CLINGMAN, SECRETARY, OKLAHOMA STATE ELECTION BOARD, ET AL. v. BEAVER ET AL.
No. 04-37
SUPREME COURT OF THE UNITED STATES
Argued January 19, 2005—Decided May 23, 2005
544 U.S. 581
(a) The First Amendment protects citizens’ right “to band together in promoting among the electorate candidates who espouse their political views.” California Democratic Party v. Jones, 530 U.S. 567, 574. Regulations imposing severe burdens on associational rights must be narrowly tailored to serve a compelling state interest, but when they impose lesser burdens, “a State‘s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358. In Tashjian v. Republican Party of Conn., 479 U. S. 208, 224, n. 13, the Court
(b) Oklahoma‘s system does not severely burden associational rights. The Court disagrees with respondents’ argument that the burden Oklahoma imposes is no less severe than the burden at issue in Tashjian, and thus the Court must apply strict scrutiny as it did in Tashjian. Tashjian applied strict scrutiny without carefully examining the burden on associational rights. Not every electoral law burdening associational rights is subject to strict scrutiny, which is appropriate only if the burden is severe, e. g., Jones, supra, at 582. Requiring voters to register with a party before participating in its primary minimally burdens voters’ associational rights. Moreover, Tashjian is distinguishable. Oklahoma‘s semiclosed primary imposes an even less substantial burden than did the Connecticut closed primary at issue in Tashjian. Unlike that law, Oklahoma‘s system does not require Independent voters to affiliate publicly with a party to vote in its primary, 479 U. S., at 216, n. 7. Although, like the earlier law, Oklahoma‘s statute does not allow parties to “broaden opportunities for joining . . . by their own act,” but requires “intervening action by potential voters,” ibid., this burden is not severe, since many electoral regulations require that voters take some action to participate in the primary process. Such minor barriers between voter and party do not compel strict scrutiny. See Bullock v. Carter, 405 U. S. 134, 143. To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes. The Constitution does not require that result. Pp. 591-593.
(c) Oklahoma‘s primary advances a number of regulatory interests this Court recognizes as important: It “preserv[es] [political] parties as viable and identifiable interest groups,” Nader v. Schaffer, 417 F. Supp. 837, 845 (Conn.), aff‘d, 429 U. S. 989; enhances parties’ electioneering and party-building efforts, 417 F. Supp., at 848; and guards against party raiding and “sore loser” candidacies by spurned primary contenders, Storer v. Brown, 415 U. S. 724, 735. Pp. 593-597.
(d) The Court declines to consider respondents’ expansion of their challenge to include several of Oklahoma‘s ballot access and voter registration laws. Those claims were neither raised nor decided below, see, e. g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 168–169, and respondents have pointed to no unusual circumstances warranting their consideration now, see Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646. Pp. 597-598.
JUSTICE O‘CONNOR, joined by JUSTICE BREYER except as to Part III, agreed with most of the Court‘s reasoning, but wrote separately to emphasize two points. First, the Libertarian Party of Oklahoma (LPO) and voters registered with another party have constitutionally cognizable interests in associating with one another through the LPO‘s primary, and these interests should not be minimized to dispose of this case. Second, while the Court is correct that only Oklahoma‘s semiclosed primary law is properly under review, that standing alone it imposes only a modest, nondiscriminatory burden on respondents’ associational rights, and that this burden is justified by the State‘s legitimate regulatory interests, there are some grounds for concern that other Oklahoma laws governing party recognition and changes in party affiliation may unreasonably restrict voters’ ability to participate in the LPO‘s primary. A realistic assessment of regulatory burdens on associational rights would, in an appropriate case, require examination of the cumulative effects of the State‘s overall primary scheme; and any finding of a more severe burden would trigger more probing review of the State‘s justifications. Pp. 598-608.
Wellon B. Poe, Jr., Assistant Attorney General of Oklahoma, argued the cause for petitioners. With him on the briefs was W. A. Drew Edmondson, Attorney General.
James C. Linger argued the cause and filed a brief for respondents.*
JUSTICE THOMAS delivered the opinion of the Court, except as to Part II-A.
Oklahoma has a semiclosed primary system, in which a political party may invite only its own party members and voters registered as Independents to vote in the party‘s primary. The Court of Appeals held that this system violates the right to freedom of association of the Libertarian Party of Oklahoma (LPO) and several Oklahomans who are registered members of the Republican and Democratic Parties. We hold that it does not.
