OCTOBER TERM, 1999
Syllabus
CALIFORNIA DEMOCRATIC PARTY ET AL.
v. JONES, SECRETARY OF
STATE OF CALIFORNIA, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 99-401. Argued April 24, 2000-Decided June 26, 2000
One way that candidates for public office in California gain
access to the general ballot is by winning a qualified political
party's primary. In 1996, Proposition 198 changed the State's
partisan primary from a closed primary, in which only a political
party's members can vote on its nominees, to a blanket primary, in
which each voter's ballot lists every candidate regardless of party
affiliation and allows the voter to choose freely among them. The
candidate of each party who wins the most votes is that party's
nominee for the general election. Each of petitioner political
parties prohibits nonmembers from voting in the party's primary.
They filed suit against respondent state official, alleging,
inter alia, that the blanket primary violated their First
Amendment rights of association. Respondent Californians for an
Open Primary intervened. The District Court held that the primary's
burden on petitioners' associational rights was not severe and was
justified by substantial state interests. The Ninth Circuit
affirmed.
Held: California's blanket primary violates a political
party's First Amendment right of association. pp. 572-586.
(a) States playa major role in structuring and monitoring the
primary election process, but the processes by which political
parties select their nominees are not wholly public affairs that
States may regulate freely. To the contrary, States must act within
limits imposed by the Constitution when regulating parties'
internal processes. See,
e. g., Eu v.
San
Francisco County Democratic Central Comm., 489 U. S. 214.
Respondents misplace their reliance on
Smith v.
Allwright, 321
U. S. 649, and
Terry v.
Adams, 345 U. S. 461, which held
not that party affairs are public affairs, free of First Amendment
protections, see,
e. g., Tashjian v.
Republican Party of
Conn., 479 U. S.
208, but only that, when a State prescribes an election process
that gives a special role to political parties, the parties'
discriminatory action becomes state action under the Fifteenth
Amendment. This Nation has a tradition of political associations in
which citizens band together to promote candidates who espouse
their political views. The First Amendment protects the freedom to
join together to further common political beliefs,
id., at
214-215, which presupposes the freedom to identify those who
constitute the
568
association, and to limit the association to those people,
Democratic Party of United States v.
Wisconsin ex rel. La
Follette, 450 U.
S. 107, 122. In no area is the political association's right to
exclude more important than in its candidate-selection process.
That process often determines the party's positions on significant
public policy issues, and it is the nominee who is the party's
ambassador charged with winning the general electorate over to its
views. The First Amendment reserves a special place, and accords a
special protection, for that process,
Eu, supra, at 224,
because the moment of choosing the party's nominee is the crucial
juncture at which the appeal to common principles may be translated
into concerted action, and hence to political power,
Tashjian,
supra, at 216. California's blanket primary violates these
principles. Proposition 198 forces petitioners to adulterate their
candidate-selection process-a political party's basic function-by
opening it up to persons wholly unaffiliated with the party, who
may have different views from the party. Such forced association
has the likely outcome-indeed, it is Proposition 198's intended
outcome-of changing the parties' message. Because there is no
heavier burden on a political party's associational freedom,
Proposition 198 is unconstitutional unless it is narrowly tailored
to serve a compelling state interest. See
Timmons v.
Twin
Cities Area New Party, 520 U. S. 351, 358. Pp.
572-582.
(b) None of respondents' seven proffered state
interests-producing elected officials who better represent the
electorate, expanding candidate debate beyond the scope of partisan
concerns, ensuring that disenfranchised persons enjoy the right to
an effective vote, promoting fairness, affording voters greater
choice, increasing voter participation, and protecting privacy-is a
compelling interest justifying California's intrusion into the
parties' associational rights. Pp. 582-586.
169 F.3d
646, reversed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and
BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion,
post, p. 586. STEVENS, J., filed a dissenting opinion, in
which GINSBURG, J., joined as to Part I,
post, p. 590.
George Waters argued the cause for petitioners. With him
on the briefs were
Lance H. Olson, N.
Eugene Hill,
and
Charles H. Bell, Jr.
Thomas F. Gede, Special Assistant Attorney General of
California, argued the cause for respondents. With him on the brief
were
Bill Lockyer, Attorney General,
Manuel
569
M. Medeiros, Senior Assistant Attorney General,
Andrea
Lynn Hock, Lead Supervising Deputy Attorney General, and
James P. Clark. *
JUSTICE SCALIA delivered the opinion of the Court. This case
presents the question whether the State of California may,
consistent with the First Amendment to the United States
Constitution, use a so-called "blanket" primary to determine a
political party's nominee for the general election.
I
Under California law, a candidate for public office has two
routes to gain access to the general ballot for most state and
federal elective offices. He may receive the nomination of a
qualified political party by winning its primary,l see Cal.
*Briefs of
amici curiae urging reversal were filed for
the Eagle Forum Education & Legal Defense Fund et al. by
Erik S.
Jaffe; for the Republican National Committee
et al. by
Joseph E. Sandler and
Thomas J.
Josefiak; and for the Republican Party of Alaska, Inc., et
al. by
Kenneth
Briefs of
amici curiae urging affirmance were filed for
the State of Washington et al. by
Christine Q Gregoire,
Attorney General of Washington,
Maureen A. Hart, Senior
Assistant Attorney General,
Jeffrey T. Evan, Assistant
Attorney General,
Bruce Botelho, Attorney General of Alaska,
and
Dan Schweitzer; for California Governor Gray Davis by
Demetrios A. Boutris, D. Robert Shuman, Shelleyanne W L.
Chang, and
Allen Sumner; for Alaskan Voters for an Open
Primary (AVOP) by
Max F.
Gruenberg, Jr., and for
Senator William E. Brock et al. by
James M. Johnson.
Briefs of
amici curiae were filed for the Brennan Center
for Justice by
Burt Neuborne; and for the Northern
California Committee for Party Renewal et al. by
E. Mark
Braden.
1 A party is qualified if it meets one of three conditions: (1)
in the last gubernatorial election, one of its statewide candidates
polled at least two percent of the statewide vote; (2) the party's
membership is at least one percent of the statewide vote at the
last preceding gubernatorial election; or (3) voters numbering at
least 10 percent of the statewide vote at the last gubernatorial
election sign a petition stating that they intend to form a new
party. See Cal. Elec. Code Ann. § 5100 (West 1996 and Supp.
2000).
570
Elec. Code Ann. §§ 15451, 13105(a) (West 1996); or he may file
as an independent by obtaining (for a statewide race) the
signatures of one percent of the State's electorate or (for other
races) the signatures of three percent of the voting population of
the area represented by the office in contest, see §8400.
Until 1996, to determine the nominees of qualified parties
California held what is known as a "closed" partisan primary, in
which only persons who are members of the political party-i.
e., who have declared affiliation with that party when they
register to vote, see Cal. Elec. Code Ann. §§ 2150, 2151 (West 1996
and Supp. 2000)-can vote on its nominee, see Cal. Elec. Code Ann. §
2151 (West 1996). In 1996 the citizens of California adopted by
initiative Proposition 198. Promoted largely as a measure that
would "weaken" party "hard-liners" and ease the way for "moderate
problemsolvers," App. 89-90 (reproducing ballot pamphlet
distributed to voters), Proposition 198 changed California's
partisan primary from a closed primary to a blanket primary. Under
the new system, "[a]ll persons entitled to vote, including those
not affiliated with any political party, shall have the right to
vote ... for any candidate regardless of the candidate's political
affiliation." Cal. Elec. Code Ann. § 2001 (West Supp. 2000); see
also § 2151. Whereas under the closed primary each voter received a
ballot limited to candidates of his own party, as a result of
Proposition 198 each voter's primary ballot now lists every
candidate regardless of party affiliation and allows the voter to
choose freely among them. It remains the case, however, that the
candidate of each party who wins the greatest number of votes "is
the nominee of that party at the ensuing general election." Cal.
Elec. Code Ann. § 15451 (West 1996).2
2 California's new blanket primary system does not apply
directly to the apportionment of Presidential delegates. See Cal.
