OCTOBER TERM, 1996
Syllabus
TIMMONS, ACTING DIRECTOR, RAMSEY COUNTY DEPARTMENT OF PROPERTY
RECORDS AND REVENUE, ET AL.
v. TWIN CITIES AREA NEW
PARTY
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 95-1608. Argued December 4, 1996-Decided April 28, 1997
Most States ban multiple-party, or "fusion," candidacies for
elected office.
Minnesota's laws prohibit an individual from appearing on the
ballot as the candidate of more than one party. When respondent, a
chapter of the national New Party, chose as its candidate for state
representative an individual who was already the candidate of
another political party, local election officials refused to accept
the New Party's nominating petition. The party filed suit against
petitioners, Minnesota election officials, contending that the
State's antifusion laws violated its associational rights under the
First and Fourteenth Amendments. The District Court granted
petitioners summary judgment, but the Court of Appeals reversed,
finding that the fusion ban was unconstitutional because it
severely burdened the party's associational rights and was not
narrowly tailored to advance Minnesota's valid interests in
avoiding intraparty discord and party splintering, maintaining a
stable political system, and avoiding voter confusion.
Held: Minnesota's fusion ban does not violate the First
and Fourteenth Amendments. Pp. 356-370.
(a) While the First Amendment protects the right of citizens to
associate and to form political parties for the advancement of
common political goals and ideas,
Colorado Republican Federal
Campaign Comm. v.
Federal Election Comm'n, 518 U. S. 604, 616,
States may enact reasonable regulations of parties, elections, and
ballots to reduce election- and campaign-related disorder,
Burdick v.
Takushi, 504 U. S. 428, 433. When
deciding whether a state election law violates First and Fourteenth
Amendment associational rights, this Court must weigh the character
and magnitude of the burden the State's rule imposes on those
rights against the interests the State contends justify that
burden, and consider the extent to which the State's concerns make
the burden necessary.
Id., at 434. Regulations imposing
severe burdens must be narrowly tailored and advance a compelling
state interest. Lesser burdens, however, trigger less exacting
review, and a State's important regulatory interests will usually
be enough to justify reasonable, nondiscriminatory restrictions.
Ibid. No bright line separates permis-
352
sible election-related regulation from unconstitutional
infringements on First Amendment freedoms.
Storer v.
Brown, 415 U.
S. 724, 730. Pp.356-359.
(b) Minnesota's fusion ban does not severely burden the New
Party's associational rights. The State's laws do not restrict the
ability of the party and its members to endorse, support, or vote
for anyone they like or directly limit the party's access to the
ballot. The party's preferred candidate will still appear on the
ballot, although as another party's candidate. The laws are also
silent on parties' internal structure, governance, and
policymaking.
Eu v.
San Francisco County Democratic
Central Comm., 489 U. S. 214, and
Tashjian v.
Republican Party of Conn., 479 U. S. 208,
distinguished. Instead, these provisions reduce the universe of
potential candidates who may appear on the ballot as the party's
nominee and limit, slightly, the party's ability to send a
particularized message, to its candidate and to the voters, about
the nature of its support for the candidate. However, ballots are
designed primarily to elect candidates, not to serve as forums for
political expression. See
Burdick, supra, at 438. pp.
359-363.
(c) Because Minnesota's fusion ban does not impose a severe
burden on the New Party's rights, the State is required to show,
not that the ban was narrowly tailored to serve compelling state
interests, but that the State's asserted regulatory interests are
"sufficiently weighty to justify the limitation" on the party's
rights.
Norman v.
Reed, 502 U. S. 279, 288-289.
Elaborate, empirical verification of weightiness is not required.
See
Munro v.
Socialist Workers Party, 479 U. S. 189, 195-196.
Here, the burden is justified by "correspondingly weighty" valid
state interests in ballot integrity and political stability. States
certainly have an interest in protecting the integrity, fairness,
and efficiency of their ballots and election processes as means for
electing public officials.
E. g., Bullock v.
Carter,
405 U. S. 134,
145. Minnesota fears that a candidate or party could easily exploit
fusion as a way of associating his or its name with popular slogans
and catchphrases, transforming the ballot from a means of choosing
candidates to a billboard for political advertising. It is also
concerned that fusion might enable minor parties, by nominating a
major party's candidate, to bootstrap their way to major-party
status in the next election and circumvent the State's
nominating-petition requirement for minor parties, which is
designed to ensure that only bona fide minor and third parties are
granted access to the ballot. The State's strong interest in the
stability of its political systems, see,
e. g., Eu, supra,
at 226, does not permit it to completely insulate the two-party
system from minor parties' or independent candidates' competition
and influence,
e. g., Anderson v.
Celebrezze,
460 U. S. 780,
802, and is not a paternalistic license for States to protect
political
353
parties from the consequences of their own internal
disagreements,
e. g., Eu, supra, at 227.
However, it does permit the State to enact reasonable election
regulations that may, in practice, favor the traditional twoparty
system. Minnesota's fusion ban is far less burdensome than a
California law, upheld in
Storer, 415 U. S., at 728, that
denied ballot positions to any independent candidate affiliated
with a party at any time during the year preceding the primary
election, and it is justified by similarly weighty state interests.
The Court expresses no view on the party's policy-based arguments
concerning the wisdom of fusion. Pp. 363-370.
73 F.3d
196, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, THOMAS, and BREYER, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which GINSBURG, J.,
joined, and in Parts I and II of which SOUTER, J., joined,
post, p. 370. SOUTER, J., filed a dissenting opinion,
post, p. 382.
Richard S.
Slowes, Assistant Solicitor General of
Minnesota, argued the cause for petitioners. With him on the briefs
were
Hubert H. Humphrey III, Attorney General, and
Peter
M. Ackerberg, Assistant Attorney General.
Laurence H. Tribe argued the cause for respondent.
With him on the brief were Joel Rogers, Sarah E. Siskind,
Cornish F. Hitchcock, and David C. Vladeck.
*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Most States prohibit multiple-party, or "fusion," candidacies
for elected office.1 The Minnesota laws challenged in
*Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Burt Neuborne,
Steven R. Shapiro, Elliot M. Mincberg, and
Lawrence S.
Ottinger; for the Conservative Party of New York et al. by
Rory Q Millson; for the Reform Party et al. by
J.
Gregory Taylor; for the Republican National Committee by
Jan Witold Baran and
Thomas J.
Josefiak; and for Twelve University Professors et al. by
David Halperin.
1 "Fusion," also called "cross-filing" or "multiple-party
nomination," is "the electoral support of a single set of
candidates by two or more parties." Argersinger, "A Place on the
Ballot": Fusion Politics and Anti-
354
this case prohibit a candidate from appearing on the ballot as
the candidate of more than one party. Minn. Stat. §§ 204B.06, subd.
l(b), and 204B.04, subd. 2 (1994). We hold that such a prohibition
does not violate the First and Fourteenth Amendments to the United
States Constitution.
Respondent is a chartered chapter of the national New Party.
Petitioners are Minnesota election officials. In April 1994,
Minnesota State Representative Andy Dawkins was running unopposed
in the Minnesota DemocraticFarmer-Labor Party's (DFL) primary.2
That same month, New Party members chose Dawkins as their candidate
for the same office in the November 1994 general election. Neither
Dawkins nor the DFL objected, and Dawkins signed the required
affidavit of candidacy for the New Party. Minn. Stat. § 204B.06
(1994). Minnesota, however, prohibits fusion candidacies.3 Because
Dawkins had already filed as a candidate for the DFUs nomination,
local election officials refused to accept the New Party's
nominating petition.4
fusion Laws, 85 Am. Hist. Rev. 287, 288 (1980); see also
Twin
Cities Area New Party v.