I
Oklahoma‘s election laws provide that only registered members of a political party may vote in the party‘s primary,
*A brief of amici curiae urging reversal was filed for the State of South Dakota et al. by Lawrence E. Long, Attorney General of South Dakota, Craig M. Eichstadt, Deputy Attorney General, and Gene C. Schaerr, and by the Attorneys General for their respective States as follows: J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Kelly A. Ayotte of New Hampshire, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, Mark Shurtleff of Utah, and Darrell V. McGraw, Jr., of West Virginia.
A brief of amicus curiae urging affirmance was filed for the Coalition for Free and Open Elections by Richard Shepard.
After a hearing, the District Court declined to enjoin Oklahoma‘s semiclosed primary law for the 2000 primaries. After a 2-day bench trial following the primary election, the District Court found that Oklahoma‘s semiclosed primary system did not severely burden respondents’ associational rights. Further, it found that any burden imposed by the system was justified by Oklahoma‘s asserted interest in “preserving the political parties as viable and identifiable interest groups, [and] insuring that the results of a primary election . . . accurately reflect the voting of the party members.” Memorandum Opinion, Case No. CIV-00-1071-F (WD Okla., Jan. 24, 2003), App. to Pet. for Cert. 55-56 (hereinafter Memorandum Opinion) (internal quotation marks omitted). The District Court therefore upheld the semiclosed primary statute as constitutional. Id., at 72-73.
On appeal, the Court of Appeals for the Tenth Circuit reversed the judgment of the District Court. The Court of Appeals concluded that the State‘s semiclosed primary statute imposed a severe burden on respondents’ associational rights, and thus was constitutional only if the statute was
II
The Constitution grants States “broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, §4, cl. 1, which power is matched by state control over the election process for state offices.” Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986); Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997) (quoting Tashjian). We have held that the First Amendment, among other things, protects the right of citizens “to band together in promoting among the electorate candidates who espouse their political views.” California Democratic Party v. Jones, 530 U. S. 567, 574 (2000). Regulations that impose severe burdens on associational rights must be narrowly tailored to serve a compelling state interest. Timmons, 520 U. S., at 358. However,
In Tashjian, this Court struck down, as inconsistent with the First Amendment, a closed primary system that prevented a political party from inviting Independent voters to vote in the party‘s primary. 479 U. S., at 225. This case presents a question that Tashjian left open: whether a State may prevent a political party from inviting registered voters of other parties to vote in its primary. Id., at 224, n. 13. As Tashjian acknowledged, opening a party‘s primary “to all voters, including members of other parties, . . . raise[s] a different combination of considerations.” Ibid. We are persuaded that any burden Oklahoma‘s semiclosed primary imposes is minor and justified by legitimate state interests.
A
At the outset, we note that Oklahoma‘s semiclosed primary system is unlike other laws this Court has held to infringe associational rights. Oklahoma has not sought through its electoral system to discover the names of the LPO‘s members, see NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 451 (1958); to interfere with the LPO by restricting activities central to its purpose, see NAACP v. Claiborne Hardware Co., 458 U. S. 886, 895 (1982); NAACP v. Button, 371 U. S. 415, 423-426 (1963); to disqualify the LPO from public benefits or privileges, see Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 595-596 (1967); or to compel the LPO‘s association with unwanted members or voters, see Jones, supra, at 577. The LPO is free to canvass the electorate, enroll or exclude potential members, nominate the candidate of its choice, and engage in the same electoral activities as every other political party in Oklahoma. Oklahoma merely prohibits the LPO from leaving the selection of its candidates to people who are members of
In other words, the Republican and Democratic voters who have brought this action do not want to associate with the LPO, at least not in any formal sense. They wish to remain registered with the Republican, Democratic, or Reform parties, and yet to assist in selecting the Libertarian Party‘s candidates for the general election. Their interest is in casting a vote for a Libertarian candidate in a particular primary election,3 rather than in banding together with fellow citizens committed to the LPO‘s political goals and ideas. See Jones, supra, at 573-574, n. 5 (“As for the associational ‘interest’ in selecting the candidate of a group to which one does not belong, that falls far short of a constitutional right, if indeed it
However, a voter who is unwilling to disaffiliate from another party to vote in the LPO‘s primary forms little “association” with the LPO—nor the LPO with him. See Tashjian, supra, at 235 (SCALIA, J., dissenting). That same voter might wish to participate in numerous party primaries, or cast ballots for several candidates, in any given race. The issue is not “dual associations,” post, at 601 (O‘CONNOR, J., concurring in part and concurring in judgment), but seemingly boundless ones. “If the concept of freedom of association is extended” to a voter‘s every desire at the ballot box, “it ceases to be of any analytic use.” Tashjian, supra, at 235 (SCALIA, J., dissenting); cf. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 130 (1981) (Powell, J., dissenting) (“[Not] every conflict between state law and party rules concerning participation in the nomination process creates a burden on associational rights“).