Elec. Code Ann. §§ 15151, 15375, 15500 (West Supp. 2000). Instead,
the State tabulates the Presidential primary in two ways: according
to the number of votes
571
Petitioners in this case are four political parties-the
California Democratic Party, the California Republican Party, the
Libertarian Party of California, and the Peace and Freedom
Party-each of which has a rule prohibiting persons not members of
the party from voting in the party's primary.3 Petitioners brought
suit in the United States District Court for the Eastern District
of California against respondent California Secretary of State,
alleging,
inter alia, that California's blanket primary
violated their First Amendment rights of association, and seeking
declaratory and injunctive relief. The group Californians for an
Open Primary, also respondent, intervened as a party defendant. The
District Court recognized that the new law would inject into each
party's primary substantial numbers of voters unaffiliated with the
party. 984 F. Supp. 1288, 1298-1299 (1997). It further recognized
that this might result in selection of a nominee different from the
one party members would select, or at the least cause the same
nominee to commit himself to different positions.
Id., at
1299. Nevertheless, the District Court held that the burden on
petitioners' rights of association was not a severe one, and was
justified by state interests ultimately reducing to this:
"enhanc[ing] the democratic nature of the election process and the
representativeness of elected officials."
Id., at 1301. The
Ninth Circuit, adopting the District Court's opinion as its own,
affirmed.
169 F.3d
646 (1999). We granted certiorari. 528 U. S. 1133 (2000).
each candidate received from the entire voter pool and according
to the amount each received from members of his own party. The
national parties may then use the latter figure to apportion
delegates. Nor does it apply to the election of political party
central or district committee members; only party members may vote
in these elections. See Cal. Elec. Code Ann. § 2151 (West 1996 and
Supp. 2000).
3 Each of the four parties was qualified under California law
when they filed this suit. Since that time, the Peace and Freedom
Party has apparently lost its qualified status. See Brief for
Petitioners 16 (citing Child of the '60s Slips, Los Angeles Times,
Feb. 17, 1999, p. B-6).
572
II
Respondents rest their defense of the blanket primary upon the
proposition that primaries play an integral role in citizens'
selection of public officials. As a consequence, they contend,
primaries are public rather than private proceedings, and the
States may and must play a role in ensuring that they serve the
public interest. Proposition 198, respondents conclude, is simply a
rather pedestrian example of a State's regulating its system of
elections.
We have recognized, of course, that States have a major role to
play in structuring and monitoring the election process, including
primaries. See
Burdick v.
Takushi, 504 U. S. 428,433 (1992);
Tashjian v.
Republican Party of Conn., 479 U. S. 208,
217 (1986). We have considered it "too plain for argument," for
example, that a State may require parties to use the primary format
for selecting their nominees, in order to assure that intraparty
competition is resolved in a democratic fashion.
American Party
of Tex. v.
White, 415 U. S. 767, 781
(1974); see also
Tashjian, supra, at 237 (SCALIA, J.,
dissenting). Similarly, in order to avoid burdening the general
election ballot with frivolous candidacies, a State may require
parties to demonstrate "a significant modicum of support" before
allowing their candidates a place on that ballot. See
Jenness v.
Fortson, 403 U. S. 431, 442
(1971). Finally, in order to prevent "party raiding"-a process in
which dedicated members of one party formally switch to another
party to alter the outcome of that party's primary-a State may
require party registration a reasonable period of time before a
primary election. See
Rosario v.
Rockefeller,
410 U. S. 752
(1973). Cf.
Kusper v.
Pontikes, 414 U. S. 51 (1973)
(23-month waiting period unreasonable).
What we have not held, however, is that the processes by which
political parties select their nominees are, as respondents would
have it, wholly public affairs that States
573
may regulate freely.4 To the contrary, we have continually
stressed that when States regulate parties' internal processes they
must act within limits imposed by the Constitution. See,
e. g.,
Eu v.
San Francisco County Democratic Central Comm.,
489 U. S. 214
(1989);
Democratic Party of United States v.
Wisconsin ex
rel. La Follette, 450 U. S. 107 (1981). In this regard,
respondents' reliance on
Smith v.
Allwright, 321 U. S. 649 (1944), and
Terry v.
Adams, 345 U. S. 461 (1953), is
misplaced. In
Allwright, we invalidated the Texas Democratic
Party's rule limiting participation in its primary to whites; in
Terry, we invalidated the same rule promulgated by the
Jaybird Democratic Association, a "self-governing voluntary club,"
345 U. S., at 463. These cases held only that, when a State
prescribes an election process that gives a special role to
political parties, it "endorses, adopts and enforces the
discrimination against Negroes" that the parties (or, in the case
of the Jaybird Democratic Association, organizations that are "part
and parcel" of the parties, see
id., at 482 (Clark, J.,
concurring)) bring into the process-so that the parties'
discriminatory action becomes state action under the Fifteenth
Amendment.
Allwright, supra, at 664; see also
Terry,
345 U. S., at 484 (Clark, J., concurring);
id., at 469
(opinion of Black, J.). They do not stand for the proposition that
party affairs are public affairs, free of First Amendment
protections-and our later holdings make that entirely clear.5 See,
e. g., Tashjian, supra.
4 On this point, the dissent shares respondents' view, at least
where the selection process is a state-run election. The right not
to associate, it says, "is simply inapplicable to participation in
a state election." "[A]n election, unlike a convention or caucus,
is a public affair."
Post, at 595 (opinion of STEVENS, J.).
Of course it is, but when the election determines a party's nominee
it is a party affair as well, and, as the cases to be discussed in
text demonstrate, the constitutional rights of those composing the
party cannot be disregarded.
5 The dissent is therefore wrong to conclude that
Allwright and
Terry demonstrate that "[t]he
protections that the First Amendment affords
574
Representative democracy in any populous unit of governance is
unimaginable without the ability of citizens to band together in
promoting among the electorate candidates who espouse their
political views. The formation of national political parties was
almost concurrent with the formation of the Republic itself. See
Cunningham, The Jeffersonian Republican Party, in 1 History of U.
S. Political Parties 239, 241 (A. Schlesinger ed. 1973). Consistent
with this tradition, the Court has recognized that the First
Amendment protects "the freedom to join together in furtherance of
common political beliefs,"
Tashjian, supra, at 214-215,
which "necessarily presupposes the freedom to identify the people
who constitute the association, and to limit the association to
those people only,"
La Follette, 450 U. S., at 122. That is
to say, a corollary of the right to associate is the right not to
associate. "'Freedom of association would prove an empty guarantee
if associations could not limit control over their decisions to
those who share the interests and persuasions that underlie the
association's being.'"
Id., at 122,
to the internal processes of a political party do not encompass
a right to exclude nonmembers from voting in a state-required,
state-financed primary election."
Post, at 594-595 (internal
quotation marks and citation omitted). Those cases simply prevent
exclusion that violates some independent constitutional
proscription. The closest the dissent comes to identifying such a
proscription in this case is its reference to "the First Amendment
associational interests" of citizens to participate in the primary
of a party to which they do not belong, and the "fundamental right"
of citizens "to cast a meaningful vote for the candidate of their
choice."
Post, at 601. As to the latter: Selecting a
candidate is quite different from voting for the candidate of one's
choice. If the "fundamental right" to cast a meaningful vote were
really at issue in this context, Proposition 198 would be not only
constitutionally permissible but constitutionally required, which
no one believes. As for the associational "interest" in selecting
the candidate of a group to which one does not belong, that falls
far short of a constitutional right, if indeed it can even fairly
be characterized as an interest. It has been described in our cases
as a "desire" -and rejected as a basis for disregarding the First
Amendment right to exclude. See
infra, at 583.
575
n. 22 (quoting L. Tribe, American Constitutional Law 791
(1978)). See also
Roberts v.
United States Jaycees,
468 U. S. 609,
623 (1984).
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 positions 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. See
Timmons v.
Twin Cities Area New
Party, 520 U. S.
351, 372 (1997) (STEVENS, J., dissenting) ("But a party's
choice of a candidate is the most effective way in which that party
can communicate to the voters what the party represents and,
thereby, attract voter interest and support"). Some political
parties-such as President Theodore Roosevelt's Bull Moose Party,
the La Follette Progressives of 1924, the Henry Wallace
Progressives of 1948, and the George Wallace American Independent
Party of 1968-are virtually inseparable from their nominees (and
tend not to outlast them). See generally E. Kruschke, Encyclopedia
of Third Parties in the United States (1991).
