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15. The Blanket Primary in the Courts

The Precedent and Implications of California Democratic Party v. Jones

Nathaniel Persily

In addition to the lessons it has taught political scientists about voting behavior, partisanship, and the effect of electoral rules, California's experiment with the blanket primary provided the courts with an opportunity to define the constitutional character of political parties and primary elections. In the case of California Democratic Party v. Jones, 120 S. Ct. 2402 (2000), California's political parties successfully challenged the blanket primary as unconstitutional under the First Amendment. Overruling the District Court and Court of Appeals that had upheld the initiative as a reasonable exercise of the state's power to increase participation and enhance the representativeness of elected officials, the Supreme Court of the United States, in a 7–2 decision, found Proposition 198 to be a "severe and unnecessary" (and therefore unconstitutional) burden on the political parties'protected freedom of association.

Both because of what they reveal about how judges and lawyers characterize political parties in the process of constitutional litigation and because of the questions they leave unanswered, the courts'decisions in the blanket primary case provide a rare colloquy on the proper role of the judiciary in the regulation of elections and political parties. The "legal" story of the blanket primary is, after all, one pitting the ultrademocracy of California's initiative process against the ultimate antidemocracy of the unelected federal judiciary, with the political parties (at times exhibiting both oligarchic and democratic tendencies) caught somewhere in between. The task thus confronting the courts became how to reconcile political party autonomy—which all agree is indispensable, at some level, to American democracy—with the democratic mandate announced by the majority of California's voters to rein in that autonomy at the critical stage of candidate nomination. As it had so frequently done in the past, the Supreme Court sided

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with the right of the parties to determine the content of their message and the identity of their standard bearer.

THE CONSTITUTIONAL STATUS OF POLITICAL PARTIES AND PRIMARY ELECTIONS BEFORE JONES

The blanket primary case was hardly the first opportunity for the Supreme Court to draw a line between the state's authority to organize the selection processes leading up to a general election and the parties'autonomy to decide the character of their membership and nomination procedures. Indeed, for those who have watched closely the Court's jurisprudence in this area, the Jones decision was the natural consequence of a series of "proparty" decisions emanating from the Court over the last half-century.

At the time Jones came before the U.S. District Court for the Eastern District of California in 1997, a few issues regarding the legal regulation of party nomination methods had become settled. First, in Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.), summarily aff'd, 429 U.S. 989 (1976), the Supreme Court summarily affirmed a lower court ruling rejecting voters' claims that closed primaries violated their First and Fourteenth Amendment rights. Because Connecticut required party membership as a precondition for participating in a party's primary, Ralph Nader and the other plaintiffs argued that the state "coerced" voters into becoming party members in order to vote for their preferred candidate. The Constitution, they maintained, both prohibits such compelled associations and guarantees each voter's right to participate in any state-sponsored elections that can have the effect of selecting government officials. The Court rejected this novel claim by emphasizing the importance of the party's associational right to exclude nonmembers from its primary and the minimal intrusion that party registration imposes on would-be primary voters.

The case is an interesting one, even if rarely cited and not too difficult to resolve, because it highlights the constitutionally relevant actors in cases challenging rules governing a primary. Three actors exist in every party regulation case: a party organization, a voter, and the state. In most of these cases, either a party or an individual argues that the state law violates its First Amendment right of expressive association. When an individual makes such a claim, as in Nader, he alleges that by depriving him of the opportunity to express his candidate preference in the primary, the state prevents him from "associating" with others who support a given candidate. When a party challenges an identical state law, as in Tashjian v. Connecticut, discussed below, it makes a somewhat different claim on associational freedom. The party argues that state regulation of its primary undermines the ability of the party association to define itself and select its membership, leaders, and message. The same state law establishing primary voter qualifications, as we

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will see, might be vulnerable to a party's, but immune from an individual's, associational rights claim. Moreover, the associational rights claims of individuals (i.e., to associate with a given candidate and his supporters) naturally run up against a party's right to define its association as including some people but not others.

The seeds for the Tashjian decision were sown with the Court's decision in Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981). The LaFollette Court adjudicated a challenge brought by the state of Wisconsin to the rules governing the seating of delegates at the 1980 Democratic National Convention. Those rules, in effect, prohibited the seating of delegates selected through primary systems that allowed the participation of non–party members. Wisconsin employed an open primary, meaning that any voter, regardless of party affiliation, could vote in the state's presidential preference primary. Because state law bound Wisconsin's delegates to vote in conformity with the results of the open primary, the delegates were not qualified to sit at the Democratic Convention.^[1] In this conflict between national party rules and state law, the Court sided once again with the party, holding that the party had a First Amendment right to specify the credentials necessary for participation in the national convention.

