Nader v. SchafferNader v. Schaffer
MEMORANDUM OF DECISION
Plаintiffs, Nathra Nader and Albert C. Snyder, Jr., are residents of Winchester, Connecticut. Each has registered as a voter pursuant to
Connecticut Gen.Stat.
“Eligibility to vote at primary. No person shall be permitted to vote at a primary of a party unless he is on the last-completed enrolment list of such party in the municipality or voting district, as the case may be . .”
Plaintiffs’ complaint alleges that the actions of the defendant Secretary of the State 1 and her agents in enforcing § 9-431, pursuant to §§ 9-3, 9-4, 9-5, and 9-439, violate plaintiffs’ rights in the following manner: (1) by denying them the right to vote in primary elections while extending this right to enrolled party members, deprives plaintiffs of their Fourteenth Amendment right to equal protection of the law; (2) by compelling them either to enroll in a political party or forego a right to vote in a primary election impermissibly forces рlaintiffs to choose between a right to vote, on the one hand, and the right freely to associate for the advancement of political ideas, on the other; the latter includes the right to associate with a particular candidate regardless of the candidate’s party affiliation; and (3) infringes plaintiffs’ right to vote, as guaranteed by Article I, Section 2, cl. 1 and the Fourteenth and Seventeenth Amendments, by preventing plaintiffs from participating in an “integral part”—the primary elections—“of the process by which their United States Senators and Representatives are chosen.”
They allege further that “primary elections . . . constitute an integral part of the process established by the State of Connecticut for selecting individuals who will represent and govern plaintiffs in federal, stаte and local office,” and therefore request an order declaring that
Connecticut’s Primary Election System
Connecticut law divides potential candidates for office into three categories: those of “major parties,” those of “minor parties,” and independents or “petitioning parties.”
3
The candidates of the major and minor parties are afforded spaces on the ballot for the general election; other candidates may have their names appear on the ballot by fulfilling the petition requirements of §§ 9—153a through 9-453s.
Initially, state or district conventions, as the case may be, of a major party “choose a candidate for nomination to each of the state or district offices” through a “challenge primary” system.
Minor parties are required only to nominate their candidates in a manner prescribed in the party’s own rules, which must be filed with the Secretary of the State.
Enrollment in a political party is, as plaintiffs assert, a public act of affiliation with the party, at least insofar as the voter is required by
DISCUSSION
Plaintiffs’ principal argument 4 is that participation in a primary election is an exercise of the constitutionally protected right to vote and of the constitutionally protected right to associate with others in support of a candidate. They also assert 'that to the latter there is a constitutionally protected correlative right not to associate, and to be free from coerced associations. They further claim a constitutionally pro-
tected right of privacy of association. Plaintiffs wish to exercise both of these claimed sets of rights, but § 9-431 limits them to one or the other; that is, in order to vote in a party’s primary election, plaintiffs must enroll in the party, while on the other hand, if they maintain their stand against enrollment, they are precluded.
The fact that plaintiffs do not enroll in the Democratic or Republican Parties does not prevent them from working in support of or contributing money to their favorite candidates within these Parties or candidates in other major or minor parties; or from giving such support to independent candidates, including themselves. Moreover the plaintiffs are not prevented from signing the petitions of independents or participating in a minor party’s candidate selection process as it is established by the party’s rules under
Plaintiffs argue that the alternative avenues of political activity open to them under Connecticut law are ineffectual and unrealistic, since in most general elections, only the Democratic and Republican nominees have reasonable probabilities of success. While plaintiffs’ contention may gen
A “major party” embraces a substantial fraction of the total electorate, who have associated together for the purpose of nominating and working for the election of candidates who, as officeholders, will implement the members’ political views. “Success” in this endeavor, such as the major parties have achieved, is the ultimate goal of the members’ political activities, and does not necessarily call for strict constitutional scrutiny by the judiciary so as to increase the political strength of those who have not actively attempted to advance their political views.