McKenna, 73
F.3d 196, 197-198
(CA8 1996) (Fusion is "the nomination
by more than one political party of the same candidate for the same
office in the same general election").
2 The DFL is the product of a 1944 merger between Minnesota's
Farmer-Labor Party and the Democratic Party, and is a "major party"
under Minnesota law. Minn. Stat. § 200.02, subd. 7(a) (1994) (major
parties are parties that have won five percent of a statewide vote
and therefore participate in the state primary elections).
3 State law provides: "No individual who seeks nomination for
any partisan or nonpartisan office at a primary shall be nominated
for the same office by nominating petition .... " §204B.04, subd.
2. Minnesota law further requires that "[a]n affidavit of candidacy
shall state the name of the office sought and shall state that the
candidate: ... (b) Has no other affidavit on file as a candidate
for any office at the same primary or next ensuing general
election." § 204B.06, subd. l(b).
4 Because the New Party is a "minor party" under Minnesota law,
it does not hold a primary election but must instead file a
nominating petition with the signatures of 500 eligible voters, or
10 percent of the total
355
The New Party filed suit in United States District Court,
contending that Minnesota's antifusion laws violated the party's
associational rights under the First and Fourteenth Amendments. The
District Court granted summary judgment for the state defendants,
concluding that Minnesota's fusion ban was "a valid and
non-discriminatory regulation of the election process," and noting
that "issues concerning the mechanics of choosing candidates ...
are, in large part, matters of policy best left to the deliberative
bodies themselves."
Twin Cities Area New Party v.
McKenna, 863
The Court of Appeals reversed.
Twin Cities Area New Party
v.
McKenna, 73 F.3d
196, 198 (CA8 1996). First, the court determined that
Minnesota's fusion ban "unquestionably" and "severe[ly]" burdened
the New Party's "freedom to select a standard bearer who best
represents the party's ideologies and preferences" and its right to
"broaden the base of public participation in and support for [its]
activities."
Ibid. (citations and internal quotation marks
omitted). The court then decided that Minnesota's absolute ban on
multiple-party nominations was "broader than necessary to serve the
State's asserted interests" in avoiding intraparty discord and
party splintering, maintaining a stable political system, and
avoiding voter confusion, and that the State's remaining concerns
about multiple-party nomination were "simply unjustified in this
case."
Id., at 199-200. The court noted, however, that the
Court of Appeals for the Seventh Circuit had upheld Wisconsin's
similar fusion ban in
Swamp v.
Kennedy, 950 F.2d
383, 386 (1991) (fusion ban did not burden associational rights
and, even if it did, the State's interests justified the burden),
cert. denied, 505 U. S. 1204 (1992). Nonetheless, the court
concluded that Minnesota's fusion-ban provisions, Minn. Stat. §§
204B.06, subd. l(b), and
number of voters in the preceding state or county general
election, whichever is less. §§ 204B.03, 204B.07-204B.08.
356
204B.04, subd. 2 (1994), were unconstitutional because they
severely burdened the New Party's associational rights and were not
narrowly tailored to advance Minnesota's valid interests. We
granted certiorari, 517 U. S. 1219 (1996), and now reverse.
Fusion was a regular feature of Gilded Age American politics.
Particularly in the West and Midwest, candidates of issue-oriented
parties like the Grangers, Independents, Greenbackers, and
Populists often succeeded through fusion with the Democrats, and
vice versa. Republicans, for their part, sometimes arranged fusion
candidacies in the South, as part of a general strategy of
encouraging and exploiting divisions within the dominant Democratic
Party. See generally Argersinger, "A Place on the Ballot": Fusion
Politics and Antifusion Laws, 85 Am. Hist. Rev. 287, 288-290
(1980).
Fusion was common in part because political parties, rather than
local or state governments, printed and distributed their own
ballots. These ballots contained only the names of a particular
party's candidates, and so a voter could drop his party's ticket in
the ballot box without even knowing that his party's candidates
were supported by other parties as well. But after the 1888
presidential election, which was widely regarded as having been
plagued by fraud, many States moved to the "Australian ballot
system." Under that system, an official ballot, containing the
names of all the candidates legally nominated by all the parties,
was printed at public expense and distributed by public officials
at polling places.
Id., at 290-292;
Burdick v.
Takushi, 504
U. S. 428, 446-447 (1992) (KENNEDY, J., dissenting) (States'
move to the Australian ballot system was a "progressive reform to
reduce fraudulent election practices"). By 1896, use of the
Australian ballot was widespread. During the same period, many
States enacted other election-related reforms, including bans on
fusion candidacies. See Argersinger,
supra, at
357
288, 295-298. Minnesota banned fusion in 1901.5 This trend has
continued and, in this century, fusion has become the exception,
not the rule. Today, multiple-party candidacies are permitted in
just a few States,6 and fusion plays a significant role only in N
ew York. 7
The First Amendment protects the right of citizens to associate
and to form political parties for the advancement of common
political goals and ideas.
Colorado Republican Federal Campaign
Comm. v.
Federal Election Comm'n, 518 U. S. 604, 616
(1996) ("The independent expression of a political party's views is
'core' First Amendment activity no less than is the independent
expression of individuals, candidates, or other political
committees");
Norman v.
Reed, 502 U. S. 279, 288 (1992)
("constitutional right of citizens to create and develop new
political parties ... advances the constitutional interest of
like-minded voters to gather in pursuit of common political ends");
Tashjian v.
Republican Party of Conn., 479
5 See Act of Apr. 13, 1901, ch. 312, 1902 Minn. Laws 524. The
Minnesota Supreme Court struck down the ban in
In re Day, 93
Minn. 178, 182, 102 N. W. 209, 211 (1904), because the title of the
enacting bill did not reflect the bill's content. The ban was
reenacted in 1905. 1905 Minn. Rev. Laws, ch. 6, § 176, pp. 27,31.
Minnesota enacted a revised election code, which includes the
fusion-related provisions involved in this case, in 1981. Act of
Apr. 14, 1981, ch. 29, Art. 4, § 6, 1981 Minn. Laws 73.
6 Burnham Declaration, App. 15 ("Practice of [multiple-party
nomination] in the 20th century has, of course, been much more
limited. This owes chiefly to the fact that most state legislatures
... outlawed the practice");
McKenna, 73 F. 3d, at 198
("[M]ultiple party nomination is prohibited today, either directly
or indirectly, in about forty states and the District of Columbia
... "); S. Cobble & S. Siskind, Fusion: Multiple Party
Nomination in the United States 8 (1993) (summarizing States'
fusion laws).
7See N. Y. Elec. Law §§ 6-120,6-146(1) (McKinney 1978 and Supp.
1996).
Since 1936, when fusion was last relegalized in New York,
several minor parties, including the Liberal, Conservative,
American Labor, and Right to Life Parties, have been active and
influential in New York politics. See Burnham Declaration, App.
15-16; Cobble & Siskind,
supra n. 6, at 3-4.
358
u. S. 208, 214 (1986). As a result, political parties'
government, structure, and activities enjoy constitutional
protection.
Eu v.
San Francisco County Democratic Central
Comm., 489 U. S.
214, 230 (1989) (noting political party's "discretion in how to
organize itself, conduct its affairs, and select its leaders");
Tashjian, supra, at 224 (Constitution protects a party's
"determination ... of the structure which best allows it to pursue
its political goals").
On the other hand, it is also clear that States may, and
inevitably must, enact reasonable regulations of parties,
elections, and ballots to reduce election- and campaignrelated
disorder.
Burdick, supra, at 433 (" '[A]s a practical
matter, there must be a 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' ") (quoting
Storer v.
