*1 JONES, CALIFORNIA DEMOCRATIC PARTY et al. SECRETARY CALIFORNIA, OF STATE OF etal.
No. 99-401. Argued April 24, 2000 26, 2000 June —Decided *2 J., Scalia, Court, delivered the in which Rehnquist, opinion J., C. O’Connor, JJ., and Kennedy, Souter, Thomas, Breyer, joined. J., Kennedy, filed a concurring opinion, post, p. 586. Stevens, J., J., filed dissenting opinion, joined I, in which toas Ginsburg, Part post, 590. p. Waters
George cause for With argued petitioners. him on the briefs Olson, Hill, were Lance H. N. Eugene Charles H. Bell, Jr.
Thomas F. Gede, Assistant Special General Attorney California, the cause for him argued With respondents. on the brief were Bill General, Manuel Lockyer, Attorney Medeiros, Andrea M. General, Senior Assistant Attorney Hock, General, Lynn Lead Attorney Supervising Deputy and James P. Clark.* delivered the Court. opinion
Justice Scalia This whether ease State presents question California consistent with the First Amendment may, Constitution, the United States use a so-called “blanket” for determine nominee political party’s election. general
I Under California law, candidate for office has two public routes to access to the ballot most state and for gain general federal elective offices. He receive the nomination of *3 a its see qualified Cal. political party by winning primary,1
*Briefs of amici curiae for the Forum urging Eagle reversal were filed Education & Legal Jaffe; Repub- Defense Fund et al. Erik S. for the by lican by National Committee et al. E. J. Joseph Sandler and Thomas Josefiak; Alaska, Inc., and for the et al. Kenneth Republican Party by P. Jacobus.
Briefs amici curiae affirmance filed for the State of urging were Washington by et al. Christine 0. General of Wash- Gregoire, Attorney Hart, General, ington, Maureen A T. Attorney Jeffrey Senior Assistant Evan, General, Botelho, Attorney Assistant Attorney Bruce General Alaska, Schweitzer; and Dan for Davis De- Gray by California Governor Boutris, Shuman, metrios A D. and Shelleyanne Chang, Robert W L. Sumner; (AVOP) Allen for Open Primary by Alaskan Voters for an Max Jr., Gruenberg, F. by for Senator William E. Brock al. et James M. Johnson. Briefs of amici curiae were filed for Center Justice the Brennan for Neubome;
by Burt and for the Northern California Committee for Renewal et al. E. Mark Braden. (1)
1A party is if it qualified meets one of three conditions: last the gubernatorial election, one of its statewide candidates at least two polled (2) percent vote; of the statewide is at one party’s membership least percent election; of the statewide vote at the preceding gubernatorial last (3) or voters numbering at percent least 10 of the statewide vote at the last gubernatorial election a intend petition stating to form sign (West 2000). § a new See Cal. party. Elec. Code Ann. 5100 and Supp. 1996 570 (West 13105(a) 1996); may- he
Elec. or §§15451, Code Ann. race) (for obtaining independent by a statewide file as an signatures percent or electorate of one State’s (for races) voting percent signatures of the other of three population represented by in contest, of the the office area §8400. see qualified
Until to determine the nominees partisan pri- California held what is known as a “closed” mary, only politi- persons in which who are members of the party cal e., who declared with that have affiliation —i. they register §§2150, when Cal. Elec. Code Ann. vote, see (West 2000) Supp. nominee, vote on its —can (West 1996). §2151 see Cal. Elec. Code Ann. Proposition adopted citizens of 198. California initiative largely Promoted “weaken” as measure that would way problem- “hard-liners” and ease the for “moderate App. pamphlet solvers,” (reproducing 89-90 ballot dis- voters), changed Proposition tributed to California’s partisan primary primary primary. from a closed a blanket system, persons “[a]ll Under the vote, new entitled to includ- ing any political party, those not affiliated with shall have any regardless ... for vote candidate §2001 candidate’s affiliation.” Cal. Elec. Code Ann. (West §2151. 2000); Supp. see also Whereas under closed each limited to can- voter received ballot party, didates of his each own as result of every regardless *4 voter’s ballot now lists candidate party freely affiliation and allows the voter to choose among them. It the the candi- remains case, however, party date greatest of each who wins the number of votes party ensuing general “is the nominee of that at the elec- (West 1996).2 § tion.” Cal. Elec. Code Ann. 15451 2California’s new primary directly blanket does not to system apply the apportionment of See Cal. Elec. Code delegates. Presidential Ann. (West §§15151, 2000). Instead, 15500 the State Supp. tabulates the Presidential primary ways: two to the number of votes according parties political Cali- are four in this ease Petitioners —the Party, Republican Party, California Democratic fornia and Free- Party the Peace and California, the Libertarian persons not prohibiting Party of which has a rule dom —each primary.3 party’s voting party from members Court brought District United States suit in the Petitioners respondent against District of California for the Eastern that Cali- Secretary alleging, alia, inter State, California Amendment their First blanket violated fornia’s injunctive declaratory and rights seeking association, Primary, also Open group for an relief. The Californians District respondent, party defendant. The intervened aas inject each recognized into law would that the new Court unaffiliated numbers of voters substantial (1997). It fur- party. Supp. 1288,1298-1299 984F. with a nomi- might recognized in selection ther that this result select, or would from the one members nee different himself to commit at the least cause the same nominee Nevertheless, the District positions. Id., different at 1299. rights petitioners’ of asso- Court held that the burden on justified inter- state ciation not a and was one, was severe “enhancing] ultimately reducing the democratic ests to this: representativeness of process nature of the election and the adopting Circuit, Ninth Id., elected officials.” 1301. The F. 3d opinion own, the District as its affirmed. Court’s (2000). (1999). granted We certiorari. 528 U. S. pool according each candidate received from entire voter par- The national amount each received from own party. members of his Nor does delegates. ties then may use the latter figure apportion mem- committee the election of or district apply central Elec. bers; only elections. See Cal. party members vote in these (West 2000). §2151 Code Ann. 1996 and Supp. law when Each of four under California qualified was time, appar has filed this Peace and Freedom suit. Since that Child (citing Petitioners 16 ently qualified lost its status. See Brief for B-6). Times, 17,1999, Feb. Slips, Angeles p. of the ’60s Los *5 572
II Respondents rest their defense primary of the blanket upon proposition primaries play integral an role in public citizens’ selection of consequence, officials. As a they primaries public contend, private are pro- rather than ceedings, may and the play States and must a in role en- suring public serve the interest. 198, respondents simply pedestrian conclude, is example rather regulating system of a State’s its of elections. recognized,
We have
major
course, that States have a
play
role
structuring
in
monitoring
proc-
the election
including primaries.
ess,
See Burdick v. Takushi, 504 U. S.
(1992);Tashjian
433
428,
Republican Party
v.
479
Conn.,
(1986).