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 "select[s] a
standard bearer who best represents the party's ideologies and
preferences."
Eu, supra, at 224 (internal quotation marks
omitted). The moment of choosing the party's nominee, we have said,
is "the crucial juncture at which the appeal to common principles
may be translated into concerted action, and hence to political
power in the community."
Tashjian, 479 U. S., at 216; see
also
id., at 235236 (SCALIA, J., dissenting) ("The ability
of the members of the Republican Party to select their own
candidate ... unquestionably implicates an associational freedom");
Timmons, 520 U. S., at 359 ("[T]he New Party, and not
some-
576
one else, has the right to select the New Party's standard
bearer" (internal quotation marks omitted));
id., at 371
(STEVENS, J., dissenting) ("The members of a recognized political
party unquestionably have a constitutional right to select their
nominees for public office").
In
La Follette, the State of Wisconsin conducted an open
presidential preference primary. 6 Although the voters did not
select the delegates to the Democratic Party's National Convention
directly-they were chosen later at caucuses of party
members-Wisconsin law required these delegates to vote in accord
with the primary results. Thus allowing nonparty members to
participate in the selection of the party's nominee conflicted with
the Democratic Party's rules. We held that, whatever the strength
of the state interests supporting the open primary itself, they
could not justify this "substantial intrusion into the
associational freedom of members of the National Party." 7 450 U.
S., at 126.
6 An open primary differs from a blanket primary in that,
although as in the blanket primary any person, regardless of party
affiliation, may vote for a party's nominee, his choice is limited
to that party's nominees
for all offices. He may not, for
example, support a Republican nominee for Governor and a Democratic
nominee for attorney general.
7 The dissent, in attempting to fashion its new rule-that the
right not to associate does not exist with respect to primary
elections, see
post, at 594-595-rewrites
Democratic Party
of United States v.
Wisconsin ex rel. La Follette,
450 U. S. 107
(1981), to stand merely for the proposition that a political party
has a First Amendment right to "defin[e] the organization and
composition of its governing units,"
post, at 592. In fact,
however, the state-imposed burden at issue in
La Follette
was the '''intrusion by those with adverse political principles'"
upon the selection of the party's nominee (in that case its
presidential nominee). 450 U. S., at 122 (quoting
Ray v.
Blair, 343 U.
S. 214, 221-222 (1952)). See also 450 U. S., at 125 (comparing
asserted state interests with burden created by the "imposition of
voting requirements upon" delegates). Of course
La Follette
involved the burden a state regulation imposed on a national party,
but that factor affected only the weight of the State's interest,
and had no bearing upon the existence
vel non of a party's
First Amendment right to exclude.
Id., at 121-122, 125-126.
Although JUSTICE STEVENS now considers this interpretation of
La
Follette "specious," see
post, at 592, n. 3, he once
577
California's blanket primary violates the principles set forth
in these cases. Proposition 198 forces political parties to
associate with-to have their nominees, and hence their positions,
determined by-those who, at best, have refused to affiliate with
the party, and, at worst, have expressly affiliated with a rival.
In this respect, it is qualitatively different from a closed
primary. Under that system, even when it is made quite easy for a
voter to change his party affiliation the day of the primary, and
thus, in some sense, to "cross over," at least he must formally
become a member of the party; and once he does so, he
is limited to voting for candidates of that party.8
subscribed to it himself. His dissent from the order dismissing
the appeals in
Bellotti v.
Connolly, 460 U. S. 1057 (1983),
described
La Follette thusly: "There this Court rejected
Wisconsin's requirement that delegates to the party's Presidential
nominating convention, selected in a primary open to nonparty
voters, must cast their convention votes in accordance with the
primary election results. In our view, the interests advanced by
the State ... did not justify its substantial intrusion into the
associational freedom of members of the National Party ....
Wisconsin
required convention delegates to cast their votes
for candidates who might have drawn their support from nonparty
members. The results of the party's decisionmaking process might
thereby have been distorted." 460 U. S., at 1062-1063 (emphasis in
original).
Not only does the dissent's principle of no right to exclude
conflict with our precedents, but it also leads to nonsensical
results. In
Tashjian v.
Republican Party of Conn.,
479 U. S. 208
(1986), we held that the First Amendment protects a party's right
to invite independents to participate in the primary. Combining
Tashjian with the dissent's rule affirms a party's
constitutional right to allow outsiders to select its candidates,
but denies a party's constitutional right to reserve candidate
selection to its own members. The First Amendment would thus
guarantee a party's right to lose its identity, but not to preserve
it.
8 In this sense, the blanket primary also may be
constitutionally distinct from the open primary, see n. 6,
supra, in which the voter is limited to one party's ballot.
See
La Follette, supra, at 130, n. 2 (Powell, J.,
dissenting) ("[T]he act of voting in the Democratic primary fairly
can be described as an act of affiliation with the Democratic Party
.... The situation might be different in those States with
'blanket' primaries-i.
e., those where voters are allowed to
participate in the primaries of more than one
578
The evidence in this case demonstrates that under California's
blanket primary system, the prospect of having a party's nominee
determined by adherents of an opposing party is far from
remote-indeed, it is a clear and present danger. For example, in
one 1997 survey of California voters 37 percent of Republicans said
that they planned to vote in the 1998 Democratic gubernatorial
primary, and 20 percent of Democrats said they planned to vote in
the 1998 Republican United States Senate primary. Tr.668-669. Those
figures are comparable to the results of studies in other States
with blanket primaries. One expert testified, for example, that in
Washington the number of voters crossing over from one party to
another can rise to as high as 25 percent,
id., at 511, and
another that only 25 to 33 percent of all Washington voters limit
themselves to candidates of one party throughout the ballot, App.
136. The impact of voting by nonparty members is much greater upon
minor parties, such as the Libertarian Party and the Peace and
Freedom Party. In the first primaries these parties conducted
following California's implementation of Proposition 198, the total
votes cast for party candidates in some races was more than
double the total number of
registered party members.
California Secretary of State, Statement of Vote, Primary Election,
June 2, 1998,
http://primary98.ss.ca.gov
/Final/OfficiaLResults.htm; California Secretary of State, Report
of Registration, May 1998,
http://www.ss.ca.gov/elections/elections_u.htm.
The record also supports the obvious proposition that these
substantial numbers of voters who help select the nominees of
parties they have chosen not to join often have policy views that
diverge from those of the party faithful. The 1997 survey of
California voters revealed significantly different policy
preferences between party members and primary voters who "crossed
over" from another party. PI. Exh. 8
party on a single occasion, selecting the primary they wish to
vote in with respect to each individual elective office"). This
case does not require us to determine the constitutionality of open
primaries.
579
(Addendum to Mervin Field Report). One expert went so far as to
describe it as "inevitable [under Proposition 198] that parties
will be forced in some circumstances to give their official
designation to a candidate who's not preferred by a majority or
even plurality of party members." Tr. 421 (expert testimony of
Bruce Cain).
In concluding that the burden Proposition 198 imposes on
petitioners' rights of association is not severe, the Ninth Circuit
cited testimony that the prospect of malicious crossover voting, or
raiding, is slight, and that even though the numbers of
"benevolent" crossover voters were significant, they would be
determinative in only a small number of races.9 169 F. 3d, at
656-657. But a single election in which the party nominee is
selected by nonparty members could be enough to destroy the party.
In the 1860 Presidential election, if opponents of the fledgling
Republican Party had been able to cause its nomination of a
proslavery candidate in place of Abraham Lincoln, the coalition of
intraparty factions forming behind him likely would have
disintegrated, endangering the party's survival and thwarting its
effort to fill the vacuum left by the dissolution of the Whigs. See
generally 1 Political Parties & Elections in the United States:
An Encyclopedia 398-408, 587 (L. Maisel ed. 1991). Ordinarily,
however, being saddled with an unwanted, and possibly antithetical,
nominee would not destroy the party but severely transform it.
"[R]egulating the identity of the parties' leaders," we have said,
"may ... color the parties' message and interfere with the parties'
decisions as to the best means to promote that message."
Eu,
489 U. S., at 231, n. 21.
In any event, the deleterious effects of Proposition 198 are not
limited to altering the identity of the nominee. Even
9 The Ninth Circuit defined a crossover voter as one "who votes
for a candidate of a party in which the voter is not registered.