Brown, 415 U. S. 724, 730
(1974));
Tashjian, supra, at 217 (The Constitution grants
States "broad power to prescribe the 'Time, Places and Manner of
holding Elections for Senators and Representatives,' Art. I, § 4,
cl. 1, which power is matched by state control over the election
process for state offices").
When deciding whether a state election law violates First and
Fourteenth Amendment associational rights, we weigh the "'character
and magnitude'" of the burden the State's rule imposes on those
rights against the interests the State contends justify that
burden, and consider the extent to which the State's concerns make
the burden necessary.
Burdick, supra, at 434 (quoting
Anderson v.
Celebrezze, 460 U. S. 780, 789 (1983)).
Regulations imposing severe burdens on plaintiffs' rights must be
narrowly tailored and advance a compelling state interest. Lesser
burdens, however, trigger less exacting review, and a State's
"'important regulatory interests'" will usually be enough to
justify "'reasonable, nondiscriminatory restrictions.'"
Burdick,
supra, at 434 (quoting
Anderson, supra, at 788);
Norman, supra, at 288289 (requiring "corresponding interest
sufficiently weighty
359
to justify the limitation"). No bright line separates
permissible election-related regulation from unconstitutional
infringements on First Amendment freedoms.
Storer, supra, at
730 ("[N]o litmus-paper test ... separat[es] those restrictions
that are valid from those that are invidious .... The rule is not
self-executing and is no substitute for the hard judgments that
must be made").
The New Party's claim that it has a right to select its own
candidate is uncontroversial, so far as it goes. See,
e.
g., Cousins v.
Wigoda, 419 U. S. 477 (1975)
(party, not State, has right to decide who will be State's
delegates at party convention). That is, the New Party, and not
someone else, has the right to select the New Party's "standard
bearer." It does not follow, though, that a party is absolutely
entitled to have its nominee appear on the ballot as that party's
candidate. A particular candidate might be ineligible for office,s
unwilling to serve, or, as here, another party's candidate. That a
particular individual may not appear on the ballot as a particular
party's candidate does not severely burden that party's
associational rights. See
Burdick, 504 U. S., at 440, n. 10
("It seems to us that limiting the choice of candidates to those
who have complied with state election law requirements is the
prototypical example of a regulation that, while it affects the
right to vote, is eminently reasonable");
Anderson, 460 U.
S., at 792, n. 12 ("Although a disaffiliation provision may
preclude ... voters from supporting a particular ineligible
candidate, they remain free to support and promote other candidates
who satisfy the State's disaffiliation requirements");
id.,
at 793, n. 15.
The New Party relies on Eu v. San Francisco County Democratic
Central Comm., supra, and Tashjian v. Republican Party of Conn.,
supra. In Eu, we struck down Califor-
8 See,
e. g., Minn. Stat. § 204B.06, subd. l(c)
(1994) (candidates must be 21 years of age or more upon assuming
office and must have maintained residence in the district from
which they seek election for 30 days before the general
election).
360
nia election provisions that prohibited political parties from
endorsing candidates in party primaries and regulated parties'
internal affairs and structure. And in
Tashjian, we held
that Connecticut's closed-primary statute, which required voters in
a party primary to be registered party members, interfered with a
party's associational rights by limiting "the group of registered
voters whom the Party may invite to participate in the basic
function of selecting the Party's candidates." 479 U. S., at
215-216 (internal quotation marks and citations omitted). But while
Tashjian and
Eu involved regulation of political
parties' internal affairs and core associational activities,
Minnesota's fusion ban does not. The ban, which applies to major
and minor parties alike, simply precludes one party's candidate
from appearing on the ballot, as that party's candidate, if already
nominated by another party. Respondent is free to try to convince
Representative Dawkins to be the New Party's, not the DFL's,
candidate. See
Swamp, 950 F. 2d, at 385 ("[A] party may
nominate any candidate that the party can convince to be
its
candidate"). Whether the party still wants to endorse a candidate
who, because of the fusion ban, will not appear on the ballot as
the party's candidate, is up to the party.
The Court of Appeals also held that 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."
McKenna, 73 F. 3d, at 199. The burden on the
party was, the court held, severe because "[h]istory shows that
minor parties have played a significant role in the electoral
system where multiple party nomination is legal, but have no
meaningful influence where multiple party nomination is banned."
Ibid. In the view of the Court of Appeals, Minnesota's
fusion ban forces members of the New Party to make a "no-win
choice" between voting for "candidates with no realistic chance of
winning, defect[ing] from their party and vot[ing] for a major
party candidate who does, or declin[ing] to vote at all."
Ibid.
361
But Minnesota has not directly precluded minor political parties
from developing and organizing. Cf.
Norman, 502 U. S., at
289 (statute "foreclose[d] the development of any political party
lacking the resources to run a statewide campaign"). Nor has
Minnesota excluded a particular group of citizens, or a political
party, from participation in the election process. Cf.
Anderson,
supra, at 792-793 (filing deadline "places a particular burden
on an identifiable segment of Ohio's independent-minded voters");
Bullock v.
Carter, 405 U. S. 134 (1972) (striking
down Texas statute requiring candidates to pay filing fees as a
condition to having their names placed on primary-election
ballots). The New Party remains free to endorse whom it likes, to
ally itself with others, to nominate candidates for office, and to
spread its message to all who will listen. Cf.
Eu, 489 U.
S., at 223 (California law curtailed right to "[f]ree discussion
about candidates for public office");
Colorado Republican
Federal Campaign Comm'n, 518 U. S., at 615 (restrictions on
party's spending impair its ability to "engage in direct political
advocacy").
The Court of Appeals emphasized its belief that, without
fusion-based alliances, minor parties cannot thrive. This is a
predictive judgment which is by no means self-evident.9
9 Between the First and Second World Wars, for example, various
radical, agrarian, and labor-oriented parties thrived, without
fusion, in the Midwest. See generally R. Valelly, Radicalism in the
States (1989). One of these parties, Minnesota's Farmer-Labor
Party, displaced the Democratic Party as the Republicans' primary
opponent in Minnesota during the 1930's. As one historian has
noted: "The Minnesota Farmer-Labor Party elected its candidates to
the governorship on four occasions, to the U. S. Senate in five
elections, and to the U. S. House in twenty-five campaigns ....
Never less than Minnesota's second strongest party, in 1936
Farmer-Laborites dominated state politics .... The Farmer-Labor
Party was a success despite its independence of America's two
dominant national parties and despite the sometimes bold
anticapitalist rhetoric of its platforms." J. Haynes, Dubious
Alliance 9 (1984). It appears that factionalism within the Farmer-
Labor Party, the popular successes of New Deal programs and
ideology, and the gradual movement of political power from the
States to the National Government contributed to the party's
de-
362
But, more importantly, the supposed benefits of fusion to minor
parties do not require that Minnesota permit it. See
Tashjian,
supra, at 222 (refusing to weigh merits of closed and open
primaries). Many features of our political sys
tem-e.
g., single-member districts, "first past the post"
elections, and the high costs of campaigning-make it difficult for
third parties to succeed in American politics. Burnham Declaration,
App. 12-13. But the Constitution does not require States to permit
fusion any more than it requires them to move to
proportional-representation elections or public financing of
campaigns. See
Mobile v.
Bolden, 446 U. S. 55, 75 (1980)
(plurality opinion) ("Whatever appeal the dissenting opinion's view
may have as a matter of political theory, it is not the law").
The New Party contends that the fusion ban burdens its "right
... to communicate its choice of nominees on the ballot on terms
equal to those offered other parties, and the right of the party's
supporters and other voters to receive that information," and
insists that communication on the ballot of a party's candidate
choice is a "critical source of information for the great majority
of voters ... who ... rely upon party 'labels' as a voting guide."
Brief for Respondent 22-23.