Much of the language of the LaFollette opinion has become standard for party autonomy cases. Although the case itself had a federalism spin—that is, it presented a unique conflict between an individual state law and national party rules—the Court exploited the opportunity to shore up a party's robust First Amendment right of association, which included the right to exclude outsiders from participating in its nomination processes. "The freedom to associate for the ‘common advancement of political beliefs,'" the Court held, "necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only" (LaFollette, 450 U.S. at 122, quoting Kusper v. Pontikes, 414 U.S. 51, 56 (1973)). "The inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party's essential functions—and … political parties may accordingly protect themselves ‘from intrusion by those with adverse political principles'" (id., quoting Ray v. Blair, 343 U.S. 214, 221–22 (1952)). After LaFollette it appeared that a national party convention enjoyed a degree of First Amendment protection from state regulation similar to that accorded to other meetings of private groups and associations. However, at the quadrennial national convention, a party takes on a momentary, even if heightened, associational form. Like a large Rotary Club, members assemble together to meet and discuss issues of collective concern; they craft the party's platform, choose its leaders, and stage a media event to broadcast the party's message to a larger audience. Whether the heightened associational protection

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for the convention would apply to a run-of-the-mill primary remained for the Court to decide in Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1996).

The law at issue in Tashjian was the same closed primary law upheld in Nader. This time, however, Connecticut's Republican Party, rather than an individual voter, brought a First Amendment challenge. Because the Republicans wanted to open their primary to independent voters and the Democratic legislature refused to change the law to allow them to do so, the party argued that the "state" violated its freedom to define the contours of its association. The state articulated interests typical for election laws: "administrability of the primary system, preventing raiding, avoiding voter confusion, and protecting the responsibility of party government" (id. at 217). As weighty and determinative as these concerns often are in the context of electoral regulation, the Court found them to be paternalistic in this particular context, a subterfuge for the state, which was dominated by one party (the Democrats), determining what was best for the party out of power (the Republicans). For, as Justice Thurgood Marshall's majority opinion explained,

Under these circumstances, the views of the State, which to some extent represent the views of the one political party transiently enjoying majority power, as to the optimum methods for preserving party integrity lose much of their force. The State argues that its statute is well designed to save the Republican Party from undertaking a course of conduct destructive of its own interests. But on this point "even if the State were correct, a State, or a court, may not constitutionally substitute its own judgment for that of the Party." The Party's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution. (Id. at 224)

Thus, after Tashjian, it was clear that the state could not force a party to restrict participation in its primary to party members. The precise question in Jones, however—whether a state could force a party to expand participation in its primary—remained unanswered.

The Supreme Court's final pre-Jones confrontation with state laws regulating party primaries came in Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989). Unlike these other cases that challenged state qualifications for voter participation in primary elections, Eu involved a law that barred political parties from endorsing candidates in primary elections and regulated parties'internal organizational structure. The Court considered the ban on endorsements as a clear violation of the party's freedom of expression: it regulated what the organization could say and print. The laws regulating party organizational structure—limiting the term of office to two years for state central committee chairs and requiring that the chair rotate between residents of northern and southern California—also

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infringed the party's First Amendment rights, in this case (as in Tashjian and LaFollette), the party's freedom of expressive association. "By regulating the identity of the parties'leaders," the Court held, "the challenged statutes may also color the parties'message and interfere with the parties'decisions as to the best means to promote that message" (id. at 231 n. 21).

Given the law's clear restriction on the party organization's speech and core associational decisions, Eu did not appear to be a difficult case in the abstract. What made the case interesting was the state's allegation that the parties had consented to the law by urging its earlier passage in the legislature. Thus, the Court was confronted with the question: Who speaks for and constitutes the party? Is it the party-in-the-electorate, whose main act of affiliation is voting in primary elections (Key 1964, 163–65)? Is it the party-in-the-legislature, which, under favorable conditions of majority control or acquiescence, can enact its internal regulations into state law? Or is it the professional party organizations and governing bodies, which, although frequently defined and regulated by state electoral law, most closely resemble the leaders of a private association? Indeed, as the very existence of the named plaintiff, San Francisco County Democratic Central Committee, suggested, even these traditional categories needed to be disaggregated to account for the different, geographically specific components of the party organization, for example. In a rare opinion that paid attention to this multidimensionality of political parties, Justice Marshall detached incumbent party legislators from local party organizations and average members. "We have never held that a political party's consent will cure a statute that otherwise violates the First Amendment." He wrote for the Court, "Simply because a legislator belongs to a political party does not make her at all times a representative of party interest. In supporting the endorsement ban, an individual legislator may be acting on her understanding of the public good or her interest in reelection" (489 U.S. at 226). Even bipartisan legislative consent to an election law, it appeared after Eu, could intrude on the "party's" rights—meaning that party members and officials outside of government would be forced to operate under a rule they did not choose. Even a subdivision of the party organization could now seek court protection from a law passed with the party's consent.

Of course, the Court does not side with party organizations in every case. When a party organization seeks to discriminate on the basis of race, the Court has been especially vigilant in protecting voters'rights at the expense of party autonomy. Moreover, when a minor party asserts its First Amendment rights, the Court has given greater weight to the state's interests in avoiding ballot confusion and preserving the integrity of elections.