U. S. 208, 217
We have considered
plain
it “too
for
argument,”
example,
for
that a
require parties
State
primary
use the
selecting
format for
their
in
nominees,
order to
intraparty
assure that
competition is
resolved
a democratic
fashion. American
White,
Tex. v.
(1974);
767,
U. S.
Tashjian,
see also
supra, at 237
dissenting). Similarly,
J.,
in order to
bur-
avoid
(Scalia,
dening
general
election ballot with frivolous candida-
may require
cies, State
signifi-
demonstrate “a
cant
support”
modicum of
allowing
before
their
candidates
place on that ballot.
Jenness
See
v. Fortson, U. S.
(1971).
Finally, prevent
order to
“party raiding” —a
process in which dedicated
party formally
members of one
switch
to another
to alter the outcome
that party’s
may require
State
party registration a reason-
—a
period
able
of time
before a
election. See Rosario
(1973).
v.
410 U.
Kusper
S. 752
Rockefeller,
Pontikes,
Cf.
(1973) (23-month
unreasonable).
414 U. S. 51
period
waiting
What
have
we
not held,
processes by
however,
is that
political parties
which
select their
are,
nominees
as re-
spondents
wholly public
would have it,
affairs that States
*6
may regulate freely.4
contrary,
To the
we have continu-
ally
regulate parties’
stressed that when States
internal
processes they
imposed
must act within limits
the Con-
e.g.,
County
See,
stitution.
Eu v. San Francisco
Demo-
(1989);
cratic
Comm.,
Central
214
489 U. S.
Democratic
Follette,
United States v.
ex
Wisconsin
rel. La
(1981).
regard, respondents’
S. 107
In this
reliance on
(1944),
Allwright,
Smith
Terry
v.
Adams,
321U. S. 649
and
(1953), misplaced.
Allwright,
Representative democracy any populous gov- ernance is without of citizens to ability unimaginable band candidates the electorate together promoting among who their The formation of national views. espouse was almost concurrent with formation political parties The itself. See Jeffersonian Republic Cunningham, in 1 Political Parties U. S. Republican Party, History (A. 1973). with this tradi- ed. Consistent Sehlesinger tion, the has Court the First Amendment recognized “the freedom to protects furtherance together join *7 Tashjian, supra, common beliefs,” 214-215, at which political the freedom “necessarily identify presupposes people who constitute the association, and to limit the association Follette, La to those 450 at That 122. people only,” is to say, to associate is the corollary right right “ associate. ‘Freedom of association would an prove if empty guarantee associations could not limit control over their decisions to those who share the interests and per- ” Id., suasions that 122, underlie the association’s being.’ to the internal processes of a do not political party encompass right to exclude nonmembers from in a voting state-required, state-financed (internal Post, election.” at 594-595 quotation marks and cita- omitted). tion Those cases exclusion that simply prevent violates some independent constitutional proscription. The closest the dissent comes to identifying such a proscription in this case is its reference to “the First Amendment associational interests” of to participate citizens in the pri- mary of a party to which they do not belong, and the “fundamental right” of citizens “to cast a meaningful vote for the candidate of their choice.” Post, at 601. As to the latter: a candidate is Selecting quite different from voting for the candidate of one’s choice. If the “fundamental right” to cast a vote meaningful context, were really at issue in this 198 would be not only constitutionally but permissible re- constitutionally quired, which no one believes. As for the associational “interest” in se- lecting the candidate of a group to which belong, one does not that falls far short of a constitutional if right, indeed it can fairly even be character- ized as an interest. It has been described in our cases as a “desire” —and rejected as a basis for disregarding the First right Amendment to exclude. See infra, at 583. (quoting Law Tribe, L. American n. Constitutional (1978)). Jaycees, S. also 468 U. Roberts v. United States See (1984). 609, exclude area association’s no is the selecting important process its nominee.
more than in the party’s positions process on the That often determines the significant public day, policy and even most issues of the positions predetermined when those are it is nominee party’s general to the elector- who becomes ambassador winning party’s ate in Timmons over to the views. See (1997) Party, 351, Cities Area v. Twin New 520 U. S. (“But dissenting) can- choice of a J., (Stevens, way party can didate is the most in which that effective represents and, communicate what the voters thereby, politi- support”). attract voter interest and Some Bull cal as President Theodore Roosevelt’s —such Henry Party, Progressives 1924, Moose the La Follette Progressives George Amer- Wallace and the Wallace virtually Independent Party inseparable ican of 1968—are (and them). from their nominees tend not to outlast See generally Encyclopedia Kruschke, E. of Third Parties in the (1991). United States vigorously special
Unsurprisingly, our cases affirm the *8 place pro special for, the First Amendment and the reserves process political party tection accords, the which a “seleet[s] represents party’s a standard bearer who the best (internal ideologies preferences.” swpra, Eu, at omitted). quotation choosing par marks the The moment ty’s juncture nominee, we said, have is “the crucial at which appeal principles may to common be translated into political power concerted action, to in the com hence munity.” Tashjian, id., at at 235- S., 216; see also (“The dissenting) ability 236 (Scalia, J., of the members Republican Party of the . . to select their own candidate . freedom”); unquestionably implicates an Tim assoeiational (“[T]he Party, mons, 520 U. at 359 and not some- S., New one else, has the to select the standard New right Party’s id., at 371 (internal bearer” omitted)); marks (Ste- quotation (“The J., members of a dissenting) recognized political vens, have a constitutional to select party unquestionably right their office”). nominees for public
In La Follette, an State Wisconsin conducted open presidential preference the voters did primary.6 Although not select the to the Democratic National delegates Party’s Convention were chosen later at caucuses of directly they— members —Wisconsin party law these required delegates vote in accord with the results. Thus non- primary allowing members to in the selection of the participate party’s nominee conflicted with the Democratic rules. We Party’s held that, whatever of the state interests strength sup- porting open itself, could not this justify “substantial intrusion into the assoeiational freedom of mem- bers of National at Party.”7 S.,U. 126. 6An open primary differs from a that, blanket primary in although inas the blanket primary any person, affiliation, regardless vote for a party’s nominee, his choice party’s is limited to that nominees all not, He may for example, nominee support Republican
for
offices.
for Governor and a Democratic nominee for attorney general.
dissent,
The
attempting
fashion its new rule —that
light
to associate does not exist with
elections,
respect
post,
see
at
594-595—rewrites Democratic Party
United States v. Wisconsin ex rel.
Follette,
La
(1981),
California’s primary 198 forces forth in these eases. hence their and nominees,
to associate with —to have their have refused best, at who, determined by positions, —those affil- have and, worst, to affiliate with the at expressly party, differ- a it is iated with In this rival. qualitatively respeet, when even ent from closed Under system, primary. it affilia- is made for a voter to his easy change quite thus, sense, tion the in some to “cross day primary, at over,” least he must become a member formally he he to for candi- so, once does is limited voting party; dates of that party.8 ap- to it himself from the order dismissing
subscribed
His dissent
(1983),
in Bellotti v.