But even if Oklahoma‘s semiclosed primary system burdens an associational right, the burden is less severe than others this Court has upheld as constitutional. For instance, in Timmons, we considered a Minnesota election law prohibiting multiparty, or “fusion,” candidacies in which a candidate appears on the ballot as the nominee of more than one party. 520 U. S., at 353-354. Minnesota‘s law prevented the New Party, a minor party under state law, from putting forward the same candidate as a major party. The New Party challenged the law as unconstitutionally burdening its associational rights. Id., at 354-355. This Court concluded that the burdens imposed by Minnesota‘s law—“though not trivial—[were] not severe.” Id., at 363.
The burdens were not severe because the New Party and its members remained free to govern themselves internally and to communicate with the public as they wished. Ibid.
The same reasons underpinning our decision in Timmons show that Oklahoma‘s semiclosed primary system burdens the LPO only minimally. As in Timmons, Oklahoma‘s law does not regulate the LPO‘s internal processes, its authority to exclude unwanted members, or its capacity to communicate with the public. And just as in Timmons, in which Minnesota conditioned the party‘s ability to nominate the candidate of its choice on the candidate‘s willingness to disaffiliate from another political party, Oklahoma conditions the party‘s ability to welcome a voter into its primary on the voter‘s willingness to dissociate from his current party of choice. If anything, it is “[t]he moment of choosing the party‘s nominee” that matters far more, Jones, 530 U. S., at 575, for that is “the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community,” ibid. (quoting Tashjian, 479 U. S., at 216). If a party may be prevented from associating with the candidate of its choice—its desired “standard bearer,” Timmons, supra, at 359; Jones, supra, at 575—because that candidate refuses to disaffiliate from another political party, a party may also be prevented from associating with a voter who refuses to do the same.
Oklahoma‘s semiclosed primary system imposes an even slighter burden on voters than on the LPO. Disaffiliation is not difficult: In general, “anyone can ‘join’ a political party merely by asking for the appropriate ballot at the appropriate time or (at most) by registering within a state-defined reasonable period of time before an election.” Jones, supra,
B
Respondents argue that this case is no different from Tashjian. According to respondents, the burden imposed by Oklahoma‘s semiclosed primary system is no less severe than the burden at issue in Tashjian, and hence we must apply strict scrutiny as we did in Tashjian. We disagree. At issue in Tashjian was a Connecticut election statute that required voters to register with a political party before participating in its primary. 479 U. S., at 210-211. The State‘s Republican Party, having adopted a rule that allowed Independent voters to participate in its primary, contended that Connecticut‘s closed primary infringed its right to associate with Independent voters. Ibid. Applying strict scrutiny, this Court found that the interests Connecticut advanced to justify its ban were not compelling, and thus that the State could not constitutionally prevent the Republican Party from inviting into its primary willing Independent voters. Id., at 217-225.
Respondents’ reliance on Tashjian is unavailing. As an initial matter, Tashjian applied strict scrutiny with little discussion of the magnitude of the burdens imposed by Connecticut‘s closed primary on parties’ and voters’ associational
Nevertheless, Tashjian is distinguishable. Oklahoma‘s semiclosed primary imposes an even less substantial burden than did the Connecticut closed primary at issue in Tashjian. In Tashjian, this Court identified two ways in which Connecticut‘s closed primary limited citizens’ freedom of political association. The first and most important was that it required Independent voters to affiliate publicly with a party to vote in its primary. 479 U. S., at 216, n. 7. That is not true in this case. At issue here are voters who have already affiliated publicly with one of Oklahoma‘s political parties. These voters need not register as Libertarians to vote in the LPO‘s primary; they need only declare themselves Independents, which would leave them free to participate in any party primary that is open to registered Independents. See
The second and less important burden imposed by Connecticut‘s closed primary system was that political parties could not “broaden opportunities for joining . . . by their own act, without any intervening action by potential voters.” Tashjian, 479 U. S., at 216, n. 7. Voters also had to act by registering themselves in a particular party. Ibid. That is
These minor barriers between voter and party do not compel strict scrutiny. See Bullock v. Carter, 405 U. S. 134, 143 (1972). To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes. The Constitution does not require that result, for it is beyond question “that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Timmons, supra, at 358; Storer v. Brown, 415 U.S. 724, 730 (1974). Oklahoma‘s semiclosed primary system does not severely burden the associational rights of the State‘s citizenry.
