Burns, 427 U.S. 347, 350 (1976); and, Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 688–689 (1996). See also, Craig D. Singer, “Comment: Conduct and Belief: Public Employees’ First Amendment Rights to Free Expression and Political Affiliation,” 59 University of Chicago Law Review 897 (1992); and, Michael Patrick Burke, “Comment: Political Patronage and North Carolina Law: Is Political Conformity with the Sheriff a Permissible Job Requirement for Deputies?” 79 North Carolina Law Review 1743, 1751, 1756 (2001). 160. Cynthia Grant Bowman, “Article: The Law of Patronage at a Crossroads,” 12 Journal of Law and Politics 341, 353–355 (1996). 161. The sharpest divisions have been over how to categorize deputy sheriffs. See, Jenkins v.Medford, 119 F.3d 1156 (4th Cir. 1997); Upton v. Thompson, 930 F.2d 1209, 1215–1217 (7th Cir. 1991); McBee v. Jim Hogg County, 703 F.2d 834 (5th Cir. 1983); Jones v. Dodson 727 F.2d 1329 (4th Cir. 1984); Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1984); Joyner v. Lancaster, 815 F.2d 20 (4th Cir. 1987); Terry v. Cook 866 F.2d 373, 377 (11th Cir. 1989); and,

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DiRuzza v. County of Tehama, 206 F.3d 1304, 1319 n. 5 (9th Cir. 2000) certiorari denied, 531 U.S. 1035 (2000). See also, Michael Patrick Burke, “Comment: Political Patronage and North Carolina Law: Is Political Conformity with the Sheriff a Permissible Job Requirement for Deputies?” 79 North Carolina Law Review 1743 (2001); Bryan R. Berry, “Donkeys, Elephants, and Barney Fife: Are Deputy Sheriffs Policymakers Subject to Patronage Termination?” 66 Missouri Law Review 667 (2001); Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1998); and, Cynthia Grant Bowman, “Article: The Law of Patronage at a Crossroads,” 12 Journal of Law and Politics 341, 347–349 (1996). 162. The lower courts have gradually widened the range of government positions that fall under the rubric “policymaker” and are thus subject to patronage-based actions. See, e.g., Barker v. City of Del City, 215 F.3d 1134 (10th Cir. 2000) (finding an administrative assistant to a city manager to be a policymaker); Bonds v. Milwaukee County, 207 F.3d 969 (7th Cir. 2000) (finding a senior fiscal analyst for a municipal block grant committee to be a policymaker); Flynn v. City of Boston, 140 F.3d 42, 45 (1st Cir. 1998) (finding the associate director of administration and finance and the associate director for field operations for city community centers to be policymakers); Cope v. Heltsley, 128 F.3d 452 (6th Cir. 1997) (finding deputy clerk to be policymaker); Vargas-Harrison v. Racine Unified School District, 272 F.3d 964, 971–972 (7th Cir. 2001) (finding elementary school principal to be policymaker); and, Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997) (finding a deputy sheriff to be a policymaker). See also, Cynthia Grant Bowman, “Article: The Law of Patronage at a Crossroads,” 12 Journal of Law and Politics 341 (1996); and Bryan A. Schneider, “Comment: Do Not Go Gentle into that Good Night: The Unquiet Death of Political Patronage,” 1992 Wisconsin Law Review 511 (1992). 163. On the shift from “old” to “new” politics, including the decline of patronage, see, Marc J. Hetherington and William J. Keefe, Parties, Politics, and Public Policy in America, 10th ed. (Washington, Congressional Quarterly Press, 2007) pp. 23–25. See also, David E. Price, Bringing Back the Parties (Washington: Congressional Quarterly, 1984) pp. 80–84. 164. See, L. Sandy Maisel, Parties and Elections in America, 3rd ed. (Boston: Rowman and Littlefield, 1999) pp. 241–244. 165. No. 05-204, U.S. Supreme Court (2006), Appellant’s Brief on the Merits, p. 26. 548 U.S. 399 (2006). Quoted by Holly Yeager, “The Americas: The Republicans in Legal Battle on Voting Maps,” Financial Times (London) February 28, 2006. See also, Judge Ward’s comment in Session v. Perry, 298 F. Supp. 2d 451, 516 (E.D. Tex. 2004) (concurring in part and dissenting in part) ("extreme partisan gerrymandering leads to a system in which the representatives choose their constituents, rather than vice-versa."). 166. Some have used the terms “partisan gerrymander” and “political gerrymander” interchangeably, see, e.g., League of United Latin American Citizens v. Perry, 548 U.S. 399, 409 (2006). Others use “political gerrymander” to refer to gerrymandering based on a broader set of motives, see, e.g. Mobile v. Bolden, 446 U.S. 55, 88 (1980) (Stevens, J., dissenting) (“In the line-drawing process, racial, religious, ethnic, and economic gerrymanders are all species of political gerrymanders.”). I will use the term “partisan gerrymander” since my focus is on the partisan forces behind the activity. On partisan gerrymandering generally, see, Peter F. Galderisi, ed., Redistricting in the New Millennium (Lexington Books, 2005); Charles S. Bullock III, “Redistricting: Racial and Partisan Considerations,” in Matthew J. Streb, ed., Law and Election Politics: The Rules of the Game (Boulder, CO: Lynne Rienner, 2005). 167. For some other definitions of the practice see, Kirkpatrick v. Preisler, 394 U.S. 526, 538 (1969) (Fortas, J., concurring); Gaffney v. Cummings, 412 U.S. 735, 753 (1973); and, Mark E. Rush, Does Redistricting Make a Difference? (Baltimore: Johns Hopkins, 1993) ch. 1. 168. See, Robert B. McKay, “Reapportionment,” in Leonard Levy, ed., The Encyclopedia of the American Constitution (New York: Macmillan, 1986) vol. 3, pp. 1518–1525; and, Mark E. Rush, “Gerrymandering: Out of the Political Thicket and Into the Quagmire,” 27 PS: Political Science and Politics 682, 683 (1994). 169. See, Arthur H. Cash, John Wilkes: The Scandalous Father of Civil Liberty (New Haven, CT: Yale University Press 2006) ch. 10. 170. See, Richard Labunski, James Madison and the Struggle for the Bill of Rights (New York: Oxford University Press 2006) ch. 7; and, Vieth v. Jubelirer, 541 U.S. 267, 274 (2004).

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171. See, L. Sandy Maisel, ed., Political Parties and Elections: An Encyclopedia, vol. 2 (New York: Garland 1991) pp. 432–433; Andrew Hacker, Congressional Districting: The Issue of Equal Representation (Washington: Brookings 1963); Elmer Griffith, The Birth and Rise of the Gerrymander (New York: Arno, 1974); Mark E. Rush, Does Redistricting Make A Difference? (Baltimore: Johns Hopkins 1993); Nelson Polsby, ed., Reapportionment in the 1970s (Berkeley, CA: University of California Press, 1971); Charles S. Bullock III, “Redistricting: Racial and Partisan Considerations,” in Matthew J. Streb, ed., Law and Elections Politics: The Rules of the Game (Boulder, CO: Lynne Rienner, 2005); Peter Galderisi, ed., Redistricting in the New Millennium (Lanham, MD: Lexington Books, 2005); Leroy Hardy et al., Congressional Districting: The Issue of Equal Apportionment (Washington: Brookings, 1964); and, Vieth v. Jubelirer, 541 U.S. 267, 274–275 (2004). 172. See, Stephen Ansolabehere and James M. Snyder, Jr., The End of Inequality (New York: Norton, 2008) ch. 3. 173. See, e.g., Gomillion v. Lightfoot, 364 U.S 339 (1960). 174. U.S. Constitution, Art. I § 4. See, Smiley v. Holm, 285 U.S. 355 (1932); and, Growe v. Emison, 507 U.S. 25, 34 (1993). 175. See, Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431 et seq. See also, Buckley v. Valeo, 424 U.S. 1 (1976); and, Chapter Three, supra. 176. See, 18 U.S.C. § 241. See also, U.S. v. Classic, 313 U.S. 299, 309-310 (1941). 177. See also, U.S. Constitution, XXVIth Amendment; and, Oregon v. Mitchell, 400 U.S. 112 (1970). 178. See, Bipartisan Campaign Reform Act of 2002, 116 Stat. 81, 89, 2 U.S.C. § 434 (f)(3) (2002), regulating “electioneering communication” during primary campaigns. The Supreme Court applied federal criminal statutes to the primary stage of elections in U.S. v. Classic, 313 U.S. 299, 314 (1941) (“The primary in Louisiana is an integral part of the procedure for the popular choice of Congressman.”). 179. See, Smiley v. Holm, 285 U.S. 355, 366–367 (1932); Chapman v. Meier, 420 U.S. 1, 27 (1975); Wesberry v. Sanders, 376 U.S. 1, 6–7 (1964); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986); Growe v. Emison, 507 U.S. 25, 34, 37 (1993); Reynolds v Sims, 377 U.S. 533, 586 (1964); Wise v. Lipscomb, 437 U.S. 535, 540 (1978); Burns v. Richardson, 384 U.S. 73, 85 (1966); Connor v. Coleman, 440 U.S. 612, 613 (1979); Gaffney v. Cummings, 412 U.S. 735, 750–753 (1973); League of Latin American Citizens (L.U.L.A.C.) v. Perry, 548 U.S. 399, 414–416 (2006); Ball v. James, 451 U.S. 355 (1981); Sayler Land Co. v. Tulare Lake, 410 U.S. 719 (1973); Cipriano v. Houms, 395 U.S. 701 (1969); and Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969). Federal courts have even recognized that state legislatures may replace court-drawn districts under some circumstances, see, e.g. Session v. Perry, 298 F. Supp. 2d 451, 460, 461 (E.D. 2004); Upham v. Seamon, 456 U.S. 37 (1982) (per curiam); Wise v. Lipscomb, 437 U.S. 535, 530 (1978); Burns v. Richardson, 384 U.S. 73, 85 (1966); Reynolds v. Sims, 377 U.S. 533, 587 (1964); and League of United Latin American Citizens (L.U.L.A.C.) v. Perry, 548 U.S. 399, 416 (2006), and id. at 460-461 (Stevens, J., concurring in part and dissenting in part). Lower courts have also noted the primacy of the legislative role in redistricting, see, e.g., Johnson v. Mortham, 915 F. Supp. 1529 (N.D. Fla. 1995); and, In re Senate Bill 177, 318 A.2d 157, 161–162 (Vt. 1974). 180. State courts have also shown some reluctance to become involved in these disputes, see, e.g, Hartung v. Bradbury, 33 P.3d 972, 980–981 (Oregon 2001); and, Mayor of Cambridge v. Secretary of the Commonwealth, 765 N.E.2d 749, 755 (Mass. 2002). See also, Daniel A. Klein, “Validity, under Federal Constitution, of Congressional Reapportionment—Supreme Court Cases,” 118 L.Ed.2d 605 (2006). 181. E.g., Davis v. Bandemer, 478 U.S. 109, 128 (1986) quoting, Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (“Politics and political considerations are inseparable from districting and reapportionment.”); and, Colegrove v. Green, 328 U.S. 549 (1946). 182. Colegrove v. Green, 328 U.S. 549, 553–554 (1946). 183. E.g., Wise v. Lipscomb, 437 U.S. 535, 539 (1978); Scott v. Germano, 381 U.S. 407 (1965); Davis v. Bandemer, 478 U.S. 109, 128 (1986); Growe v. Emison, 782 F. Supp. 427, 434 (D. Minn. 1992); Reynolds v. Sims, 377 U.S. 533, 586 (1964) (judicial relief is appropriate “only where a legislature fails to reapportion according to federal constitutional requisites in a

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timely fashion after having an opportunity to do so.”). See also, Wesberry v. Sanders, 376 U.S. 1, 84 (1964). 184. See, Gordon Baker, The Reapportionment Revolution (New York: Random House, 1966); and, David T. Canon, Race, Redistricting, and Representation (Chicago: University of Chicago, 1999). 185. 369 U.S. 186 (1962). In Baker some districts in Tennessee’s legislative assembly held nineteen times as many persons as other districts. Id. at 245 (Douglas, J., concurring). This fact prompted Justice Clark to declare that, “the apportionment picture in Tennessee is a topsyturvical of gigantic proportions.” Id. at 254 (Clark, J., concurring). Baker overruled Colegrove v. Green, 328 U.S. 549 (1946) 186. See, Gray v. Sanders, 372 U.S. 368 (1963) which set forth the one-person, one-vote doctrine, applied it to all phases of the electoral process, and to both state legislatures and congressional seats. See also, Wesberry v. Sanders, 376 U.S. 1 (1964) (congressional districts in same state must be as close in population as practicable); Reynolds v. Sims, 377 U.S. 533 (1964) (both chambers of state legislature must be apportioned substantially on the basis of population); and, Mark E. Rush, “Gerrymandering: Out of the Political Thicket and Into the Quagmire,” 27 PS: Political Science and Politics 682, 683 (1994). In the 1970s, the reapportionment debate shifted to how closely legislative districts had to be in population to satisfy the one-person, one-vote rule. See, Gaffney v. Cummings, 412 U.S. 735 (1973), White v. Regester, 412 U.S. 755 (1973), Mahan v. Howell, 410 U.S. 315 (1973), Brown v. Thomson, 462 U.S. 835 (1983); and, People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1246–1248 (Colo. 2003) (Kourlis, J., dissenting). 187. See, David M. O’Brien, Constitutional Law and Politics, 6th ed. vol. 1 (New York: Norton, 2005) p. 825. 188. See, Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. §§ 1973 et seq. 189. On the frequent admixture of partisan and racial motivations in the gerrymandering process, see, Session v. Perry, 298 F. Supp.2d 451, 472–473 (E.D. Texas 2004); League of United Latin American Citizens (L.U.L.A.C.) v. Perry, 548 U.S. 399 (2006); Easley v. Cromartie, 532 U.S. 234 (2001); and, Mark E. Rush, “Gerrymandering: Out of the Political Thicket and into the Quagmire,” 27 PS: Political Science and Politics 682 (1994). 190. For more on how the enactment of the Voting Rights Act of 1965 and the rise of the oneperson, one-vote rule encouraged or exacerbated partisan gerrymandering, see, Kirkpatrick v. Preisler, 394 U.S. 526 (1969); Reynolds v. Sims, 377 U.S. 533, 662 (1964) (Harlan, J., dissenting); Karcher v. Daggett, 462 U.S. 725 (1983); Wells v. Rockefeller, 394 U.S. 542, 551 (1969) (Harlan, J., dissenting); Henderson v. Perry, 399 F. Supp. 2d 756, 772–773 (E.D. Tex. 2005); Michael W. McConnell, “The Redistricting Cases: Original Mistakes and Current Consequences,” 24 Harvard Journal of Law and Public Policy 103, 112 (2000); Robert Farley, “Preventing Unconstitutional Gerrymandering: Escaping the Intent/Effect Quagmire,” 38 Seton Hall Law Review 397, 414–416 (2008); Samuel Issacharoff and Pamela S. Karlan, “Where to Draw the Line?: Judicial Review of Political Gerrymanders,” 153 University of Pennsylvania Law Review 541, 546 (2004); and, Pamela S. Karlan, “The Fire Next Time: Reapportionment After the 2000 Census,” 50 Stanford Law Review 731, 736 (1998). 191. See Justice Kennedy’s assessment of the impact of computer technology on the practice of gerrymandering in Vieth v. Jubelirer, 541 U.S. 267, 312–313 (2004) (Kennedy, J., concurring). See also, Henderson v. Perry, 399 F. Supp. 2d 756, 760 n.11 (E.D. Tex. 2005); and, Bush v. Vera, 517 U.S. 952, 961–963 (1996); William J. Craig, “Reapportionment and the Computer,” 6 Law and Computer Technology 50–56 (1973); Rebecca B. Morton, Analyzing Elections (New York: Norton, 2006) p. 315; Micah Altman, Karin MacDonald, and Michael P. MacDonald, “From Crayons to Computers: The Evolution of Computer Use in Redistricting,” 23 Social Science Computing Review 334 (2005); and, Note, “Computer Models and Post-Bandemer Redistricting,” 99 Yale Law Journal 1379 (1990). 192. For a discussion of the difficulty of successfully creating a partisan gerrymander, see, Rebecca B. Morton, Analyzing Elections (New York: Norton, 2006) pp. 407–415. Elbridge Gerry’s gerrymander was not the last unsuccessful partisan gerrymander, see, Bernard Grofman and Thomas L. Brunell, “The Art of the Dummymander: The Impact of Recent Redistrict-