La Follette
peals
Connolly,
Not does the no exclude conflictwith right dissent’s to principle our precedents, Tashjian but also leads to nonsensical results. Conn., (1986), Republican the First 479 S. 208 we held that protects Amendment to invite party’s right independents participate in the primary. with the rule affirms a Combining Tashjian dissent’s candidates, party’s constitutional its right to allow outsiders to select but a party’s denies right constitutional reserve candidate selection its own members. The First Amendment would thus guarantee party’s lose its it. identity, preserve but not to sense, In this constitutionally blanket also be distinct 6, from the open primary, see n. in which the voter is limited to supra, Follette, (Powell,J., one ballot. See La n. dissent supra, (“[T]he ing) fairly act of voting the Democratic can be de scribed as an act of The Party.... affiliationwith the Democratic situation e., might be different those -with ‘blanket’ those primaries States —i. where voters are than one participate primaries allowed to in the more *10 578
The in evidence this case demonstrates under that Califor- nia’s blanket primary system, of prospect having par- ty’s nominee determined adherents of an opposing party is far from indeed, it is a clear and present danger. remote — For in one example, of California voters 37 survey per- cent of Republicans that said to vote they in the planned 1998 Democratic gubernatorial and 20 primary, of percent Democrats said they in planned vote the 1998 Republican United States Senate primaiy. Tr. Those 668-669. figures are to the comparable results of studies in other with States blanket primaries. One testified, for expert that example, Washington number of voters over from one crossing to another can id., party rise to as as 25 high 511, percent, and another that 25 to 83 only of all percent voters Washington limit themselves candidates of one party throughout ballot, 136. The App. of impact members voting by nonparty is much greater minor such upon as the parties, Libertarian and the Peace and Freedom In the Party. first pri- maries these parties conducted California’s following imple- mentation of Proposition 198, the total votes cast for party candidates in some races was more than double the total registered party members. California Secretary of number of State, Statement of Vote, Election, 1998, June Primary 2, Cali- http://primary98.ss.ea.gov/Final/OffieiaLResults.htm; fornia Secretary State, Report Registration, May http://www.ss.ca.gov/eleetions/elections_u.htm.
The record also supports obvious proposition these substantial numbers of voters who select help the nomi- nees of parties have chosen often have join policy views that from those diverge faithful. party The 1997 survey California voters revealed different significantly policy preferences between members and voters who “crossed over” from another PI. party. Exh. party on a single occasion, selecting the primary they wish to vote in with respect to each office”). individual elective This case does not us require to determine the constitutionality open primaries. (Addendum expert Report). to Mervin Field One went so [under 198] Proposition far as to describe it as “inevitable give will be forced some circumstances to designation preferred their official to a candidate who’s not by majority plurality or even members.” Tr. Cain). testimony (expert of Bruce concluding imposes that the burden *11 petitioners’ rights on of is the severe, association not Ninth testimony prospect Circuit cited that the of cross- malicious voting, though raiding, slight, over or and the that even significant, numbers of “benevolent” crossover voters were only would be number of determinative in a small races.9 single 169 3d, F. at election in 656-657. But a party which by the nonparty nominee members is selected enough destroy could party. be the In the 1860 Presi- dential opponents Republican fledgling if election, of the Party had been proslavery able to cause its of a nomination place candidate in of Lincoln, Abraham the of intra- coalition party forming likely factions behind him would have disinte- grated, endangering thwarting the survival and its Whigs. effort to fill the vacuum left the dissolution of the generally See 1 Political Parties & Elections in the United (L. 1991). Encyclopedia States: An 398-408, 587 Maisel ed. Ordinarily, being however, unwanted, saddled with an and possibly destroy party antithetical, nominee would not the severely but identity “[R]egulating transform of the it. the parties’ “may parties’ leaders,” we have said, . . color the . message parties’ interfere with to the the decisions as promote best means to message.” Eu, 489 at 231, n. 21. any
In Proposition event, the are deleterious effects 198 altering identity limited to the of the nominee. Even 9The Ninth Circuit defined a crossover voter one votes for as “who a candidate of Thus, party which the voter is not the registered. cross-over voter could be an voter independent registered or one who is (1999). to a competing party.” F. 3d when the favored person of the majority members he will have prevails, prevailed by taking somewhat different should positions and, he be elected, will continue take — somewhat different positions order to be renominated. As own respondents’ concluded: expert “The policy posi- tions of Members elected from Congress blanket primary states are . . . more moderate, in an both absolute sense relative to other and so are party, more reflective of preferences mass of voters center of the ideological spectrum.” App. of Elisabeth (expert report Gerber). R. It is to cumulate unnecessary evidence of this purpose phenomenon, since, all, after the whole of Proposi- tion 198 was to favor nominees with “moderate” positions. Id., at 89. It candidates —and encourages officeholders who to be hope renominated —to favor with curry whose persons views are more “centrist” than those base. effect, has moved simply election general one earlier in the step at the process, expense parties’ ability perform “basic function” their own choosing *12 Kusper, leaders. S.,U. at 58.
Nor can we the Court of accept contention Appeals’ that the burden imposed by 198 is Proposition minor because are free to petitioners endorse and financially support candidate their choice in the primary. F. 3d, at 659. The of the ability party to endorse leadership a candidate is no simply substitute for the party members’ ability In Eu, we choose their own nominee. recognized endorsements party-leadership are not effective— always for instance, in New York’s 1982 gubernatorial primary, Edward Koch, Democratic lost choice, leadership’s out to Mario Cuomo. S.,U. at 228, n. 18. One study has concluded, moreover, that even when the leadership- endorsed candidate won, has the effect of the endorsement Ibid, has been negligible. in Eu v. San Fran- (citing App. County cisco Democratic Central Comm., O. T. 1988, ST- No. 97-98). pp. New York’s was a closed one primary; expect leadership would endorsement be even less effec- primary, many tive in blanket where of the voters are un- only party connected not to the leadership but even to the party any ability itself. party event, the leadership endorse does party candidate not assist the rank and file, agree who party themselves with the leader- ship, party’s but do not want the choice decided outsiders. similarly by respondents’
We are unconvinced claim that the burden is not Proposition severe because 198 does not limit fully engaging from in other traditional party ensuring orderly behavior, such as party gov internal maintaining party ernance, discipline legislature, in the conducting campaigns. accuracy The of this assertion is highly questionable, at least as to the two first activities. party That equally nominees will be observant of internal party procedures equally respectful party discipline depends when their general nomination on the electorate rather than on the improbable. faithful seems to us Respondents suggest themselves as much when assert “ primary system the blanket ‘will lead to the election representative “problem more solvers” who are less be (em holden to Respondents Brief for officials.’” added) 661). phasis (quoting 169 3d, P. In the end, how ever, the effect of 198 on these other activities point. beside consistently haveWe refused to over look an upon unconstitutional restriction some First Amend activity ment simply because leaves other First Amend activity ment unimpaired. g., Spence Washington, See, e. (1974) curiam); 418 U. (per 405, 411, S. 4 n. Kusper, 414 U. at 58. simply There is no for a selecting substitute its own candidates. *13 Proposition
In sum, petitioners 198 forces to adulterate process their candidate-selection of “basic function —the political party,” by opening up persons wholly it ibid.— party. unafifiliatedwith the Such forced association has likely indeed, in this ease the intended outcome— outcome— changing parties’ message.
of canWe think of no heav- ier political burden on a party’s assoeiational freedom. 198 therefore unconstitutional unless is nar- rowly compelling tailored to serve a state interest. See (“Regulations Timmons, 520 U. at 358 imposing severe [parties’] rights burdens on narrowly must be tailored and interest”). compelling advance a state question It is to that which we now turn.