C
When a state electoral provision places no heavy burden on associational rights, “a State‘s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons, supra, at 358 (internal quotation marks omitted); Anderson, supra, at 788. Here, Oklahoma‘s semiclosed primary advances a number of regulatory interests that this Court recognizes as important: It
First, as Oklahoma asserts, its semiclosed primary “preserv[es] the political parties as viable and identifiable interest groups, insuring that the results of a primary election, in a broad sense, accurately reflec[t] the voting of the party members.” Amended and Supplemental Trial Brief of Defendants 10, Record Doc. 63 (quoting without attribution Nader, supra, at 845). The LPO wishes to open its primary to registered Republicans and Democrats, who may well vote in numbers that dwarf the roughly 300 registered LPO voters in Oklahoma. See Memorandum Opinion 31-32 (at least 95% of voters in LPO‘s 1996 primary were independents, not Libertarians). If the LPO is permitted to open its primary to all registered voters regardless of party affiliation, the candidate who emerges from the LPO primary may be “unconcerned with, if not . . . hostile to,” the political preferences of the majority of the LPO‘s members. Nader, supra, at 846. It does not matter that the LPO is willing to risk the surrender of its identity in exchange for electoral success. Oklahoma‘s interest is independent and concerns the integrity of its primary system. The State wants to “avoid primary election outcomes which would tend to confuse or mislead the general voting population to the extent [it] relies on party labels as representative of certain ideologies.” Brief for Petitioners 12 (quoting without attribution Nader, supra, at 845); Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 228 (1989).
Moreover, this Court has found that “[i]n facilitating the effective operation of [a] democratic government, a state might reasonably classify voters or candidates according to political affiliations.” Nader, supra, at 845-846 (quoting Ray v. Blair, 343 U. S. 214, 226, n. 14 (1952)). But for that
Second, Oklahoma‘s semiclosed primary system, by retaining the importance of party affiliation, aids in parties’ electioneering and party-building efforts. “It is common experience that direct solicitation of party members—by mail, telephone, or face-to-face contact, and by the candidates themselves or by their active supporters—is part of any primary election campaign.” Nader, supra, at 848. Yet parties’ voter turnout efforts depend in large part on accurate voter registration rolls. See, e. g., Council of Alternative Political Parties v. State Div. of Elections, 344 N. J. Super. 225, 231-232, 781 A. 2d 1041, 1045 (2001) (“It is undisputed that the voter registration lists, with voter affiliation information, . . . provide essential information to the [party state committees] for other campaign and party-building activities, including canvassing and fundraising“).
When voters are no longer required to disaffiliate before participating in other parties’ primaries, voter registration rolls cease to be an accurate reflection of voters’ political preferences. And without registration rolls that accurately
Third, Oklahoma has an interest in preventing party raiding, or “the organized switching of blocs of voters from one party to another in order to manipulate the outcome of the other party‘s primary election.” Anderson, 460 U. S., at 788-789, n. 9; Jones, supra, at 572. For example, if the outcome of the Democratic Party primary were not in doubt, Democrats might vote in the LPO primary for the candidate most likely to siphon off votes from the Republican candidate in the general election. Or a Democratic primary contender who senses defeat might launch a “sore loser” candidacy by defecting to the LPO primary, taking with him loyal Democratic voters, and thus undermining the Democratic Party in the general election.4 Storer, 415 U. S., at 735. Oklahoma has an interest in “temper[ing] the destabilizing effects” of precisely this sort of “party splintering and excessive fac-
III
Beyond their challenge to Oklahoma‘s semiclosed primary law,
Though the LPO has unsuccessfully challenged one of these provisions before, see Rainbow Coalition of Okla. v. Oklahoma State Election Bd., 844 F. 2d 740 (CA10 1988) (rejecting First Amendment challenge by LPO and other political parties to Oklahoma‘s ballot access provision,
*
*
*
Oklahoma remains free to allow the LPO to invite registered voters of other parties to vote in its primary. But the Constitution leaves that choice to the democratic process, not to the courts. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
JUSTICE O‘CONNOR, with whom JUSTICE BREYER joins except as to Part III, concurring in part and concurring in the judgment.