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ings on the Partisan Makeup of Southern House Seats,” in Peter F. Galderisi, ed., Redistricting in the New Millennium (New York: Rowman and Littlefield, 2005) ch. 8. 193. See, e.g., Emison v. Growe, 782 F. Supp. 427, 439 (D. Minn. 1992); and, Republican Party of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991). 194. See, e.g., Reynolds v. Sims, 377 U.S. 533, 622–623 (1964) (Harlan, J., dissenting); Swann v. Adams, 385 U.S. 440, 444 (1967); In Re Senate Bill 177, 318 A.2d 157, 161–162 (Vt. 1974); and, Bernard Grofman, “Criteria for Districting: A Social Science Perspective,” 33 U.C.L.A. Law Review 77 (1985). 195. League of United Latin American Citizens (L.U.L.A.C.) v. Perry, 548 U.S. 399, 417–418 (2006) (Citations omitted). 196. Bipartisan gerrymanders occur most often in those states where there is close party balance and neither party is in a position to push the process too far. See, Roger H. Davidson and Walter J. Oleszek, Congress and Its Members, 10th ed. (Washington: Congressional Quarterly Press, 2006) pp. 48–50; Walter M. Frank, “Help Wanted: The Constitutional Case against Gerrymandering to Protect Congressional Incumbents,” 32 Ohio Northern University Law Review 227 (2006); and, Nathaniel Persily, “Reply: In Defense of Foxes Guarding Henhouses: The Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders,” 116 Harvard Law Review 649 (2002). 197. On intra-party disputes over how to go about carrying out a partisan gerrymander, see, Rebecca B. Morton, Analyzing Elections (New York: Norton, 2006) pp. 410–415. 198. See, e.g., Andrew Gelman and Gary King, “Enhancing Democracy through Legislative Redistricting,” 88 American Political Science Review 541 (1994); Rebecca B. Morton, Analyzing Elections (New York: Norton, 2006) pp. 423–426; Robert S. Erikson, “The Partisan Impact of State Legislative Reapportionment,” 15 Midwest Journal of Political Science 57 (1971); and, Mark E. Rush, Does Redistricting Make a Difference? (Baltimore: Johns Hopkins, 1993). 199. See, e.g., Richard Born, “Partisan Intentions and Election Day Realities in the Congressional Redistricting Process,” 79 American Political Science Review 305 (1984) (“from 1952 to 1982, one finds that partisan control of redistricting does have the expected effect on seat outcome, but only modestly.”); Erik J. Engstrom, “Stacking the States, Stacking the House: The Partisan Consequences of Congressional Redistricting in the nineteenth Century,” 100 American Political Science Review 419, 426 (2006) (“between 1870 and 1900 redistricting systematically influenced state party delegations in ways that occasionally cumulated into substantive national effects.”); John W. Swain, Stephen A. Borrelli, and Brian C. Reed, “Partisan Consequences of the Post-1990 Redistricting for the U.S. House of Representatives,” 51 Political Research Quarterly 945, 960–961 (1998) (“when we include incumbency we conclude that neither party really benefited, and when we exclude incumbency, we conclude that the Republican party benefited.”); Richard G. Niemi and Laura R. Winsky, “The Persistence of Partisan Redistricting Effects in Congressional Elections in the 1970s and 1980s,” 54 Journal of Politics 565, 571 (1992) (“an initial partisan advantage accrues to the party in control of a state . . . while the advantage vanishes, it tends not [to] do so immediately.”); Bruce E. Cain, “Assessing the Partisan Effects of Redistricting,” 79 American Political Science Review 320, 331 (1985) (“By changing the partisan composition in a district and removing or retaining the incumbent’s base, a reapportionment plan can alter the odds of a party winning a particular seat.”). There is also some evidence that partisan gerrymandering decreases electoral competitiveness, see, e.g., James A. Gardner, “Eighteenth Annual Issue on State Constitutional Law: Forward: Representation without Party: Lessons from State Constitutional Attempts to Control Gerrymandering,” 37 Rutgers Law Journal 881, 885-886 (2006); Adam Raviv, “Article: Unsafe Harbors: One person, One Vote and Partisan Redistricting,” 7 University of Pennsylvania Journal of Constitutional Law 1001 (2005); and, Marc J. Hetherington and William J. Keefe, Parties, Politics, and Public Policy in America, 10th ed. (Washington: Congressional Quarterly 2007) p. 145. 200. See, Vieth v. Jubelirer, 541 U.S. 267, 345–355 (Breyer J., dissenting) (2004). Further evidence of this may lie in the fact that the parties are usually behind most partisan gerrymandering lawsuits, see, e.g., Douglass Calidas, “Hindsight is 20/20: Revisiting the Reapportionment Cases to Gain Perspective on Partisan Gerrymanders,” 57 Duke Law Journal 1413, 1423

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(2008); and, Kathleen M. Sullivan and Pamela S. Karlan, “The Elysian Fields of the Law,” 57 Stanford Law Review 695, 710 (2004). 201. Occasionally, a national party organization will try to influence partisan gerrymandering at the state level for its own purposes, see, e.g., Rebecca B. Morton, Analyzing Elections (New York: Norton, 2006) pp. 410–411. This problem may disappear as more states adopt bipartisan commissions to replace their state legislatures in the redistricting process. A more recent example of national party pressure on state and local party officials occurred in 2009 when New York Congressman John McHugh was appointed to be Secretary of the Army. The National Republican Congressional Committee pressured the eleven party county chairs in the district to select New York Assemblywoman Dierde “Dede” Scozzafava as the party nominee to succeed McHugh. This instance of national party intervention appeared to backfire when local Republicans complained that Scozzafava was too liberal and she was ultimately was forced to withdraw from the race. See, Jeremy W. Peters, “Right Battles G.O.P. in Pivotal Race in New York,” The New York Times, October 26, 2009. 202. See, e.g., Peter F. Galderisi, ed., Redistricting in the New Millennium (Boulder, CO: Rowman and Littlefield, 2005) chs. 9–12. 203. In 1842, Congress required that the states each establish compact, contiguous, singlemember congressional districts of as nearly equal population as possible, 5 Stat. 491 (1842). These requirements were renewed with the Reapportionment Act of 1862, 12 Stat. 572. Ten years later they imposed a requirement that districts contain as equal number of inhabitants as practicable, 17 Stat. 28, § 2. In the Apportionment Act of 1901, Congress imposed a compactness requirement, 31 Stat. 733. In 1911, Congress repeated the requirements of compactness, contiguity and equality of population, 37 Stat. 13. See also, Apportionment Act of 1929, ch. 28, 46 Stat. 21, 26, June 18, 1929; and Vieth v. Jubelirer, 541 U.S. 267, 276–277 (2004). 204. See, Roger H. Davidson, Walter J. Oleszek, and Frances E. Lee, Congress and Its Members, 11th ed. (Washington: Congressional Quarterly 2008) p. 49; Robert B. McKay, “Reapportionment,” Encyclopedia of the Constitution, Leonard Levy, ed. (New York: Macmillan Publishing Company 1986) vol. 3, p. 1519; Koenig v. Flynn, 285 U.S. 375 (1932). The current statute is 2 U.S.C. § 2 which requires that the states use single-member congressional districts but says nothing about compactness, contiguity or population. 205. For a good description of the difficulties of adjudicating cases of partisan gerrymandering, see, Peter H. Schuck, “The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics,” 87 Columbia Law Review 1325 (1987). 206. See, Reynolds v. Sims, 377 U.S. 533, 586 (1964); Smiley v. Holm, 285 U.S. 355, 366 (1932); and, Gaffrey v. Cummings, 412 U.S. 735, 749 (1973). 207. 377 U.S. 533, 578–589 (1964) (“Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more that an open invitation to partisan gerrymandering.”). See Circuit Judge Waterman’s interpretation of this statement in WMCA v. Lomenzo, 238 F. Supp. 916, 926 (S.D. N.Y. 1965) (“[Reynolds v. Sims] treated partisan gerrymandering as an evil which a state may legitimately seek to preclude.”) 208. E.g., Chavis v. Whitcomb, 305 F. Supp. 1364, 1367 (S.D. Ind. 1969) reversed sub nom., Whitcomb v. Chavis, 403 U.S. 124 (1971). 209. 379 U.S. 433 (1965). 210. Dorsey v. Fortson, 228 F. Supp. 259, 263 (N.D. Ga. 1964), reversed sub nom., Fortson v. Dorsey, 379 U.S. 433 (1965). 211. Id. at 263–264, relying on Gray v. Sanders, 372 U.S. 368 (1963); Toombs v. Fortson, 205 F. Supp. 248 (N.D. Ga. 1962); and, Sanders v. Gray, 203 F. Supp. 158 (N.D. Ga. 1962). 212. 379 U.S. 433, 439 (1965) (Italics added.). This principle was cited again by the Court the next year in Burns v. Richardson, 384 U.S. 73, 88 (1966). 213. See, e.g., Chavis v. Whitcomb, 305 F. Supp. 1364, 1386 (S.D. Ind. 1969), reversed by, Whitcomb v. Chavis, 403 U.S. 124, 143, 156 (1971); City of Mobile v. Bolden, 446 U.S. 55, 78–79 (1980); Gaffney v. Cummings, 412 U.S. 735, 751 (1973); Burns v. Richardson, 384 U.S. 73, 88-89 (1966); Rogers v. Lodge, 458 U.S. 613, 616 (1982); L.U.L.A.C. v. Perry, 548 U.S. 399, 448 (2006) (Stevens, J., dissenting); and, Abate v. Mundt, 253 N.E.2d 189, 193 (N.Y. 1969). See also, Laurence H. Tribe, American Constitutional Law, 2nd ed. (Mineola, NY: Foundation Press, 1988) section 13–9.

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214. See, Davis v. Bandemer, 478 U.S. 109, 120 (1986). 215. WMCA v. Lomenzo, 382 U.S. 4 (1965); Jiminez v. Hidalgo County Water Improvement District No. 2, 424 U.S. 950 (1976); Ferrell v. Hall, 406 U.S. 939 (1972); and, Wells v. Rockefeller, 398 U.S. 901 (1970). 216. Wiser v. Hughes, 459 U.S. 962 (1982); Kelly v. Bumpers, 413 U.S. 901 (1973); and, Archer v. Smith, 409 U.S. 808 (1972). 217. Justices Brennan and Stevens would have noted probable jurisdiction in Jiminez v. Hidalgo County Water Improvement District No. 2, 424 U.S. 950 (1976); and, Justice Douglas would have done so in Ferrell v. Hall, 406 U.S. 939 (1972). 218. 262 F. Supp. 739 (D.Del. 1967). For other evidence of judicial confusion on this, see, Skolnick v. Mayor and City Council of Chicago, 319 F. Supp. 1219, 1229 (N.D. Ill. 1970) (finding that partisan gerrymandering is acceptable as long as the districts are of equal population); Cousins v. City and Council of City of Chicago, 322 F. Supp. 428, 434 (N.D. Ill. 1971); Wells v. Rockefeller, 311 F. Supp. 48 (S.D. N.Y. 1970); WMCA v. Lomenzo, 238 F. Supp. 916, 925 (S.D. N.Y. 1965); Badgley v. Hare, 385 U.S. 114 (1967); Meeks v. Avery, 251 F. Supp. 245 (D.C. Kan. 1966); Bush v. Martin, 251 F. Supp. 484 (S.D. Tex. 1966); and Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965). 219. 262 F. Supp. 739, 833 (D.Del. 1967). 220. Id. at 855 (Layton, J. concurring). 221. Id. at 857 (Wright, J., concurring in part and dissenting in part). 222. 137 N.W.2d 495, 499 (Mich. 1965) (Footnote omitted.) (Italics added.), citing Baker v. Carr, 369 U.S. 186 (1962); Reyolds v. Sims, 377 U.S 533 (1964); Fortson v. Dorsey, 379 U.S. 433 (1965); Wright v. Rockefeller, 376 U.S. 52 (1964); and, Matter of Orans, 257 N.Y.S.2d 839 (1965), affirmed, 206 N.E.2d 854 (N.Y. 1965). 223. Id. In agreement with this, see, id. at 513–514 (Adams, J., writing separately). 224. 385 U.S. 114 (1966). 225. See, e.g., Chavis v. Whitcomb, 305 F. Supp. 1364 (S.D. Ind. 1969), where the plaintiff complained that Indiana’s redistricting of its state legislature would deprive her and her fellow partisans of a “proportionate vote” in both party primaries and general elections. The district court ultimately decided the case on grounds of racial malapportionment and brushed aside partisan-based claims by simply noting that there was insufficient evidence to show that they interests had been injured. Id. at 1367, 1389. The Supreme Court reversed, sub nom., Whitcomb v. Chavis, 403 U.S. 124, 143 (1971), giving no attention to the partisan gerrymandering issues but reiterating the Fortson standard and its reference to “political” groups. 226. Gaffney v. Cummings, 412 U.S. 735 (1973). 227. Cummings v. Meskill, 341 F. Supp. 139, 147–149 (D. Conn. 1972). 228. Id. at 149–150 citing, Ely v. Klahr, 403 U.S. 108 (1971); and, Whitcomb v. Chavis, 403 U.S. 124 (1971). 229. 412 U.S. 735 (1973). 230. Id. at 743, quoting Reynolds v. Sims 377 U.S. 533, 577 (1964). 231. Id. at 754. (Citations omitted.) 232. Bolden v. City of Mobile, 423 F. Supp. 384 (S.D. Ala. 1976), affirmed, 571 F.2d 238 (5th Cir. 1978), reversed and remanded sub nom., City of Mobile v. Bolden, 446 U.S. 55 (1980); Lodge v. Buxton, 639 F.2d 1358 (5th Cir. 1981), affirmed sub nom., Rogers v. Lodge, 458 U.S. 613 (1982); and, Karcher v. Daggett, 462 U.S. 725 (1983). 233. 369 U.S. 186, 209–210, 252 (Clark, J., concurring) (1962), distinguishing Colegrove v. Green, 328 U.S. 549 (1946), by finding that its ruling that challenges to reapportionment schemes were nonjusticiable to be limited to challenges brought under the guarantee clause of the Constitution. 234. For a discussion of mid-decade gerrymanders, see, Rebecca B. Morton, Analyzing Elections (New York: Norton, 2006) pp. 421–423. See also, Session v. Perry 298 F. Supp. 2d 451 (E.D. Texas 2004), vacated sub nom. Henderson v. Perry, 543 U.S. 941 (2004); League of United Latin American Citizens (L.U.L.A.C.) v. Perry, 548 U.S. 399, 418–419 (2006) (“The text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own.”); Vieth v. Jubelirer, 541 U.S 267, 281 (2004); Richard Gladden, “The Federal Constitu-

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tional Protection Against ‘mid-Decade’ Congressional Redistricting: Its State Constitutional Origins, Subsequent Development, and Tenuous Future,” 37 Rutgers Law Journal 1133 (2006); and, People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1231–1232 (Colo. 2003) (en banc) (relying on state constitution), certiorari denied, sub nom. Colorado General Assembly v. Salazar, 2004 U.S. LEXIS 4029 (U.S., June 7, 2004). 235. See, Growe v. Emison, 507 U.S. 25, 34 (1993); and, Chapman v. Meier, 420 U.S. 1, 27 (1975). 236. See, e.g., Justice Powell’s dissent to, Davis v. Bandemer, 478 U.S. 109, 161–185 (1986) (Powell, J., dissenting). 237. See, Andrew Gelman and Gary King, “Enhancing Democracy Through Legislative Redistricting,” 88 American Political Science Review 541 (1994); and, Mark E. Rush, Does Redistricting Make a Difference? (Baltimore: Johns Hopkins, 1993) ch. 2. 238. Bandemer v. Davis, 603 F. Supp. 1479 (S.D. Ind. 1984), reversed sub nom., Davis v. Bandemer, 478 U.S. 109 (1986). 239. 603 F. Supp. 1479, 1484 (S.D. Ind. 1984). See also the Supreme Court’s description of the process at, 478 U.S. 109, 116–117 (1986). 240. 603 F. Supp. 1479, 1489 (S.D. Ind. 1984). 241. 462 U.S. 725, 744–765 (1983) (Stevens, J., concurring). 242. Id. at 751 (Stevens, J., concurring). 243. 446 U.S. 55 (1980). 244. 603 F. Supp. 1479, 1490 (S.D. Ind. 1984), citing, Rogers v. Lodge, 458 U.S. 613 (1982); Gaffney v. Cummings, 412 U.S. 735 (1973); and, White v. Regester, 412 U.S. 755 (1973). 245. Id. at 1492, citing, Karcher v. Daggett, 462 U.S. 725, 754 (1983) (Stevens, J., concurring). 246. Id. at 1492, quoting, Karcher v. Daggett, 462 U.S. 725, 754 (1983) (Stevens, J., concurring). 247. Id., citing Karcher v. Daggett, 462 U.S. 725, 755 (1983) (Stevens, J., concurring). 248. Id. at 1492–1494, citing, Karcher v. Daggett, 462 U.S. 725, 755–758 (1983) (Stevens, J., concurring). 249. Id. at 1495 (Citation omitted.), quoting Karcher v. Daggett, 462 U.S. 725, 760 (1983) (Stevens, J., concurring). 250. 478 U.S. 109 (1986). 251. Justices Brennan, Marshall, Blackmun, Powell, and Stevens joined that part of Justice White’s opinion concerning the question of justiciability. Id. at 118–127. 252. Id. at 127–143. Justices Brennan, Marshall, and Blackmun joined in Part III of Justice White’s opinion enunciating his test for partisan gerrymandering cases. 253. Id. at 119–120. 254. Id. at 121–122, citing Baker v. Carr, 369 U.S. 186, 217 (1962). 255. 377 U.S. 533 (1964). 256. 478 U.S. 109, 124 (1986), citing Reynolds v. Sims, 377 U.S. 533, 565–566 (1964). 257. Id. citing, White v. Regester, 412 U.S. 755 (1973); and, Whitcomb v. Chavis, 403 U.S. 124 (1971). 258. Id. at 125. 259. Id. at 127, citing City of Mobile v. Bolden, 446 U.S. 55, 67–68 (1980). The proof of discriminatory intent has usually been relatively easy in partisan gerrymandering cases. The proof of discriminatory effect however has been much more complicated and difficult to demonstrate. See, Republican Party of North Carolina v. Martin, 980 F.2d 943, 955 (4th Cir. 1992); Badham v. Eu, 694 F. Supp. 664, 670 (N.D. Calif. 1988); and, Marylanders for Fair Representation, Inc. v. Schaefer, 849 F. Supp. 1022, 1038 (Md. 1994). 260. Id. at 129–130, 131, 139, citing Rogers v. Lodge, 458 U.S. 613, 624 (1982); United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 167 (1977); and, White v. Regester, 412 U.S. 755, 765–766 (1973). The plurality also disagreed with the lower court’s reliance on a single election to show discriminatory impact. Id. at 135, 139. 261. Id. at 132. 262. Id. at 127–143. 263. Id. at 132–133.