It is true that Minnesota's fusion ban prevents the New Party
from using the ballot to communicate to the public that it supports
a particular candidate who is already another party's candidate. In
addition, the ban shuts off one possible avenue a party might use
to send a message to its preferred
candidate because, with
fusion, a candidate who wins an election on the basis of two
parties' votes will likely know more-if the parties' votes are
counted separately-about the particular wishes and ideals of his
constituency. We are
cline. See generally Haynes,
supra; Valelly,
supra; M. Gieske, Minnesota Farmer-Laborism:
The
Third-Party Alternative (1979). Eventually, a much-weakened
Farmer-Labor Party merged with the Democrats, forming what is now
Minnesota's Democratic-Farmer-Labor Party, in 1944. Valelly,
supra, at 156.
363
unpersuaded, however, by the party's contention that it has a
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. See
Burdick, 504 U. S.,
at 438;
id., at 445 (KENNEDY, J., dissenting). Like all
parties in Minnesota, the New Party is able to use the ballot to
communicate information about itself and its candidate to the
voters, so long as that candidate is not already someone else's
candidate. The party retains great latitude in its ability to
communicate ideas to voters and candidates through its
participation in the campaign, and party members may campaign for,
endorse, and vote for their preferred candidate even if he is
listed on the ballot as another party's candidate. See
Anderson, 460 U. S., at 788 ("[A]n election campaign is an
effective platform for the expression of views on the issues of the
day");
Illinois Bd. of Elections v.
Socialist Workers
Party, 440 U. S.
173, 186 (1979) ("[A]n election campaign is a means of
disseminating ideas").
In sum, Minnesota's laws do not restrict the ability of the New
Party and its members to endorse, support, or vote for anyone they
like. The laws do not directly limit the party's access to the
ballot. They are silent on parties' internal structure, governance,
and policymaking. Instead, these 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 its preferred candidates. We conclude that the burdens Minnesota
imposes on the party's First and Fourteenth Amendment associational
rights-though not trivial-are not severe.
The Court of Appeals determined that Minnesota's fusion ban
imposed "severe" burdens on the New Party's associa-
364
tional rights, and so it required the State to show that the ban
was narrowly tailored to serve compelling state interests.
McKenna, 73 F. 3d, at 198. We disagree; given the burdens
imposed, the bar is not so high. Instead, the State's asserted
regulatory interests need only be "sufficiently weighty to justify
the limitation" imposed on the party's rights.
Norman, 502
U. S., at 288-289;
Burdick, supra, at 434 (quoting
Anderson, supra, at 788). Nor do we require elaborate,
empirical verification of the weightiness of the State's asserted
justifications. See
Munro v.
Socialist Workers Party,
479 U. S. 189,
195-196 (1986) ("Legislatures ... should be permitted to respond to
potential deficiencies in the electoral process with foresight
rather than reactively, provided that the response is reasonable
and does not significantly impinge on constitutionally protected
rights").
The Court of Appeals acknowledged Minnesota's interests in
avoiding voter confusion and overcrowded ballots, preventing party
splintering and disruptions of the two-party system, and being able
to clearly identify the election winner.
McKenna, supra, at
199-200. Similarly, the Seventh Circuit, in
Swamp, noted
Wisconsin's "compelling" interests in avoiding voter confusion,
preserving the integrity of the election process, and maintaining a
stable political system. 950 F. 2d, at 386; cf.
id., at
387-388 (Fairchild, J., concurring) (State has a compelling
interest in "maintaining the distinct identity of parties").
Minnesota argues here that its fusion ban is justified by its
interests in avoiding voter confusion, promoting candidate
competition (by reserving limited ballot space for opposing
candidates), preventing electoral distortions and ballot
manipulations, and discouraging party splintering and "unrestrained
factionalism." Brief for Petitioners 41-50.
States certainly have an interest in protecting the integrity,
fairness, and efficiency of their ballots and election processes as
means for electing public officials.
Bullock, 405 U. S., at
145 (State may prevent "frivolous or fraudulent
365
candidacies") (citing
Jenness v.
Fortson, 403 U. S. 431, 442
(1971)); Eu, 489 U. S., at 231;
Norman, supra, at 290
(States have an interest in preventing "misrepresentation");
Rosario v.
Rockefeller, 410 U. S. 752, 761
(1973). Petitioners contend that a candidate or party could easily
exploit fusion as a way of associating his or its name with popular
slogans and catchphrases. For example, members of a major party
could decide that a powerful way of "sending a message" via the
ballot would be for various factions of that party to nominate the
major party's candidate as the candidate for the newly formed "No
New Taxes," "Conserve Our Environment," and "Stop Crime Now"
parties. In response, an opposing major party would likely instruct
its factions to nominate that party's candidate as the "Fiscal
Responsibility," "Healthy Planet," and "Safe Streets" parties'
candidate.
Whether or not the putative "fusion" candidates' names appeared
on one or four ballot lines, such maneuvering would undermine the
ballot's purpose by transforming it from a means of choosing
candidates to a billboard for political advertising. The New Party
responds to this concern, ironically enough, by insisting that the
State could avoid such manipulation by adopting more demanding
ballot-access standards rather than prohibiting multiple-party
nomination. Brief for Respondent 38. However, as we stated above,
because the burdens the fusion ban imposes on the party's
associational rights are not severe, the State need not narrowly
tailor the means it chooses to promote ballot integrity. The
Constitution does not require that Minnesota compromise the policy
choices embodied in its ballot-access requirements to accommodate
the New Party's fusion strategy. See Minn. Stat. § 204B.08, subd. 3
(1994) (signature requirements for nominating petitions);
Rosario, supra, at 761-762 (New York's time limitation for
enrollment in a political party was part of an overall scheme aimed
at the preservation of the integrity of the State's electoral
process).
366
Relatedly, petitioners urge that permitting fusion would
undercut Minnesota's ballot-access regime by allowing minor parties
to capitalize on the popularity of another party's candidate,
rather than on their own appeal to the voters, in order to secure
access to the ballot. Brief for Petitioners 45-46. That is, voters
who might not sign a minor party's nominating petition based on the
party's own views and candidates might do so if they viewed the
minor party as just another way of nominating the same person
nominated by one of the major parties. Thus, Minnesota fears that
fusion would enable minor parties, by nominating a major party's
candidate, to bootstrap their way to major-party status in the next
election and circumvent the State's nominatingpetition requirement
for minor parties. See Minn. Stat. §§ 200.02, subd. 7 (defining
"major party"), and 204D.13 (1994) (describing ballot order for
major and other parties). The State surely has a valid interest in
making sure that minor and third parties who are granted access to
the ballot are bona fide and actually supported, on their own
merits, by those who have provided the statutorily required
petition or ballot support.
Anderson, 460 U. S., at 788, n.
9;
Storer, 415 U. S., at 733, 746.
States also have a strong interest in the stability of their
political systems.10
Eu, supra, at 226;
Storer,
supra, at 736.
10 The dissents state that we may not consider "what appears to
be the true basis for [our] holding-the interest in preserving the
two-party system,"
post, at 377 (opinion of STEVENS, J.),
because Minnesota did not defend this interest in its briefs and
"expressly rejected" it at oral argument,
post, at 378; see
also
post, at 382-383 (opinion of SOUTER, J.). In fact, at
oral argument, the State contended that it has an interest in the
stability of its political system and that, even if certain
election-related regulations, such as those requiring single-member
districts, tend to work to the advantage of the traditional
two-party system, the "States do have a permissible choice ...
there, as long as they don't go so far as to close the door to
minor part[ies]." Tr. of Oral Arg. 27; see also Brief for
Petitioners 46-47 (discussing State's interest in avoiding"
'splintered parties and unrestrained factionalism''') (quoting
Storer, 415 U. S., at 736). We agree.