I join the Court‘s opinion except for Part II-A. Although I agree with most of the Court‘s reasoning, I write separately to emphasize two points. First, I think respondents’ claim implicates important associational interests, and I see no reason to minimize those interests to dispose of this case. Second, I agree with the Court that only Oklahoma‘s semiclosed primary law is properly before us, that standing alone it imposes only a modest, nondiscriminatory burden on respondents’ associational rights, and that this burden is justi-
I
Nearly every State in the Nation now mandates that political parties select their candidates for national or statewide office by means of primary elections. See Galderisi & Ezra, Congressional Primaries in Historical and Theoretical Context, in Congressional Primaries and the Politics of Representation 11, 17, and n. 34 (P. Galderisi, M. Ezra, & M. Lyons eds. 2001). Primaries constitute both a “crucial juncture” in the electoral process, California Democratic Party v. Jones, 530 U. S. 567, 575 (2000) (quoting Tashjian v. Republican Party of Conn., 479 U. S. 208, 216 (1986)), and a vital forum for expressive association among voters and political parties, see Kusper v. Pontikes, 414 U. S. 51, 58 (1973) (“[A] basic function of a political party is to select the candidates for public office to be offered to the voters at general elections[, and a] prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process“). It is here that the parties invite voters to join in selecting their standard bearers. The outcome is pivotal, of course, for it dictates the range of choices available at—and often the presumptive winner of—the general election.
“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live,” Wesberry v.
The plurality questions whether the LPO and voters registered with another party have any constitutionally cognizable interest in associating with one another through the LPO‘s primary. See ante, at 588-589. Its doubts on this point appear to stem from two implicit premises: first, that a voter forms a cognizable association with a political party only by registering with that party; and second, that a voter can only form a cognizable association with one party at a time. Neither of these premises is sound, in my view. As to the first, registration with a political party surely may signify an important personal commitment, which may be accompanied by faithful voting and even activism beyond the polls. But for many voters, registration serves principally as a mandatory (and perhaps even ministerial) prerequisite
As to the question of dual associations, I fail to see why registration with one party should negate a voter‘s First Amendment interest in associating with a second party. We surely would not say, for instance, that a registered Republican or Democrat has no protected interest in associating with the Libertarian Party by attending meetings or making political contributions. The validity of voters’ and parties’ interests in dual associations seems particularly clear where minor parties are concerned. For example, a voter may have a longstanding affiliation with a major party that she wishes to maintain, but she may nevertheless have a substantial interest in associating with a minor party during particular election cycles or in elections for particular offices. The voter‘s refusal to disaffiliate from the major party may reflect her abiding commitment to that party (which is not necessarily inconsistent with her desire to associate with a second party), the objective costs of disaffiliation, see, e. g., infra, at 606-607, or both. The minor party, for its part, may have a significant interest in augmenting its voice in the political process by associating with sympathetic members of the major parties.
None of this is to suggest that the State does not have a superseding interest in restricting certain forms of associa
II
As to the remainder of the constitutional analysis, I am substantially in accord with the Court‘s reasoning. Our constitutional system assigns the States broad authority to regulate the electoral process, and we have recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes,” Storer v. Brown, 415 U. S. 724, 730 (1974). We have sought to balance the associational interests of parties and voters against the States’ regulatory interests through the flexible standard of review reaffirmed by the Court today. See ante, at 586-587. Under that standard, “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick v. Takushi, 504 U. S. 428, 434 (1992). Regulations
This regime reflects the limited but important role of courts in reviewing electoral regulation. Although the State has a legitimate—and indeed critical—role to play in regulating elections, it must be recognized that it is not a wholly independent or neutral arbiter. Rather, the State is itself controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit. Recognition of that basic reality need not render suspect most electoral regulations. Where the State imposes only reasonable and genuinely neutral restrictions on associational rights, there is no threat to the integrity of the electoral process and no apparent reason for judicial intervention. As such restrictions become more severe, however, and particularly where they have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition. In such cases, applying heightened scrutiny helps to ensure that such limitations are truly justified and that the State‘s asserted interests are not merely a pretext for exclusionary or anti-competitive restrictions.
Throughout the proceedings in the lower courts, respondents framed their suit as a facial challenge to Oklahoma‘s semiclosed primary law. The sum of their argument was that, by requiring voters to register either as Libertarians or Independents in order to participate in the LPO‘s primary, state law imposes a severe and unjustified burden on the LPO‘s and Oklahoma voters’ associational rights. For the reasons explained by the Court, ante, at 597-598, that is the
Oklahoma‘s semiclosed primary law simply requires that voters wishing to participate in the LPO‘s primary do what they would have to do in order to participate in any other party‘s primary. By providing a reasonably fixed party-related electoral base from the close of registration until the date of the vote, this requirement facilitates campaign planning. And assuming the availability of reasonable reregistration procedures, a party‘s inability to persuade a voter to disaffiliate from a rival party would suggest not the presence of anticompetitive regulatory restrictions, but rather the party‘s failure to win the voter‘s allegiance. The semiclosed primary law, standing alone, does not impose a significant obstacle to participation in the LPO‘s primary, nor does it indicate partisan self dealing or a lockup of the political process that would warrant heightened judicial scrutiny.