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264. Id. at 131, quoting Rogers v. Lodge, 458 U.S. 613, 625-627 (1982); and, White v. Regester, 412 U.S. 755, 766–767 (1973). 265. Davis v. Bandemer, 478 U.S. 109, 139–140 (1986) (citation and footnote omitted.). 266. Id. at 131 n. 12. 267. Id. at 165 (Powell, J, concurring in part and dissenting in part). 268. Id. at 173. 269. The plurality took issue with this matter in their critique of Justice Powell’s suggested standard. Id. at 138–139. 270. Chief Justice Burger wrote a brief opinion indicating that such matters should be left to the political processes. Id. at 143. Justice Rehnquist simply concurred with Justice O’Connor’s opinion. 271. Id. at 144–161 (O’Connor, J., concurring). 272. Id. at 147 (O’Connor, J., concurring). 273. Id. at 152 (O’Connor, J., concurring) (Italics in original). 274. Id. at 142–143. 275. See list of cases in Vieth v. Jubelirer, 541 U.S. 267, 280 n. 6 (2004). The Court came close to dealing with partisan gerrymandering in the 1999 case of Hunt v. Cromartie, 526 U.S. 5412 (1999), which involved a challenge to North Carolina’s drawing of a congressional district. The Court in Hunt also made reference to the existence of “constitutional political gerrymandering,” thereby implying that some gerrymanders were acceptable while others were not. Id. at 551–552 (1999). See also, Duckworth v. State Administrative Board of Election Laws, 332 F.3d 769, 774 (4th Cir. 2003) (“That a political gerrymander might be either constitutional or unconstitutional is a critical insight with respect to cases challenging political gerrymanders, for it relieves courts from having to pretend that a legislature has not engaged in political gerrymandering when it is obvious that the legislature has in fact gerrymandered its districts, but in a constitutionally permissible fashion.”) 276. In most cases the Court has been careful to maintain a clear distinction between the two types of gerrymanders. See, e.g., Shaw v. Reno, 509 U.S. 630, 650 (1993). 277. 478 U.S. 109, 132–133 (1986). 278. Davis v. Bandemer, 478 U.S. 131, 132 (1986). 279. For an excellent summary of the reaction of the lower courts to this part of the Bandemer test, see, Terrazas v. Slagle, 821 F. Supp. 1162, 1172–1174 (W.D. Tex. 1993). 280. 694 F. Supp. 664 (N.D. Calif. 1988), affirmed, 488 U.S. 1024 (1989). 281. Id. at 672. (“California Republicans still hold 40% of the congressional seats, a sizeable bloc that is far more than mere token representation. It simply would be ludicrous for plaintiffs to allege that their interests are being ‘entirely ignore[d]’ in Congress when they have such a large contingent of representatives who share those interests. We also note that California has a Republican governor, and one of its two senators is a Republican. Given also that a recent former Republican governor of California has for seven years been President of the United States, we see the fulcrum of political power to be such as to belie any attempt of plaintiffs to claim that they are bereft of the ability to exercise potent power in ‘the political process as a whole’ because of the paralysis of an unfair gerrymander.”). A few years later, a district court in New York took a similar view when it found that although the complaining political party had shown a loss of power in one chamber of the state legislature the party was still in control of the other chamber. See, Fund for Accurate & Informed Representation, Inc. v. Weprin, 796 F. Supp. 662,669 (N.D.N.Y 1992), affirmed summarily, 506 U.S 1017 (1992). 282. See, e.g., White v. Alabama, 867 F. Supp. 1571, 1577 (M.D. Ala. 1995) (“The court further finds that Republicans are not being shut out of those aspects of the political process that affect who is elected to appellate judgeships. Republicans are making inroads at many levels into what has historically been a one-party state. An examination of the political process as a whole, therefore, suggests that Republicans are growing in strength. The evidence also suggests that Republican success in other areas of the political structure will affect Republican ability to achieve seats on appellate courts.”); and, McClure v. Secretary of the Commonwealth, 766 NE.2d 847, 857 (Mass. 2002). 283. 980 F.2d 943 (4th Cir. 1992).

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284. This case also dealt with another sub-issue in this area: viz., whether the partisan gerrymandering of judicial seats should be treated the same as the gerrymandering of legislative seats. On this topic see, Smith v. Boyle, 959 F. Supp. 982, 986–988, (C.D. Ill. 1997); affirmed, 144 F.3d 1060, (7th Cir. Ill. 1998). 285. Id. at 957 n. 24 (Citations omitted). 286. See the clever discussion of the “as a whole” requirement in Republican Party of North Carolina v. Martin, 980 F.2d 943 at 957–958 (4th Cir. 1992), where the court turns around the usual argument and shows that because plaintiffs’ party typically performed well in other (nonjudicial) state elections this showed that there had been an unfair gerrymandering of judicial seats. Another court more interested in combating partisan gerrymanders would probably have said that this showed that the party has not been weakened in the political system “as a whole” and therefore had no claim! 287. 821 F. Supp. 1162 (W.D. Tex. 1993). Another court that attempted to fashion a middle course here was, White v. Alabama, 867 F. Supp. 1571, 1575 (M.D. Ala. 1995) (“The broad view places too many obstacles in the way of making such a showing. A political party might be perfectly free of outside interference and have an opportunity to debate the issues, but still have the voting strength of its members diluted. On the other hand, the narrow view fails to take into account the balancing effect of parts of the political system outside the area challenged. The narrow view also ignores that voters can rationally choose, for example, to vote for Republicans in the executive branch and Democrats in the judicial branch. The court, therefore, will not confine its inquiry to the appellate judicial system, but neither will it demand evidence that goes beyond the question of whether statewide elections are dilutive in the context of the state political system as a whole.” (Citations omitted)). 288. Id. at 1174. (Italics added.), citing Fund for Accurate and Informed Representation, Inc. v. Weprin, 796 F. Supp. 662 (N.D.N.Y 1992). 289. See, Republican Party of North Carolina v. Martin, 980 F.2d 943, 958 (4th Cir. 1992); Badham v. Eu, 694 F. Supp. 664, 670 (N.D. Calif. 1988); and, New York Times Co. v. Sullivan, 376 U.S. 254, 269–270 (1964). 290. Terrazas v. Slagle, 821 F. Supp. 1162, 1174 (W.D. Tex. 1993) (Despite the adoption of the lighter interpretation of the Bandemer test, the Terrazas court ultimately concluded that the plaintiffs had failed to show a loss of political power across the political system as a whole because they did “not show that they cannot block a Democratic-backed redistricting plan and thereby have no influence in crafting such a plan.”). 291. Davis v. Bandemer, 478 U.S. 109, 131, 139 (1986). (Citations omitted.). The Court noted that plaintiffs in racial gerrymandering cases had successfully shown that they had been shut out of the political process. 292. Erfer v. Pennsylvania, 794 A.2d 325, 334 (Penn. 2002) (“Petitioners seem to believe that evidence of disproportionate results necessarily leads to a conclusion that there will also be a lack of political power and denial of fair representation, and that separate proof showing that the Democrats will be shut out of the political process is not necessary. In essence, Petitioners want us to collapse the two prongs of the effects test into one. This is precisely what the Bandemer plurality forbade, and we perceive no sound reason to ease Petitioners' burden in this respect.”). 293. Davis v. Bandemer, 478 U.S. 109, 139–140 (1986) (“In those cases, the racial minorities asserting the successful equal protection claims had essentially been shut out of the political processes. In the statewide political gerrymandering context, these prior cases lead to the analogous conclusion that equal protection violations may be found only where a history (actual or projected) of disproportionate results appears in conjunction with similar indicia.” (Footnote omitted.)). See also, id. at 146 (O’Connor, J., concurring in the judgment). 294. 478 U.S. 30 (1986). 295. Id. at 50. 296. Senate Report No. 417, 97th Congress, 2d Session, 27 (1982). 297. 478 U.S. 30, 36–37 (1986), citing, Senate Report No. 417, 97th Congress, 2d Session, 27 (1982), reprinted in 1982 U.S. Code and Administrative News 177, 205. Compare, Nevetts v. Sides, 571 F.2d 209, 217–219 (5th Cir. 1978).

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298. E.g., Hastert v. Illinois State Board of Elections, 777 F. Supp. 634, 649 (N.D. Ill. 1991); and, Martinez v. Bush, 234 F. Supp. 2d 1275, 1280, 1334–1337 (S.D. Fla. 2002). 299. Years later, Justice Souter would assert that the “shut out” requirement of Bandemer was the most difficult part of the test for party plaintiffs. See, Vieth v. Jubelirer, 541 U.S. 267, 344–345 (2004) (Souter, J., dissenting). 300. Badham v. Eu, 694 F. Supp. 664, 670 (N.D.Cal. 1988) quoting, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (Citations omitted.). See also, Terraza v. Slagle, 821 F. Supp. 1162, 1172–1174 (W.D Tex. 1993); and, Republican Party of Virginia v. Wilder, 774 F. Supp. 400, 405–406 (W.D. Va. 1991). See also the good discussion of the “shut out” issue in, Erfer v. Pennsylvania, 794 A.2d 325, 334 (Penn. 2002) citing, Davis v. Bandemer, 478 U.S. 109, 132, 139 (1986) and, Pope v. Blue, 809 F. Supp. 392, 397 (W.D. N.C. 1992). 301. North Carolina Republican Party v. Martin, 980 F.2d 943, 958 (4th Cir. 1993) (“In determining whether a group has been shut out of the political process as a whole, the Supreme Court considers it relevant to examine the responsiveness of the elected official to the interests of the minority political group.”) citing Davis v. Bandemer, 478 U.S. 109, 131 (1986). 302. See, e.g., Pope v. Blue, 809 F. Supp. 392, 395–396, (W.D.N.C. 1992). 303. Davis v. Bandemer, 478 U.S. 109, 132, citing, City of Mobile v. Bolden, 446 U.S. 55, 111, n. 7 (1980) (MARSHALL, J., dissenting). Justice Powell took a different view of this matter, writing that it “defies political reality to suppose that members of a losing party have as much political influence over . . . government as do members of the victorious party.” Id. at 170 (Powell, J., concurring in part and dissenting in part). For a more recent discussion of this view of representative theory, see League of United Latin American Citizens (L.U.L.A.C.) v. Perry, 548 U.S. 399, 469–471 (2006) (Stevens, J., concurring). 304. O’Lear v. Miller, 222 F. Supp. 2d 862, 863 (E.D. Mich. 2002), affirmed, 537 U.S. 997 (2002). See also, Pope v, Blue, 809 F. Supp. 392, 397 (W.D. N.C. 1992); and, Badham v. Eu, 694 F. Supp. 664, 670 (N.C. Calif. 1988) (“Particularly conspicuous by its absence is an allegation that plaintiffs’ interests are being ‘entirely ignore[d]’ by their congressional representatives.”). See also, id. at 669, 675. 305. See, e.g., Badham v. Eu, 694 F. Supp. 664, 675 (N.D. Calif. 1988). Compare, Republican Party of Virginia v. Wilder, 774 F. Supp. 400, 405 (W.D. Va. 1991). See also, Amy Pugh, “Note: Unresolved: Whether a Claim for Political Gerrymandering May be brought under the First Amendment?” 32 Northern Kentucky Law Review 373 (2005); Timothy D. Caum, “Note: Partisan Gerrymandering Challenges in Light of Vieth v. Jubelirer: A First Amendment Alternative,” 15 Temple Political and Civil Rights Law Review 287 (2005); and, JoAnn D. Kamuf, “Note: ‘Should I Stay or Go?’: The Current State of Partisan Gerrymandering and a Proposal for the Future, “ 74 Fordham Law Review 163 (2005). 306. Badham v. Eu, 694 F. Supp. 664, 670 (N.C. Calif. 1988). 307. Id. at 675. 308. Republican Party of Virginia v. Martin, 980 F.2d 943, 956 n. 23 (W.D. Va. 1991). 309. 478 U.S. 109, 144–161 (1986) (O’Connor, J., concurring in judgment). 310. Id. at 147. See also, id. at 149–150. 311. Id. at 150–151, quoting, City of Mobile v. Bolden, 446 U.S. 55, 83 (1980) (Stevens, J., concurring in judgment). Compare Justice Marshall’s discussion of vote dilution, id. at 103–141 (Marshall, J., dissenting). 312. Thornburg v. Gingles, 478 U.S. 30, 50 (1986). 313. See, e.g., Hastert v. Illinois State Board of Elections, 777 F. Supp. 634, 660 (N.D. Ill. 1991). 314. Republican Party of North Carolina v. Martin, 980 F.2d 943, 956 n. 23 (4th Cir. 1992) citing, Michael A. Hess, “ Beyond Justiciability: Political Gerrymandering After Davis v. Bandemer,” 9 Campbell Law Review 207, 234 (1987) (“The most readily identifiable voting group is one based on political affiliation and voting patterns.”); and, Thornburg v. Gingles, 478 U.S. 30, 56 (1986) (“Under § 2 of the Voting Rights Act, that ‘group members usually vote for the same candidates is one way of proving political cohesiveness’ for a claim of vote dilution.”). 315. See the discussion of First Amendment claims in Republican Party of North Carolina v. Martin, 980 F.2d 943, 959–961 (4th Cir. 1992).