The "race" cases begin with the so-called White Primary Cases, in which the Court scrutinized the electoral laws of Southern states, the rules of the

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state Democratic Party, and even the practices of informal subdivisions of the party under the Equal Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment's guarantee that voting rights not be abridged on account of race. Alongside poll taxes, grandfather clauses, literacy tests, and other more coercive tactics of disenfranchisement, white primaries were used by Southern states and state parties to prevent blacks from voting in what turned out to be the critical and determinative election in those one-party states.^[2] Between 1927 and 1953, the Court overruled its previous precedents and struck down a state statute that forbade the participation of blacks in the Democratic primary (Nixon v. Herndon, 273 U.S. 536 (1927)) and a statute that delegated to the party executive committee the power to determine qualifications to vote in a party primary, which it then exercised to ban blacks from primary voting (Nixon v. Condon, 286 U.S. 73 (1932)). Moreover, drawing on its decision in United States v. Classic, 313 U.S. 299 (1941), a case that upheld the prosecution under federal law of those stuffing primary ballot boxes because the primary was "an integral part of the election machinery," the Court struck down the Democratic Party's practice (apart from state law) of excluding blacks from primaries (Smith v. Allwright, 321 U.S. 649 (1944)). The Court held that "the recognition of the place of the primary in the electoral scheme makes clear that state delegation to a party of the power to fix the qualifications of primary elections is delegation of a state function that may make the party's action the action of the State" (id. at 660). Considering the primary in this way, the Court interpreted the Fifteenth Amendment as preventing a state "from casting its electoral process in a form which permits a private organization to practice racial discrimination in an election" (id. at 664). Then, in a highly fractured decision in the last of the White Primary Cases, Terry v. Adams, 345 U.S. 461 (1953), the Court extended this reasoning even to the conduct of an unofficial subdivision (or alter ego) of the party, whose candidate selection mechanism effectively determined the Democratic nominee that appeared on the ballot.

There are at least two ways to view the White Primary Cases. The first is to dismiss them as sui generis holdings limited to the unique party monopolistic conditions of the South and the fundamental importance of race to the post–Civil War amendments. After all, the Democratic primary in various Southern states constituted, for all practical purposes, the general election. The incumbent officeholders, party functionaries in the cloak of state law, or individuals with power equal to that of official state actors used the primaries to disenfranchise the voters whom the Fourteenth and Fifteenth Amendments were enacted to protect.

A second way to view the White Primary Cases, however, is to consider them definitive interpretations of the constitutional status of party primaries. Much of the language in those cases suggests that when the primary

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forms an integral part of the electoral machinery used to select governing officials, constitutional restrictions applicable to general elections would similarly apply. A short step away from that rule is a corollary maintaining that state or federal laws seeking to preserve those constitutional rights are also valid, meaning that the party (viewed more as a state actor than as a private association) cannot assert its First Amendment rights as a barrier to the enforcement of such a law. For example, when the Virginia Republican Party required the payment of a registration fee as a precondition to participation in the convention used to nominate the party's candidate for United States Senator, the Court held that the Voting Rights Act of 1964 applied (Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)).^[3] One of the questions confronting the Court in Jones was whether the blanket primary law—to the degree that it, like the Voting Rights Act, was expanding the franchise and enriching the constitutional protection of the right to vote—was similarly immune to the party's associational rights claims.

In the second class of "anti-party" opinions, the Court upholds state laws against First Amendment and Equal Protection challenges brought by minor parties. In such cases the Court has applied a balancing test, weighing the severity of the rights deprivation against the importance of the state interests and then determining whether the law is properly tailored toward the achievement of those interests. Such a test applies not only to minorparty cases, but also to most widely applied electoral rules, such as signature requirements for candidate petitions for ballot access. In the most recent case on point, the Court rejected a claim brought by the Minnesota New Party challenging the state's ban on "fusion" candidacies, which prohibited a candidate from appearing on the ballot as the candidate of more than one party (Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)). The New Party wanted to nominate the same candidate whom the Democrats had nominated. Although it reemphasized its holdings in Eu and Tashjian that the party has the right to choose its own "standard bearer," the Court did not consider the fusion ban a severe burden on the party's rights. Although the law prevented the party's preferred candidate from appearing alongside the party's name on the general election ballot, the party's members still had an opportunity to vote for that candidate on another party's line. Thus, the Court found that the state's interests in the fusion ban—preserving the integrity of the ballot and stabilizing the twoparty system—justified this minor intrusion on the party's rights.

THE DISTRICT COURT DECISION IN JONES

The U.S. District Court that initially heard the challenge to California's blanket primary law relied heavily on Timmons. Performing the balancing test familiar to election law cases, Judge David Levi found that the blanket

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primary imposed "a significant but not severe burden on the [parties'] associational rights," and that the state's interest in "enhanc[ing] the democratic nature of the election process and the representativeness of elected officials" was "substantial, indeed compelling" (California Democratic Party v. Jones, 984 F. Supp. 1288, 1300–1301, 1303 (E.D. Cal. 1997)). On the constitutional scales, as Judge Levi viewed them, the balance appeared to tip just slightly in favor of the state, and thus the blanket primary was constitutional.