Thus, the cross-over voter could be an independent voter or one who
is registered to a competing political party."
169 F.3d
646, 656 (1999).
580
when the person favored by a majority of the party members
prevails, he will have prevailed by taking somewhat different
positions-and, should he be elected, will continue to take somewhat
different positions in order to be renominated. As respondents' own
expert concluded: "The policy positions of Members of Congress
elected from blanket primary states are ... more moderate, both in
an absolute sense and relative to the other party, and so are more
reflective of the preferences of the mass of voters at the center
of the ideological spectrum." App. 109 (expert report of Elisabeth
R. Gerber). It is unnecessary to cumulate evidence of this
phenomenon, since, after all, the whole
purpose of
Proposition 198 was to favor nominees with "moderate" positions.
Id., at 89. It encourages candidates-and officeholders who
hope to be renominated-to curry favor with persons whose views are
more "centrist" than those of the party base. In effect,
Proposition 198 has simply moved the general election one step
earlier in the process, at the expense of the parties' ability to
perform the "basic function" of choosing their own leaders.
Kusper, 414 U. S., at 58.
Nor can we accept the Court of Appeals' contention that the
burden imposed by Proposition 198 is minor because petitioners are
free to endorse and financially support the candidate of their
choice in the primary. 169 F. 3d, at 659. The ability of the party
leadership to endorse a candidate is simply no substitute for the
party members' ability to choose their own nominee. In
Eu,
we recognized that party-leadership endorsements are not always
effectivefor instance, in New York's 1982 gubernatorial primary,
Edward Koch, the Democratic Party leadership's choice, lost out to
Mario Cuomo. 489 U. S., at 228, n. 18. One study has concluded,
moreover, that even when the leadershipendorsed candidate has won,
the effect of the endorsement has been negligible.
Ibid.
(citing App. in
Eu v.
San Francisco County Democratic
Central Comm., O. T. 1988, No. 871269, pp. 97-98). New York's
was a closed primary; one
581
would expect leadership endorsement to be even less effective in
a blanket primary, where many of the voters are unconnected not
only to the party leadership but even to the party itself. In any
event, the ability of the party leadership to endorse a candidate
does not assist the party rank and file, who may not themselves
agree with the party leadership, but do not want the party's choice
decided by outsiders.
We are similarly unconvinced by respondents' claim that the
burden is not severe because Proposition 198 does not limit the
parties from engaging fully in
other traditional party
behavior, such as ensuring orderly internal party governance,
maintaining party discipline in the legislature, and conducting
campaigns. The accuracy of this assertion is highly questionable,
at least as to the first two activities. That party nominees will
be equally observant of internal party procedures and equally
respectful of party discipline when their nomination depends on the
general electorate rather than on the party faithful seems to us
improbable. Respondents themselves suggest as much when they assert
that the blanket primary system "'will lead to the election of more
representative "problem solvers"
who are less beholden to party
officials.'" Brief for Respondents 41 (emphasis added) (quoting
169 F. 3d, at 661). In the end, however, the effect of Proposition
198 on these other activities is beside the point. We have
consistently refused to overlook an unconstitutional restriction
upon some First Amendment activity simply because it leaves other
First Amendment activity unimpaired. See,
e. g., Spence v.
Washington, 418 U. S. 405, 411, n. 4
(1974)
(per curiam); Kusper, 414 U. S., at 58. There is
simply no substitute for a party's selecting its own
candidates.
In sum, Proposition 198 forces petitioners to adulterate their
candidate-selection process-the "basic function of a political
party,"
ibid.-by opening it up to persons wholly
unaffiliated with the party. Such forced association has the likely
outcome-indeed, in this case the
intended outcome-
582
of changing the parties' message. We can think of no heavier
burden on a political party's associational freedom. Proposition
198 is therefore unconstitutional unless it is narrowly tailored to
serve a compelling state interest. See
Timmons, 520 U. S.,
at 358 ("Regulations imposing severe burdens on [parties'] rights
must be narrowly tailored and advance a compelling state
interest"). It is to that question which we now turn.
III
Respondents proffer seven state interests they claim are
compelling. Two of them-producing elected officials who better
represent the electorate and expanding candidate debate beyond the
scope of partisan concerns-are simply circumlocution for producing
nominees and nominee positions other than those the parties would
choose if left to their own devices. Indeed, respondents admit as
much. For instance, in substantiating their interest in
"representativeness," respondents point to the fact that "officials
elected under blanket primaries stand closer to the median policy
positions of their districts" than do those selected only by party
members. Brief for Respondents 40. And in explaining their desire
to increase debate, respondents claim that a blanket primary forces
parties to reconsider long standing positions since it "compels
[their] candidates to appeal to a larger segment of the
electorate."
Id., at 46. Both of these supposed interests,
therefore, reduce to nothing more than a stark repudiation of
freedom of political association: Parties should not be free to
select their own nominees because those nominees, and the positions
taken by those nominees, will not be congenial to the majority.
We have recognized the inadmissibility of this sort of
"interest" before. In
Hurley v.
Irish-American Gay,
Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), the
South Boston Allied War Veterans Council refused to allow an
organization of openly gay, lesbian, and bisexual persons (GLIB) to
participate in the council's annual
583
St. Patrick's Day parade. GLIB sued the council under
Massachusetts' public accommodation law, claiming that the council
impermissibly denied them access on account of their sexual
orientation. After noting that parades are expressive endeavors, we
rejected GLIB's contention that Massachusetts' public accommodation
law overrode the council's right to choose the content of its own
message. Applying the law in such circumstances, we held, made
apparent that its "object [was] simply to require speakers to
modify the content of their expression to whatever extent
beneficiaries of the law choose to alter it with messages of their
own .... [I]n the absence of some further, legitimate end, this
object is merely to allow exactly what the general rule of
speaker's autonomy forbids."
Id., at 578.
Respondents' third asserted compelling interest is that the
blanket primary is the only way to ensure that disenfranchised
persons enjoy the right to an effective vote. By "disenfranchised,"
respondents do not mean those who cannot vote; they mean simply
independents and members of the minority party in "safe" districts.
These persons are disenfranchised, according to respondents,
because under a closed primary they are unable to participate in
what amounts to the determinative election-the majority party's
primary; the only way to ensure they have an "effective" vote is to
force the party to open its primary to them. This also appears to
be nothing more than reformulation of an asserted state interest we
have already rejected-recharacterizing nonparty members' keen
desire to participate in selection of the party's nominee as
"disenfranchisement" if that desire is not fulfilled. We have said,
however, that a "nonmember's desire to participate in the party's
affairs is overborne by the countervailing and legitimate right of
the party to determine its own membership qualifications."
Tashjian, 479 U. S., at 215-216, n. 6 (citing
Rosario
v.
Rockefeller, 410 U. S. 752 (1973), and
Nader v.
Schaffer, 417 F. Supp. 837 (Conn.),
summarily aff'd, 429 U. S. 989 (1976)). The voter's desire to
584
participate does not become more weighty simply because the
State supports it. Moreover, even if it were accurate to describe
the plight of the non-party-member in a safe district as
"disenfranchisement," Proposition 198 is not needed to solve the
problem. The voter who feels himself disenfranchised should simply
join the party. That may put him to a hard choice, but it is not a
state-imposed restriction upon
his freedom of association,
whereas compelling party members to accept his selection of their
nominee
is a state-imposed restriction upon theirs.
Respondents' remaining four asserted state interestspromoting
fairness, affording voters greater choice, increasing voter
participation, and protecting privacy-are not, like the others,
automatically out of the running; but neither are they,
in the
circumstances of this case, compelling. That determination is
not to be made in the abstract, by asking whether fairness,
privacy, etc., are highly significant values; but rather by asking
whether the
aspect of fairness, privacy, etc., addressed by
the law at issue is highly significant. And for all four of these
asserted interests, we find it not to be.