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316. Pope v. Blue, 809 F. Supp. 392, 398 (W.D. N.C. 1992). See also, Holloway v. Hechler, 817 F. Supp. 617, 628–629 (S.D. W. Va. 1992); and, Badham v. Eu, 694 F. Supp. 664, 675 (N.D. Calif. 1988). 317. See, e.g., Republican Party of North Carolina v. Martin, 980 F.2d 943, 959 (4th Cir. 1992); Badham v. Eu, 694 F. Supp. 664, 675 (N.D. Calif. 1988) Washington v. Findlay, 664 F.2d 913 (4th Cir. 1981); and, Pope v. Blue, 809 F. Supp. 392, 398 (W.D. N.C. 1992) (“The first amendment’s protection of the freedom of association and of the right to run for office, have one’s name on the ballot, and present one’s views to the electorate do not also include entitlement to success in those endeavors.”) 318. Republican Party of North Carolina v. Martin, 980 F.2d 943, 959–960 (4th Cir. 1992) (“The First Amendment guarantees the right to participate in the political process. It does not guarantee political success.”) 319. Id. at 960–961. (“This distinction between the government as a hiring authority versus the electorate as a hiring authority is crucial.”) 320. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 294 (2004), and 312–315 (Kennedy, J., concurring in the judgment). 321. See, e.g., Marylanders for Fair Representation, Inc. v. Schaefer, 849 F. Supp. 1022, 1038–1043 (Md. 1994). 322. 541 U.S. 267 (2004). 323. Id. at 272. 324. Vieth v. Pennsylvania, 241 F. Supp. 2d 478, 484–485 (M.D. Penn. 2003) (Vieth III). See also, Vieth v. Pennsylvania, 188 F. Supp. 2d 532, 543–547 (M.D. Penn. 2002) (Vieth I); and, Vieth v. Pennsylvania, 195 F. Supp. 2d 672 (M.D. Penn. 2002) (Vieth II). 325. Vieth v. Jubelirer, 541 U.S. 267, 271–306 (2004). Justice Scalia’s plurality opinion was joined by Chief Justice Rehnquist and Justices O’Connor and Thomas. Justice Kennedy concurred separately in the judgment. 326. Id. at 283–284. 327. Id. at 306 (Kennedy, J., concurring in the judgment). 328. Id. at 306-307 (Kennedy, J., concurring in the judgment). 329. Id. at 582 (Kennedy, J., concurring in the judgment). In support of Justice Kennedy’s preference for using the First Amendment in this area, see, JoAnn D. Kamuf, “Note: ‘Should I Stay or Should I Go?’: The Current State of Partisan Gerrymandering Adjudication and a Proposal for Reform,” 74 Fordham Law Review 163 (2005). See also, Timothy D. Caum II, “Note: Partisan Gerrymandering Challenges in Light of Vieth v. Jubelirer: A First Amendment Alternative,” 15 Temple Political and Civil Rights Law Review 287 (2005); and, Amy M. Pugh, “Note: Unresolved: Whether a Claim for Political Gerrymandering May be Brought under the First Amendment,” 32 Northern Kentucky Law Review 373 (2005). 330. 541 U.S. 267, 317–342 (2004) (Stevens, J., dissenting). 331. Id. at 327 (Stevens, J., dissenting). See also, id. at 335-336, where Justice Stevens states: “In my view, the same standards should apply to claims of political gerrymandering, for the essence of a gerrymander is the same regardless of whether the group is identified as political or racial. . . . It follows that the standards that enable courts to identify and redress a racial gerrymander could also perform the same function for other species of gerrymanders.” Citing, Davis v. Bandemer, 478 U.S. 109, 125 (1986); and, Cousins v. City Council of Chicago, 466 F.2d 830, 853 (7th Cir 1972) (Stevens, J., dissenting). 332. Id. at 331 (Footnotes omitted). 333. Id. at 339. 334. Id. at 339, citing Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988), summarily affirmed, 488 U.S. 1024 (1989); Shaw v. Reno, 509 U.S. 630, 647 (1993) (Shaw I); and, Davis v. Bandemer, 478 U.S. 109, 162 (1986) (Powell, J., concurring in part and dissenting in part). 335. 541 U.S. 267, 345 (2004) (Souter, J., dissenting). 336. Id. at 345–353 (Souter, J., dissenting). Justice Souter crafted this test from the Court’s standard for summary judgments set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 337. Id. at 347 (Souter, J., dissenting).

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338. Id. at 347–348 (Souter, J., dissenting) citing U.S. v. Hays, 515 U.S. 737 (1995); Karcher v. Daggett, 462 U.S. 725, 740 (1983); and, Johnson v. DeGrandy, 512 U.S. 997, 1008 (1994). 339. Id. at 349 (Souter, J., dissenting). 340. Id. at 349 (Souter, J., dissenting) citing Thornburg v. Gingles, 478 U.S. 30, 50 (1986). 341. Id. at 350 (Souter, J., dissenting) citing Washington v. Davis, 426 U.S. 229 (1976); and, Davis v. Bandemer, 478 U.S. 109, 128 (1986). 342. Id. at 351 (Souter, J., dissenting). 343. Id. at 296. 344. Id. at 356 (Breyer, J., dissenting). Justice Breyer also advocated dealing with partisan gerrymandering at the statewide level rather than by individual electoral districts. 345. Id. at 299. (Italics in original). In the same year that Vieth was decided, the district court for Minnesota heard a challenge to a local redistricting plan, see, Johnson-Lee v. City of Minneapolis, 2004 U.S. Dist. LEXIS 19708 (D. Minn. 2004); affirmed 2006 U.S. App. LEXIS 5500 (September 12, 2005) (per curiam). 346. 542 U.S. 947 (2004). 347. Larios v. Cox, 300 F. Supp.2d 1320, 1331 (N.D. Ga. 2004) (per curiam). The district court had granted defendants’ summary judgment motion against plaintiffs’ claim of partisan gerrymander in an earlier order dated December 9, 2003, thus eliminating this issue. See, id. at 1322. 348. Cox v. Larios, 542 U.S. 947 (2004). 349. Id. at 950 (2004) (Stevens, J., concurring). 350. See, e.g., Erika Lewis, “Trailblaze or Retreat? Political Gerrymandering after Vieth v. Jubelirer,” 27 University of Hawaii Law Review 269 (2004); Daniel H. Lowenstein, “Symposium: Electoral Redistricting and the Supreme Court: Vieth’s Gap: Has the Supreme Court Gone from Bad to Worse on Partisan Gerrymandering?” 14 Cornell Journal of Law and Public Policy, 369 (2005); Matthew M. Weiss, “Where Do We Draw the Line?: The Justiciability of Political Gerrymandering Claims in Light of League of United Latin American Citizens v. Perry,” 41 Georgia Law Review 1053, 1079–1084 (2007); Justin Driver, “Law and Democracy: A Symposium on the Law Governing our Democratic Process: Rules, the New Standards: Partisan Gerrymandering and Judicial Manageability After Vieth v. Jubelirer,” 73 George Washington Law Review 1166 (2005); and, Richard Briffault, “Symposium: Electoral Redistricting and the Supreme Court: Electoral Redistricting and the Supreme Court: Defining the Constitutional Question in Partisan Gerrymandering,” 14 Cornell Journal of Law and Public Policy 397 (2005). 351. Henderson v. Perry, 399 F. Supp. 2d 756, 760 (E.D. Tex. 2005). 352. Justice White’s opinion for the Court on justiciability in Davis v. Bandemer, 478 U.S. 109, 118–127 (1986), was joined by Justices Brennan, Marshall, Blackmun, Powell, and Stevens; his test for partisan gerrymandering, id. at 127–143, was supported by Justices Brennan, Marshall, and Blackmun. 353. 548 U.S. 399 (2006). 354. See, JoAnn D. Kamuf, “Note: ‘Should I Stay or Should I Go?’: The Current State of Partisan Gerrymandering Adjudication and a Proposal for Reform,” 74 Fordham Law Review 163, 163–165 (2005); and, David Barboza and Carl Hulse, “Texas’ Republicans Fume; Democrats Remain A.W.O.L.,” New York Times (May 14, 2003) p. A17. 355. Session v. Perry, 298 F. Supp. 2d 451 (E.D. Tex. 2004). See also, Balderas v. Texas, Civ. Action No. 6:01CV158, 2001 U.S. Dist. LEXIS 25740 (E.D. Tex., Nov. 14, 2001). 356. Jackson v. Perry, 543 U.S. 941 (2004). 357. 399 F. Supp.2d 756 (E.D. Tex. 2005). 358. Id. at 770. 359. 548 U.S. 399 (2006). Justices Kennedy, Souter, Stevens, Ginsburg, and Breyer agreed on the section 2 violation. 360. Id. at 414. 361. Id. at 416–417. 362. Id. at 418. 363. Id. at 420–421. 364. Id. at 423.

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365. Id. at 447–483 (Stevens, J., concurring in part and dissenting in part). Justice Breyer joined much of this opinion. 366. Id. at 447 (Stevens, J., concurring in part and dissenting in part). 367. Id. at 475 (Stevens, J., concurring in part and dissenting in part). 368. Id. at 448 (Stevens, J., concurring in part and dissenting in part) quoting Fortson v. Dorsey, 379 U.S. 433, 439 (1965). 369. Id. at 450 (Stevens, J., concurring in part and dissenting in part). 370. Id. at 473 n. 11. Justice Stevens set out a number of factors that other courts could look to in future cases to determine whether a statewide gerrymander met constitutional standards. These factors included: number of people moved from one district to another; the number of districts that are less compact that their predecessors; the degree to which the new plan departs from other neutral districting criteria; the number of districts that have been cracked in a manner that weakens the opposition party; whether the adoption of the plan gives the opposition part a fair opportunity to participate in the redistricting process; the number of seats that are likely to be safe for the dominant party; and, the size of the departure in the new plan from the symmetry standard. 371. Id. at 483 (Souter, J., concurring in part and dissenting in part). Justice Ginsburg joined this opinion. 372. Id. at 492 (Breyer, J., concurring in part and dissenting in part). 373. Id. at 492–494 (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part). 374. Id. at 511–512 (Scalia, J., concurring in the judgment in part and dissenting in part.) Justice Thomas joined in Justice Scalia’s opinion. 375. Among those believing that partisan gerrymanders are justiciable are Matthew M. Weiss, “Where Do We Draw the Line?: The Justiciability of Political Gerrymandering Claims in Light of League of Latin American Citizens v. Perry,” 41 Georgia Law Review 1053, 1084–1090 (2007); and, Douglass Calidas, “Hindsight is 20/20: Revisiting the Reapportionment Cases to Gain Perspective on Partisan Gerrymanders,” 57 Duke Law Journal 1413 (2008). Some commentators, however, argue that these claims are nonjusticiable, e.g., Daniel Lowenstein, 14 Cornell Journal of Law and Public Policy 367 (2005). 376. See, e.g., Guy-Uriel Charles, “Democracy and Distortion,” 92 Cornell Law Review 601, 615–616 (2007); and, Douglass Calidas, “Hindsight is 20/20: Revisiting the Reapportionment Cases to Gain Perspective on Partisan Gerrymanders,” 57 Duke Law Journal 1413, 1425 (2008). At least one commentator has argued that the practice encourages ideological polarization among electoral district, see, Matthew M. Weiss, “Where Do We Draw the Line?: The Justiciability of Political Gerrymandering Claims in Light of League of Latin American Citizens v. Perry,” 41 Georgia Law Review 1053 (2007). On the connection between partisan gerrymandering and democracy generally, see, Samuel Issacharoff and Richard H. Pildes, “Politics as Markets: Partisan Lockups of the Democratic Process,” 50 Stanford Law Review 643 (1998). 377. See, Robert Farley, “Preventing Unconstitutional Gerrymandering: Escaping the Intent/ Effect Quagmire,” 38 Seton Hall Law Review 397, 416 (2008). 378. Id. at 417. (Citations omitted.). Members of the Supreme Court have also grappled with this “how far to too far” dilemma, see, e.g., Vieth v. Jublirer, 541 U.S. 267, 326 (2004) (Stevens, J., dissenting), and, at 344 (Souter, J., dissenting); and, Cox v. Larios, 542 U.S. 947, 952 (2004) (Scalia, J., dissenting). For a different view on this question, see, Martinez v. Bush, 234 F. Supp. 2d 1275, 1347–1348 (S.D. Fla. 2002). The problem is comparable to the “predominant intent” question that has been raised in many of the Court’s cases on racial gerrymandering. 379. Id. at 419–422. One of the most creative suggestions is to create a “fixed district” system of representation where the configuration of electoral districts is held constant and the size of the legislature is allowed to vary to satisfy the needs of inter-district population equality. See, James A. Gardner, “Symposium: Is the Wisconsin Constitution Obsolete: What is ‘Fair’ Partisan Representation, and How Can it Be Constitutionalized? The Case for a Return to Fixed Election Districts,” 90 Marquette Law Review 555, 583 (2007). See also, Samuel Issacharoff and Pamela S. Karlan, “The Law of Democracy: The Texas and Pennsylvania Partisan Gerry-

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mandering Cases: Where to Draw the Line?: Judicial review of Political Gerrymanders,” 153 University of Pennsylvania Law Review 541 (2004). 380. See, e.g., Ryan P. Bates, “Congressional Authority to Require State Adoption of Independent Redistricting Commissions,” 55 Duke Law Journal 333 (2005). 381. Some of the most recent bills introduced in Congress to deal with gerrymandering include: H.R. 543 (Fairness and Independence in Redistricting Act of 2007), H.R. 2248 (Redistricting Reform Act of 2007), and S. 2342 (Fairness and Independence in Redistricting Act of 2007) 110th Congress, 1st Session (2007). See also, Aaron Brooks, “Recent Developments: The Court’s Missed Opportunity to Draw the Line on Partisan Gerrymandering: LULAC v. Perry,” 30 Harvard Journal of Law & Public Policy 781 (2007), advocating a larger congressional role here. 382. See, Vieth v. Jubelirer, 541 U.S. 267, 306–318 (2004) (Kennedy, J., concurring in the judgment). In support of Justice Kennedy see, JoAnn D. Kamuf, “Note: ‘Should I Stay or Should I Go?’: The Current State of Partisan Gerrymandering Adjudication and a Proposal for Reform,” 74 Fordham Law Review 163, 172–175 (2005); Timothy D. Caum II, “Note: Partisan Gerrymandering Challenges in Light of Vieth v. Jubelirer: A First Amendment Alternative,” 15 Temple Political and Civil Rights Law Review 287 (2005); and, Amy M. Pugh, “Note: Unresolved: Whether a Claim for Political Gerrymandering May be Brought under the First Amendment,” 32 Northern Kentucky Law Review 373 (2005). 383. JoAnn D. Kamuf, “Note: ‘Should I Stay or Should I Go?’: The Current State of Partisan Gerrymandering Adjudication and a Proposal for Reform,” 74 Fordham Law Review 163, 209–219 (2005). 384. Use of the Guarantee Clause, U.S. Constitution, Article 4, § 4, is advocated by Michael W. McConnell, “The Redistricting Cases: Original Mistakes and Current Consequences,” 24 Harvard Journal of Law and Public Policy 103 (2000). 385. See, e.g., Robert Redwine, “Racial and Political Gerrymandering—Different Problems Require Different Solutions,” 51 Oklahoma Law Review 373, 401 (1998). On the problems that state legislatures face in this area, see, James A. Gardner, “Eighteenth Annual Issue on State Constitutional Law: Foreword: Representation without Party: Lessons from State Constitutional Attempts to Control Gerrymandering,” 37 Rutgers Law Journal 881 (2006). 386. Robert Farley, “Preventing Unconstitutional Gerrymandering: Escaping the Intent/Effect Quagmire,” 38 Seton Hall Law Review 397, 420-426 (2008). 387. See, e.g., Arizona Constitution Art. IV, part 2, § 1 (3); New Jersey Constitution, Art. II, § 2; Hawaii Constitution Article IV, § 6; Montana Code Annotated § 5-1-101; Annotated Revised Code of Washington § 44.05.010. Most state redistricting commissions are bipartisan and independent, though some give the incumbent political party a majority on the commission. See also, Kristina Betts, “Redistricting: Who Should Draw the Lines? The Arizona Independent Redistricting Commission as a Model for Change,” 48 Arizona Law Review 171 (2006); Ryan P. Bates, “Congressional Authorization to Require State Adoption of Independent Redistricting Commissions,” 55 Duke Law Review 333 (2005); and Christopher C. Confer, “To Be About the Peoples’ Business: An Examination of Nonpolitical/Bipartisan Legislative Redistricting Commissions,” 13 Kansas Journal of Law and Public Policy 115 (2003–04). 388. The best discussion of this issue is, Guy-Uriel Charles, “Democracy and Distortion,” 92 Cornell Law Review 601, 622–638 (2007). 389. Davis v. Bandemer, 478 U.S. 109, 131, 139–140 (1986). But compare Justice O’Connor’s views on this, “[T]he Court justifies the extension of vote dilution claims to mainstream political groups with the pronouncement that "Reynolds surely indicates the justiciability of claims going to the adequacy of representation in state legislatures.” But Reynolds makes plain that the one person, one vote principle safeguards the individual’s right to vote, not the interests of political groups: “To the extent that a citizen's right to vote is debased, he is that much less a citizen. The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficacy of his vote.” Id. at 149-150 (citations omitted) (O’Connor, J., concurring). 390. Shaw v. Reno, 509 U.S. 630, 650 (1993) (“Nothing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as

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well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.”) (citation omitted). 391. See, Martinez v. Bush, 234 F. Supp. 2d 1275, 1335–1337 (S.D. Fla. 2002), for a discussion of why the Supreme Court’s race decisions in Thornburg v. Gingles, 478 U.S. 30 (1986) and Johnson v. DeGrandy, 512 U.S. 997 (1994) should apply to political gerrymandering. 392. Martinez v. Bush, 234 F. Supp. 2d 1275, 1325 (S.D. Fla. 2002). 393. Terrazas v. Slagle, 821 F. Supp. 1162, 1172–1174 (W.D. Tex. 1993), quoting Badham v. Eu, 694 F. Supp. 664, 670 (N.D. Calif. 1988) and citing Republican Party of North Carolina v. Martin, 980 F.2d 943, 958 (4th Cir. 1992). 394. The origin of heightened constitutional protection for “discrete and insular” groups is, U.S. v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1941). 395. See, e.g., Davis v. Bandemer, 478 U.S. 109, 151–156 (1986) (O’Connor, J., concurring in judgment). 396. 541 U.S. 267 (2004). 397. Id. at 323–324 (Stevens, J., dissenting). 398. Id. at 327 (Stevens, J., dissenting). 399. Id. at 330–332 (Stevens, J., dissenting). 400. Id. at 293. (Citations omitted.), quoting Shaw v. Reno, 509 U.S. 630, 650 (1993).a 401. Id. at 293. 402. Id. at 284–286. 403. Id. at 307 (Kennedy, J., concurring).