Ill Respondents proffer seven state interests claim are compelling. Two of producing elected officials who them — represent better expanding electorate and candidate beyond debate scope partisan simply concerns—are producing circumlocution for nominees posi- and nominee parties tions other than those the would choose if left to their respondents own devices. Indeed, admit as much. For in- stance, in substantiating “representative- their interest respondents ness,” point to the fact that “officials elected primaries under blanket stand closer to the policy median positions of their districts” only by than do those selected Respondents members. Brief for 40. And in ex- plaining their desire to respondents increase debate, claim that a blanket forces long reconsider standing positions “compels [their] since it candidates to appeal larger segment to a electorate.” Id., at 46. supposed Both of these interests, therefore, reduce to noth- ing repudiation more than a stark of freedom as- sociation: Parties should not be free to select their own nomi- nees because those positions nominees, and the taken those congenial nominees, will not be majority. to the recognized
We have the inadmissibility of this sort of “interest” Hurley before. Gay, Irish-American Les- bian and Group Bisexual Boston, Inc., S. 557 (1995), the South Boston Allied War Veterans Council re- organization fused to allow an openly gay, lesbian, and (GLIB) persons bisexual participate in the council’sannual *14 Day St. parade. Patrick’s GLIB sued the council under public Massachusetts’ accommodation claiming law, that impermissibly council denied them access on account of their sexual noting orientation. After parades that expres- are sive rejected endeavors, we GLIB’s contention that Massa- public chusetts’ accommodation law overrode the council’s right to choose the content of message. its own Applying law such circumstances, we held, apparent made “object [was] its simply to require speakers to modify the content of expression their to whatever extent beneficiaries of the law choose to alter it with messages of their own.... [I]n the absence of some legitimate further, object this end, merely to exactly allow general what the speaker’s rule of autonomy forbids.” Id., at 578.
Respondents’ third asserted compelling interest
is that
the blanket primary
only
is the
way to ensure that disenfran-
persons
chised
enjoy
an
to
By
effective vote.
“dis-
respondents
enfranchised,”
do not mean those who cannot
they
vote;
simply
mean
independents and members of the
minority parly in “safe” districts.
persons
These
are disen-
according
franchised,
respondents,
to
because under a closed
primary they are unable
participate
in what amounts to
the determinative
majority
election—the
party’s primary;
only
way ensure
have an “effective” vote is to
force open
its
to them.
ap-
This also
pears to be nothing more than reformulation of an asserted
state interest we
already
have
rejected recharacterizing
—
nonparty members’ keen desire to participate in selection
of the party’s nominee as “disenfranchisement” if that desire
is not fulfilled. We have said,
however,
a “nonmember’s
desire
participate
in the
affairs
is overborne
the countervailing
legitimate
right to de-
termine its own membership qualifications.” Tashjian, 479
U. S., at
6 (citing
215-216, n.
Rosario v. Rockefeller, 410 U. S.
(1973),
and Nader
Schajfer,
Supp.
(Conn.),
417 F.
summarily
(1976)).
aff’d,
participate weighty simply does become more because supports if Moreover, State it. even it were accurate to plight non-party-member describe the in a safe district *15 Proposition as not needed “disenfranchisement,” 198 is problem. solve the The voter who feels himself disenfran- may simply join party. put chised should the That him to a state-imposed upon choice, hard but it is not a restriction his compelling party of association, freedom whereas members accept his state-imposed selection of their nominee is a upon restriction theirs.
Respondents’ remaining four asserted state interests— promoting affording greater fairness, voters choice, increas- participation, ing protecting privacy voter like not, —are automatically running; others, the out of the but neither are they, compelling. in the case, circumstances this That of by asking determination abstract, is not to be made in the privacy, highly significant fairness, whether etc., are values; by asking aspect but rather privacy, whether fairness, by highly significant. etc., addressed the law at issue is And for all four of these asserted it interests, we find not be. aspect by
The pre- of fairness addressed is sumably supposed inequity permitting nonparty of not members “safe” districts to determine the nominee. (rather If that is merely consequence unfair at all than a eminently principle except democratic where that — imperatives rules), majority constitutional intervene —the seems to permitting nonparty us less unfair than members hijack party. affording greater As for voters choice, it is obvious that the net effect of this indeed, its scheme— purpose scope by avowed to reduce the of choice, assur- —is ing range a of candidates who are all more “centrist.” This broadening well be range described as choices majority hardly compelling that is favored —but legitimate interest, state if indeed it is even a one. The in- in increasing participation just terest voter a variation on (more the same majority theme choices favored will more produce voters), and suffers from the same defect. As for the protection The privacy: specific privacy interest issue is not the confidentiality medical records or personal finances, but confidentiality one’s party affiliation. Even (as if seems unlikely) for scheme administering closed could not be devised in which the voter’s declaration of party affiliation would not be public we information, do not think that the State’s interest assuring privacy of this of information piece in all eases can be conceivably considered a “compelling” one. If such information were so sacrosanct, generally federal statutes would not require a declaration of party affiliation as a condition of appoint- ment g., to certain e. offices. See, § U. C. 154(b)(5) S. (“Maximum number of commissioners [of the Federal Com- munications who Commission] bemay members of the same *16 shall political be a party number equal the least number of commissioners which constitutes a of the majority foil membership Commission”); 47 396(e)(1) (1994 U. S. §C. ed., Ill) (no Supp. more than five members of Board of Direc- tors of Corporation for Public be of Broadcasting may same 42 U. S. party); §2000e-4(a) (no C. more than three members of Equal Employment Opportunity Commission be may same party). we
Finally, observe that may even if all these state inter- ests were ones, compelling 198 is not a Proposition narrowly tailored means of them. furthering could Respondents pro- tect them all nonpartisan to a resorting blanket primary. Generally under such speaking, a system, State deter- mines what qualifications for a requires candidate to have on place the primary ballot —which include may nomina- tion by established and voter-petition requirements for independent candidates. Each voter, regardless affiliation, then may vote for candidate, any and the two top (or vote getters however many State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket save primary,
constitutionally Primary choosing one: crucial voters are not nonpartisan primary, Under a nominee. blanket greater participation, a State ensure more choice, in- “privacy,” creased and a sense of “fairness”—all without se- verely burdening political party’s First Amendment of association.