367
This interest does not permit a State to completely insulate the
two-party system from minor parties' or independent candidates'
competition and influence,
Anderson, supra, at
802;
Williams v.
Rhodes, 393 U. S. 23 (1968), nor
is it a paternalistic license for States to protect political
parties from the consequences of their own internal disagreements.
Eu, supra, at 227;
Tashjian, 479 U. S., at
224. That said, the States' interest permits them to enact
reasonable election regulations that may, in practice, favor the
traditional twoparty system, see Burnham Declaration, App. 12
(American politics has been, for the most part, organized around
two parties since the time of Andrew Jackson), and that temper the
destabilizing effects of party splintering and excessive
factionalism. The Constitution permits the Minnesota Legislature to
decide that political stability is best served through a healthy
two-party system. See
Rutan v.
Republican Party of
Ill., 497 U. S.
62, 107 (1990) (SCALIA, J., dissenting) ("The stabilizing
effects of such a [two-party] system are obvious");
Davis v.
Bandemer, 478
U. S. 109, 144-145 (1986) (O'CONNOR, J., concurring) ("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");
Branti v.
Finkel,
445 U. S. 507,
532 (1980) (Powell, J., dissenting) ("Broad-based political parties
supply an essential coherence and flexibility to the American
political scene"). And while an interest in securing the perceived
benefits of a stable two-party system will not justify unreasonably
exclusionary restrictions, see
Williams, supra, at 31-32,
States need not remove all of the many hurdles third parties face
in the American political arena today.
In
Storer, we upheld a California statute that denied
ballot positions to independent candidates who had voted in the
immediately preceding primary elections or had a registered party
affiliation at any time during the year before the same
368
primary elections. 415 U. S., at
728.11 After surveying
the relevant case law, we "ha[d] no hesitation in sustaining" the
party-disaffiliation provisions.
Id., at 733. We recognized
that the provisions were part of a "general state policy aimed at
maintaining the integrity of ... the ballot," and noted that the
provision did not discriminate against independent candidates.
Ibid. We concluded that while a "State need not take the
course California has, ... California apparently believes with the
Founding Fathers that splintered parties and unrestrained
factionalism may do significant damage to the fabric of government.
See The Federalist No. 10 (Madison). It appears obvious to us that
the one-year disaffiliation provision furthers the State's interest
in the stability of its political system." 415 U. S., at 736; see
also
Lippitt v.
Cipollone, 404 U. S. 1032 (1972)
(affirming, without opinion, district-court decision upholding
statute banning party-primary candidacies of those who had voted in
another party's primary within last four years).12
11 A similar provision applied to party candidates, and imposed
a "flat disqualification upon any candidate seeking to run in a
party primary if he has been 'registered as affiliated with a
political party other than that political party the nomination of
which he seeks within 12 months immediately prior to the filing of
the declaration.''' Another provision stated that "no person may
file nomination papers for a party nomination and an independent
nomination for the same office ... ."
Storer, 415 U. S., at
733.
12JUSTICE STEVENS insists that New York's experience with fusion
politics undermines Minnesota's contention that its fusion ban
promotes political stability.
Post, at 376, n. 4, 381, n. 12
(dissenting opinion). California's experiment with cross-filing, on
the other hand, provides some justification for Minnesota's
concerns. In 1946, for example, Earl Warren was the nominee of both
major parties, and was therefore able to run unopposed in
California's general election. It appears to be widely accepted
that California's cross-filing system stifled electoral competition
and undermined the role of distinctive political parties. See B.
Hyink, S. Brown, & D. Provost, Politics and Government in
California 76 (12th ed. 1989) (California's cross-filing law
"undermined party responsibility and cohesiveness"); D. Mazmanian,
Third Parties in Presidential Elections 134 (1974) (cross-filing
"diminish[ed] the role of political parties and
369
Our decision in
Burdick v.
Takushi, supra, is also
relevant.
There, we upheld Hawaii's ban on write-in voting against a claim
that the ban unreasonably infringed on citizens' First and
Fourteenth Amendment rights. In so holding, we rejected the
petitioner's argument that the ban "deprive[d] him of the
opportunity to cast a meaningful ballot," emphasizing that the
function of elections is to elect candidates and that "we have
repeatedly upheld reasonable, politically neutral regulations that
have the effect of channeling expressive activit[ies] at the
polls." 504 U. S., at 437-438.
Minnesota's fusion ban is far less burdensome than the
disaffiliation rule upheld in
Storer, and is justified by
similarly weighty state interests. By reading
Storer as
dealing only with "sore-loser candidates," JUSTICE STEVENS, in our
view, fails to appreciate the case's teaching.
Post, at 377
(dissenting opinion). Under the California disaffiliation statute
at issue in
Storer, any person affiliated with a party at
any time during the year leading up to the primary election was
absolutely precluded from appearing on the ballot as an independent
or as the candidate of another party. Minnesota's fusion ban is not
nearly so restrictive; the challenged provisions say nothing about
the previous party affiliation of would-be candidates but only
require that, in order to appear on the ballot, a candidate not be
the nominee of more than one party. California's disaffiliation
rule limited the field of candidates by thousands; Minnesota's
precludes only a handful who freely choose to be so limited. It is
also worth noting that while California's disaffiliation statute
absolutely banned many candidacies, Minnesota's fusion ban only
prohibits a candidate from being named twice.
We conclude that the burdens Minnesota's fusion ban imposes on
the New Party's associational rights are justified by
"correspondingly weighty" valid state interests in ballot
work[ed] against the efforts of minority factions to gain
recognition and a hearing in the electoral arena").
370
integrity and political stability.13 In deciding that
Minnesota's fusion ban does not unconstitutionally burden the New
Party's First and Fourteenth Amendment rights, we express no views
on the New Party's policy-based arguments concerning the wisdom of
fusion. It may well be that, as support for new political parties
increases, these arguments will carry the day in some States'
legislatures. But the Constitution does not require Minnesota, and
the approximately 40 other States that do not permit fusion, to
allow it. The judgment of the Court of Appeals is reversed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, and with whom
JUSTICE SOUTER joins as to Parts I and II, dissenting.
In Minnesota, the Twin Cities Area New Party (Party) is a
recognized minor political party entitled by state law to have the
names of its candidates for public office appear on the state
ballots. In April 1994, Andy Dawkins was qualified to be a
candidate for election to the Minnesota Legislature as the
representative of House District 65A. With Dawkins' consent, the
Party nominated him as its candidate for that office. In my opinion
the Party and its members had a constitutional right to have their
candidate's name appear on the ballot despite the fact that he was
also the nominee of another party.
The Court's conclusion that the Minnesota statute prohibiting
multiple-party candidacies is constitutional rests on three dubious
premises: (1) that the statute imposes only a
13 JUSTICE STEVENS rejects the argument that Minnesota's fusion
ban serves its alleged paternalistic interest in "avoiding voter
confusion."
Post, at 374, 375-376 (dissenting opinion)
("[T]his concern is meritless and severely underestimates the
intelligence of the typical voter"). Although this supposed
interest was discussed below, 73 F. 3d, at 199-200, and in the
parties' briefs before this Court, Brief for Petitioners 41-44;
Brief for Respondent 34-39, it plays no part in our analysis
today.
371
minor burden on the Party's right to choose and to support the
candidate of its choice; (2) that the statute significantly serves
the State's asserted interests in avoiding ballot manipulation and
factionalism; and (3) that, in any event, the interest in
preserving the two-party system justifies the imposition of the
burden at issue in this case. I disagree with each of these
premises.