Chapter Five

Summary and Recommendations

For decades American courts have faced a wide range of disputes that have touched on the relationship between American political parties and the rest of our democratic system. These cases have covered a wide range of issues, including: how closely party organizations should be regulated by the states, the role that parties should play in the electoral process, and how parties should operate when in power. These central questions have been posed to the courts through a bewildering range of fact situations involving ballot access disputes, participation in party primaries, partisan gerrymandering, and political patronage. Most of these issues have arisen in cases posing technical legal and constitutional questions. In handling disputes involving political parties, judges have often seemed to fall into one of two broad camps. One the one hand are those judges who regard political parties as “facilitators of democracy,” relying on their roles as aggregators of political majorities in both elections and government. These judges tend to credit the parties with important roles in our political system, such as recruiting of candidates, informing voters on public issues, fund-raising, providing voter cues, mobilizing voters, and the framing of current political issues. The opposing camp of judges generally takes a more negative view of parties and their contributions to politics. This latter group tends to see parties as corruptors of the political process and government. They attach little value to the role of partisanship in mobilizing voters or in providing voters with assistance in understanding political issues or candidates. They focus on partisan efforts to shut out political opponents from the democratic process. While this dichotomy over-simplifies the range of judicial positions on parties, it is a useful guide to understanding how individual judges often begin their analysis of cases raising questions on the role of parties in politics. In many instances, this overall “world view” of parties 341

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seems to determine how many judges reach their final decisions on the technical electoral issues involving parties. The tendency of many judges to regard parties as either beneficial or corrupting entities has also tended to hamper the ability of courts to formulate broad and moderate positions on how parties might be better “accommodated” within our political system. Judges in the optimist camp tend to disfavor virtually any regulatory fetters on parties. Their brethren in the pessimist camp favor ever more limitations on parties and partisanship including such things as nonpartisan elections. I would argue that there are some useful middle positions that can be taken on the proper positioning of parties in our political system. Some courts have tried to identify and encourage the “good” activities of parties while simultaneously trying to discourage the “bad” aspects of parties and partisanship. This is very difficult to do in the context of a legal dispute which typically raises many other issues. The problem is one that might better be settled by legislatures, but here the record is rather thin. I. THE TRIPARTITE APPROACH The tripartite model of political parties which was set forth in chapter 1 has formed the basis of this book’s organization. Drawing on the classic conceptualization of parties, this model envisions parties as made up of three parts: the party organization composed of the formal party structure (committees), the party-in-the-electorate composed of rank-and-file party members, and the party-in-government composed of party officials holding government positions. An earlier chapter was devoted to reviewing each of these three arms of American political parties and how each has been treated by the courts over history. While the tripartite model is one of the earliest conceptualization of political parties, it has seldom been explicitly or systematically applied to resolve the problems raised by having quasi-independent political parties engaged in a wide range of activities, some arguably private while others are important to the public at large. As shown in preceding chapters, many courts have made reference to the three-way description of parties in passing but seldom have they been able or willing to apply it across a broad range of party activities. One of my goals here has been to make use of the traditional threeway model as a means for determining how parties and various party activities should be treated under the law. My approach draws on judicial decisions and on some of the many earlier models and solutions offered to solve the problem of “placing” parties in a representative form of government. A major premise of this approach is that by maintaining vigorous and healthy political parties, the political system as a whole will be well served. My objective is to develop guidelines that

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preserve the “desirable” activities and contributions so parties while simultaneously curbing some of the problems and “abuses” that political parties can bring to government and elections. At first, this may seem like an impossible task given the myriad functions undertaken by parties in our political system today and the constantly shifting nature of those activities. However, it is hoped that a focus on the maintenance of healthy party activities will yield better results than trying to resolve directly the issues of broader participation or equal competition among all political actors. By giving primary focus to the maintenance of properly functioning parties this approach should help the entire political process function well by making sure that parties, at least, are able to make their salutary contribution to politics while being dissuaded from pursuing some of their well-known abuses of political power. Under this view, political parties are the keystone of the political system and their proper functioning is a vital element in the success of representative government. By focusing on parties, this approach may also skirt many of the most difficult and perhaps unsolvable issues in this area. Where this approach does not offer a definitive answer, it should at least highlight the key goals that should guide the courts as new issues arise involving political parties. The tripartite method offers some advantages over other models that have been proposed in recent years. Many early models tended to focus on more elusive goals such as the maintenance of a “fair” political process, which are inevitably more subjective and lead to varying results among judges. Using “healthy parties” as the primary goal may also appear at first to be highly subjective. But by aligning judicial standards with the fairly clear divisions among the wings of the parties, a more objective set of guidelines is possible. If this approach can yield a clearer set of guidelines for how courts adjudicate various legal issues involving parties, then this will also produce more uniform judicial decisions in this area. A final advantage of the tripartite approach is that its clearer guidelines and standards would effectively give notice to the parties, both in and out of power, as to what activities are not countenanced by the law. In the long run, this should lead to more selfpolicing by parties and lessen the need for judicial supervision of parties. History has shown that the courts, tied to the case method of adjudication, are poorly positioned to develop overarching solutions to the party problem. The tripartite approach may assist the courts in resolving individual disputes by placing them within the larger context of representative democracy. Given the rapid and evolutionary nature of American politics, a solution to the party problem needs to be one that can stand the test of time and not suddenly become outmoded or overcome by new development in American politics. Focusing on the overall general role of parties within our system and keeping them healthy is one way to do this. The role of parties in American politics has changed rapidly with the rise of interest groups, modern media, and changes in campaign finance. Any solution that is going to be written

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into court decisions needs to be one that can adapt or at least not be made obsolete by developments in campaigns and elections. The model needs to be firm enough to yield predictability and stability without being so rigid as to be rendered obsolete by new political developments. A simple focus on parties lets the courts do this and frees them to develop standards to deal with non-party elements of the political system. A comprehensive solution using other guidelines has proven to be elusive at best. My suggestion is to focus on the parties as the key linkage element in our system and work to control, restrain, or encourage as needed the roles of parties in politics. Given their centrality in the process, this should produce more efficacious results. II. THE JUDICIAL RECORD TO DATE State legislatures have been the primary engines for imposing regulations on political parties. But their overt partisanship makes them unlikely places for developing a balanced and comprehensive approach to the role of parties in our governmental system. The task of making progress in this area has thus by default fallen to the judiciary which, although hardly nonpartisan, is generally able to take a longer and more objective view of such matters. The judiciary remains somewhat hamstrung in this area by the case method of adjudication and the increasingly narrow legal issues that are usually presented to them in this area. However, as demonstrated in the preceding chapters, many courts have already taken some significant steps in this direction. A. Regulation of Party Organizations and Internal Party Activities Chapter 2 chronicled the efforts of judges to settle disputes involving state regulation of “internal” party affairs. The tripartite model calls for minimal government intervention here in the name of party autonomy and maintenance of vigorous party organizations. It is in the performance of these internal activities that parties are seen as undertaking their most “private” functions and those that should be placed furthest beyond direct government control. The purported advantages of party autonomy include the preservation of free association principles and the guarantee that an incumbent government (or party) will not interfere with the candidate selection processes performed by independent parties. Keeping government out of the private side of parties is presumed to foster healthy parties that can then make positive contributions to our overall political system. It might also be noted that in their internal activities, parties are least able to impinge on the larger public interest in fair elections. Chapter 2 showed that the states have already established themselves as supervisors of party organizations and activities that many would consider to be internal or private party matters. Given this reality, and the unlikelihood

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of any large-scale rollback of state regulation in this area, the model’s expectations must be adjusted. The best approach here would probably be to identify some bright-line boundaries beyond which growing state regulation should not proceed. The courts are relatively well-positioned to draw such lines and to enforce them against the rising tide of state regulation. Drawing on First Amendment case law, courts today could consider allowing state regulations that deal with the “process” side of party activities that could considered as more “public,” while discouraging state regulation of the “content” activities of parties such as policy positions and development of party platforms. As shown earlier, the courts have tried a variety of techniques for separating the public and private sides of party activities. In fact, there is been a rich history of the court decisions trying to carve out areas for party autonomy. Some courts have tried to select certain party duties or responsibilities and label them either “public” and hence regulable, or “private” and thus beyond government regulation. Others have focused on the representative nature of the party offices in an effort to segregate some party posts from others for purposes of government regulation. A promising approach has been to try to have certain stages of the electoral process state-regulated while leaving earlier, party-dominated stages free from government regulation or at least subject to less regulation. Despite these judicial efforts, there has been a steady increase in state regulation of party activities. This process has been driven in part by the growth in support for fundamental individual political rights of association, speech, and the right to equal electoral participation. The growth in state legislative schemes regulating parties has probably also been facilitated by the absence of clear judicial drawing of the boundaries needed to preserve core party activities. Of course, some courts have themselves adopted an anti-party stance and encouraged the broadening of state laws sharply regulating parties. These courts have participated in the erosion of party independence, though usually in the name of democratic principles, including broader franchise and equal access to politics. But the cumulative effect of their efforts has been to weaken party autonomy, and thus indirectly strengthen other political entities such as PACs. These court decisions tend to become legal precedents for still more erosion of parties. What appears to be needed at this time is for the courts to create and enforce a bright-line boundary protecting the core activities of parties from further erosion by government regulation. This can be done through sharper definition of exactly what are “internal” party affairs deserving of such heightened protection. A few courts have tried listing such activities or developing guidelines describing such activities. Given the constantly shifting roles of parties in our political system, the latter would probably be more useful, with lists being subject to revisions (expansion rather than contraction

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being preferred). In the end, it may be easier to identify when a party function has somehow crossed the line and become a largely “public” matter that should be regulated. However, the danger of gradually eroding party’s internal affairs persists. This most often seems to be in the area of party primaries and other nomination activities where dividing lines are more ambiguous. Judgment must be made on how great the public interest is in managing a particular party role. It is inevitable that the distinction between the two sides of political parties will never be absolutely clear. The courts should therefore routinely place a substantial burden on government to show why they want to augment government regulation over parties in their internal activities. Given the evolving role of parties, this could be quite helpful. In the future, states might be wise to more clearly segregate party officers’ party duties and public duties, to the extent possible. There has been increased interest from the Supreme Court in addressing these issues in recent years. This may in fact prove to be the best venue for broadly defining the role that parties should play in our politics. Partisan differences among justices in the past have hampered this process, with liberal justices generally favoring greater regulation of parties and conservative justices generally favoring minimal regulation. However, given that few on either side of this debate argue for complete regulation or total nonregulation of parties, the search for a middle position may be worthwhile. Presumably, most justices favor (to varying degrees) the basic ideals of independent parties and the benefits generated by having vigorous and autonomous parties. Both liberals and conservatives should generally favor such things as responsible parties and both should recognize that there are limits to both regulation and autonomy. Some recent Supreme Court opinions, like California v. Jones, 1 have addressed at length such matters as party coherence, the reliability of party labels, the need for some party coherence ideologically, and the desirability of supporting a party duopoly. These are issues on which judges will disagree but where absolute positions are rare. Practical politics dictate that there should be some common ground in drawing lines around party behavior in a way that allows for continued judicial participation with less discretion. B. Regulation of Incumbent Political Parties The opposite situation of government regulation of parties’ internal affairs is the regulation of parties in government. 2 After a party has won an election and taken over either the executive or legislative branch of government, they have reached the zenith of their power and in effect have become the government. It is at this point that the greatest potential for partisan abuse of power exists. An incumbent party that is in control of one or more parts of the

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government is in an ideal position to seek to entrench its power and that of its allies. American history is replete with examples of incumbent parties using the power of government to unfairly augment and extent their political powers to the disadvantage of their partisan opponents. Incumbent parties that control the levers of government are not in need of judicial protection but rather need to be checked to prevent the abuse of the governmental powers they hold. They possess the legal and political tools with which to do the greatest harm to their opponents and to the public interest in open government, fair elections, and representative government. The tripartite model considers the party-in-government as that wing of the party which is undertaking the most “public” of its functions and which therefore should be subject to the greatest regulatory burden to ensure that it is not acting against the public interest. The tripartite model directs that there be maximum tolerance of government efforts to regulate incumbent political parties. The model comports well with political realities and supplies a rationale for maximization of judicial oversight of this side of parties. As shown in chapter 4, there is comparatively little state or national legislation regulating incumbent political parties. If there is to be greater oversight of this aspect of American parties, it will probably have to come from greater judicial intervention in order to curb party abuses. If legislatures are (understandably) reluctant to increase government scrutiny of incumbent political parties, then the courts must. One of the two great areas where incumbent parties have abused their position has been in the venerable realm of political patronage. The courts, including the Supreme Court, have spent decades trying to create guidelines that will permit some degree of patronage power by incumbent parties while simultaneously trying to limit the “abuse” of this power. Incumbent parties are often tempted to populate government with their adherents and to limit the free speech rights of public employees. The courts have tried to balance the demands that victorious parties be accorded political patronage opportunities in order to facilitate and implement their electoral mandate with the companion need to prevent party entrenchment or party lockup. The balance between these competing goals can be struck at a number of points, depending on one’s view of representative government, the desirability of fostering “responsible parties,” and the dangers of party entrenchment. Over the years, the courts have sought to find this optimal balancing point by classifying public employees into two camps. One set of employees, labeled “policymakers” or “confidential” employees, would be accorded a fair degree of judicial protection from regulation and recognized as partisans in government. The appointment of these party loyalists would be the winning party’s reward and assist in implementing its policies. The other class of public employees would be the more traditional civil servants, selected largely on the basis of merit and immune from partisan-based dismissal or other

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adverse actions. The model dictates that this latter class of employees be given strong protection by the courts and that incumbent parties be sharply restrained at this point. These attempts to create categories of public workers or types of public employment have made some progress in limiting party abuses of power, while preserving some of the reputed advantages of political patronage. 3 Some judges have attempted to solve this regulatory dilemma by putting the burden on the government units to show that the challenged patronage decision further an important government interest. This approach comports well with the tripartite model in that it creates some presumption that the partisan appointment is unnecessary unless the government is able to demonstrate otherwise. A related concern has been the protection of the free expression rights of public employees who disagree with their partisan superiors. Here the courts have tried to protect such rights by identifying “triggers” (employee actions, statements) and adverse government actions (firings, transfers) against such employees. These cases have made considerable progress in limiting partisan abuses in the states and in clarifying the law in this area. 4 This line of defense of partisan appointees must be drawn firmly so as to not allow unchecked growth in the power of incumbent parties. More recently, the courts have looked more broadly at the problems raised by the practice of political patronage to consider larger issues and concerns. Primary among these have been such things as the goal of not weakening the parties too much because they are needed to balance the growing power of interest groups in our political system. Once again we see the need to selectively bolster parties so that they can still perform some of their beneficial services to the political system. Political patronage, while having a checkered past, is one way in which state and local parties have been able to reward adherents and act more like responsible parties once in office. Finally, the association rights and interest of the parties themselves, as distinct from similar rights of individual partisans and nonpartisans, has also become an issue in this debate. The other great area of abuse associated with incumbent political parties has been that of partisan gerrymandering. As with political patronage, this party activity raises difficult and conflicting issues for representative government. Consequently, opinions vary on how much freedom parties should be given to pursue this political tradition. Partisan gerrymandering, unlike political patronage, does not seem to have many arguable advantages. But like patronage, this is a topic where it is unclear whether the problem should be addressed by courts, legislatures or both, and whether it should be handled at the national or subnational levels of government. These issues need clarification to strengthen the model’s application. The contributions of the courts to finding answers to regulating parties when they undertake gerrymandering have been less satisfying. The task of