The aspect of fairness addressed by Proposition 198 is
presumably the supposed inequity of not permitting nonparty members
in "safe" districts to determine the party nominee. If that is
unfair at all (rather than merely a consequence of the eminently
democratic principle that-except where constitutional imperatives
intervene-the majority rules), it seems to us less unfair than
permitting nonparty members to hijack the party. As for affording
voters greater choice, it is obvious that the net effect of this
scheme-indeed, its avowed purpose-is to
reduce the scope of
choice, by assuring a range of candidates who are all more
"centrist." This may well be described as broadening the range of
choices
favored by the majority-but that is hardly a
compelling state interest, if indeed it is even a legitimate one.
The interest in increasing voter participation is just a variation
on the same theme (more choices favored by the majority will
585
produce more voters), and suffers from the same defect. As for
the protection of privacy: The specific privacy interest at issue
is not the confidentiality of medical records or personal finances,
but confidentiality of one's party affiliation. Even if (as seems
unlikely) a scheme for administering a closed primary could not be
devised in which the voter's declaration of party affiliation would
not be public information, we do not think that the State's
interest in assuring the privacy of this piece of information in
all cases can conceivably be considered a "compelling" one. If such
information were generally so sacrosanct, federal statutes would
not require a declaration of party affiliation as a condition of
appointment to certain offices. See,
e. g., 47 U. S.
C. § 154(b)(5) ("[M]aximum number of commissioners [of the Federal
Communications Commission] who may be members of the same political
party shall be a number equal to the least number of commissioners
which constitutes a majority of the full membership of the
Commission"); 47 U. S. C. § 396(c)(1) (1994 ed., Supp. III) (no
more than five members of Board of Directors of Corporation for
Public Broadcasting may be of same party); 42 U. S. C. § 2000e-4(a)
(no more than three members of Equal Employment Opportunity
Commission may be of same party).
Finally, we may observe that even if all these state interests
were compelling ones, Proposition 198 is not a narrowly tailored
means of furthering them. 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
586
constitutionally crucial one: Primary voters are not choosing a
party's nominee. Under a nonpartisan blanket primary, a State may
ensure more choice, greater participation, increased "privacy," and
a sense of "fairness"-all without severely burdening a political
party's First Amendment right of association.
***
Respondents' legitimate state interests and petitioners' First
Amendment rights are not inherently incompatible. To the extent
they are in this case, the State of California has made them so by
forcing political parties to associate with those who do not share
their beliefs. And it has done this at the "crucial juncture" at
which party members traditionally find their collective voice and
select their spokesman.
Tashjian, 479 U. S., at 216. The
burden Proposition 198 places on petitioners' rights of political
association is both severe and unnecessary. The judgment for the
Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
JUSTICE KENNEDY, concurring.
Proposition 198, the product of a statewide popular initiative,
is a strong and recent expression of the will of California's
electorate. It is designed, in part, to further the object of
widening the base of voter participation in California elections.
Until a few weeks or even days before an election, many voters pay
little attention to campaigns and even less to the details of party
politics. Fewer still participate in the direction and control of
party affairs, for most voters consider the internal dynamics of
party organization remote, partisan, and of slight interest. Under
these conditions voters tend to become disinterested, and so they
refrain from voting altogether. To correct this, California seeks
to make primary voting more responsive to the views and preferences
of the electorate as a whole. The results of California's blanket
primary system may demonstrate the efficacy
587
of its solution, for there appears to have been a substantial
increase in voter interest and voter participation. See Brief for
Respondents 45-46.
Encouraging citizens to vote is a legitimate, indeed essential,
state objective; for the constitutional order must be preserved by
a strong, participatory democratic process. In short, there is much
to be said in favor of California's law; and I might find this to
be a close case if it were simply a way to make elections more fair
and open or addressed matters purely of party structure.
The true purpose of this law, however, is to force a political
party to accept a candidate it may not want and, by so doing, to
change the party's doctrinal position on major issues.
Ante,
at 581-582. From the outset the State has been fair and candid to
admit that doctrinal change is the intended operation and effect of
its law. See,
e. g., Brief for Respondents 40, 46. It
may be that organized parties, controlledin fact or perception-by
activists seeking to promote their self-interest rather than
enhance the party's long-term support, are shortsighted and
insensitive to the views of even their own members. A political
party might be better served by allowing blanket primaries as a
means of nominating candidates with broader appeal. Under the First
Amendment's guarantee of speech through free association, however,
this is an issue for the party to resolve, not for the State.
Political parties advance a shared political belief, but to do so
they often must speak through their candidates. When the State
seeks to direct changes in a political party's philosophy by
forcing upon it unwanted candidates and wresting the choice between
moderation and partisanship away from the party itself, the State's
incursion on the party's associational freedom is subject to
careful scrutiny under the First Amendment. For these reasons I
agree with the Court's opinion.
I add this separate concurrence to say that Proposition 198 is
doubtful for a further reason. In justification of its stat-
588
ute California tells us a political party has the means at hand
to protect its associational freedoms. The party, California
contends, can simply use its funds and resources to support the
candidate of its choice, thus defending its doctrinal positions by
advising the voters of its own preference. To begin with, this does
not meet the parties' First Amendment objection, as the Court well
explains.
Ante, at 580-581. The important additional point,
however, is that, by reason of the Court's denial of First
Amendment protections to a political party's spending of its own
funds and resources in cooperation with its preferred candidate,
see
Colorado Republican Federal Campaign Comm. v.
Federal
Election Comm'n, 518 U. S. 604 (1996), the Federal Government
or the State has the power to prevent the party from using the very
remedy California now offers up to defend its law.
Federal campaign finance laws place strict limits on the manner
and amount of speech parties may undertake in aid of candidates. Of
particular relevance are limits on coordinated party expenditures,
which the Federal Election Campaign Act of 1971 deems to be
contributions subject to specific monetary restrictions. See 90
Stat. 488, 2 U. S. C. § 441a(a)(7)(B)(i) ("[E]xpenditures made by
any person in cooperation, consultation, or concert, with, or at
the request or suggestion of, a candidate, his authorized political
committees, or their agents, shall be considered to be a
contribution to such candidate"). Though we invalidated limits on
independent party expenditures in
Colorado Republican, the
principal opinion did not question federal limits placed on
coordinated expenditures. See 518 U. S., at 624-625 (opinion of
BREYER, J.). Two Justices in dissent said that "all money spent by
a political party to secure the election of its candidate" would
constitute coordinated expenditures and would have upheld the
statute as applied in that case. See
id., at 648 (opinion of
STEVENS, J.). Thus, five Justices of the Court subscribe to the
position that Congress or a State may limit the amount a political
party spends in direct collaboration with its preferred candidate
for elected office.
589
In my view, as stated in both
Colorado Republican, supra,
at 626 (opinion concurring in judgment and dissenting in part), and
in
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 405-406
(2000) (dissenting opinion), these recent cases deprive political
parties of their First Amendment rights. Our constitutional
tradition is one in which political parties and their candidates
make common cause in the exercise of political speech, which is
subject to First Amendment protection. There is a practical
identity of interests between parties and their candidates during
an election. Our unfortunate decisions remit the political party to
use of indirect or covert speech to support its preferred
candidate, hardly a result consistent with free thought and
expression. It is a perversion of the First Amendment to force a
political party to warp honest, straightforward speech, exemplified
by its vigorous and open support of its favored candidate, into the
covert speech of soft money and issue advocacy so that it may
escape burdensome spending restrictions. In a regime where campaign
spending cannot otherwise be limited-the structure this Court
created on its own in
Buckley v.
Valeo, 424 U. S. 1 (1976)
(per
curiam}-restricting the amounts a political party may spend in
collaboration with its own candidate is a violation of the
political party's First Amendment rights.
Were the views of those who would uphold both California's
blanket primary system and limitations on coordinated party
expenditures to become prevailing law, the State could control
political parties at two vital points in the election process.
First, it could mandate a blanket primary to weaken the party's
ability to defend and maintain its doctrinal positions by allowing
nonparty members to vote in the primary. Second, it could impose
severe restrictions on the amount of funds and resources the party
could spend in efforts to counteract the State's doctrinal
intervention. In other words, the First Amendment injury done by
the Court's ruling in
Colorado Republican would be
compounded were California to prevail in the instant case.
590
When the State seeks to regulate a political party's nomination
process as a means to shape and control political doctrine and the
scope of political choice, the First Amendment gives substantial
protection to the party from the manipulation. In a free society
the State is directed by political doctrine, not the other way
around. With these observations, I join the opinion of the
Court.