[*] [*] [*] Respondents’ legitimate petitioners’ state interests and rights inherently incompatible. First Amendment are not To the case, extent are in this the State of California by forcing political parties has made them so to associate with those who their do share beliefs. And it has done juncture” this at the “crucial at which members tradi- tionally spokes- find their collective voice and select their Tashjian, Proposition man. 479 U. The 216. burden places petitioners’ rights on association is unnecessary. both severe judgment The for the Court Appeals for the Ninth Circuit is reversed.
It is so ordered. Justice Kennedy, concurring. product 198, popular of a statewide ini- strong
tiative, expression is a and recent of the will of Cali- designed, fornia’s part, electorate. It is to further object widening participation base of voter in Cali- fornia days elections. Until a few or weeks even before an many pay election, voters campaigns little attention to *17 party even less to politics. the details of partici- Fewer still pate in the party direction and control affairs, for most dynamics voters consider party the internal organization partisan, slight remote, and of interest. Under these condi- tions voters tend they to become disinterested, and so refrain voting altogether. from To this, correct California seeks primary voting responsive make pref- more to the views erences of the electorate The as whole. results of Califor- primary system may nia’s blanket efficacy demonstrate the of its solution, appears for there to have been a substantial increase in voter interest and voter participation. See Brief Respondents for 45-46.
Encouraging citizens to legitimate, vote is a indeed es- objective; sential, state for the constitutional order must be preserved by strong, participatory process. democratic In short, there is much to be said in favor of California’s law; might and I find this to be a close ease if it simply were way to make elections more fair open or addressed mat- purely ters structure.
The purpose true of this law, however, is political to force a party to accept a candidate may want doing, and, so to change the party’s position doctrinal major on issues. Ante, at 581-582. From the outset the State has been fair and candid to admit that doctrinal change is the intended operation and effect of g., its law. See, e. Brief Respond- for ents 40, 46. It be organized parties, controlled— in fact or perception by seeking activists to promote their — self-interest rather than enhance party’s long-term sup- port, are shortsighted and insensitive to the views of even their own political members. A party might be better served allowing primaries blanket as a means of nomi- nating candidates with appeal. broader Under the First guarantee Amendment’s speech through free association, however, this is an issue for the to resolve, not for the State. Political advance a political shared belief, but do so often speak must through their candidates. When the State seeks to changes direct in a philosophy by forcing upon it unwanted candidates and wresting the choice between moderation and partisanship away from the party itself, the State’s incursion on the par- ty’s associational subject freedom is scrutiny careful under the First Amendment. For these agree reasons I with the opinion. Court’s I separate add this say concurrence to
is doubtful for a further justification reason. of its stat-
588 at hand means political party has the us a California tells
ute
party,
The
California
freedoms.
protect
its associational
support
resources
funds and
simply
can
use its
contends,
posi-
defending its doctrinal
thus
choice,
the candidate of its
begin
To
preference.
by advising
of its own
tions
the voters
ob-
parties’
Amendment
First
not meet the
with, this does
The
explains. Ante, at 580-581.
jection, as the
well
Court
of the
reason
point,
that,
important
however,
additional
political
protections to a
Amendment
denial of First
Court’s
coopera-
in
and resources
funds
party’s spending of its own
Republican
preferred candidate, see Colorado
tion with its
518
Comm’n,
Campaign
Election
Federal
Federal
Comm. v.
(1996),
has
the
or
State
Government
Federal
S.
remedy
very
using
power
prevent
from
up
defend its law.
now offers
California
place
campaign
limits on
finance laws
strict
Federal
may
in
speech parties
undertake
manner and amount of
particular
are limits on co-
aid of
Of
relevance
candidates.
Election
party expenditures,
the Federal
which
ordinated
subject to
Campaign
to be contributions
Act of 1971 deems
C.
specific monetary
488, U. S.
restrictions. See
Stat.
441a(a)(7)(B)(i)
§
any person
(“[Expenditures made
request
cooperation,
or at
consultation,
concert, with,
or
political com-
suggestion of,
candidate,
or
his authorized
a contri-
agents,
to be
mittees, or their
shall
considered
be
candidate”).
on
limits
Though
bution to such
we invalidated
independent
Republican,
party expenditures in Colorado
placed
principal opinion
question federal limits
did not
624-625
expenditures.
S., at
on coordinated
518 U.
See
J.).
(opinion
in dissent said
Two
Justices
Breyer,
money spent by
the election
“all
to secure
expenditures
of its
coordinated
candidate” would constitute
applied in that
upheld
and would
as
case.
have
the statute
J.).
(opinion
Thus,
id.,
See
five Justices
Stevens,
Congress
position
or
Court subscribe to the
political party spends
limit
direct
the amount a
State
preferred
for elected office.
collaboration with its
candidate
*19
my
view, as stated in both
Republican, supra,
Colorado
(opinion
at 626
concurring
judgment
in
dissenting
and
in
part), and in
Nixon
Shrink Missouri Government PAC,
(2000)
528 U.
S.
405-406
(dissenting opinion), these re-
deprive
cent cases
political parties of their First Amendment
rights. Our constitutional
is
political
tradition
one in which
parties and their candidates make common cause in the ex-
political
ercise of
speech,
subject
which is
to First Amend-
protection.
ment
practical identity
There is a
of interests
parties
between
and
during
their candidates
an election.
Our unfortunate
political
decisions
party
remit the
to use of
indirect or covert speech
support
preferred
to
its
candidate,
hardly a result
thought
consistent with free
expression.
and
perversion
It
ais
of the First
political
Amendment to force a
party
warp
to
straightforward
honest,
speech, exemplified
vigorous
its
open support
of its favored candidate,
into the
speech
covert
money
of soft
advocacy
and issue
so
escape
it
spending
burdensome
restrictions.