The District Court opinion in Jones is revealing both because, on the one hand, it appears to be the most honest attempt yet to perform the balancing test typical of election law cases, and, on the other, it shows why such "balancing" inevitably masks a threshold determination on the importance of party autonomy under the First Amendment. After pointing out that neither Tashjian nor LaFollette dealt with the precise question at issue and that the Alaska and Washington Supreme Courts had already upheld the blanket primaries against these precise constitutional challenges (see O'Callaghan v. Alaska, 914 P. 2d 1250 (Alaska 1996); Heavey v. Chapman, 93 Wash.2d 700 (1980)), the District Court proceeded to state the Timmons balancing test:

When deciding whether a state election law violated 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. 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." (Jones, 984 F. Supp. at 1294, quoting Timmons, 520 U.S. at 358)

En route to characterizing the rights deprivation at issue, the Court then spent several pages distinguishing parties'associational rights from those of other private clubs and associations. Emphasizing the distinctive tripartite nature of the party (government-electorate-organization),^[4] the Court pointed out that states have substantial regulatory authority over parties that they could not exercise over other private associations: they define the qualifications for membership (i.e., you need only be a registered voter) and can specify the form of the selection process (i.e., mandate primary elections). And the majority of states have laws that allow non–party members to choose any party's ballot on primary election day. Thus, parties' associational rights are neither absolute nor of the same character as "true," out-of-government, private associations.

While not absolute, the rights at issue were not to be dismissed out of hand by the Court. Judge Levi therefore engaged in a detailed factual inquiry—of

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both the probable consequences of the blanket primary for California and the experience of Washington and Alaska—to determine the severity of the burden on the parties'First Amendment rights. He found concerted party raiding to be unlikely and "benevolent cross-over voting" to hover on average at around 15 percent and rarely to change the outcome of an election. While admitting that the purpose of the blanket primary was to "wrest control" from the party and its members and thus impose a "significant" burden on their First Amendment rights, the Court found that the evidence from strong parties in Washington and the open primary states suggested that inclusion of nonmembers in the primary "will not diminish the efficacy or strength of the political parties in California by any substantial degree" (Jones, 984 F. Supp. at 1300).

Placing on one side of the scales this "significant," though "not severe," burden, Judge Levi then turned toward weighing the state's interest to discover whether it was sufficiently "important." He viewed the blanket primary as akin to other Progressive Era reforms (e.g., direct election of senators, the innovation of the primary itself, and the referendum and initiative) that sought to open up the electoral process and restore popular accountability to a system plagued by party bosses and machines. The blanket primary "enfranchised" independent voters and members of minority parties in safe districts by allowing them, without affiliating with a particular party, to participate in the critical election that determined the identity of the officeholder. An intended side-benefit of this enfranchisement would be the election of more moderate candidates who would be more representative of their districts and less beholden to party members and activists. Thus, as in Timmons and various ballot access cases, the state articulated an interest deeply rooted in the American constitutional tradition: the prevention of factionalism. Like those measures that enhanced the stabilizing forces of America's two-party system (e.g., heightened ballot access requirements for third parties and independent candidates, prohibitions on "sore loser" and fusion candidacies), so too the blanket primary sought to mute the divisive forces of even the two-party system—organizing the electorate in such a way as to produce the candidate most likely to be representative of the median voter in a given constituency. These interests in expanding participation and enhancing representation, combined with the significant and unique fact that a majority of the members of both political parties (i.e., the parties in the electorate) supported Proposition 198, were sufficiently "important," "substantial," and even "compelling" that parties could not use the First Amendment as a veto to strike down the popular will.

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THE SUPREME COURT DECISION IN JONES

Observers may look at the lopsided (7–2) Supreme Court decision in Jones as somehow suggesting that this was an easy case. But not only did Judge Levi sustain the blanket primary, as did the three-judge appellate panel that adopted his opinion as their own, but four justices on Alaska's Supreme Court and nine on Washington's had also found the blanket primary constitutional within the previous five years.^[5] Moreover, an eclectic group of amici curiae filed briefs on both sides in the case.^[6] Given the Supreme Court precedents in Tashjian, LaFollette, and Eu, though, the trend in the law seemed pretty clear, and Justice Scalia's opinion for the seven-member majority treated it as such.

The Supreme Court's decision was striking for a number of reasons, however. First, its author, Justice Scalia, along with Justice O'Connor and Chief Justice Rehnquist, dissented in Tashjian; that is, they believed that a state had the right to close off its primary even when a party demanded the right to open it up to independents. Second, the mode of inquiry differs substantially from the obsessive balancing and hand-wringing engaged in by Judge Levi. The Timmons balancing test barely presents itself, reduced to a blurb that says, "[R]egulations imposing severe burdens … must be narrowly tailored and advance a compelling state interest" (Jones, 120 S. Ct. at 2412), and implying that no interest could justify the type of intrusion on party rights portended by the blanket primary.