For essentially the reasons explained by the Court, see ante, at 593-597, I agree that Oklahoma has a legitimate interest in requiring voters to disaffiliate from one party before participating in another party‘s primary. On the record before us, I also agree that the State‘s regulatory interests are adequate to justify the limited burden the semiclosed primary law imposes on respondents’ freedom of association.
III
In briefing and oral argument before this Court, respondents raise for the first time the claim that Oklahoma‘s semiclosed primary law severely burdens their associational rights not through the law‘s own operation, but rather because other state laws make it quite difficult for voters to reregister as Independents or Libertarians so as to participate in the LPO primary. See Brief for Respondents 12-24. Respondents characterize Oklahoma‘s regulatory scheme as follows.
Partisan primaries in Oklahoma are held on the last Tuesday in July of each even-numbered year.
When a party loses its recognized status, as the LPO has after every general election in which it has participated, the affiliation of any voter registered with the party is changed to Independent.
Most importantly, according to respondents, the deadline for changing party affiliation makes it quite difficult for the LPO to invite voters to reregister in order to participate in its primary. Assuming the LPO submits its petition for recognized party status on the May 1 deadline, the State has until May 31 to determine whether party status will be conferred. See
If this characterization of state law is accurate, a registered Democrat or Republican sympathetic to the LPO or to
Throughout the proceedings in the lower courts, which included a full bench trial before the District Court, respondents made no attempt to challenge these other electoral requirements or to argue that they were relevant to respondents’ challenge to the semiclosed primary law. The lower courts, accordingly, gave little or no consideration to how these various regulations interrelate or operate in practice, nor did the State seek to justify them. Given this posture, I agree with the Court that it would be neither proper nor prudent for us to rule on the reformulated claim that respondents now urge. See ante, at 597-598.
Nevertheless, respondents’ allegations are troubling, and, if they had been properly raised, the Court would want to examine the cumulative burdens imposed by the overall scheme of electoral regulations upon the rights of voters and parties to associate through primary elections. A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, and with whom JUSTICE SOUTER joins as to Parts I, II, and III, dissenting.
The Court‘s decision today diminishes the value of two important rights protected by the First Amendment: the individual citizen‘s right to vote for the candidate of her choice and a political party‘s right to define its own mission. No one would contend that a citizen‘s membership in either the Republican or the Democratic Party could disqualify her from attending political functions sponsored by another party, or from voting for a third party‘s candidate in a general election. If a third party invites her to participate in its primary election, her right to support the candidate of her choice merits constitutional protection, whether she elects to make a speech, to donate funds, or to cast a ballot. The importance of vindicating that individual right far outweighs any public interest in punishing registered Republicans or Democrats for acts of disloyalty. The balance becomes even more lopsided when the individual right is
In concluding that the State‘s interests override those important values, the Court focuses on interests that are not legitimate. States do not have a valid interest in manipulating the outcome of elections, in protecting the major parties from competition, or in stunting the growth of new parties. While States do have a valid interest in conducting orderly elections and in encouraging the maximum participation of voters, neither of these interests overrides (or, indeed, even conflicts with) the valid interests of both the LPO and the voters who wish to participate in its primary.
In the final analysis, this case is simple. Occasionally, a political party‘s interest in defining its platform and its procedures for selecting and supporting its candidates conflicts with the voters’ interest in participating in the selection of their elected representatives. If those values do conflict, we may be faced with difficult choices. But when, as in this case, those values reinforce one another a decision should be easy. Oklahoma has enacted a statute that impairs both; it denies a party the right to invite willing voters to participate in its primary elections. I would therefore affirm the Court of Appeals’ judgment.
I
In rejecting the individual respondents’ claims, the majority focuses on their associational interests. While the voters in this case certainly have an interest in associating with the LPO, they are primarily interested in voting for a particular candidate, who happens to be in the LPO. Indeed, I think we have lost sight of the principal purpose of a primary: to nominate a candidate for office. Cf. Burdick v. Takushi, 504 U. S. 428, 445 (1992) (KENNEDY, J., dissenting) (“[T]he purpose of casting, counting, and recording votes is to elect public officials, not to serve as a general forum for political expression“).