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finding some sort of middle ground or compromise position is complicated by the lack of greater agreement as to when (if ever) partisan gerrymandering is acceptable. Judges have divided sharply in the past over whether this topic is even “justiciable.” 5 Other difficult issues here include the problem of identifying when partisan gerrymandering has gone so far as to be deemed “unconstitutional.” The process of redistricting at the state and local levels is a complicated one where partisanship is typically only one of many factors and considerations leading to an eventual plan. What progress that has been made here has been attempts to identify when an incumbent party has gone “too far” in inserting partisan goals into the redistricting process. This approach has often reduced these considerations to a matter of degree of partisanship in the process, making for uneven and unpredictable case law. Other courts have tried to look for whether there is a “fair partisan balance” in state or local elections. These subjective approaches have not been particularly helpful. The Supreme Court has provided several tests for dealing with the partisan gerrymander issue across several major cases. 6 Seldom have any of these tests commanded more than a bare majority of the Court and the justices remain sharply divided over the fundamental issues involved. Some members of the Court have suggested guidelines for what burden of proof challengers to partisan gerrymandering should bear. Some of the tests have tried to apply the Court’s experience with racial gerrymandering and require that plaintiff in partisan gerrymandering cases show electoral discrimination in order to make out their claim. The Court appears to remain divided even over whether the problem posed by partisan gerrymandering claims should be analyzed under First Amendment principles or under equal protection. C. Regulation of Parties in the Electoral Sphere The regulation political parties in the electoral realm has always posed the most difficult questions. 7 The tripartite model is of considerable use in directing that matters of “internal” party government and behavior, if identifiable, should remain largely beyond government regulation. And the model is helpful in dictating that, theoretically, incumbent parties should face the greatest government regulation and receive the least assistance from the courts. But when parties are active in the intervening electoral process, the model is of much less help. Lines are much more blurred in the electoral realm and it is very difficult to gauge whether government regulations should presumptively favor or disfavor political parties. Those electoral activities of parties that tend towards internal affairs such as the nomination process should receive less government oversight than party behavior at the general election stage that implicates much more of the public interest. However, in practice, these distinctions are very difficult to make. The drawing of regula-

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tory lines in this area of activity will require greater effort by the courts and will probably entail less certainty than the adjudication of regulations over the other manifestations of political parties. The courts’ handling of parties in the electoral arena can be generally broken down into four broad categories: campaign finance laws, non-financial campaign laws, ballot access legislation, and the regulation of the nomination process. The role of the courts in the campaign finance field is in conjunction with rulings from the Federal Election Commission and recurring legislation from Congress. The courts have routinely considered the proper role for parties in the financial side of elections through cases challenging various aspect of federal campaign finance legislation. Some members of the Supreme Court, usually liberals, have favored greater regulation of campaign finances including the impact of such laws on the parties and their role in elections. More conservative justices have typically been less inclined to approve regulations or FEC rulings that limit the financial options and the behavior of political parties. Much of the judicial activity here has been in rather discrete corners of campaign finance law where the courts can make minor adjustments to the law that favor or disfavor parties in their fundraising and spending activities. For exmaple, court decisions have affected such things as the ability of national party organization to share money with their subnational divisions. 8 The technical nature of the disputes in this area, and the resulting narrowly tailored decisions, virtually precludes the adoption of broad policy-oriented court decisions. Campaign finance litigation is often complex and implicates many considerations beyond simply the welfare of the parties. One of the more interesting of these is the issue was raised in Citizen United concerning the relative financial role played by parties versus other non-party electoral actors. 9 The adjudication of non-financial campaign legislation has involved the courts in questions of ballot access by parties and individual candidates, party nomination procedures, ballot composition, and the use of nonpartisan elections. These cases have posed thorny questions for the courts, including: the role of third parties, the desirability of maintaining the traditional party duopoly in this country, and the First Amendment rights of parties and voters. Courts hearing these questions have typically been torn between a desire to defer to the states and their determinations of the “public interest” in regulating elections and the court’s interest in preserving competitiveness in the electoral process and the fundamental rights of both parties and voters. The result is often that the courts end up balancing these two sets of interests. Not surprisingly, the result has been many ad hoc decisions that, taken together, do not provide any clear overarching guidelines other than the pursuit of generalities like “fair” elections or vigorously competitive politics. Given the almost endless range of state laws regulating non-financial aspects of

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elections, and the unpredictable impact of these on parties, the constellation of resulting decisions here has provided little guidance. The adjudication of a proper role for the parties in the nomination process has proven to be one of the most difficult for both courts and judicial scholars. The reason for this is clear: the nomination process is critical for both the parties as private entities and to the public interest at large. The nomination of candidates is perhaps the most important and unique power of parties. It is also crucial to the determination of which candidates will run in the general election and who eventually enters government. Separating private party interests from the public interest is thus more a matter of degree, largely defying efforts to identify sharp boundaries. Many of the same issues arise in these cases, including the ideological purity of parties and their “brand,” First Amendment rights of speech and association, openness of the electoral process, and the rights of minor parties. These cases have often involved the courts adjudicating varied and complex state laws regulating the nomination process and party rules and traditions in operating such elections. 10 III. APPLICATION OF THE TRIPARTITE MODEL The application of the tripartite model is based on the assumption that the preservation of healthy political parties is salutary for the entire political system. It also assumes that the courts, through the further development of constitutional law principles, can foster this preservation through the measured protection of parties depending on the type of activity involved. As seen, this process is relatively easy when parties are either “in government” or when they are performing purely “internal” organizational operations. In the electoral arena parties’ roles are more mixed and the costs and benefits far less certain. However, even in this area, the model can be of assistance is calling attention to major issues such as the viability of parties versus other types of linkage entities. Two of the issues most keenly discussed issues in this area have been the matter of the party entrenchment and the regulation of party primaries. A. Issues of Party Entrenchment The entrenchment of incumbent parties by various means has attracted the attention of both courts and legal scholars. Most disapprove of this behavior by incumbent parties but struggle to find a larger theoretical justification for state intervention to prevent or curb such behavior. Party entrenchment questions usually lead to the question of the maintenance of the party duopoly in this country and what protections should be given to minor political parties. These questions elude the tripartite model to a large extent by posing the

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question whether the goal of healthy political parties means only the two current parties. Under the tripartite model party entrenchment efforts undertaken by incumbent parties should trigger the greatest judicial oversight and granting of minimal constitutional protection. This response would also mean that third or minor parties would receive greater protection from the courts than they often have in the past since what they are typically complaining about is the discriminatory behavior of one of the major parties in power. Others have attacked this sort of party behavior because it diminishes or interferes with inter-party (and occasionally intra-party) competition which should be the primary focus of preserving our political system. Actions of incumbent parties such as partisan gerrymandering and political patronage should be opposed by the courts. In the case of patronage, the courts have already moved considerably in this direction. In the case of partisan gerrymandering, there appears to be less consensus as to whether and how this activity can be properly adjudicated. B. Nomination Process Issues The other great area of controversy concerning party electoral behavior has been in their conduct of the nomination process. This is a very difficult area because of the sharp clash between the parties’ private interests and the strong interests of the state in an open and fair primary system. Subsidiary questions here include: how important is the maintenance of the party label and its ideological “purity”? How open to outsider participation should party selection of nominees be? How should third parties be treated by the courts? The challenge for the courts here is to preserve a balance between party and state interests. If preservation of healthy parties is our primary guide then the balance should usually be struck in favor of the parties. This would mean that the courts should indulge in a presumption in favor of the parties when confronted with difficult issues of mixed interests in cases involving the nomination process. The opposite should hold true for disputes involving the general election process. This is a simplistic way to resolve this problem, but it is one that injects a fairly large element of certainty and predictability into the process of adjudicating these disputes. The courts are probably the best situated entity to make determination of whether a dispute is in one stage of the electoral process or the other. More recent controversies have seen several states attempting to weaken the role of parties in the nomination through the creation of nonpartisan primaries or “blanket” primaries. The tripartite model again points in favor of the parties. Asserted state interests in opening the electoral process to independent voters, saving public money by collapsing the primary and general election phases, or fostering the selection of more “moderate” candidates are

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simply too weak and uncertain to override the interests of maintain the parties role at this stage. IV. RECOMMENDATIONS AND SUGGESTIONS The focus of courts adjudicating party-related issues needs to be on the maintenance of “healthy” parties. While this may seem no more helpful than trying to maintaining a “competitive” political system, it can be made a more manageable technique if it is linked to the tripartite party model. By “healthy parties” is meant the maximum preservation of the beneficial aspects of political parties while simultaneously trying to curb partisan “misbehavior” such as entrenchment or exclusion of persons on non-ideological grounds. Greater clarity and predictability can be achieved by linking the judicial decision directly to the tripartite model of political parties. Thus a court should favor preservation the internal or private side of parties and party activities on those grounds alone. Government regulation would be allowed to reach its greatest extent over incumbent political parties, a position which correlates well with many of the most undesirable aspects of party behavior. Of course, all positive party contributions are not associated with the “private” side of parties, nor are all negative party behaviors associated with the most public side of party behavior. But the correlation is close enough to make the tripartite assignment of levels of government oversight (and judicial enforcement thereof) more predictable and clear than has been the case in the past. The lodestar of “healthy parties” should not be restricted entirely to the major parties, but interpreted more broadly as a healthy party system. Thus, the preservation of the rights of minor parties would also be respected under such a framework. Application of the tripartite model would probably generally favor the current party duopoly, but would not do so to the exclusion of minor parties and their role in American politics. The health of all parties is dependent on being protected from overly onerous government regulations in the conduct of their internal or private functions which are provide critical support to our representative democracy. A healthy party system must include the preservation of all parties’ health and thus necessarily implies that there are limits on party behavior when they are conducting operations that are not vital to their own preservation or their ability to make their contributions to our political system. Recommendations for Adjudicating of Disputes Involving Political Parties As was documented in prior chapters, American courts have much in the way of precedence to build upon in order to clarify and preserve the role of

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political parties in our governmental system. At its most basic, the tripartite model calls for a more precise recognition of various party activities in order to preserve some while subjecting others to comparatively more rigorous judicial oversight. The following are some further suggestions for how the courts, and to a lesser extent state legislatures, might build constructively on the existing body of laws and judicial precedents in order to improve the oversight and functioning of American political parties. 1. Courts should attempt to adopt clearer standards for what constitute “internal” party affairs. Party elections, party platforms, and party campaign activities including fundraising should get maximum protection from government regulation. These activities are the “core” of party actions and need to be accorded the greatest judicial deference. Such protection will also ensure that parties are on an even playing field with the growing number of non-party political actors which typically operate more freely from government supervision. 2. Courts need to be as explicit as possible about regulation of “internal” versus “public” sides of parties. Opinions should be rendered in terms of the tripartite model. In those disputes that involve other intervening issues, it should be made explicit why the court is deviating from the regulatory direction dictated by the model. 3. When addressing issues arising from political parties’ role in the electoral process, courts should try to reinforce barriers between the two phases of elections. This is one area where it is relatively easy to draw lines as the two phases of elections are normally well separated. Deference to party autonomy should be greater during the nomination phase, state interests more easily recognized and enforced by the courts during the general election phase. Inevitably, some of these lines will appear to have been drawn arbitrarily, but there are advantages to simply having bright lines here: predictability, selfpolicing by parties, and uniformity among jurisdictions. Once the two phases of elections are disentangled as much as possible, the courts can give significantly lower scrutiny to regulations that affect the primary phase of elections than those affecting general elections. This might produce some unpalatable decisions such as allowing parties to engage in discriminatory in-house activities reminiscent of the White Primary era. But this sort of activity can be stopped in other ways today given the rise of anti-discrimination legislation and the power of media coverage of such abuses. 4. The courts should clearly attach First Amendment rights to parties qua parties and encourage respect for their collective associational rights. This has been hinted at by some courts but should be made explicit. This will help

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parties maintain their party label as a reliable and broadly understood “brand” for voters. It is an important party contribution to the electoral process and not one mimicked by other types of political organizations. 5. Courts should be more proactive in upholding legislation that favors political parties as financial engines for candidates. This is a vital party role but one which is increasingly being undertaken by non-party entities. Parties should not be hamstrung in providing various financial services to candidates and campaigns any more stringently than their non-party competitors. 6. Courts should clarify what state legislatures can regulate about parties and what the federal government can regulate. Federal regulations to date have been mostly financial in nature. These may be entitled to greater judicial deference than other regulatory decisions taken at the state level. But at either level, the health of the parties, whether it be state committees of their national brethren, should continue to be the guiding principle. 7. Courts need to think more strategically when rendering decisions involving parties. They need to consider how their decisions involving political parties might alter the larger constellation of political competition. In particular, this means looking beyond party behavior and regulations to those of competing non-party entities. Courts need to be sensitive to how well parties will be able compete with the many other political intermediary organizations now active in American politics. This can be done in part by being less willing to uphold restraints on political parties that do not also impinge as heavily on the political activities of other political actors, including PACs, interest groups, and section 501 organizations. 8. Minor parties should receive significant judicial protection from major parties while the major parties are in power and able to harm them through tactics like ballot access restrictions or partisan gerrymandering. 11 The internal activities of minor parties should be protected like those of the major parties. This coupled with heavier burdens on incumbent majors should produce adequate protection for smaller parties. 9. The usual judicial method of balancing state interests against those of the party in legal disputes has not worked effectively or consistently. Instead, the courts must consider elevating the public interest in the existence and preservation of strong and independent political parties as the primary public objective in reaching their decisions. With this as the primary objective, judicial decisions naturally would tend to favor the parties. The government interest in such things as competitiveness and voter participation would be lessened

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in comparison with the broader objective of keeping the parties as free as possible in the performance of their “internal” affairs. Ultimate solutions may never be found in this area. But there remains the need to find middle positions beyond that narrow case by case method used by courts and the overly expansive approaches often suggested by scholars that try to mend to entire political. A middle approach that focuses on vigorous political parties and their specific roles in politics avoids many of the problems raised by overly narrow or overly inclusive approaches. The tripartite model offers the best, albeit imperfect route, forward in this area. It draws on existing case law, comports well with existing political realities, and is supported by considerable literature on political parties. NOTES 1. 530 U.S. 567 (2000). 2. See chapter 4. 3. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). 4. E.g., Elrod v. Burns, 427 U.S. 347 (1976); and, Branti v. Finkel, 445 U.S. 507 (1980). 5. See, Davis v. Bendemer, 478 U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267 (2004). 6. See, Davis v. Bendemer, 478 U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267 (2004); and, League of United Latin American Citizens (L.U.L.A.C.) v. United States, 548 U.S. 399 (2006). 7. See, chapter 3. 8. See, Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981). 9. Citizens United v. United States, 558 U.S. 310 (2010). 10. See, e.g., Eu v. San Francisco, 489 U.S. 214 (1989); California Democratic Party v. Jones, 530 U.S. 567 (2000); and, Clingman v. Beaver, 544 U.S. 581 (2005). 11. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

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Cases Cited

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371

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Cases Cited

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Cases Cited

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Clark v. Edwards, 725 F. Supp. 285 (M.D. La. 1988). United States v. Classic, 313 U.S. 299 (1941). Clement v. Fashing, 457 U.S. 957 (1982). Clingman v. Beaver, 544 U.S. 581 (2005). Clinton v. Jones, 520 U.S. 681 (1997). People ex rel. Coffey v. Democratic Central Committee, 164 N.Y. 335, 58 N.E. 124 (1900). Cole v. Tucker, 164 Mass. 486, 41 N.E. 681 (1895). Colegrove v. Green, 328 U.S. 549 (1946). Colorado Libertarian Party v. Secretary of State of Colorado, 817 P.2d 998 (Col. 1991). Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado I), 518 U.S. (1996). Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado II), 533 U.S. 431 (2001). Connor v. Coleman, 440 U.S. 612 (1979) Consumer Party v. Davis, 633 F. Supp. 877 (E.D. Penn. 1986). Cool Moose Party v. State of Rhode Island, 6 F. Supp.2d 116 (D.R.I. 1998). Cool Moose Party v. Rhode Island, 183 F.3d 80 (1st Circuit 1999). Coolidge v. New Hampshire, 403 U.S. 443 (1971). Cope v. Heltsley, 128 F.3d 452 (6th Cir. 1997). Commonwealth v. Rogers, 181 Mass. 184, 63 N.E. 421 (1902). Concerned Democrats of Florida v. Reno, 458 F. Supp. 60 (S.D. Fla. 1978). Connick v. Myers, 461 U.S. 138 (1983). Cooper v. Aaron, 358 U.S. 1 (1958). Council of Alternative Political Parties v. State of New Jersey, 781 A.2d 1041 (N.J. Super. 2001). Cousins v. Wigoda, 419 U.S. 477 (1975). Cummings v. Meskill, 341 F. Supp. 139 (D. Conn. 1972). Ex Parte Curtis, 106 U.S. 371 (1882). Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). Daggett v. Commission on Governmental Ethics & Elections Practices, 205 F.3d 445 (1st Cir. 2000). Daggett v. Webster, 74 F. Supp. 2d 53 (D. Me. 1999). Daniel v. Paul, 395 U.S. 298 (1969). Daniel v. Simms, 39 S.E. 690 (W. Va. 1901). Davis v. Bandemer, 478 U.S. 109 (1986). Davis v. State Election Board, 762 P.2d 932 (Okl. 1988). Davis v. Mann, 377 U.S. 678 (1964). Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994). Deamer v. Jones, 201 A.2d 712 (N.J. 1964). DeJonge v. Oregon, 299 U.S. 353 (1937). Delong v. United States 621 F.2d 618 (4th Cir. 1980). Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981). Democratic Party of Washington State v. Reed, 343 F.3d 1198 (9th Cir. 2003). Democratic-Farmer-Labor State Central Committee v. Holm, 33 N.W.2d 831 (Minn. 1948). De Walt v. Bartley, 146 Pa. 529, 24 A. 185 (1892). DiRuzza v. County of Tehama, 206 F.3d 1304 (9th Cir. 2000). District of Columbia v. Carter, 409 U.S. 418 (1973). Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972). Donnelly v. Curcio, 284 A.D.2d 460, 726 NYS2d 703 (2d Dept. 2001). Downtown Auto Parks, Inc. v. Milwaukee, 938 F.2d 705 (7th Cir. 1991). Driskell v. Edwards, 374 F. Supp. 1 (W.D. La. 1974). Duckworth v. State Administrative Board of Election Laws, 332 F.3d 769 (4th Cir. 2003). Duke v. Cleland, 783 F. Supp. 600 (N.D. Georgia 1992). Duke v. Smith, 784 F. Supp. 865 (S.D. Fla. 1992). Dunn v. Blumstein, 405 U.S. 330 (1972). State ex rel. Dunn v. Coburn, 168 S.W. 956 (Mo. 1914).