The Supreme Court considered the same evidence of the threat to party autonomy as did the District Court; it just came to a different conclusion. Whereas the District Court focused on the primary as a highly regulated activity, the Supreme Court viewed the "candidate-selection process" as the " ‘basic function of a political party'" that was "adulterated" "by opening it up to persons wholly unaffiliated with the party." Whereas the District Court saw the blanket primary as causing the infrequent scenario of non–party members casting decisive primary votes, the Supreme Court viewed the blanket primary as having the intended effect of "changing the parties' message," "hijack[ing] the party," and presenting a "clear and present danger" of "having a party's nominee determined by adherents of an opposing party." The Court "could think of no heavier burden on a political party's associational freedom." "There is simply no substitute for a party's selecting its own candidates," the Court concluded (id. at 2412).

The Supreme Court found the state's interests in the blanket primary insufficiently compelling to justify the law's intrusion on the parties' associational freedoms. Those interests included: (1) producing elected officials who better represent the electorate; (2) expanding candidate debate beyond the scope of partisan concerns; (3) enfranchising independents and voters in "safe" districts; (4) promoting fairness by allowing any voter,

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regardless of party affiliation, the equal choice at the ballot box; (5) expanding choices by allowing any voter to vote from an array of candidates; (6) increasing voter participation; and (7) protecting their privacy by not forcing them to reveal their party affiliation. All of these interests depended on a characterization of the primary election as a public, government sponsored, first-stage general election, a characterization the Court rejected at the outset. After all, how could increasing debate, representation, choice, or participation be a state interest when that increase would occur wholly within a selection process the Court (and therefore the Constitution) considers a "private" decision? Indeed, not only was there no state interest in changing the character of a primary election to produce a particular result, but it was that very feature of the blanket primary that made the law unconstitutional.

The real nail in the coffin of the blanket primary, though, came when the Court considered whether the means used by the state were appropriately tailored to achieve the ends the state listed. Given the rigor of its analysis in executing the balancing test, one cannot help but be mystified by the District Court's suggestion that "the fundamental goal of enhancing representativeness by providing all voters with a choice that is not predetermined by party members alone can only be advanced by the blanket primary" (Jones, 984 F. Supp at 1303). Justice Scalia prepared the appropriate response: a nonpartisan primary could achieve all of the alleged state interests without the concomitant hijacking of the party's candidate selection process. Such a primary allows voters to choose from the entire field of candidates and winnow them down for the general election, but not "force the political parties to associate with those who do not share their political beliefs" (Jones, 120 S. Ct. at 2414). For the Supreme Court majority, then, the blanket primary cut out the heart of the party where the First Amendment was supposed to be its shield. Or, as Justice O'Connor put it at oral argument, the primary is "precisely the point at which the associational interest of the party is at its zenith. … What's left [of any associational rights], if this can stand?" (California Democratic Party v. Jones, No. 99–401, 2000 WL 486738 at *26; oral argument transcript).

Justice Stevens's dissent, joined by Justice Ginsburg, relied on a wholly different interpretation of the constitutional character of a party primary. Drawing on the White Primary Cases, the dissent considered California's primary, funded as it is by public money and conducted by state officials, the "quintessential [form] of state action" and "an election, unlike a convention or a caucus, … a public affair" (Jones, 120 S. Ct. at 2418, Stevens, J., dissenting). Party associational rights thus take on a completely different character in this context, as opposed to a case, such as Eu, where the parties' core First Amendment right to expression was at stake.

Moreover, for the dissent, the motivation behind the law—to encourage

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electoral participation—distinguished this case from Tashjian, where the law sought to restrict participation. "When a State acts not to limit democratic participation but to expand the ability of individuals to participate in the democratic process," the dissent argued, "it is acting not as a foe of the First Amendment but as a friend and ally" (id.). First Amendment interests fell on both scales of the constitutional balance, according to the dissent. Although it may have limited the power of party activists to control primary outcomes, the blanket primary expanded expression by allowing all voters the opportunity to pledge their support to the candidate of their choice. That same pro-participation justification underlies virtually every state's decision to intrude on party autonomy by mandating the primary as the form of nomination method or allowing some nonmembers to choose the ballot of the party of their choice on election day. Justice Stevens therefore warned, "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" (id. at 2420).

THE AFTERMATH OF JONES

The Supreme Court's decision in Jones was, in one sense, unsurprising, as it did follow a long string of decisions, such as LaFollette, Tashjian, and Eu, bolstering party associational rights. So long as the issue is neither race nor a third party's assertion of rights that might destabilize the two-party system or confuse the ballot, the Court will generally side with the political party against either a state law trying to rein it in or an individual claiming the party rules, as in Nader, violate his First or Fourteenth Amendment rights. But Jones represents the most emphatic defense yet of a robust First Amendment right of party autonomy, and in the coming years state governments may reconfigure their electoral laws to comply with it.