I
The members of a recognized political party unquestionably have
a constitutional right to select their nominees for public office
and to communicate the identity of their nominees to the voting
public. Both the right to choose and the right to advise voters of
that choice are entitled to the highest respect.
The Minnesota statutes place a significant burden on both of
those rights. The Court's recital of burdens that the statute does
not inflict on the Party,
ante, at 363, does nothing to
minimize the severity of the burdens that it does impose. The fact
that the Party may nominate its second choice surely does not
diminish the significance of a restriction that denies it the right
to have the name of its first choice appear on the ballot. Nor does
the point that it may use some of its limited resources to
publicize the fact that its first choice is the nominee of some
other party provide an adequate substitute for the message that is
conveyed to every person who actually votes when a party's nominees
appear on the ballot.
As to the first point, the State contends that the fusion ban in
fact limits by only a few candidates the range of individuals a
party may nominate, and that the burden is therefore quite small.
But the
number of candidates removed from the Party's reach
cannot be the determinative factor. The ban leaves the Party free
to nominate any eligible candidate except the particular" 'standard
bearer who best represents the party's ideologies and
preferences.'"
Eu v.
San Francisco County
Democratic Central Comm., 489 U. S. 214, 224
(1989).
372
The Party could perhaps choose to expend its resources
supporting a candidate who was not in fact the best representative
of its members' views. 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.1 Political parties "exist to advance their
members' shared political beliefs," and "in the context of
particular elections, candidates are necessary to make the party's
message known and effective, and vice versa."
Colorado
Republican Federal Campaign Comm. v.
Federal Election
Comm'n, 518 U. S.
604, 629 (1996) (KENNEDY, J., dissenting). See also
Anderson v.
Celebrezze, 460 U. S. 780, 821 (1983)
(REHNQUIST, J., dissenting) ("Political parties have, or at least
hope to have, a continuing existence, representing particular
philosophies. Each party has an interest in finding the best
candidate to advance its philosophy in each election").
The State next argues that-instead of nominating a second-choice
candidate-the Party could remove itself from
1 The burden on the Party's right to nominate its first-choice
candidate, by limiting the Party's ability to convey through its
nominee what the Party represents, risks impinging on another core
element of any political party's associational rights-the right to
"broaden the base of public participation in and support for its
activities."
Tashjian v.
Republican Party of Conn.,
479 U. S. 208,
214 (1986). The Court of Appeals relied substantially on this right
in concluding that the fusion ban impermissibly burdened the New
Party, but its focus was somewhat different. See
Twin Cities
Area New Party v.
McKenna, 73 F.3d
196, 199
(CA8 1996). A fusion ban burdens the right of a
minor party to broaden its base of support because of the political
reality that the dominance of the major parties frequently makes a
vote for a minor party or independent candidate a "wasted" vote.
When minor parties can nominate a candidate also nominated by a
major party, they are able to present their members with an
opportunity to cast a vote for a candidate who will actually be
elected. Although this aspect of a party's effort to broaden
support is distinct from the ability to nominate the candidate who
best represents the party's views, it is important to note that the
party's right to broaden the base of its support is burdened in
both ways by the fusion ban.
373
the ballot altogether, and publicly endorse the candidate of
another party. But the right to be on the election ballot is
precisely what separates a political party from any other interest
group.2 The Court relies on the fact that the Party remains free
"to spread its message to all who will listen,"
ante, at
361, through forums other than the ballot. Given the limited
resources available to most minor parties, and the
less-than-universal interest in the messages of third parties, it
is apparent that the Party's message will, in this manner, reach a
much smaller audience than that composed of all voters who can read
the ballot in the polling booth.
The majority rejects as unimportant the limits that the fusion
ban may impose on the Party's ability to express its political
views,
ante, at 362-363, relying on our decision in
Burdick v.
Takushi, 504 U. S. 428, 445
(1992), in which we noted that "the purpose of casting, counting,
and recording votes is to elect public officials, not to serve as a
general forum for political expression." But in
Burdick we
concluded simply that an individual voter's interest in expressing
his disapproval of the single candidate running for office in a
particular election did not require the State to finance and
provide a mechanism for tabulating write-in votes. Our conclusion
that the ballot is not principally a forum for the individual
expression of political sentiment through the casting of a vote
does not justify the conclusion that the ballot serves no
expressive purpose for the parties who place candidates on the
ballot. Indeed, the long-recognized right to choose a "'standard
bearer who best represents the party's ideologies and
preferences,'"
Eu, 489 U. S., at 224, is inescapably an
expressive right. "To the extent that party labels
2We have recognized that "[t]here is no evidence that an
endorsement issued by an official party organization carries more
weight than one issued by a newspaper or a labor union."
Eu
v.
San Francisco County Democratic Central Comm., 489 U. S. 214, 228, n. 18
(1989). Given this reality, I cannot agree with the majority's
implicit equation of the right to endorse with the right to
nominate.
374
provide a shorthand designation of the views of party candidates
on matters of public concern, the identification of candidates with
particular parties plays a role in the process by which voters
inform themselves for the exercise of the franchise."
Tashjian v.
Republican Party of Conn., 479 U. S. 208, 220
(1986).
In this case, and presumably in most cases, the burden of a
statute of this kind is imposed upon the members of a minor party,
but its potential impact is much broader. Popular candidates like
Andy Dawkins sometimes receive nationwide recognition. Fiorello
LaGuardia, Earl Warren, Ronald Reagan, and Franklin D. Roosevelt
are names that come readily to mind as candidates whose reputations
and political careers were enhanced because they appeared on
election ballots as fusion candidates. See Note, Fusion and the
Associational Rights of Minor Political Parties, 95 Colum. L. Rev.
683 (1995). A statute that denied a political party the right to
nominate any of those individuals for high office simply because he
had already been nominated by another party would, in my opinion,
place an intolerable burden on political expression and
association.
II
Minnesota argues that the statutory restriction on the Party's
right to nominate the candidate of its choice is justified by the
State's interests in avoiding voter confusion, preventing ballot
clutter and manipulation, encouraging candidate competition, and
minimizing intraparty factionalism. None of these rationales can
support the fusion ban because the State has failed to explain how
the ban actually serves the asserted interests.
I believe that the law significantly abridges First Amendment
freedoms and that the State therefore must shoulder a
correspondingly heavy burden of justification if the law is to
survive judicial scrutiny. But even accepting the majority's view
that the burdens imposed by the law are not weighty,
375
the State's asserted interests must at least bear some plausible
relationship to the burdens it places on political parties. See
Anderson, 460 U. S., at 789. Although the Court today
suggests that the State does not have to support its asserted
justifications for the fusion ban with evidence that they have any
empirical validity,
ante, at 364, we have previously
required more than a bare assertion that some particular state
interest is served by a burdensome election requirement. See,
e. g., Eu, 489 U. S., at 226 (rejecting
California's argument that the State's endorsement ban protected
political stability because the State "never adequately explain[ed]
how banning parties from endorsing or opposing primary candidates
advances that interest");
Anderson, 460 U. S., at 789
(evaluating a State's interests, we examine "the extent to which
those interests make it necessary to burden the plaintiff's
rights");
Norman v.
Reed, 502 U. S. 279, 288289
(1992) ("corresponding interest" must be "sufficiently weighty to
justify the limitation").3
While the State describes some imaginative theoretical sources
of voter confusion that could result from fusion candidacies, in my
judgment the argument that the burden on First Amendment interests
is justified by this concern is meritless and severely
underestimates the intelligence of the
3 In any event, the parade of horribles that the majority
appears to believe might visit Minnesota should fusion candidacies
be allowed is fantastical, given the evidence from New York's
experience with fusion. See Brief for Conservative Party of New
York et al. as
Amici Curiae 20-25. Thus, the evidence that
actually is available diminishes, rather than strengthens,
Minnesota's claims. The majority asserts,
ante, at 368-369,
n. 12, that California's cross-filing system, in place during the
first half of this century, provides a compelling counterexample.