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins as to Part I,
dissenting.
Today the Court construes the First Amendment as a limitation on
a State's power to broaden voter participation in elections
conducted by the State. The Court's holding is novel and, in my
judgment, plainly wrong. I am convinced that California's adoption
of a blanket primary pursuant to Proposition 198 does not violate
the First Amendment, and that its use in primary elections for
state offices is therefore valid. The application of Proposition
198 to elections for United States Senators and Representatives,
however, raises a more difficult question under the Elections
Clause of the United States Constitution, Art. I, § 4, cl. 1. I
shall first explain my disagreement with the Court's resolution of
the First Amendment issue and then comment on the Elections Clause
issue.
I
A State's power to determine how its officials are to be elected
is a quintessential attribute of sovereignty. This case is about
the State of California's power to decide who may vote in an
election conducted, and paid for, by the State.1 The United States
Constitution imposes constraints
1 See
Tashjian v.
Republican Party of Conn.,
479 U. S. 208,
217 (1986) (observing that the United States Constitution grants
States a broad power to prescribe the manner of elections for
certain federal offices, which power is matched by state control
over the election process for state offices). In California, the
Secretary of State administers the pro-
591
on the States' power to limit access to the polls, but we have
never before held or suggested that it imposes any constraints on
States' power to authorize additional citizens to participate in
any state election for a state office. In my view, principles of
federalism require us to respect the policy choice made by the
State's voters in approving Proposition 198.
The blanket primary system instituted by Proposition 198 does
not abridge "the ability of citizens to band together in promoting
among the electorate candidates who espouse their political views."
Ante, at 574.2 The Court's contrary conclusion rests on the
premise that a political party's freedom of expressive association
includes a "right not to associate," which in turn includes a right
to exclude voters unaffiliated with the party from participating in
the selection of that party's nominee in a primary election.
Ante, at 574575. In drawing this conclusion, however, the
Court blurs two distinctions that are critical: (1) the distinction
between
visions of the State Elections Code and has some supervisory
authority over county election officers. Cal. Govt. Code Ann. §
12172.5 (West 1992 and Supp. 2000). Primary and other elections are
administered and paid for primarily by county governments. Cal.
Elec. Code Ann. §§ 1300013001 (West 1996 and Supp. 2000). Anecdotal
evidence suggests that each statewide election in California
(whether primary or general) costs governmental units between $45
million and $50 million.
2 Prominent members of the founding generation would have
disagreed with the Court's suggestion that representative democracy
is "unimaginable" without political parties,
ante, at 574,
though their antiparty thought ultimately proved to be inconsistent
with their partisan actions. See,
e. g., R.
Hofstadter, The Idea of a Party System 2-3 (1969) (noting that "the
creators of the first American party system on both sides,
Federalists and Republicans, were men who looked upon parties as
sores on the body politic"). At best, some members of that
generation viewed parties as an unavoidable product of a free state
that were an evil to be endured, though most viewed them as an evil
to be abolished or suppressed.
Id., at 16-17, 24. Indeed,
parties ranked high on the list of evils that the Constitution was
designed to check.
Id., at 53; see The Federalist No. 10 (J.
Madison).
592
a private organization's right to define itself and its
messages, on the one hand, and the State's right to define the
obligations of citizens and organizations performing public
functions, on the other; and (2) the distinction between laws that
abridge participation in the political process and those that
encourage such participation.
When a political party defines the organization and composition
of its governing units, when it decides what candidates to endorse,
and when it decides whether and how to communicate those
endorsements to the public, it is engaged in the kind of private
expressive associational activity that the First Amendment
protects.
Timmons v.
Twin Cities Area New Party,
520 U. S. 351,
354-355, n. 4, 359 (1997) (recognizing party's right to select its
own standard-bearer in context of minor party that selected its
candidate through means other than a primary);
id., at 371
(STEVENS, J., dissenting);
Eu v.
San Francisco County
Democratic Central Comm., 489 U. S. 214 (1989);
Democratic Party of United States v.
Wisconsin ex rel. La
Follette, 450 U.
S. 107, 124 (1981) ("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");
Cousins v.
Wigoda, 419 U. S. 477, 491 (1975)
("Illinois' interest in protecting the integrity of its
electoral process cannot be deemed compelling in the context of the
selection of delegates to the
National Party Convention"
(emphasis added)).3 A political
3 The Court's disagreement with this interpretation of
La
Follette is specious.
Ante, at 576-577, n. 7 (claiming
that state-imposed burden actually at issue in
La Follette
was intrusion of those with adverse political principles into
party's primary). A more accurate characterization of the nature of
La Follette's reasoning is provided by Justice Powell: "In
analyzing the burden imposed on associational freedoms in this
case, the Court treats the Wisconsin law as the equivalent of one
regulating delegate selection, and, relying on
Cousins v.
Wigoda, 419 U.
S. 477 (1975), concludes that any interference with the
National Party's accepted delegate-selection procedures impinges on
constitutionally protected rights."
Democratic Party of United
States v.
Wisconsin ex rel. La Fol-
593
party could, if a majority of its members chose to do so, adopt
a platform advocating white supremacy and opposing the election of
any non-Caucasians. Indeed, it could decide to use its funds and
oratorical skills to support only those candidates who were loyal
to its racist views. Moreover, if a State permitted its political
parties to select their candidates through conventions or caucuses,
a racist party would also be free to select only candidates who
would adhere to the party line.
As District Judge Levi correctly observed in an opinion adopted
by the Ninth Circuit, however, the associational rights of
political parties are neither absolute nor as comprehensive as the
rights enjoyed by wholly private associations.
169 F.3d
646, 654-655 (1999); cf.
Timmons, 520 U. S., at 360
(concluding that while regulation of endorsements implicates
political parties' internal affairs and core associational ac-
lette, 450
U. S. 107, 128 (1981) (dissenting opinion). Indeed, the
La
Follette Court went out of its way to characterize the
Wisconsin law in this manner in order to avoid casting doubt on the
constitutionality of open primaries.
Id., at 121 (majority
opinion) (noting that the issue was not whether an open primary was
constitutional but "whether the State may compel the National Party
to seat a delegation chosen in a way that violates the rules of the
Party"). The fact that the
La Follette Court also
characterizes the Wisconsin law at one point as a law "impos[ing]
... voting requirements" on delegates,
id., at 125, does not
alter the conclusion that
La Follette is a case about state
regulation of internal party processes, not about regulation of
primary elections. State-mandated intrusion upon either delegate
selection or delegate voting would surely implicate the affected
party's First Amendment right to define the organization and
composition of its governing units, but it is clear that California
intrudes upon neither in this case.
Ante, at 570-571, n.
2.
La Follette and
Cousins also stand for the
proposition that a State's interest in regulating at the
national level the types of party activities mentioned in
the text is outweighed by the burden that state regulation would
impose on the parties' associational rights. See
Bellotti v.
Connolly, 460
U. S. 1057, 1062-1063, and n. 3 (1983) (STEVENS, J.,
dissenting) (quoted in part
ante, at 577, n. 7). In this
case, however, California does not seek to regulate such activities
at all, much less to do so at the nationallevel.
594
tivities, regulation of access to election ballot does not);
La Follette, 450 U. S., at 120-121 (noting that it "may well
be correct" to conclude that party associational rights are not
unconstitutionally infringed by state open primary);
id., at
131-132 (Powell, J., dissenting) (concluding that associational
rights of major political parties are limited by parties' lack of
defined ideological orientation and political mission). I think it
clear-though the point has never been decided by this Court-"that a
State may require parties to use the primary format for selecting
their nominees."
Ante, at 572. The 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.4 It is because the primary is state action
that an organization-whether it calls itself a political party or
just a "Jaybird" association-may not deny non-Caucasians the right
to participate in the selection of its nominees.
Terry v.
Adams, 345 U.
S. 461 (1953);
Smith v.
Allwright, 321 U. S. 649, 663-664
(1944). The Court is quite right in stating that those cases "do
not stand for the proposition that party affairs are
[wholly] public affairs, free of First Amendment
protections."
Ante, at 573. They do, however, stand for the
proposition that primary elections, unlike most "party affairs,"
are state action.5 The protections that the First
4 Indeed, the primary serves an essential public function given
that, "[a]s a practical matter, the ultimate choice of the mass of
voters is predetermined when the nominations [by the major
political parties] have been made."