The Implications for Other Types of Primaries

The first question states will ask is the one Justice Stevens announced in his dissent: What about open primaries? While stating quite specifically that Jones "does not require us to determine the constitutionality of open primaries," Justice Scalia tried to distinguish them from blanket primaries by saying that at least under the open primary voters "affiliate" with a party—that is, confine themselves to a single party's primary ballot for the time they spend in the voting booth. That distinction may have been necessary to avoid calling into question the primary systems in most states, but when

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juxtaposed alongside the broad declarations of the party's First Amendment right not to associate with those who share different beliefs, it loses much of its force.

This line-drawing problem is both familiar to constitutional law (particularly in the election law context) and was probably unavoidable irrespective of the holding in Jones. Although Jones took one issue off the table by affirming the right of states to mandate primaries as the format for selecting party nominees,^[7] every type of state-mandated primary still burdens a party's associational rights to some degree. Even a closed primary, which requires voters to declare their affiliation some time in advance of the primary in order to vote in it, forces parties to accept voters with whom they might not want to affiliate. For example, a law that allows voters to change parties up until a week before the primary election infringes on the party's right to require more than an ephemeral, one-election commitment for membership. A judicial foray into the esoterica of the amount of time the Constitution allows states to require for a demonstration of "authentic" membership may be unlikely, but courts will soon need to decide whether laws that force parties to include independents and / or non–party members in their primaries are constitutional.

The only real difference between an open primary and a blanket primary, after all, is that under a blanket primary, voters can change their "party affiliation" as they go down the ballot, whereas the open primary forces voters to commit to one party's entire ballot. Given the variety of open primary systems, however, characterizing a voter's commitment to a party's primary ballot as an "act of affiliation" presents some difficulties. Some open primary states allow voters to change their party affiliation up until election day; others just don't ask (or even keep records of) voters' party affiliation and allow voters to choose whichever ballot they wish; still others give voters all parties'ballots when they enter the voting booth and allow them to privately cast votes on the party's ballot of their choosing.

The current stopping point—allowing a state to require open primaries, but not blanket ones—may be arbitrary but easier to specify than others. In addition to the Court's contention that open primaries require at least a day's worth of affiliation, one possible rationale for choosing this stopping point could be an empirical argument that blanket primaries make crossover voting much more likely.^[8] Therefore, according to the Court's logic, blanket primaries present a more "clear and present danger" of "having a party's nominee determined by adherents of an opposing party" (Jones, S. Ct. 120 at 2410). A stronger case might even be made for those states that allow only independents to "cross over" on election day: One could argue that such a system is the best marriage between the state's interest in increasing participation (i.e., allowing everyone to cast a ballot on primary

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day) with the party's interests in preventing as few "outsiders" as possible from casting what might be decisive votes. Nevertheless, the language of Jones will be nearly impossible to get around:

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." … The voter's desire to participate does not become more weighty simply because the State supports it. … The voter who feels himself disenfranchised should simply join the party. (Id. at 2413, quoting Tashjian, 479 U.S. at 215–16 n. 6)

These same arguments will apply with equal force to open primaries.

Party Consent and Initiative versus Legislative Lawmaking

Because California's voters passed the blanket primary law by popular initiative, Jones presented a unique opportunity for the Court to address fundamental questions regarding the relevance of the source of a party regulation and the proper entity that enjoys a party's rights. By treating this case like the state-legislated restrictions on party autonomy in Tashjian, LaFollette, and Eu, the Court chose not to take advantage of this opportunity.

The alignment of the litigants in Jones was perhaps as interesting as the result. All political parties (both major and minor) joined together to sue the state, with the citizen group that proposed Proposition 198, "Californians for an Open Primary," intervening on the state's behalf. Thus, the facts were quite different than in Tashjian, for example, where the "state" meant the party controlling the legislature and preventing the party out-of-power from organizing itself in the way it preferred. Here, the party organizations litigating the case appeared at odds with their membership, the majority of whom voted in favor of the restriction on party autonomy. The "state" meant the parties'membership, and the party organizations sought vindication of their own right of expressive association at the expense of the preference already expressed by the parties-in-the-electorate. Unlike the dissent or the District Court, the Supreme Court majority found it unimportant that a majority of voters in each party supported the blanket primary initiative. Unfortunately for the state, so did its attorney, who admitted at oral argument that "it should not make any constitutional difference whether this was passed by initiative or by the legislature" (oral argument transcript at *35).

The Court has never drawn a constitutional distinction based on the source (i.e., popular or legislative) of a restriction on First Amendment or other rights,^[9] nor has it adopted a rigorous definition of what exactly the "party" is whose associational rights rise to First Amendment protection. The opinion in Eu, discussed above, came the closest. It, combined with

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Jones, appears to stand for the proposition that the party organization, representing that aspect of the party most like a "pure" First Amendment association, is the entity that "speaks" (and therefore litigates) on behalf of the party. Unanimous support for a law, either in the legislature or at the ballot, can still be constitutionally suspect if the party organization objects.