Here, the impact of the Oklahoma statute on the voters’ right to vote for the candidate of their choosing is not a mere “burden“; it is a prohibition.1 By virtue of the fact that their preferred candidate is a member of a different party, respondents are absolutely precluded from voting for him or her in the primary election. It is not an answer that the
This is not to say that voters have an absolute right to participate in whatever primary they desire. For instance, the parties themselves have a strong associational interest in determining which individuals may vote in their primaries, and that interest will normally outweigh the interest of the uninvited voter.2 But in the ordinary case the State simply has no interest in classifying voters by their political party and in limiting the elections in which voters may participate as a result of that classification. Just as we held in Reynolds that all voters of a State stand in the same relation to the State regardless of where they live, and that the State must thus not make their vote count more or less depending
II
In addition to burdening the individual respondent‘s right to vote, the Oklahoma scheme places a heavy burden on the LPO‘s associational rights. While Oklahoma permits independent voters to participate in the LPO‘s primary elections, it refuses to allow registered Republicans or Democrats to do so. That refusal has a direct impact on the LPO‘s selection of candidates for public office, the importance of which cannot be overstated. A primary election plays a critical role in enabling a party to disseminate its message to the public. California Democratic Party v. Jones, 530 U. S. 567, 575 (2000). It is through its candidates that a party is able to give voice to its political views, to engage other candidates on important issues of the day, and to affect change in the government of our society. Our cases “vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party ‘select[s] a standard bearer who best represents the party‘s ideologies and preferences.‘” Ibid. (quoting Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 224 (1989)).
The Oklahoma statute prohibits the LPO from associating with all of the voters it believes will best enable it to select a viable candidate. The ability to select those individuals with whom to associate is, of course, at the core of the First Amendment and goes to the heart of the associational interest itself. “Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to identify the people who constitute the association . . . .”
In concluding that the Oklahoma statute is constitutional, the majority argues that associational interests between the LPO and registered members of other parties are either nonexistent or not heavily burdened by the Oklahoma scheme. The plurality relies on a single footnote in Jones to show that there are no associational interests between the LPO and registered Republicans and Democrats. See ante, at 588-589 (citing 530 U. S., at 573-574, n. 5). In Jones, of course, the political parties did not want voters of other parties participating in their primaries; the putative associational interest in this case, in which the LPO is actively courting voters of other parties, simply did not exist. More importantly, our decision in Tashjian rejected these arguments.
In Tashjian we held that the State could not prohibit Republicans from inviting voters who were not registered with a political party to participate in the Republican primary. We recognized that “[t]he Party‘s attempt to broaden the base of public participation in and support for its activities is conduct undeniably central to the exercise of the right of association.” 479 U. S., at 214. Importantly, we rejected the notion that the associational interest was somehow diminished because the voters the party sought to include were not formally registered as Republicans. Id., at 215 (“[C]onsidered from the standpoint of the Party itself, the act of formal enrollment or public affiliation with the Party is merely one element in the continuum of participation in
Virtually identical interests are at stake in this case. It is the LPO‘s belief that attracting a more diverse group of voters in its primary would enable it to select a more mainstream candidate who would be more viable in the general election. Like the Republicans in Tashjian, the LPO is cognizant of the fact that in order to enjoy success at the voting booth it must have support from voters who identify themselves as independents, Republicans, or Democrats.
The LPO‘s desire to include Democrats and Republicans is undoubtedly informed by the fact that, given the stringent requirements of Oklahoma law, the LPO ceases to become a formally recognized party after each election cycle, and its members automatically revert to being independents.3 Because the LPO routinely loses its status as a recognized party, many voters who might otherwise register as Libertarians instead register as Democrats or Republicans.4 Thus, the LPO‘s interest in inviting registered Republicans
III
As justification for the State‘s abridgment of the constitutionally protected interests asserted by the LPO and the voters, the majority relies on countervailing state interests that are either irrelevant or insignificant. Neither separately nor in the aggregate do these interests support the Court‘s decision.