But cross-filing, which "allowed candidates to file in the primary
of any or all parties without specifying party affiliation," D.
Mazmanian, Third Parties in Presidential Elections 132-133 (1974)
(hereinafter Mazmanian), is simply not the same as fusion politics,
and the problems suffered in California do not provide empirical
support for Minnesota's position.
376
typical voter.4 We have noted more than once that "[a] State's
claim that it is enhancing the ability of its citizenry to make
wise decisions by restricting the flow of information to them must
be viewed with some skepticism."
Eu, 489 U. S., at 228;
Tashjian, 479 U. S., at 221;
Anderson, 460 U. S., at
798.
The State's concern about ballot manipulation, readily accepted
by the majority, is similarly farfetched. The possibility that
members of the major parties will begin to create dozens of minor
parties with detailed, issue-oriented titles for the sole purpose
of nominating candidates under those titles, see
ante, at
365, is entirely hypothetical. The majority dismisses out-of-hand
the Party's argument that the risk of this type of ballot
manipulation and crowding is more easily averted by maintaining
reasonably stringent requirements for the creation of minor
parties.
Ibid. In fact, though, the Party's point merely
illustrates the idea that a State can place some kinds-but not
every kind-of limitation on the abilities of small parties to
thrive. If the State wants to make it more difficult for any group
to achieve the legal status of being a political party, it can do
so within reason and still not run up against the First Amendment.
"The State has the undoubted right to require candidates to make a
preliminary showing of substantial support in order to qualify for
a place on the ballot, because it is both wasteful and confusing to
encumber the ballot with the names of frivolous candidates."
Anderson, 460 U. S., at 788-789, n. 9. See also
Jenness v.
Fortson, 403 U. S. 431, 442
(1971). But once the State has established a standard for achieving
party status, forbidding an acknowledged party to put on the ballot
its chosen candidate clearly frustrates core associational
rights.5
4 See Brief for Petitioners 41-43; see also
ante, at
365.
5 A second "ballot manipulation" argument accepted by the
majority is that minor parties will attempt to "capitalize on the
popularity of another party's candidate, rather than on their own
appeal to the voters, in order
377
The State argues that the fusion ban promotes political
stability by preventing intraparty factionalism and party raiding.
States do certainly have an interest in maintaining a stable
political system.
Eu, 489 U. S., at 226. But the State has
not convincingly articulated how the fusion ban will prevent the
factionalism it fears. Unlike the law at issue in
Storer v.
Brown, 415 U.
S. 724 (1974), for example, this law would not prevent
sore-loser candidates from defecting with a disaffected segment of
a major party and running as an opposition candidate for a newly
formed minor party. Nor does this law, like those aimed at
requiring parties to show a modicum of support in order to secure a
place on the election ballot, prevent the formation of numerous
small parties. Indeed, the activity banned by Minnesota's law is
the formation of coalitions, not the division and dissension of
"splintered parties and unrestrained factionalism."
Id., at
736.
As for the State's argument that the fusion ban encourages
candidate competition, this claim treats "candidates" as fungible
goods, ignoring entirely each party's interest in nominating not
just any candidate, but the candidate who best represents the
party's views. Minnesota's fusion ban simply cannot be justified
with reference to this or any of the above-mentioned rationales. I
turn, therefore, to what appears to be the true basis for the
Court's holding-the interest in preserving the two-party
system.
III
Before addressing the merits of preserving the two-party system
as a justification for Minnesota's fusion ban, I should note that,
in my view, it is impermissible for the Court to consider this
rationale. Minnesota did not argue in its
to secure access to the ballot."
Ante, at 366. What the
majority appears unwilling to accept is that
Andy Dawkins was
the Party's chosen candidate. The Party was not trying to
capitalize on his status as someone else's candidate, but to
identify him as their own choice.
378
briefs that the preservation of the two-party system supported
the fusion ban, and indeed, when pressed at oral argument on the
matter, the State expressly rejected this rationale. Tr. of Oral
Arg. 26. Our opinions have been explicit in their willingness to
consider only the particular interests put forward by a State to
support laws that impose any sort of burden on First Amendment
rights. See
Anderson, 460 U. S., at 789 (the Court will
"identify and evaluate the precise interests put forward by the
State as justifications for the burden imposed by its rule");
id., at 817 (REHNQUIST, J., dissenting) (state laws that
burden First Amendment rights are upheld when they are "'tied to a
particularized legitimate purpose''') (quoting
Rosario v.
Rockefeller, 410 U. S. 752, 762
(1973));
Burdick, 504 U. S., at 434.
Even if the State had put forward this interest to support its
laws, it would not be sufficient to justify the fusion ban. 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 election 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.6
6 Indeed, "[a] burden that falls unequally on new or small
political parties or on independent candidates impinges, by its
very nature, on associational choices protected by the First
Amendment."
Anderson v.
Celebrezze, 460 U. S. 780, 793-794
(1983). I do not think it is irrelevant that when antifusion laws
were passed by States all over the Nation in the latter part of the
1800's, these laws, characterized by the majority as "reforms,"
ante, at 356, were passed by "the parties in power in state
legislatures ... to squelch the threat posed by the opposition's
combined voting force."
McKenna, 73 F. 3d, at 198. See
Argersinger, "A Place on the Ballot"; Fusion Politics and
Antifusion Laws, 85 Am. Rist. Rev. 287, 302-306 (1980). Although
the State is not required now to justify its laws with exclusive
reference to the original purpose behind their passage,
379
Our jurisprudence in this area reflects a certain tension:
On the one hand, we have been clear that political stability is
an important state interest and that incidental burdens on the
formation of minor parties are reasonable to protect that interest,
see
Storer, 415 U. S., at 736; on the other, we have struck
down state elections laws specifically because they give "the two
old, established parties a decided advantage over any new parties
struggling for existence,"
Williams v.
Rhodes,
393 U. S. 23,31
(1968).7 Between these boundaries, we have acknowledged that there
is "no litmus-paper test for separating those restrictions that are
valid from those that are invidious .... The rule is not
self-executing and is no substitute for the hard judgments that
must be made."
Storer, 415 U. S., at 730.
Nothing in the Constitution prohibits the States from
maintaining single-member districts with winner-take-all voting
arrangements. And these elements of an election system do make it
significantly more difficult for third parties to thrive. But these
laws are different in two respects 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
ultimate success on election day does not deprive them of the right
to try. Second, the establishment of single-member districts
correlates
Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 70-71
(1983), this history does provide some indication of the kind of
burden the States themselves believed they were imposing on the
smaller parties' effective association.
7 In
Anderson, the State argued that its interest in
political stability justified the early filing deadline for
Presidential candidates at issue in the case. We recognized that
the "asserted interest in political stability amounts to a desire
to protect existing political parties from competition," and
rejected that interest. 460 U. S., at 801-802.
380
directly with the States' interests in political stability.
Systems of proportional representation, for example, may tend
toward factionalism and fragile coalitions that diminish
legislative effectiveness. In the context of fusion candidacies,
the risks to political stability are extremely attenuated.8 Of
course, the reason minor parties so ardently support fusion
politics is because it allows the parties to build up a greater
base of support, as potential minor party members realize that a
vote for the smaller party candidate is not necessarily a "wasted"
vote. Eventually, a minor party might gather sufficient strength
that-were its members so inclined-it could successfully run a
candidate not endorsed by any major party, and legislative
coalition building will be made more difficult by the presence of
third-party legislators. But the risks to political stability in
that scenario are speculative at best.9
In some respects, the fusion candidacy is the best marriage of
the virtues of the minor party challenge to entrenched viewpoints
10 and the political stability that the two-party
8 Even in a system that allows fusion, a candidate for election
must assemble majority support, so the State's concern cannot
logically be about risks to political stability in the particular
election in which the fusion candidate is running.