These questions of "who" can vindicate the party's associational rights and how to know when the party has given its consent may become important in the litigation spawned by Jones. The shadow that Jones cast over the open primary systems in most states may be somewhat illusory because, like the Republican Party in Tashjian, many state parties actually want to open up their primaries to outsiders in order to elect more competitive candidates, and they have enacted bylaws and internal rules to that effect. The Democratic and Republican Parties rarely need judicial protection to implement their preferred nomination method. Only when its opponents or a segment of the party itself use state power to impose an undesired nomination method does a political party go to court.

State Interests in Expanding Participation and Enhancing Representation

"Political participation" is a tricky and elastic concept. For the state, the District Court, and the dissent in Jones, the blanket primary, quite obviously, expanded participation; that is, it maximized the opportunity for influence of every voter. After all, blanket primary voters, regardless of party affiliation, can cast two ballots to express their candidate preferences: one for their top choice among all candidates in the primary and another for their preferred candidate in the general election. But there are many different ways to define as well as increase participation. Had the Court taken the invitation of the state and found such an interest compelling, there is no reason to believe that it could only justify elements of the Progressive program such as the blanket primary.^[10]

The Progressive argument overlooks the fundamental, indeed irreplaceable, role that strong parties have played as the principal institutions fostering participation not only in American democracy, but throughout the world. In particular, when parties are more easily identified with other social groupings—what political scientists call "party-group linkages" (Powell 1982)—voter turnout tends to be higher. When party differences are blurred, parties less relevant as electoral institutions, and voters less connected to parties—in other words, the intended effects of the blanket primary—participation both at the polls and in other aspects of the democracy tends to decline. The same counterintuitive effects are found in other aspects of the Progressive program, such as direct democracy. The longer the ballot, the more propositions and offices placed to a popular vote, the less likely that a given voter will actually complete the entire ballot. Indeed,

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the mere existence of primary elections has contributed, some argue, to lower voter turnout at the general election (Boyd 1989).

These contentions about the role of parties in fostering turnout are not uncontroversial. But neither are the Progressive arguments about the seemingly obvious pro-participation consequences of certain institutional reforms. In the constitutional balance, then, the state interest in "expanding participation" could be offered in support of all types of primary systems.

Similar arguments can be made with regard to representation. Why is a system that channels elections toward the choice of the median voter in each district necessarily more representative than one that represents the diversity and extremes of opinion throughout the state? Are "Tweedle-dee" and "Tweedle-dum" parties—that is, those that straddle the ideological middle ground instead of seeking some differentiation—more representative than ones catering to more divergent interests? Political theorists could advance good arguments for both sides. Had the Court deemed "fostering representativeness" a compelling state interest, however, a law seeking party differentiation, such as that at issue in Tashjian, could just as easily have latched onto that justification.

Minor and Major Parties

One of the traditionally unspoken secrets in the cases adjudicating party associational rights is that major and minor parties have a different constitutional character. Quoting Justice Powell's dissent in LaFollette, the District Court in Jones explained, "The major political parties lack the unity of purpose and cohesive membership characteristic of most private organizations. The major political parties ‘have been characterized by a fluidity and overlap of philosophy and membership.'It can hardly be denied that [the parties] generally [have] been composed of various elements reflecting most of the American political spectrum" (Jones, 984 F. Supp. at 1296, quoting LaFollette, 450 U.S. at 133 (Powell, J., dissenting)). Although they recognize the differences between major and minor parties, courts have not yet assigned to them different constitutional values^[11]—admitted that one is less a state actor than the other or that one has a greater or lesser claim to First or Fourteenth Amendment protection.

Along the constitutional continuum between state actors and private associations, most would agree that minor parties, clinging as they do to more narrow ideologies or group affiliations, would be closer to the association pole than would the Democrats and Republicans (although the Democrats and Republicans of today would appear more ideologically cohesive than the major parties of thirty years ago (Rohde 1991)). Historically, minor parties'role in American democracy has been to elevate issues on the national agenda that the major parties later co-opt (Rosenstone,

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Behr, and Lazarus 1996, 8–9). They are, in a sense, pure First Amendment creations, existing less to gain elective office than to "express" a particular point of view, sometimes only on a single or limited number of issues. And as Christian Collet's earlier chapter (chapter 11) in this volume demonstrated, to the degree that crossover voting constitutes a threat to a party's First Amendment associational rights, that threat was orders of magnitude greater for California's minor parties, whose primaries sometimes gained twenty times more voters than under the previous closed system.