First, the Court makes the remarkable suggestion that by opening up its primary to Democrats and Republicans, the LPO will be saddled with so many nonlibertarian voters that the ultimate candidate will not be, in any sense, “libertarian.” See ante, at 594.5 But the LPO is seeking the crossover voting of Republicans and Democrats. Rightly or wrongly, the LPO feels that the best way to produce a viable candidate is to invite voters from other parties to participate in its primary. That may dilute what the Court believes to be the core of the Libertarian philosophy, but it is no business of the State to tell a political party what its message should be, how it should select its candidates, or how it should form coalitions to ensure electoral success. See Jones, 530 U. S., at 581-582 (rejecting state interests in producing candidates that are more centrist than the nominee the party would have selected absent the blanket primary).6
Third, the majority suggests that crossover voting will impair the State‘s interest in properly classifying candidates and voters. As an empirical matter, a crossover voter may have a lesser commitment to the party with which he is registered if he votes in another party‘s primary. Nevertheless, the State does not have a valid interest in defining what it means to be a Republican or a Democrat, or in attempting to ensure the political orthodoxy of party members simply for the convenience of those parties. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . .“). Even if participation in the LPO‘s primary causes a voter to be a less committed “Democrat” or “Republican” (a proposition I reject7), the dilution of that commitment does not justify abridgment of the fundamental rights at issue in this case. While party identity is important in
Fourth, the majority argues that opening up the LPO primary to members of the Republican and Democratic Parties might interfere with electioneering and party-building efforts. It is clear, of course, that the majority here is concerned only with the Democratic and Republican Parties, since party building is precisely what the LPO is attempting to accomplish. Nevertheless, that concern is misplaced. Even if, as the majority claims, the Republican and Democratic voter rolls, mailing lists, and phone banks are not as accurate as they would otherwise be,9 the administrative inconvenience of the major parties does not outweigh the right to vote or the associational interests of those voters and the LPO. At its core, this argument is based on a fear that the LPO might be successful in convincing Democratic or Republican voters to participate more fully in the LPO. Far from being a compelling interest, it is an impermissible one. Timmons v. Twin Cities Area New Party, 520 U. S. 351, 367
Finally, the majority warns against the possibility of raiding, ante, at 596, by which voters of another party maliciously vote in a primary in order to change the outcome of the primary, either to nominate a particularly weak candidate, a “sore-loser” candidate, or a candidate who would siphon votes from another party. The District Court, whose factual findings are entitled to substantial deference, found as a factual and legal matter that the State‘s argument concerning raiding was “unpersuasive.” App. to Pet. for Cert. A-61.
Even if raiding were a possibility, however, the state interests are remote. The possibility of harm to the LPO itself is insufficient to overcome the LPO‘s associational rights. See Eu, 489 U. S., at 227-228 (“[E]ven if a ban on endorsements saves a political party from pursuing self-destructive acts, that would not justify a State substituting its judgment for that of the party“). If the LPO is willing to take the risk that its party may be “hijacked” by individuals who hold views opposite to their own, the State has little interest in second-guessing the LPO‘s decision.
With respect to the possibility that Democratic or Republican voters might raid the LPO to the detriment of their own or another party, neither the State nor the majority has identified any evidence that voters are sufficiently organized to achieve such a targeted result.10 Such speculation is not, in
In the end, the balance of interests clearly favors the LPO and those voters who wish to participate in its primary. The associational interests asserted—the right to select a standard bearer that the party thinks has the best chance of success, the ability to associate at the crucial juncture of selecting a candidate, and the desire to reach out to voters of other parties—are substantial and undoubtedly burdened by Oklahoma‘s statutory scheme. Any doubt about that fact is clearly answered by Tashjian. On the other side, the interests asserted by the State are either entirely speculative or simply protectionist measures that benefit the parties in power. No matter what the standard, they simply do not outweigh the interests of the LPO and its voters.
IV
The Libertarian Party of Oklahoma is not the only loser in this litigation. Other minor parties and voters who have primary allegiance to one party but sometimes switch their support to rival candidates are also harmed by this decision. In my judgment, however, the real losers include all participants in the political market. Decisions that give undue def—
The decision in this case, like the misguided decisions in Timmons, 520 U. S. 351, and Jones, 530 U. S. 567, attaches overriding importance to the interest in preserving the two-party system. In my view, there is over a century of experience demonstrating that the two major parties are fully capable of maintaining their own positions of dominance in the political marketplace without any special assistance from the state governments that they dominate or from this Court. Whenever they receive special advantages, the offsetting harm to independent voters may be far more significant than the majority recognizes.
In Anderson, 460 U. S. 780, we considered the impact of early filing dates on small political parties and independent candidates. Commenting on election laws that disadvantage independents, we noted:
“By limiting the opportunities of independent-minded voters to associate in the electoral arena to enhance their political effectiveness as a group, such restrictions threaten to reduce diversity and competition in the marketplace of ideas. Historically political figures outside
Because the Court‘s holding today has little to support it other than a naked interest in protecting the two major parties, I respectfully dissent.