9 In fact, Minnesota's expressed concern that fusion candidacies
would stifle political diversity because minor parties would not
put additional names on the ballot seems directly contradictory to
the majority's imposed interest in the stable two-party system. The
tension between the Court's rationale for its decision and the
State's actually articulated interests is one of the reasons I do
not believe the Court can legitimately consider interests not
relied on by the State, especially in a context where the burden
imposed and the interest justifying it must have some
relationship.
10 "[A]s an outlet for frustration, often as a creative force
and a sort of conscience, as an ideological governor to keep major
parties from speeding off into an abyss of mindlessness, and even
just as a technique for strengthening a group's bargaining position
for the future, the minor party would have to be invented if it did
not come into existence regularly enough." A. Bickel, Reform and
Continuity 80 (1971); see also
381
system provides. The fusion candidacy does not threaten to
divide the legislature and create significant risks of
factionalism, which is the principal risk proponents of the
two-party system point to. But it does provide a means by which
voters with viewpoints not adequately represented by the platforms
of the two major parties can indicate to a particular candidate
that-in addition to his support for the major party views-he should
be responsive to the views of the minor party whose support for him
was demonstrated where political parties demonstrate support-on the
ballot.
The strength of the two-party system-and of each of its major
components-is the product of the power of the ideas, the
traditions, the candidates, and the voters that constitute the
parties.ll It demeans the strength of the two-party system to
assume that the major parties need to rely on laws that
discriminate against independent voters and minor parties in order
to preserve their positions of power.12 Indeed,
S. Rosenstone, R. Behr, & E. Lazarus, Third Parties in
America: Citizen Response to Major Party Failure 4-9 (1984).
11 The Court of Appeals recognized that fusion politics could
have an important role in preserving this value when it struck down
the fusion ban. "[R]ather than jeopardizing the integrity of the
election system, consensual multiple party nomination may
invigorate it by fostering more competition, participation, and
representation in American politics."
McKenna, 73 F.
3d, at 199.
12 The experience in New York with fusion politics provides
considerable evidence that neither political stability nor the
ultimate strength of the two major parties is truly risked by the
existence of successful minor parties. More generally, "the
presence of one or even two significant third parties has not led
to a proliferation of parties, nor to the destruction of basic
democratic institutions." Mazmanian 69; see also The Supreme Court,
1982 Term-Independent Candidates and Minority Parties, 97 Harv. L.
Rev. 1, 162 (1983) ("American political stability does not depend
on a two-party oligopoly .... [H]istorical experience in this
country demonstrate[s] that minor parties and independent
candidacies are compatible with long-term political stability.
Moreover, there is no reason to believe that eliminating
restrictions on political minorities would change the basic
structure of the two-party system in this country").
382
it is a central theme of our jurisprudence that the entire
electorate, which necessarily includes the members of the major
parties, will benefit from robust competition in ideas and
governmental policies that "'is at the core of our electoral
process and of the First Amendment freedoms.'"
Anderson, 460 U. S., at 802, quoting
Williams
v.
Rhodes, 393 U. S., at 32.
In my opinion legislation that would otherwise be
unconstitutional because it burdens First Amendment interests and
discriminates against minor political parties cannot survive simply
because it benefits the two major parties. Accordingly, I
respectfully dissent.
JUSTICE SOUTER, dissenting.
I join Parts I and II of JUSTICE STEVENS'S dissent, agreeing as
I do that none of the concerns advanced by the State suffices to
justify the burden of the challenged statutes on respondent's First
Amendment interests. I also agree with JUSTICE STEVENS'S view, set
out in the first paragraph of Part III, that the State does not
assert the interest in preserving "the traditional two-party
system" upon which the majority repeatedly relies in upholding
Minnesota's statutes, see,
e. g., ante, at 367
("The Constitution permits the Minnesota Legislature to decide that
political stability is best served through a healthy two-party
system"). Actually, Minnesota's statement of the "important
regulatory concerns advanced by the State's ban on ballot fusion,"
Brief for Petitioners 40, contains no reference whatsoever to the
"twoparty system," nor even any explicit reference to "political
stability" generally. See
id., at 40-50.
To be sure, the State does assert its intention to prevent
"party splintering,"
id., at 46-50, which may not be
separable in the abstract from a desire to preserve political
stabil-
383
ity.l But in fact the State has less comprehensive concerns; the
primary dangers posed by what it calls "major-party splintering and
factionalism,"
id., at 47, are said to be those of
"turn[ing] the general election ballot into a forum for venting
intraparty squabbles,"
ibid., and reducing elections to "a
thinly disguised ballot-issue campaign,"
id., at 49. Nowhere
does the State even intimate that the splintering it wishes to
avert might cause or hasten the demise of the twoparty system. In
these circumstances, neither the State's point about "splintering,"
nor its tentative reference to "political stability" at oral
argument, n. 1,
infra, may fairly be assimilated to the
interest posited by the Court of preserving the "two-party system."
Accordingly, because I agree with JUSTICE STEVENS,
ante, at
378, that our election cases restrict our consideration to "the
precise interests put forward by the State as justifications for
the burden imposed by its rule,"
Anderson v.
Celebrezze, 460 U. S. 780, 789
(1983),2 I would judge the challenged statutes only on the
interests the State has raised in their defense and would hold them
unconstitutional.
I am, however, unwilling to go the further distance of
considering and rejecting the majority's "preservation of the
two-party system" rationale. For while Minnesota has made no such
argument before us, I cannot discount the possibility of a forceful
one. There is considerable consensus that party loyalty among
American voters has declined significantly in the past four
decades, see,
e. g., W. Crotty, American Parties in
Decline 26-34 (2d ed. 1984); Jensen,
1 Indeed, at oral argument, the State did hesitantly suggest
that it "does have an interest, a generalized interest in
preserving, in a sense, political stability .... " Tr. of Oral Arg.
26.
2 See also
Edenfield v.
Fane, 507 U. S. 761, 768 (1993)
(explaining that the midlevel scrutiny that applies in commercial
speech cases, which is similar to what we apply here, "[u]nlike
rational-basis review ... does not permit us to supplant the
precise interests put forward by the State with other
suppositions").
384
The Last Party System: Decay of Consensus, 1932-1980, in The
Evolution of American Electoral Systems 219-225, (P. Kleppner et
al. eds. 1981), and that the overall influence of the parties in
the political process has decreased considerably, see,
e.
g., Cutler, Party Government Under the American
Constitution, 134 U. Penn. L. Rev. 25 (1987); Sundquist, Party
Decay and the Capacity to Govern, in The Future of American
Political Parties: The Challenge of Governance 42-69 (J. Fleishman
ed. 1982). In the wake of such studies, it may not be unreasonable
to infer that the two-party system is in some jeopardy. See,
e. g., Lowi, N. Y. Times, Aug. 23, 1992, Magazine, p.
28 ("[H]istorians will undoubtably focus on 1992 as the beginning
of the end of America's twoparty system").
Surely the majority is right that States "have a strong interest
in the stability of their political systems,"
ante, at 366,
that is, in preserving a political system capable of governing
effectively. If it could be shown that the disappearance of the
two-party system would undermine that interest, and that permitting
fusion candidacies poses a substantial threat to the two-party
scheme, there might well be a sufficient predicate for recognizing
the constitutionality of the state action presented by this case.
Right now, however, no State has attempted even to make this
argument, and I would therefore leave its consideration for another
day.
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