In a
regime
campaign
where
spending cannot otherwise be lim-
ited—the structure this Court created on
Buckley
own
its
(1976)
v. Valeo,
Were the views of those who uphold would both Cali- fornia’s blanket system and limitations on coordi- party nated expenditures to prevailing become law, the State political could control points two vital process. election First, it could pri- mandate blanket mary to weaken the party’s ability to defend and maintain its positions by doctrinal allowing nonparty to members vote primary. in the impose Second, could severe restric- tions on the amount of funds resources the could spend in efforts to counteract the State’s doctrinal interven- tion. In other words, the injury First Amendment done the Court’s ruling in Republican Colorado would be com- pounded were prevail California in the instant ease. nomi- political regulate seeks the State
When doc- political shape and control process as a means nation Amendment the First choice, scope and the trine manipu- from protection gives substantial by political directed society the State free In a lation. observa- these way With around. other doctrine, not opinion of the Court. join I tions, joins Ginsburg whom with Justice Stevens, Justice dissenting. I, Part as to a limi- as First Amendment construes Today the Court *20 participation in voter broaden power to on a State’s tation holding is The Court’s by the State. conducted elections convinced wrong. I am my judgment, plainly in and, novel pursuant to a blanket adoption of that California’s and Amendment, First not violate does Proposition 198 is there- offices state for primary elections in its use to elections 198 of application The fore valid. however, Representatives, Senators States for United Clause Elections under the question difficult more raises I shall 1. cl. I, §4, Art. Constitution, States United of resolution the Court’s disagreement my with explain first Elec- on the then comment issue Amendment the First issue. Clause tions
I to are officials how its power to determine A State’s sovereignty. This of quintessential attribute ais be elected who power decide to of California’s State is about ease by the paid for, conducted, and an election in vote imposes constraints Constitution States United The State.1 (1986) 1 Conn., U. S. Republican Tashjian See a broad States grants Constitution the United States (observing that offices, federal for certain manner elections prescribe power for process the election over state control matched power is which the pro- administers State offices). California, Secretary In state on the States’ power to limit access to the polls, hut we have never before held or suggested it imposes con- any straints on States’ power authorize additional citizens to participate state any election for a state office. In my view, principles federalism require us respect policy choice made State’s voters in approving Proposition 198.
The blanket primary system instituted by Proposition 198 does not abridge “the ability citizens to band together promoting among the electorate candidates who espouse their political views.” Ante, at 574.2 The Court’s contrary conclusion rests on the premise that a political free- dom of expressive association includes a “right to asso- ciate,” which in turn includes a exclude voters un- affiliated with the party from in the participating selection of that party’s nominee in a election. Ante, 574- 575. this drawing conclusion, however, the Court blurs two distinctions that are (1) critical: the distinction between visions of the State Elections Gode and has some supervisory authority over county election officers. Cal. Govt. § Code (West Ann. 12172.5 2000). and Supp. Primary and other elections are and paid administered for primarily by county governments. Cal. Elec. Code §§ Ann. 13000— (West *21 1996 and 2000). Supp. Anecdotal evidence suggests that each statewide election (whether in California general) or costs gov- ernmental units between $45 million and $50 million. 2Prominent members of the founding generation would have disagreed with the Court’s suggestion that representative is democracy “unimagin- able” without political parties, ante, 574, at though their antiparty thought ultimately proved to be inconsistent with their partisan See, actions. g., e. R. Hofstadter, The Idea of a Party System (1969) 2-3 (noting that “the of creators the first American system on sides, both Federalists and Republicans, were men who looked upon parties as sores on the body politic”). best, At some members of that generation viewed parties as an unavoidable product of a free state that were an evil to be endured, though most viewed them as an evil be abolished or suppressed. Id., 16-17, at 24. Indeed, parties ranked high on the list of evils that the Constitution was designed to Id., check. 53; at (J. see The Madison). Federalist No. 10
592 mes- its and right itself to define organization’s private the right to define and the hand, State’s
sages, on the one
public
performing
organizations
obligations of citizens and
(2)
laws
between
distinction
the
other;
on the
and
functions,
and those
process
political
the
abridge participation in
that
participation.
encourage such
that
compo
organization
the
political
defines
aWhen
candidates
what
decides
governing
when it
units,
of its
sition
to commu
how
it
whether
when decides
endorse, and
engaged in the
public,
is
those endorsements
nicate
activity
that
expressive associational
private
kind
Area
Cities
v. Twin
protects. Timmons
First Amendment
(1997)(recogniz
359
4,n.
354-355,
Party,
351,
520 U. S.
New
in context
own standard-bearer
ing party’s
to select its
through means
candidate
its
party that selected
of minor
dissenting);
J.,
primary); id., at 371
than a
other
(Stevens,
Comm.,
County
Central
Democratic
Eu v. San Francisco
v.
(1989);
Party
States
United
214
Democratic
489
S.U.
(“A
(1981)
124
107,
Follette, 450
S.
rel. La
ex
Wisconsin
ways of
among
determin
the various
party’s
political
choice
delegation
national
makeup
ing
of a State’s
Constitution”);
v. Wi
Cousins
protected
is
convention
(“Illinois’
(1975)
protect
in
interest
goda,
419 U. S.
process
be deemed
cannot
integrity
ing
its electoral
delegates to the
compelling
selection
context of the
in the
added)).3
A
(emphasis
National
Convention”
of La Follette
is
interpretation
this
with
disagreement
The Court’s
actu
burden
Ante,
576-577,
state-imposed
(claiming
n.
at
specious.
adverse political
those with
intrusion of
Follette was
La
ally
issue
characterization
A more accurate
into party’s primary).
principles
"In ana
Powell:
Justice
La
Follette’s
reasoning
provided
nature of
case, the
this
freedoms
on associational
lyzing
imposed
the burden
dele
regulating
of one
the equivalent
treats the Wisconsin law as
Court
(1975),
U. S.
Wigoda,
Cousins
selection, and,
relying
on
gate
accepted
Party’s
with the National
interference
any
concludes
*22
constitutionally
protected
on
impinges
delegate-selection
procedures
Fol-
rel.
ex
La
v. Wisconsin
United States
Party
Democratic
rights.”
could, if a
party
majority
its members
chose
do so, adopt
a platform
white
advocating
supremacy
opposing
election
any non-Caucasians.
Indeed,
it could decide to
use its funds and oratorical skills to
those
support
candi-
only
dates
were
who
loyal
its racist views.
if a
Moreover,
State permitted its political
to select
parties
their candidates
through conventions or caucuses, a racist
also
would
free
be
to select only candidates who would adhere to the
line.
As District
Levi
Judge
observed
correctly
in an opinion
adopted by
Ninth Circuit, however,
the associational
rights
are
neither absolute nor as compre-
hensive as the rights enjoyed by wholly private associations.