374

Cases Cited

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Cases Cited

375

Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Goldwater v. Carter, 444 U.S. 996 (1979). Gomillion v. Lightfoot, 364 U.S. 339 (1960). Graham v. Richardson, 403 U.S. 365 (1971). Gray v. Sanders, 372 U.S. 368 (1963). Grimes v. Commonwealth of Kentucky, 462 F.2d 1359 (6th Cir. 1972). Griswold v. Connecticut, 381 U.S. 479 (1965). Grosjean v. American Press Co., 297 U.S. 233 (1936). Grovey v. Townsend, 295 U.S. 45 (1935). Growe v. Emison, 507 U.S. 25 (1993). U.S. v. Guest, 383 U.S. 745 (1965). Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50 (1970). Harman v. Forssenius, 380 U.S. 578 (1965). Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). Hartung v. Bradbury, 33 P.3d 972 (Oregon 2001). Hastert v. Illinois State Board of Elections, 777 F. Supp. 634 (N.D. Ill. 1991). Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988). Heart of Atlanta Hotel, Inc. v. U.S., 379 U.S. 241 (1964). Heavey v. Chapman, 611 P.2d 1256 (Wash. 1980). Heitmanis v. Austin, 899 F.2d 521 (6th Cir. 1990). Henderson v. Perry, 399 F. Supp. 2d 756 (E.D. Tex. 2005). Holshouser v. Scott, 335 F. Supp. 928 (M.D.N.C. 1971). Horn v. Kean, 796 F.2d 668 (3rd Cir. 1986). Houchins v. KQED, Inc., 438 U.S. 1 (1978). Humphrey’s Executor v. U.S., 295 U.S. 602 (1935). Hunt v. Cromartie, 526 U.S. 143 (1999). Hunt v. Democratic Party of Oklahoma, 439 F. Supp. 788 (N.D. Okl. 1977). Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979). Illinois State Employees Union v. Lewis, 473 F.2d 561 (7th Cir. 1972). International Association of Machinists v. Street, 367 U.S. 740 (1961). International Black Police Association v. District of Columbia Board of Elections, 924 F. Supp. 270 (D.D.C. 1996). Irish v. Democratic-Farmer-Labor Party of Minnesota, 287 F. Supp 794 (D. Minn. 1968). Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974). James v. Brown, 190 U.S. 127 (1903). Jantzen v. Hawkins, 188 F.3d 1247 (10th Cir. 1999). J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky. 1991). Jenness v. Fortson, 403 U.S. 431 (1971). Jenkins v. Medford, 119 F.3d 1156 (4th Cir. 1997). Jiminez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir. 1986) Jones v. Alfred H. Mayer Co., 255 F. Supp. 115 (E.D. Mo. 1961). Jones v. Dodson, 727 F.2d 1329 (4th Cir. 1984). Joyner v. Lancaster, 815 F.2d 20 (4th Cir. 1987). Katzenbach v. McClung, 379 U.S. 294 (1964). Kay v. New Hampshire, 821 F.2d 31 (1st Cir. 1987). Kearns v. Howley, 41 A. 273 (Penn. 1898). Kelly v. Bumpers, 413 U.S. 901 (1973). Kenneck v. Pennock, 157 A. 613 (Penn. 1931). Kentucky Educators Public Affairs Council v. Kentucky Registry of Election Finance, 677 F.2d 1125 (6th Cir. 1982). Kentucky Right to Life v. Terry, 108 F.3d 637 (6th Cir. 1997). Keyishian v. Board of Regents, 385 U.S. 589 (1967). Kiddy-Brown v. Blagojevich, 408 F.3d 346 (7th Cir. 2005). Kiiskila v. Nichols, 433 F.2d 745 (7th Cir. 1970). Kilbourn v. Thompson, 103 U.S. 168 (1880). Kirkpatrick v. Preisler, 394 U.S. 526 (1969).

376

Cases Cited

Koenig v. Flynn, 285 U.S. 375 (1932). Konigsberg v. State Bar of California, 366 U.S. 36 (1961). Commonwealth ex rel. Koontz v. Dunkle, 50 A.2d 496 (Penn. 1947). Kramer v. Union Free School District, 395 U.S. 621 (1969). People v. Kramer, 160 N.E. 60 (Ill. 1928). Kusper v. Pontikes, 414 U.S. 51 (1973). Ladd v. Holmes, 40 Or. 167, 66 P. 714 (Or. 1901). LaFalce v. Houston, 712 F.2d 292 (7th Cir. 1983). Landell v. Sorrell, 118 F. Supp. 2d 459 (D. Vt. 2000). LaPorte County Republican Central Committee v. Board of Commissioners of County of LaPorte, 851 F. Supp. 340 (N.D. Indiana, 1994). LaRouche v. Fowler, 77 F. Supp. 2d 80 (D.D.C. 1999). LaRouche v. Fowler, 152 F.3d 974 (D.C. Cir. 1998). Latin American Citizens Council No. 4434 v. Clements, 914 F.2d 620 (5th Cir. 1990). League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 (2006). Application of Leichter, 223 N.Y.S.2d 789 (1961). Levine v. Fair Political Practices Commission, 222 F. Supp. 2d 1182 (E.D. Calif. 2002). Libertarian Party of Florida v. Florida, 710 F.2d 790 (11th Cir. 1983). Libertarian Party of Maine v. Diamond, 799 F. Supp. 1 (D. Me. 1992). Libertarian Party of Illinois v. Rednour, 108 F.3d 768 (7th Cir. 1997). Libertarian Party v. Secretary of State, 817 P.2d 998 (Colo. 1991) Lightfoot v. Eu, 964 F.2d 865 (9th Cir. 1992). Lippitt v. Cipollone, 337 F. Supp. 1405 (N.D. Ohio 1971). Livingston v. Ogilvie, 250 N.E.2d 138 (1969). Lohorn v. Michal, 913 F.2d 327 (7th Cir. 1990). Loughney v. Hickey, 635 F.2d 1063 (3rd Cir. 1980). Louisiana v. U.S., 380 U.S. 145 (1965). Louisiana Republican Party v. Foster, 674 So. 2d 225 (La. 1996). Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515 (1930). Lovell v. Griffin, 303 U.S. 444 (1938). Loving v. U.S., 517 U.S. 748 (1996). Lubin v. Panish, 415 U.S. 709 (1974). Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). Luther v. Borden, 48 U.S. (7 How.) 1 (1849). Lynch v. Torquato, 343 F. 2d 370 (3rd Cir. 1965). Mahan v. Howell, 410 U.S. 315 (1973). Mallory v. State of Ohio, 38 F. Supp. 2d 525 (S.D. Ohio 1997). Marbury v. Madison, 5 U.S. 137 (1803) Marchioro v. Chaney, 442 U.S. 191 (1979). Martin v. Commonwealth of Kentucky, 96 S.W.2d3d 38 (Ky. 2003). Martinez v. Bush, 234 F. Supp. 2d 1275 (S.D. Fla. 2002). Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964). Marylanders for Fair Representation, Inc. v. Schaefer, 849 F. Supp. 1022 (Md. 1994). Matherne v. Wilson, 851 F.2d 752 (5th Cir. 1988). Maxey v. Washington State Democratic Party, 319 F. Supp. 673 (W.D. Wash. 1970). Mayor of Cambridge v. Secretary of the Commonwealth, 765 N.E.2d 749 (Mass. 2002). McAuliffe v. Mayor of New Bedford, 29 N.E. 517 (Mass. 1892). McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir. 1984). State ex rel. McCarthy v. Moore, 87 Minn. 308, 92 N.W. 4 (1902). McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996). McClure v. Secretary of the Commonwealth, 766 N.E.2d 847 (Mass. 2002). McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987). McConnell v. Federal Election Commission, 540 U.S. 93 (2003). McCormick v. Edwards, 646 F.2d 173 (5th Cir. 1981). McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316 (1819).

Cases Cited

377

State ex rel. McCurdy v. DeMaioribus, 9 Ohio App. 2d 280, 224 N.E.2d 353 (Ohio Ct. App. 1967). McDonald v. Grande Traverse County Election Commission, 662 N.W.2d 804 (Mich. 2003). State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041 (1910). McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). McLaughlin v. North Carolina Board of Elections, 65 F.3d 1215 (4th Cir. 1975). Meeks v. Avery, 251 F. Supp. 245 (D.C. Kan. 1966). Messer v. Curci, 881 F.2d 219 (6th Cir. 1989). State v. Michel, 121 La. 374, 46 So. 430 (La. 1908). Miller v. Johnson, 515 U.S. 900 (1995). Miller v. Lorain County Board of Elections, 141 F.3d 252 (6th Cir. 1998). Miner v. Olin, 159 Mass. 487, 34 N.E. 721 (1893). Minnesota Republican Party v. White, 536 U.S. 765 (2002). Minor v. Happersett, 88 U.S. 162 (1874). Mistretta v. U.S., 488 U.S. 361 (1989). Missouri Republican Party v. Lamb, 270 F.3d 567 (8th Cir. 2001). Mobile v. Bolden, 446 U.S. 55 (1980). Monro v. Socialist Workers Party, 479 U.S. 189 (1986). Montana Right to Life Association v. Eddleman, 343 F.3d 1085 (9th Cir. 2003). Montano v. Lefkowitz, 575 F.2d 378 (2d Cir. 1978). Moore v. Ogilvie, 394 U.S. 814 (1969). Morris v. Peters, 46 S.E.2d 729 (Ga. 1948). Morrow v. Wipf, 22 S.D. 146, 115 N.W. 1121 (1908). Morse v. Republican Party of Virginia, 517 U.S. 186 (1996). Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977). Mrazek v. Suffolk County Board of Elections, 471 F. Supp. 412 (E.D. N.Y. 1979). U.S. v. Munoz-Flores, 495 U.S. 385 (1990). People v. Myers, 223 NYS2d 787 (1962). Myers v. U.S., 272 U.S. 52, 132-135 (1926). NAACP v. Alabama, 357 U.S. 449 (1958). NAACP v. Button, 371 U.S. 415 (1963). NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). Nader v. Schaffer, 417 F. Supp. 837 (D. Conn. 1976). National Cable Television Association v. United States, 415 U.S. 336 (1974). National Prohibition Party v. State of Colorado, 752 P.2d 80 (Col. 1988). Near v. Minnesota, 283 U.S. 697 (1931). Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981). Newberry v. U.S., 256 U.S. 232 (1921). New Jersey Conservative Party v. Farmer, 753 A.2d 192 (N.J. Super. 1999). New York City Board of Estimate v. Morris, 489 U.S. 688 (1989). New York Central Securities Corp. v. United States, 287 U.S. 12 (1932). New York State Association of Trial Lawyers v. Rockefeller, 267 F. Supp. 148 (S.D.N.Y. 1967). U.S. v. New York Times Co., 403 U.S. 713 (1971). U.S. v. Nixon, 418 U.S. 683 (1974). Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Nixon v. Condon, 286 U.S. 73 (1932) Nixon v. Herndon, 273 U.S. 536 (1927). Nixon v. Shrink Missouri Government PAC, 528 US 377 (2000). Nixon v. U.S., 506 U.S. 224 (1993). State ex rel. Nordin v. Erikson, 119 Minn. 152, 137 N.W. 385 (1912). Norman v. Reed, 502 U.S. 279 (1992). Norton v. Blaylock, 409 F.2d 772 (8th Cir. 1969). O’Brien v. Brown, 409 U.S. 1 (1972). O’Callaghan v. Alaska, 914 P.2d 1250 (Alaska 1996). O’Donoghue v. U.S., 289 U.S. 516 (1932). O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996).

378

Cases Cited

O’Lear v. Miller, 222 F. Supp. 2d 862 (E.D. Mich. 2002). Oregon v. Mitchell, 400 U.S. 112 (1970). Orloski v. Federal Election Commission, 795 F.2d 156 (D.C. Cir. 1986). Oughton v. Black, 212 Pa. 1, 61 A. 346 (1905). Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912). State ex rel. Padgett v. Vanderburgh Circuit Court, 138 N.E. 2d 143 (Ind. 1956). Palko v. Connecticut, 302 U.S. 319 (1937). Patriot Party of Allegheny County v. Allegheny County Department of Elections (Patriot Party I), 95 F.3d 253 (3rd Cir. 1996). The Patriot Party of Pennsylvania v. Mitchell, 826 F. Supp. 926 (E.D. Penn. 1993). Perry v. Sindermann, 408 U.S. 593 (1972). Peterson v. Greenville, 373 U.S. 244 (1963). Phillips v. Gallagher, 76 N.W. 285 (Minn. 1898). Pickering v. Board of Education of Township High School Dist. 205, Will County, 391 U.S. 563 (1968). Pizzingrilli v. Belitskus, 343 F.3d 632 (3rd Cir. 2003). Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) Powell v. McCormack, 395 U.S. 486 (1969). U.S. v. Price, 383 U.S. 787 (1966). Rankin v. McPherson, 483 U.S. 378 (1987). Ray v. Blair, 343 U.S. 214 (1952). Redfearn v. National Republican Party, 502 F. 2d 1123 (3rd Cir. 1974). In re Redmond, 25 N.Y. Supp. 381 (S.Ct. Spec. Term, Monroe Co. 1893). Reform Party of Allegheny County v. Allegheny County Department of Elections 174 F.3d 305 (3rd Cir. 1999). Reform Party of Connecticut v. Bysiewicz, 760 A.2d 1257 (Conn. 2000). Republican Party of North Carolina v. Martin, 980 F.2d 943 (4th Cir. 1992). Reform Party of the United States v. Gargan, 89 F. Supp. 2d 751 (W.D. Va. 2000). Board of Regents v. Roth, 408 U.S. 564 (1972). Rendell-Baker v. Kohn, 457 U.S. 830 (1982). Republican National Committee v. Federal Election Commission (In Re Cao), 619 F.3d 410 (5th Cir. 2010). Republican Party of Arkansas, v. Faulkner County, Arkansas, 49 F.3d 1289 (8th Cir. 1995). Republican Party of Miami-Dade County v. Davis, 18 So.3d 1112 (Fla. 2009). Republican Party of Minnesota v. Kelly, 63 F. Supp. 2d 967 (D. Minn. 1999). Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Republican Party of Virginia v. Wilder, 774 F. Supp. 400 (W.D. Va. 1991). Restivo v. Conservative Party of New York State, 391 F. Supp. 813 (S.D.N.Y. 1975). Reynolds v. Sims, 377 U.S. 533 (1964). Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947). Rice v. Ohio Department of Transportation, 14 F.3d 1133 (6th Cir. 1994), Rigby v. Connol, 14 Chancery Division 482 (1880). Ripon Society v. National Republican Party, 525 F. 2d 548 (D.C. Cir. 1975). Riter v. Douglass, 109 P. 444 (1910). Roberts v. Jaycees, 468 U.S. 609 (1984). Rogers v. Lodge, 458 U.S. 613 (1982). Roman v. Sincock, 377 U.S. 695 (1964). Rosario v. Rockefeller, 410 U.S. 752 (1973). Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002). Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992). Rosenstiel v. Rodriguez, 101 F.3d 1544 (8th Cir. 1996). State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N.W. 482 (1898). Russell v. Burris, 146 F.3d 563 (8th Cir. 1998). Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). Sailors v. Board of Education of the City of Kent, 387 U.S. 105 (1967). People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003).