Morse v.
Republican
Party of Va., 517
U. S. 186,205-206 (1996) (opinion of STEVENS, J.) (internal
quotation marks omitted); see also
United States v.
Classic, 313
U. S. 299, 319 (1941).
5 Contrary to what the Court seems to think, I do not rely on
Terry and
Allwright as the basis for an argument that
state accommodation of the parties' desire to exclude nonmembers
from primaries would necessarily violate an independent
constitutional proscription such as the Equal Protection Clause
(though I do not rule that out). Cf.
ante, at 573-574, n. 5.
Rather, I cite them because our recognition that constitutional
proscriptions apply to primaries illustrates that primaries-as
integral parts
595
Amendment affords to the "internal processes" of a political
party,
ibid., do not encompass a right to exclude nonmembers
from voting in a state-required, state-financed primary
election.
The so-called "right not to associate" that the Court relies
upon, then, is simply inapplicable to participation in a state
election. A political party, like any other association, may refuse
to allow nonmembers to participate in the party's decisions when it
is conducting its own affairs; 6 California's blanket primary
system does not infringe this principle.
Ante, at 570-571,
n. 2. But an election, unlike a convention or caucus, is a public
affair. Although it is true that we have extended First Amendment
protection to a party's right to invite independents to participate
in its primaries,
Tashjian v.
Republican Party of
Conn., 479 U. S.
208 (1986), neither that case nor any other has held or
suggested that the "right not to associate" imposes a limit on the
State's power to open up its primary elections to all voters
eligible to vote in a general election. In my view, while state
rules abridging participation in its elections should be closely
scrutinized,7 the First Amendment does not inhibit the State from
acting to broaden voter access to state-run, state-financed
elections. When a State acts not to limit democratic participation
but to expand the ability of individuals to participate in the
dem-
of the election process by which the people select their
government-are state affairs, not internal party affairs.
6 "The State asserts a compelling interest in preserving the
overall integrity of the electoral process, providing secrecy of
the ballot, increasing voter participation in primaries, and
preventing harassment of voters. But all those interests go to the
conduct of the Presidential preference primary-not to the
imposition of voting requirements upon those who, in a separate
process, are eventually selected as delegates."
La Follette,
450 U. S., at 124-125.
7 See
Timmons v.
Twin Cities Area New Party,
520 U. S. 351,
370 (1997) (STEVENS, J., dissenting) (general election ballot
access restriction);
Bullock v.
Carter, 405 U. S. 134 (1972)
(primary election ballot access restriction).
596
ocratic process, it is acting not as a foe of the First
Amendment but as a friend and ally.
Although I would not endorse it, I could at least understand a
constitutional rule that protected a party's associational rights
by allowing it to refuse to select its candidates through
state-regulated primary elections. See
Marchioro v.
Chaney, 442 U.
S. 191, 199 (1979) ("There can be no complaint that [a] party's
[First Amendment] right to govern itself has been substantially
burdened by [state regulation] when the source of the complaint is
the party's own decision to confer critical authority on the [party
governing unit being regulated]"); cf.
Tashjian, 479 U. S.,
at 237 (SCALIA, J., dissenting) ("It is beyond my understanding why
the Republican Party's delegation of its democratic choice [of
candidates] to a Republican Convention [rather than a primary] can
be proscribed [by the State], but its delegation of that choice to
nonmembers of the Party cannot"). A meaningful "right not to
associate," if there is such a right in the context of limiting an
electorate, ought to enable a party to insist on choosing its
nominees at a convention or caucus where nonmembers could be
excluded. In the real world, however, anyone can "join" a political
party merely by asking for the appropriate ballot at the
appropriate time or (at most) by registering within a state-defined
reasonable period of time before an election; neither past voting
history nor the voter's race, religion, or gender can provide a
basis for the party's refusal to "associate" with an unwelcome new
member. See 169 F. 3d, at 655, and n. 20. There is an obvious
mismatch between a supposed constitutional right "not to associate"
and a rule that turns on nothing more than the state-defined timing
of the new associate's application for membership. See
La
Follette, 450 U. S., at 133 (Powell, J., dissenting) ("As Party
affiliation becomes ... easy for a voter to change [shortly before
a particular primary election] in order to participate in [that]
election, the difference between open and closed primaries loses
its practical significance").
597
The Court's reliance on a political party's "right not to
associate" as a basis for limiting a State's power to conduct
primary elections will inevitably require it either to draw
unprincipled distinctions among various primary configurations or
to alter voting practices throughout the Nation in fundamental
ways. Assuming that a registered Democrat or independent who wants
to vote in the Republican gubernatorial primary can do so merely by
asking for a Republican ballot, the Republican Party's
constitutional right "not to associate" is pretty feeble if the
only cost it imposes on that Democrat or independent is a loss of
his right to vote for non-Republican candidates for other offices.
Cf.
ante, at 577-578, n. 8. Subtle distinctions of this
minor import are grist for state legislatures, but they demean the
process of constitutional adjudication. Or, as JUSTICE SCALIA put
the matter in his dissenting opinion in
Tashjian:
"The ... voter who, while steadfastly refusing to register as a
Republican, casts a vote in [a nonclosed] Republican primary, forms
no more meaningful an 'association' with the Party than does the
independent or the registered Democrat who responds to questions by
a Republican Party pollster. If the concept of freedom of
association is extended to such casual contacts, it ceases to be of
any analytic use." 479 U. S., at 235.
It is noteworthy that the bylaws of each of the political
parties that are petitioners in this case unequivocally state that
participation in partisan primary elections is to be limited to
registered members of the party only. App. 7, 15, 16,18. Under the
Court's reasoning, it would seem to follow that conducting anything
but a closed partisan primary in the face of such bylaws would
necessarily burden the parties' "'freedom to identify the people
who constitute the association.'"
Ante, at 574. Given that
open primaries are supported by essentially the same state
interests that the Court disparages today and are not as "narrow"
as nonpartisan pri-
598
maries,
ante, at 582-586, there is surely a danger that
open primaries will fare no better against a First Amendment
challenge than blanket primaries have.
By the District Court's count, 3 States presently have blanket
primaries, while an additional 21 States have open primaries and 8
States have semiclosed primaries in which independents may
participate. 169 F. 3d, at 650. This Court's willingness to
invalidate the primary schemes of 3 States and cast serious
constitutional doubt on the schemes of 29 others at the parties'
behest is, as the District Court rightly observed, "an
extraordinary intrusion into the complex and changing election laws
of the States [that] ... remove[s] from the American political
system a method for candidate selection that many States consider
beneficial and which in the uncertain future could take on new
appeal and importance."
Id., at 654.8
In my view, the First Amendment does not mandate that a
putatively private association be granted the power to dictate the
organizational structure of state-run, statefinanced primary
elections. It is not this Court's constitutional function to choose
between the competing visions of what makes democracy work-party
autonomy and discipline versus progressive inclusion of the entire
electorate in
8 When coupled with our decision in
Tashjian that a party
may require a State to open up a closed primary, this intrusion has
even broader implications. It is arguable that, under the Court's
reasoning combined with
Tashjian, the only nominating
options open for the States to choose without party consent are:
(1) not to have primary elections, or (2) to have what the Court
calls a "nonpartisan primary"-a system presently used in
Louisiana-in which candidates previously nominated by the various
political parties and independent candidates compete.
Ante,
at 585. These two options are the same in practice because the
latter is not actually a "primary" in the common, partisan sense of
that term at all. Rather, it is a general election with a runoff
that has few of the benefits of democratizing the party nominating
process that led the Court to declare the State's ability to
require nomination by primary "'too plain for argument.'''
Ante, at 572; see
Lightfoot v.
Eu, 964 F.2d
865, 872-873
(CA9 1992) (explaining state interest in
requiring direct partisan primary).
599
the process of selecting their public officials-that are held by
the litigants in this case.
O'Callaghan v.
State, 914
P. 2d 1250,1263 (Alaska 1996); see also
Tashjian, 479 U. S.,
at 222
223; Luther v.
Borden, 7 How. 1, 40-42 (1849).
That choice belongs to the people.