594 not); does ballot regulation to election of access tivities, “may (noting it well that S., at 120-121 Follette, La 450 rights are party assoeiational that conclude be correct” to primary); id., open unconstitutionally infringed state not (Powell, associa- (concluding that dissenting) J., at 131-132 by parties’ are limited major political parties rights tional mission). political ideological orientation of defined lack decided point never been though the has I think clear— the to use may require parties a this Court—“that State at 572. Ante, selecting nominees.” format for their significant restriction may impose this a The reason State general the is that both freedoms on a assoeiational of state quintessential forms primary are election and the an action that primary is state the action.4 It because is just political party or a organization itself it calls —whether deny may “Jaybird” non-Caucasians not association— Terry right participate its nominees. to in the selection (1953); Allwright, 321 U. S. v. Smith Adams, U. S. 461 v. 345 (1944). stating that quite right in The is 649,663-664 Court party af- proposition that cases not stand for those “do Amendment [wholly] of First public are free affairs, fairs for They stand do, protections.” however, at Ante, 573. “party most unlike proposition primary elections, that the First protections that affairs,” are The state action.5 that, given function Indeed, public an essential serves matter, pre of the of voters ultimate choice mass practical “fa]s have parties] [by major political determined when the nominations Va., 186, 205-206 517 U. S. v. Republican been made.” Morse J.) (internal omitted); (1996) see also Stevens, marks (opinion quotation United, (1941). Classic, States U. S. Terry rely think, I not on do Contrary the Court seems what Allwright as that state basis for an accommodation argument necessarily would primaries desire exclude nonmembers from parties’ Pro Equal such as the independent violate an constitutional proscription ante, out). 573-574, n. 5. that Cf I do not rule (though tection Clause Rather, pro constitutional recognition I cite them because our integral parts primaries illustrates scriptions apply primaries —as Amendment affords to processes” the “internal political of a party, ibid., do encompass to exclude nonmembers voting from in a state-required, state-financed primary election.
The
“right
so-called
not to associate” that the Court relies
upon,
simply
then, is
inapplicable to participation in a state
election. A
party,
any
like
other
association,
*24
refuse to allow
participate
nonmembers to
in the party’s de-
cisions when it is conducting its own affairs;6 California’s
blanket
system
infringe
does not
this principle.
Ante, at 570-571, n. 2. But an election, unlike a convention
or
public
caucus, is a
Although
affair.
it is true that we have
extended First Amendment protection to party’s
a
right to
invite independents to participate
primaries,
in its
Tashjian
Republican
v.
Party
(1986),
Conn.,
ocratie is not as a foe of the First Amend- ally. a Mend and ment but as
Although it, I endorse I would not could at least under- protected party’s a constitutional rule stand associa- rights allowing it to refuse to tional select its candidates state-regulated through primary elections. Marchioro See (1979) (“There Chaney, 442 U. S. can be no com- [First party’s [a] Amendment] plaint right govern it- by [state substantially regulation] self has been burdened complaint when source of is the own decision authority [party governing to confer critical on unit being regulated]”); Tashjian, 479 cf. at 237 J., (Scalia, (“It dissenting) beyond understanding my why Repub- Party’s [of delegation lican choice its democratic candi- dates] [rather Republican primary] to a Convention than [by proscribed can delegation be but State], its of that cannot”). meaningful choice to nonmembers of the A “right not to if there is associate,” such in the context limiting ought electorate, an to enable a to insist *25 choosing on its at a convention nominees or caucus where nonmembers could be real world, excluded. In the however, anyone “join” party merely by can asking for (at most) appropriate appropriate ballot at the time or registering period within a state-defined reasonable of time voting history past before an election; neither nor the voter’s religion, gender provide race, or can a basis for refusal to “associate” with unwelcome an new member. See 3d, at 655, 169 F. There is an n. 20. obvious mismatch supposed right between a “not to associate” constitutional nothing rule and a that turns on more than the state-defined timing application membership. of the new associate’s for (“As (Powell, dissenting) La Follette, See at 133 J., U. Party easy change affiliation becomes . . . for a voter to [shortly particular primary election] par- before a to in order [that] ticipate open in election, the difference between primaries practical significance”). closed loses its The Court’s political party’s “right reliance on a as- to sociate” as a limiting basis for power to State’s conduct primary inevitably require elections will either draw unprincipled among primary distinctions configura- various tions voting practices or alter throughout the in Nation ways. fundamental Assuming registered that a Democrat independent or who Republican guber- wants to vote in primary natorial merely can do by asking so Republican afor Republican Party’s ballot, the right constitutional “not to as- pretty is sociate” only feeble imposes if the cost it on that independent Democrat or ais loss of his to vote for non-Republiean candidates for other offices. ante, Cf. 577-578, n. 8. Subtle import distinctions this minor are grist legislatures, for state process but demean the adjudication. constitutional put Or, as Justice Scalia in dissenting matter his opinion Tashjian: in “The . . . steadfastly voter refusing who, while reg- Republican, ister as a [a nonclosed] casts a vote in Re- publican primary, meaningful no forms more an ‘associa- tion’ with the than independent does the or the registered responds Democrat who questions Republican Party pollster. concept If the of freedom of association is extended to such contacts, casual it ceases any analytic to be of use.” 479 S., at 235. noteworthy It is bylaws that the political. of each petitioners that are in unequivocally this case state that participation partisan elections to be lim- registered ited to members of the party only. App. 15, 16,18. Under the reasoning, Court’s it would seem to follow that conducting anything partisan but a closed *26 bylaws the face of such necessarily would parties’ burden “ identify ‘freedom to the people who constitute the associa- tion.’” Ante, at open primaries 574. Given that sup- are ported by essentially the same state interests that the Court disparages today and nonpartisan are not as pri- “narrow” as surely danger open
maries, ante, at there is 582-586, primaries against a First Amendment will fare no better challenge primaries than blanket have.
By presently have count, District 8 States Court’s primaries, open blanket while have an additional States primaries primaries in which and States have semiclosed independents may participate. 3d, at 650. 169 F. This willingness Court’s to invalidate schemes States and cast serious constitutional doubt on the schemes parties’ of 29 others at the as behest the District Court is, rightly extraordinary into the observed, “an intrusion com- plex changing [that]. election laws of the States . . re- move[s] political system from the American a method for can- many didate selection that beneficial and States consider in appeal which the uncertain future could take on new importance.” Id., at 654.8 my view, the Amendment First does not mandate that putatively private granted power association be organizational
dictate the structure of state-run, state- financed It constitu- elections. is not this Court’s tional competing function to choose between the visions democracy what party autonomy makes and disci- work— pline progressive versus inclusion of the entire electorate in 8When coupled with our in Tashjian decision that a party require a State to open a closed up primary, this intrusion has even broader im plications. that, It is arguable under reasoning Court’s combined Tashjian, with the only for nominating options open the States to choose (1) (2) without consent primary elections, are: not to have or have what the Court calls a “nonpartisan primary” system presently —a used Louisiana —in which previously candidates nominated by the vari Ante, ous political parties and independent candidates compete. at 585. These two options are the same in practice because the latter actu is ally “primary” in the common, partisan sense of that term at all. Rather, a general election with a runoff that has few of the benefits of democratizing the party nominating process led to de the Court clare the State’s ability require by primary nomination “‘too for plain argument.’” Ante, Eu, 572; Lightfoot see F. 2d 872-873 (CA91992) state (explaining interest direct requiring partisan primary). *27 process the selecting public their are officials—that held by litigants the in this O’Callaghan case. State, 914 R 2d (Alaska 1996); 1250, 1263 Tashjian, see also 479 U. at 222- 223; (1849). Luther v. Borden, 7 1, How. 40-42 That choice belongs to the people. S. Term Limits, U Inc. v. Thornton, (1995). 514 U. S. 779,
Even if
“right
the
not to associate” did authorize the Court
to review
policy
the State’s
its
choice,
evaluation
com-
peting
interests
seriously
stake is
example,
flawed. For
the Court’s conclusion that a
blanket
severely bur-
dens
parties’
assoeiational interests
selecting
their
standard-bearers
appear
does not
by
be borne out
ex-
perience
primaries
with blanket
in Alaska and Washington.
g.,
See, e.