Cases Cited

379

Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719 (1973). Sarlls v. State, 166 N.E. 270 (Ind. 1929). Savage v. Gorski, 850 F.2d 64 (2nd Cir. 1988). Schenberg v. Bond, 459 U.S. 878 (1982). Schostag v. Cator, 91 P. 502 (Cal. 1907). Schrader v. Blackwell, 241 F.3d 783 (6th Cir. 2001). Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232 (1957). Scott v. Germano, 381 U.S. 407 (1965). Seergy v. Kings County Republican County Committee, 459 F.2d 308 (2d Cir. 1972). Service Employees International Union v. Fair Political Practices Commission, 721 F. Supp. 1172 (E.D. Calif. 1989). Session v. Perry, 298 F. Supp. 2d 451 (E.D. Texas 2004). Shakman v. Democratic Organization of Cook County, 356 F. Supp. 1241 (N.D. Ill. 1972). Shakman v. Democratic Organization of Cook County, 722 F.2d 1307 (7th Cir. 1983). Shaw v. Hunt, 517 U.S. 899 (1996). Shaw v. Reno, 509 U.S. 630 (1993). Shelley v. Kraemer, 334 U.S. 1 (1948). Shelton v. Tucker, 364 U.S. 479 (1960). Shrink Missouri Government PAC v. Adams, 161 F.3d 519 (8th Cir. 1998). Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965). Skolnick v. Mayor and City Council of Chicago, 319 F. Supp. 1219 (N.D. Ill. 1970). Slaughter-House Cases, 16 Wall (83 U.S.) 36 (1973). Smiley v. Holm, 285 U.S. 355, 366–67 (1932). Smith v. Allwright, 321 U.S. 649 (1944). State ex rel. Smith v. Bosworth, 117 S.E.2d 610 (W. Va. 1960). Smith v. Boyle, 144 F.3d 1060 (7th Cir. 1998). Smith et al. v. McQueen, 166 So. 788 (Ala. 1936). Smith v. State Executive Committee of Democratic Party of Georgia, 288 F. Supp. 371 (N.D. Georgia, 1968). Stanford et al. v. Butler et al., 181 S.W.2d 269 (Tex. 1944). Soileau v. Zerangue, 553 F. Supp. 845 (W.D. La. 1982). State ex rel. Sonneborn v. Sylvester, 132 N.W.2d 249 (Wis. 1965). South Carolina v. Katzenbach, 383 U.S. 301 (1966). Spier v. Baker, 120 Cal. 370, 52 P. 659 (1898). Springer v. Philippine Islands, 277 U.S. 189 (1928). Storer v. Brown, 415 U.S. 724 (1974). Stretton v. Disciplinary Board of the Supreme Court of Pennsylvania, 944 F.2d 137 (3rd Cir. 1991). Sugarman v. Dougall, 413 U.S. 634 (1973). Swann v. Adams, 385 U.S. 440 (1967). Sweeney v. Bond, 669 F.2d 542 (8th Cir. 1982). Sweezy v. New Hampshire, 354 U.S. 234 (1957). Talley v. California, 362 U.S. 60 (1960). Tarpley v. Salerno, 803 F.2d 57 (2nd Cir. 1986). Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). Taylor & Marshall v. Beckham, 178 U.S. 548 (1900). Taxpayers United v. Austin, 994 F.2d 291 (6th Cir. 1993). Terrazas v. Slagle, 821 F. Supp. 1162 (W.D. Tex. 1993). Terry v. Adams, 345 U.S. 461 (1953). Thournir v. Meyer, 708 F. Supp. 1183 (Colo. 1989). United Public Workers v. Mitchell, 330 U.S. 75 (1947). U.S. v. Thomas, 362 U.S. 58 (1960). Thomas v. Collins, 323 U.S. 516 (1945). Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997). Todd v. Oklahoma State Democratic Central Committee, 361 F. Supp. 493 (W.D. Okl. 1973). Tomczak v. Chicago, 765 F.2d 633 (7th Cir. 1985).

380

Cases Cited

Toombs v. Fortson, 205 F. Supp. 248 (N.D. Ga. 1962). Torres-Torres v. Puerto Rico, 353 F.3d 79 (1st Cir. P.R. 2003). State ex rel. Traer et al. v. Gray, Sec. of State, 19 So.2d 311 (Fla. 1944). Triad Associates, Inc. v. Chicago Housing Authority 892 F.2d 583 (7th Cir. 1989). Twin Cities Area New Party v. McKenna, 73 F.3d 196 (8th Cir. 1996). Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668 (1996) Unger v. Superior Court (Republican Party) 692 P.2d 238 (Calif. 1984). United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977). United Mine Workers v. Illinois State Bar Association, 330 U.S. 258 (1947). United Public Workers v. Mitchell, 330 U.S. 75 (1947). United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971). Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991) Valenti v. Pennsylvania Democratic State Committee, 844 F. Supp. 1015 (M.D. Penn. 1994). State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N.W. 961 (Wis. 1910). Van Valkenburgh v. Citizens for Term Limits, 15 P.3d 1129 (Idaho 2000). Vargas-Harrison v. Racine Unified School District, 272 F.3d 964 (7th Cir. 2001). Vickery v. Jones, 100 F.3d 1334 (7th Cir. 1996). Vieth v. Jubelirer, 541 U.S. 267 (2004). Vieth v. Pennsylvania, 188 F. Supp. 2d 532 (M.D. Penn. 2002). Virginia v. Strauder, 100 U.S. 303 (1880). Visser v. Magnarelli, 530 F. Supp. 1165 (N.D.N.Y. 1982). Voter Information Project v. City of Baton Rouge, 612 F.2d 208 (5th Cir. 1980). Wagoner County Election Board v. Plunkett, 305 P.2d 525 (Okl. 1956). Wall v. Currie, 213 S.W.2d 816 (Tex. 1948). Wallace v. Cash, 328 S.W.2d 516 (Ky. 1959). Washington State Grange v. Locke, 105 P.3d 9 (Washington 2005). State ex rel. Webber v. Felton, 84 N.E. 85 (Ohio 1908). Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972). Wells v. Rockefeller, 398 U.S. 901 (1970). Wesberry v. Sanders, 376 U.S. 1 (1964). West v. Atkins, 487 U.S. 42 (1988). West v. Carr, 370 S.W.2d 469 (1963). State ex rel. West v. Gray, Sec. of State et al., 169 So. 36 (Fla. 1936). Whipple v. Broad, 55 P. 172 (1898). Whitcomb v. Chavis, 403 U.S. 124 (1971). White v. Alabama , 867 F. Supp. 1571 (M.D. Ala. 1995) White v. Regester, 412 U.S. 755 (1973). Wieman v. Updegraff, 344 U.S. 183 (1952). Williams v. Rhodes, 393 U.S. 23 (1968). Ex Parte Wilson, 125 P. 739 (Okla. Crim Ct. of Appeals, 1912). Wise v. Lipscomb, 437 U.S. 535 (1978). WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964). Wood v. Meadows, 207 F.3d 708 (4th Cir. 2000). Wright v. Illinois Department of Children & Family Services, 40 F.3d 1492 (7th Cir. 1994). Wright v. Rockefeller, 376 U.S. 52 (1964). United States v. Wurzbach, 280 U.S. 396 (1930). Wymbs v. Republican State Executive Committee of Florida, 719 F.2d 1072 (11th Cir. 1983). Ex Parte Yarbrough, 110 U.S. 651 (1884). Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952). Yick Wo v. Hopkins, 118 U.S. 356 (1886). State ex rel. Zent v. Nichols, 50 Wash. 508, 97 P. 728 (1908).

Index

American Party of Texas v. White, 31, 178 Anderson v. Celebrezze, 100–101, 102, 105, 179–180, 181, 214 anti-fusion laws, 183–188, 241n306; See also Timmons v. Twin Cities New Party Austin v. Michigan Chamber of Commerce, 164, 165, 170–171 Australian (secret) ballot, 6 Baker v. Carr, 15, 77, 79, 284, 290, 293 ballot access regulations, 175–183, 237n247–237n248, 237n252 Bill of Rights, nationalization (incorporation) of, 20–22 Bipartisan Campaign Reform Act of 2002 (BCRA) (McCain-Feingold Act) 4n178: goals of, 154–155; impact of, 156, 230n137, 231n139; Levin Amendment of, 156, 159, 236n243 Branti v. Finkel, 267–274, 294, 319n77, 319n80 Buckley v. Valeo, 139–142, 155, 164, 169, 172, 212–213 Bullock v. Carter, 177 Cain, Bruce E., 43–45, 252n479, 315n7 California Democratic Party v. Jones , 47, 108, 195–200 Citizens United v. Federal Election Commission, 163–166, 167 Clingman v. Beaver, 200–203, 216–217

Cousins v. Wigoda, 16, 95, 114–115, 116 Davis v. Bandemer, 290–296, 304, 305, 311; standard of, applied, 296–303 Democratic Party of the United States v. Wisconsin ex rel. La Follette, 58n100, 115–116, 181 direct primary. See primary elections disaffiliation laws, 106–107. See also raiding Elrod v. Burns, 262–266, 270–274 Equal Protection clause, 20–22 Eu v. San Francisco County Democratic Central Committee, 65n207, 103–105, 112, 128n163, 186–137, 197 Federal Election Campaign Act (FECA): origin of, 137–139; decline of, 152–154 Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado I), 144–146, 149–152, 167 Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado II), 65n212, 146–152, 160–161 Federal Election Commission v. Democratic Senatorial Campaign Committee, 142–144, 153

381

382

Index

Federal Election Commission v. Massachusetts Citizens for Life Committee, 171 Federal Election Commission v. National Republican Senatorial Committee, 143–144 Fortson v. Dorsey , 287–288 functionalism, 46–49 Gaffney v. Cummings, 289–290, 293 gerrymandering, partisan, 282–313; bipartisan, 285; congressional legislation on, 287, 329n203; definition of, 282–283; efficacy of, 286, 328n199; free association rights and, 301; history of, 283–284, 285; justiciability, 290–303; methods of, 260, 285–286; mid-decade redistricting and, 309, 330n234; racial gerrymandering compared with, 284–285, 310–313; representative government and, 291, 294, 300–301, 304–305, 312; standards of review for, 310–313; See also Baker v. Carr; Bandemer v. Davis; Vieth v. Jubeilier Gray v. Sanders, 327n186 Hasen, Richard L., 68n255, 252n479–252n480, 315n4 Hatch Act, 137, 222n23 Illinois State Board of Elections v. Socialist Workers Party, 179, 213 interest groups. See political action committees Issacharoff, Samuel, 42, 43–44, 66n220, 337n379 issue ads, 154 Jenness v. Fortson, 126n126, 177, 212 Kang, Michael, 47–48, 67n230, 68n256 Kusper v. Pontikes, 95, 177–178 League of United Latin American Citizens (L.U.L.A.C.) v. Perry, 307–310 Lubin v. Panish, 179 Lynch v. Torquato, 61n158, 79–82, 89, 90, 124n91

Madison, James, 1, 2, 22 Magarian, Gregory, 48–49 malapportionment, 121n34 Marchioro v. Chaney, 98–99, 108–109 McCain-Feingold Act. See Bipartisan Campaign Reform Act of 2002 McConnell v. Federal Election Commission, 157–163, 163 minor parties. See third parties Moeller, Jonathan, 41–42 Nixon v. Herndon, 76 Nixon v. Shrink Missouri Government PAC, 149, 172–173, 226n87, 236n237 nonpartisan elections, 189–192, 242n340–243n342 Norman v. Reed, 180, 214 O’Brien v. Brown, 95, 114, 116 participation, right to, 22–24 Persily, Nathaniel, 43–45, 66n223, 67n240–67n247, 245n358, 248n415 Pickering v. Board of Education, 324n157–324n158 Pildes, Richard, 42, 66n220 political action committees (PACs), 13, 56n64, 140, 156 political parties: association rights of, 6, 15–20, 53n25, 57n82, 66n224, 93–97, 106, 107–108, 126n117, 127n155, 129n194, 159, 176, 185, 202, 205, 210; autonomy (independence) of, 27–30; bureaucracy compared with, 29–30; changing role in American politics of, 11–13, 325n163; constitutional ambiguity of, 1–3; definitions of, 72; democracy and, 27, 28, 34–36, 55n50, 61n160, 61n164, 62n169, 92; duopoly of, 208–211; early history of, 1–3, 52n9, 61n161; economic (market) models and, 36–39, 42, 45; equal protection and, 20–51; federalism and, 112–113, 116; interest groups compared with, 160, 227n102, 269; “internal activities” of, defined, 74–78; intra-party elections of, 78–88, 97, 120n15; intra-party money sharing of, 142–144, 154; judicial reluctance to

Index interfere with, 73–74; major legal paradigms of, 43–46; mass media compared with, 40–41; modern state regulatory techniques over, 7–10, 32, 71–72, 135–136; national convention delegates of, 52n18, 54n41, 58n100, 112–117; need for limitations on, 30–33; public utilities compared with, 36–39; representative theory and, 89; self-governance of, 7, 103–105; separation of powers and, 62n165, 62n172, 63n173; state action doctrine and, 24–26, 123n60; state regulation of, 4–5, 7–10, 72, 98; trends favoring judicial intervention in the affairs of, 13–26; tripartite model and, 49–51, 73, 257, 286, 342–343, 351–352 political patronage, 258–282; changing definition of, 259; debate over, 260–261, 264–265; dismissals and, 320n83, 321n106, 321n91; free speech and, 280–281, 321n102; history of, 258–259, 316n10, 317n31; independent contractors and, 277–278; justifications for, 259, 260, 265; Progressives and, 260; temporary employees and, 278–279; See also Elrod v. Burns; Branti v. Finkel; Rutan v. Republican Party of Illinois Political Question Doctrine, 14–15 pre-primary endorsement, 109–112, 129n201, 129n204 presidential convention delegates. See political parties, national convention delegates primary elections, 5, 18, 19, 58n112, 74; blanket (“jungle”) primary, 195–200, 204, 245n367, 247n399–247n401; closed primary, 193; history of, 245n359; open primary, 193–194; semi-closed primary, 194, 200–203, 203; semi-open primary, 205; state laws governing, 192–195; typology of,

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203–208; universal primary, 205–207; See also Tashjian v. Republican Party of Connecticut Progressive Movement, 4, 5, 12, 30, 45 raiding of elections, 32, 65n205, 196, 215 Ray v. Blair, 57n86, 93 Redistricting. See gerrymandering Reynolds v. Sims, 121n34, 287, 293 Ripon Society v. National Republican Party, 96 Rosario v. Rockefeller, 65n205, 126n124, 126n126, 127n160, 240n296, 252n474 Rutan v. Republican Party of Illinois, 274–282 Schattschneider, E. E., 61n164, 227n102 Smith v. Allwright, 77 “soft money”, 152–154, 161–162 Sorauf, Frank, 68n272, 220n7, 223n38, 227n103 “sore loser” laws, 9 spoils system. See political patronage State Action Doctrine, 24–26 state campaign finance laws, 10, 134–136, 168–174, 236n244, 237n246 Storer v. Brown, 95, 176, 178–179 Tashjian v. Republican Party of Connecticut, 18, 101–102, 106, 200–201 third parties, 205, 208–218, 252n476 Thornburg v. Gingles, 299–300, 302 Timmons v. Twin Cities Area New Party, 181, 184–186, 187–188, 215 Vieth v. Jubelirer, 303–306, 307, 310, 312, 313, 332n275, 336n350 Westberry v. Sanders, 23 White Primary, 18, 25 Williams v. Rhodes , 94, 100, 176, 211–212

About the Author

Robert C. Wigton, JD, PhD, is professor of political science at Eckerd College in St. Petersburg, Florida and an attorney. He has taught courses in American government for over twenty years, has been a national convention party delegate, and has published scholarly articles dealing with political parties. The main focus of his research in recent years has been in the areas of political parties and American constitutional law.

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