U. S.
Term Limits,
Inc. v.
Thornton, 514 U. S. 779, 795
(1995).
Even if the "right not to associate" did authorize the Court to
review the State's policy choice, its evaluation of the competing
interests at stake is seriously flawed. For example, the Court's
conclusion that a blanket primary severely burdens the parties'
associational interests in selecting their standard-bearers does
not appear to be borne out by experience with blanket primaries in
Alaska and Washington. See,
e. g., 169 F. 3d, at
656-659, and n. 23. Moreover, that conclusion rests substantially
upon the Court's claim that "[t]he evidence [before the District
Court]" disclosed a "clear and present danger" that a party's
nominee may be determined by adherents of an opposing party.
Ante, at 578. This hyperbole is based upon the Court's
liberal view of its appellate role, not upon the record and the
District Court's factual findings. Following a bench trial and the
receipt of expert witness reports, the District Court found that
"there is little evidence that raiding [by members of an opposing
party] will be a factor under the blanket primary. On this point
there is almost unanimity among the political scientists who were
called as experts by the plaintiffs and defendants." 169 F. 3d, at
656. While the Court is entitled to test this finding by making an
independent examination of the record, the evidence it
cites-including the results of the June 1998 primaries,
ante, at 578, which should not be considered because they
are not in the record-does not come close to demonstrating that the
District Court's factual finding is clearly erroneous.
Bose
Corp. v.
Consumers Union of United States, Inc.,
466 U. S. 485,
498-501 (1984).
As to the Court's concern that benevolent crossover voting
impinges on party associational interests,
ante, at 579,
the
600
District Court found that experience with a blanket primary in
Washington and other evidence "suggest[ed] that there will be
particular elections in which there will be a substantial amount of
cross-over voting ... although the cross-over vote will rarely
change the outcome of any election and in the typical contest will
not be at significantly higher levels than in open primary states."
169 F. 3d, at 657. In my view, an empirically debatable assumption
about the relative number and effect of likely crossover voters in
a blanket primary, as opposed to an open primary or a nominally
closed primary with only a brief preregistration requirement, is
too thin a reed to support a credible First Amendment distinction.
See
Tashjian, 479 U. S., at 219 (rejecting State's interest
in keeping primary closed to curtail benevolent crossover voting by
independents given that independents could easily cross over even
under closed primary by simply registering as party members).
On the other side of the balance, I would rank as "substantial,
indeed compelling," just as the District Court did, California's
interest in fostering democratic government by "[i]ncreasing the
representativeness of elected officials, giving voters greater
choice, and increasing voter turnout and participation in
[electoral processes]." 169 F. 3d, at 662; 9 cf.
Timmons,
520 U. S., at 364 ("[W]e [do not] require elaborate, empirical
verification of the weightiness of the State's asserted
justifications"). The Court's glib rejection of the
9 In his concurrence, JUSTICE KENNEDY argues that the State has
no valid interest in changing party doctrine through an open
primary, and suggests that the State's assertion of this interest
somehow irrevocably taints its blanket primary system.
Ante,
at 587. The
Timmons balancing test relied upon by the Court,
ante, at 582, however, does not support that analysis.
Timmons and our myriad other constitutional cases that weigh
burdens against state interests merely ask whether
a state
interest justifies the burden that the State is imposing on a
constitutional right; the fact that one of the asserted state
interests may not be valid or compelling under the circumstances
does not end the analysis.
601
State's interest in increasing voter participation,
ante,
at 584-585, is particularly regrettable. In an era of dramatically
declining voter participation, States should be free to experiment
with reforms designed to make the democratic process more robust by
involving the entire electorate in the process of selecting those
who will serve as government officials. Opening the nominating
process to all and encouraging voters to participate in any
election that draws their interest is one obvious means of
achieving this goal. See Brief for Respondents 46 (noting that
study presented to District Court showed higher voter turnout
levels in blanket primary States than in open or closed primary
States);
ante, at 586-587 (KENNEDY, J., concurring). I would
also give some weight to the First Amendment associational
interests of nonmembers of a party seeking to participate in the
primary process,10 to the fundamental right of such nonmembers to
cast a meaningful vote for the candidate of their choice,
Burdick v.
Takushi, 504 U. S. 428, 445 (1992)
(KENNEDY, J., dissenting), and to the preference of almost 60% of
California voters-including a majority of registered Democrats and
Republicans-for a blanket primary. 169 F. 3d, at 649; see
Tashjian, 479 U. S., at 236 (SCALIA, J., dissenting)
(preferring information on whether majority of rank-andfile party
members support a particular proposition than whether state party
convention does so). In my view, a State is unquestionably entitled
to rely on this combination of interests in deciding who may vote
in a primary election conducted by the State. It is indeed strange
to find that the First Amendment forecloses this decision.
10 See
La Follette, 450 U. S., at 135-136 (Powell, J.,
dissenting); cf.
Tashjian, 479 U. S., at 215-216, n. 6 (discussing cases
such as
Rosario v.
Rockefeller, 410 U. S. 752 (1973), in
which nonmembers' associational interests were overborne by state
interests that coincided with party interests);
Bellotti v.
Connolly, 460 U. S., at 1062 (STEVENS, J., dissenting)
(discussing associational rights of voters).
602
II
The Elections Clause of the United States Constitution, Art. I,
§ 4, cl. 1, provides that "[t]he Times, Places and Manner of
holding Elections for Senators and Representatives, shall be
prescribed in each State by the
Legislature thereof."
(Emphasis added.) This broad constitutional grant of power to state
legislatures is "matched by state control over the election process
for state offices."
Tashjian, 479 U. S., at 217. For the
reasons given in Part I,
supra, I believe it would be a
proper exercise of these powers and would not violate the First
Amendment for the California Legislature to adopt a blanket primary
system. This particular blanket primary system, however, was
adopted by popular initiative. Although this distinction is not
relevant with respect to elections for state offices, it is unclear
whether a state election system not adopted by the legislature is
constitutional insofar as it applies to the manner of electing
United States Senators and Representatives.
The California Constitution empowers the voters of the State to
propose statutes and to adopt or reject them. Art. 2, § 8. If
approved by a majority vote, such "initiative statutes" generally
take effect immediately and may not be amended or repealed by the
California Legislature unless the voters consent. Art. 2, § 10. The
amendments to the California Election Code that changed the state
primary from a closed system to the blanket system presently at
issue were the result of the voters' March 1996 adoption of
Proposition 198, an initiative statute.
The text of the Elections Clause suggests that such an
initiative system, in which popular choices regarding the manner of
state elections are unreviewable by independent legislative action,
may not be a valid method of exercising the power that the Clause
vests in state "Legislature[s]." It could be argued that this
reasoning does not apply in California, as the California
Constitution further provides that "[t]he legislative power of this
State is vested in the Cali-
603
fornia Legislature ... , but the people reserve to themselves
the powers of initiative and referendum." Art. 4, § 1. The
vicissitudes of state nomenclature, however, do not necessarily
control the meaning of the Federal Constitution. Moreover, the
United States House of Representatives has determined in an
analogous context that the Elections Clause's specific reference to
"the Legislature" is not so broad as to encompass the general
"legislative power of this State." 11 Under that view, California's
classification of voter-approved initiatives as an exercise of
legislative power would not render such initiatives the act of the
California Legislature within the meaning of the Elections Clause.
Arguably, therefore, California's blanket primary system for
electing United States Senators and Representatives is invalid.
Because the point was neither raised by the parties nor discussed
by the courts below, I reserve judgment on it. I believe, however,
that the importance of the point merits further attention.
***
For the reasons stated in Part I of this opinion, as well as
those stated more fully in the District Court's excellent opinion,
I respectfully dissent.
11
Baldwin v.
Trowbridge, 2 Bartlett Contested
Election Cases, H. R.
Misc. Doc. No. 152, 41st Cong., 2d Sess., 46, 47 (1866) ("[Under
the Elections Clause,] power is conferred upon the
legislature. But what is meant by 'the legislature?' Does it
mean the legislative power of the State, which would include a
convention authorized to prescribe fundamental law; or does it mean
the legislature
eo nomine, as known in the political history
of the country? The [C]ommittee [of Elections for the U. S. House
of Representatives] have adopted the latter construction").
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