As to the Court’s concern that benevolent voting crossover impinges on assoeiational interests, ante, at 579, the experience a blanket with
District found that Court “suggested] that there Washington evidence and other will be a substan- particular *28 in which there will be elections although voting the cross-over ... tial amount of cross-over any in election rarely change and will the outcome of vote higher significantly typical levels at the contest will not be my 657. In open primary 3d, at than in states.” F. assumption the relative empirically about an debatable view, pri- likely voters in a blanket and crossover number effect nominally mary, opposed open primary a closed an or as requirement, too only preregistration with brief distinc- support First Amendment thin a reed to a credible Tashjian, (rejecting inter- at 219 State’s S., tion. 479 U. See keeping primary crossover in benevolent est closed curtail easily independents could voting by independents given that simply registering by cross over closed even under members). as as balance, I would rank “sub- the other side of
On jüst compelling,” did, the District Court stantial, indeed as by government fostering in democratic interest California’s “[ijnereasing giv- representativeness officials, of elected greater increasing ing voter turnout and choice, and voters [electoral participation processes].” at 3d, 662;9 in 169 F. (“[W]e not] require Timmons, [do elabo- cf. 520 U. at 364 empirical weightiness of the State’s rate, verification of glib justifications”). rejection asserted The Court’s Kennedy Justice concurrence, In his that the State has no argues primary, valid an through open interest in doctrine changing party irrevocably suggests that assertion of this interest somehow State’s Ante, The Timmons balanc taints primary system. its blanket at 587. ante, Court, however, not does ing support test relied upon Timmons and our that eases analysis. myriad other constitutional ask whether a state interest weigh burdens state against merely interests right; on constitutional justifies imposing burden that the State is the fact that be valid or com one of the state interests asserted under not end the pelling analysis. the circumstances does State’s increasing interest in participation, voter ante, at particularly 584-585, is regrettable. an era of dramati- cally declining participation, voter States should be free to experiment with designed reforms to make the democratic process more involving robust the entire electorate in the process of selecting those who government will serve as of- Opening ficials. process the nominating to all encourag- ing participate voters to any election that draws their interest is one obvious means achieving goal. this See Respondents Brief for 46 (noting study presented higher District Court showed voter turnout levels in blanket primary States than open States); or closed primary ante, at 586-587 concurring). J., I give would also (Kennedy, weight some to the First Amendment assoeiational interests of nonmembers seeking to participate pri- in the *29 mary process,10to the fundamental of such nonmem- bers to meaningful cast a for vote the candidate of their choice, (1992) Burdick v. Takushi, 504 428, U. S. (Ken- dissenting), J., preference and to the of almost 60% of nedy, California including registered a majority of Demo- voters— Republicans crats and a blanket primary. 169 3d, F. at —for Tashjian, 649; see at J., dissenting) S., U. (Scalia, (preferring information on whether majority of rank-and- file support members particular a proposition than so). whether state convention does my view, a State is unquestionably rely to entitled on this combination of interests in deciding may who vote primary a election by conducted It State. strange indeed to find that the First Amendment forecloses this decision. 10See Follette, La S., 450 U. at 135-136 (Powell, J., dissenting); cf.
Tashjian, S., 479 U. at 215-216, n. 6 (discussing cases such as Rosario v. Rockefeller, 410 (1973), S. 752 in which nonmembers’ assoeiational interests were overborne by state interests that coincided with party in terests); Bellotti Connolly, S., 460 U. (Stevens, at J., dissenting) (discussing voters). rights assoeiational
The Elections the United Constitution, Clause States “[t]he provides I, §4, 1, Art. cl. Places and Times, Man- holding Representatives, ner of Elections for and Senators prescribed by Legislature shall be in each State thereof.” added.) (Emphasis grant power This broad constitutional legislatures to state is “matched state control over the process Tashjian, election for state offices.” 479 U. given supra, 217. For the reasons in Part I I, believe it proper powers would be exercise of these and would not Legislature violate First Amendment for the California adopt system. particular a blanket This blanket system, adopted by popular however, was initiative. Although respect this distinction is not relevant with offices, elections for state it is unclear whether state elec- system legislature adopted tion not is constitutional applies electing insofar as it to the manner of United States Representatives. Senators
The empowers California Constitution the voters of the propose adopt reject State statutes and to or them. §8. approved by majority 2, Art. If vote, such “initia- generally immediately tive statutes” take effect repealed by Legislature be amended or the California § unless the voters consent. Art. 10. The amendments changed pri- California Election Code that the state mary system system from presently a closed to the blanket *30 at issue adoption were the result of the voters’ March 1996 an 198, initiative statute.
The text suggests of the Elections Clause that such an system, popular regarding initiative in which choices the by independ- manner of state elections are unreviewable legislative ent action, not be a valid method of exercis- ing power “Legislature^].” that the Clause vests in state argued reasoning It apply could be that this does Cali- provides fornia, as the California Constitution further “[t]he legislative power of this is vested in the State Cali- Legislature forma .. . , but people reserve to them- powers selves the of initiative and § referendum.” Art. 4, 1. The vicissitudes of state nomenclature, however, do not necessarily control meaning of the Federal Constitution. Moreover, the United States Representatives House of has determined in an analogous context the Elections specific Clause’s reference Legislature” to “the is not so broad as to encompass general “legislative power of this State.”11 Under that view, California’s classification of voter-approved initiatives as an legislative exercise power would not render sueh initiatives the act of the California Legislature within the meaning of the Elections Clause. Arguably, therefore, California’s blanket system for electing United States Senators Representatives is in- valid. point Because the was neither raised nor discussed the courts I below, judgment reserve on it. I believe, however, importance that the of the point merits further attention.
[*] [*] [*] For the reasons stated in Part I of opinion, this as well as those stated more fully in the District Court’s excellent opinion, I respectfully dissent. 11 Baldwin v. Trowbridge, 2 Bartlett Contested Cases, Election H. R. Misc. Doc. No. 41st Cong., (1866) Sess., 46, (“[Under 2d the Elec Clause,] tions power is upon the legislature. But what is meant conferred
by ‘the legislature?’ Does it mean the legislative power State, which would include a convention authorized to prescribe fundamental law; or does it mean the legislature nomine, eo as known in history of the country? The [CJommittee [of Elections for the U. S. House of Representatives] have adopted the construction”). latter