Although the Court has failed to develop a more textured constitutional analysis that accounts for the differences between major and minor parties, the cases the Jones opinions used in their respective arguments helped point in some directions. First, the majority opinion in Jones, by virtually ignoring Timmons and the other cases where minor parties sought ballot access or other rights, suggests quite strongly that the familiar election law balancing test rarely applies when major-party associational rights are involved. Stated a bit differently, if a court concludes that a law constitutes a "severe" intrusion on a major party's freedom of association—and after Jones, a severe intrusion exists whenever the law allows outsiders to "adulterate" the party's message—the inquiry ends, the law is unconstitutional. Had only the Libertarian and Peace and Freedom Parties—that is, truly ideological and "expressive" parties—challenged the blanket primary, we can only wonder whether the same result would have followed. Second, because Timmons reaffirms that preserving a stable two-party system is a "strong" and probably "compelling" state interest, interesting questions might arise in situations where only minor parties consider their associational rights in jeopardy. That concern should not be overblown, however. Several of the minorparty-friendly ballot access cases probably provide a ceiling on how far the state can go in intruding uniquely on minor-party rights; see, for example, Anderson v. Celebrezze, 460 U.S. 780, 793–94 (1983): "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. It discriminates against those candidates and—of particular importance—against those voters whose political preferences lie outside the existing political parties" (citing Clements v. Fashion, 457 U.S. 957, 963–64 (1982); plurality opinion).

CONCLUSION

This chapter has attempted to highlight the constitutional causes and consequences of the Supreme Court's decision to strike down California's blanket primary. Elsewhere one editor of this book and I have set forth the schools of thought underlying the judicial opinions in cases involving political parties more generally, and the normative concerns we think judges

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ought to take into account in their decisions assessing the constitutionality of laws that intrude on party autonomy specifically (Persily and Cain 2000). The U.S. Constitution, properly described by some scholars as "a constitution against parties" (Hofstadter 1969, chap. 5), is not terribly helpful when it comes to adjudicating party autonomy cases such as California Democratic Party v. Jones. Given their unique position and role among America's democratic institutions, the political parties do not fall neatly into the analytical boxes developed for other constitutional controversies regarding state action, equal protection, or the freedoms of expression and association. The Supreme Court's decision in Jones, while representing an "interpretation" of the First Amendment, also stands as the latest chapter in the chronicle of judicial development of the concept of party autonomy. Like those that preceded it, this newest one may create more questions than it answers. In upcoming decisions, we will learn whether the primary systems currently governing the majority of states are also constitutionally suspect.

NOTES

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REFERENCES

Boyd, Richard. 1989. “The Effects of Primaries and Statewide Races on Voter Turnout.” Journal of Politics51: 730–39. California Democratic Party v. Jones, No. 99–401, 2000 WL 486738 at *26 (oral argument transcript).

Hofstadter, Richard. 1969. The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840. Berkeley: University of California Press.

Issacharoff, Samuel; Pamela S. Karlan; and Richard H. Pildes. 1998. The Law of Democracy: Legal Structure of the Political Process.New York: Foundation Press.

Key, V. O., Jr. 1964. Politics, Parties, and Pressure Groups. New York: Thomas Y. Crowell.

Persily, Nathaniel. 1997. “The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum, and Recall Developed in the American West.” Michigan Law and Policy Review2:11–41.

Persily, Nathaniel, and Bruce E. Cain. 2000. “The Legal Status of Political Parties: A Reassessment of Competing Paradigms.” Columbia Law Review100: 775–812.

Powell, G. Bingham, Jr. 1982. Contemporary Democracies: Participation, Stability, and Violence. Cambridge, MA: Harvard University Press.

Rohde, David W. 1991. Parties and Leaders in the Postreform House. Chicago: University of Chicago Press.

Rosenstone, Steven J.; Roy L. Behr; and Edward H. Lazarus. 1996. Third Parties in America: Citizen Response to Major Party Failure. Princeton, NJ: Princeton University Press.

CASES CITED

American Party of Texas v. White, 415 U.S. 767, 781 (1974).

Anderson v. Celebrezze, 460 U.S. 780 (1983).

Bullock v. Carter, 405 U.S. 134 (1972).

California Democratic Party v. Jones, 984 F. Supp. 1288 (E.D. Cal. 1997), aff'd 169 F. 3d 646 (9th Cir. 1999), rev'd 120 S. Ct. 2402 (2000).

Clements v. Fashion, 457 U.S. 957 (1982).

Cousins v. Wigoda, 418 U.S. 477 (1975).

Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981).

Duke v. Massey, 87 F. 3d 1226 (11th Cir. 1996).

Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989).

Heavey v. Chapman, 93 Wash. 2d 700 (1980).

Kusper v. Pontikes, 414 U.S. 51 (1973).

Morse v. Republican Party of Virginia, 517 U.S. 186 (1996).

Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.), summarily aff'd, 429 U.S. 989 (1976).

Nixon v. Condon, 286 U.S. 73 (1932).

Nixon v. Herndon, 273 U.S. 536 (1927).

O'Callaghan v. Alaska, 914 P. 2d 1250 (Alaska 1996).

Ray v. Blair, 343 U.S. 214 (1952).

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Smith v. Allwright, 321 U.S. 649 (1944).

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1996).

Terry v. Adams, 345 U.S. 461 (1953).

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

United States v. Classic, 313 U.S. 299 (1941).