Improper State support for the Democratic and Republican Parties cannot be inferred from the fact that their primary elections are closely regulated by statute. In the past, many political nominations were made by a process which both the plaintiffs and amicus curiae
6
briefs have described as the “smoke-filled room.” Many states, such as Connecticut, have enacted statutes calling for nomination by primary election, presumably because they find it beneficial to allow the general party membership a voice in the nominating process. See
Bullock
v.
Carter,
Further there is at least plurality in Connecticut—it is not a “one-party” state—and thus no one party’s primary election is completely determinative of the outcome. Compare
United States v. Classic,
With regard to the claimed right not to associate, it is true that, in order to vote in a party’s primary, plaintiffs must publicly affiliate with that party. But enrollment in Connecticut imposes absolutely no affirmative party obligations on the voter, in terms of time or money, and it does not even obligate him to vote for the party’s positions or candidates or to vote at all. The voter’s name, however, may be erased
Plaintiffs also claim that the public nature of enrollment violates their right to privacy of associаtion by potentially subjecting them to harassment because of their affiliations with a party. It is insufficient, however, for plaintiffs merely to raise the spectre of harassment; instead, they must make a detailed factual showing of actual threats or incidents of harassment. Compare
Buckley v. Valeo, supra,
The State, plaintiffs assert, may not force them to comply with § 9-431 unless the State establishes that it “serves a compelling state interest by the least drastic means available,” citing
Dunn v. Blumstein,
A political party, however, is a voluntary association, instituted for political purposes, with the goal of effectuating the will of its members.
Ray v. Blair,
Because the political party is formed for the purpose of engaging in political activities, constitutionally рrotected associational rights of its members are vitally essential to the candidate selection process.
Cousins v. Wigoda,
In addition to protecting the associational rights of party members, a state has a more general, but equally legitimate, interest in protecting the overall integrity of the historic electoral process. This includes preserving parties as viable and identifiable interest groups; insuring that the results of primary elections, in a broad sense, accurately reflect the voting of party members. Parties should be able to avoid primary election outcomes which will confuse or mislead the general electorate to the extent it relies on party labels as representative of certain ideologies; and preventing fraudulent and deceptive conduct which mars the nominating process. See generally Note, 27 Rutgers L.Rev. 298 (1974), and Comment, 40 U.Chi.L.Rev. 636 (1973). The Supreme Court has recognized the legitimacy of this state interest in decisions such as
Rosario v. Rockefeller,
These well established principles are applicable here.
Ray v. Blair, supra,
involved an Alabama primary election system regulated by state statute and carried out at state expense. State party executive committees were given the power to fix political or other qualifications of party members and candidates. The Democratic Party required candidates for Party nomination to sign a pledge stating they would aid and support the Party’s ultimate nominees. This was challenged on equal protection, due process, and other constitutional grounds, but the Supreme Court upheld the pledge requirement and stated that it “proteet[ed] a party from intrusion by those with adverse political principles,”
“[T]he requirement of this pledge, unlike the requirement of color, is reasonably related to a legitimate legislative objective—namely, to prоtect the party system by protecting the party from a fraudulent invasion by candidates who will not support the party. ... In facilitating the effective operation of democratic government, a state might reasonably classify voters or candidates according to party affiliations . .. This requirement of a pledge does not deny equal protection or due process.”
Although, as plaintiffs note, Ray v. Blair, involved a party loyalty oath for candidates for party office, not one for voters in a party election, but the language and reasoning of the Court’s opinion imply the validity of a similar requirement, binding members of a party to vote only for a party member as the party’s candidate, to run to the ensuing national, state, county or municipal election. Any elector in Connecticut may, however, in the subsequent general election vote for any party’s candidate or an independent, as he chooses, and there is no way to compel him to disclose for whom he voted.
Relying on
Ray v. Blair,
a three-judge court in
Lippitt v. Cipollone, supra,
The Supreme Court ruled in
Storer v. Brown, supra,
that California could bar from the ballot an independent candidate who within the previous year had been a member of a party; this law did not discriminate against such independent candidates, because candidates for
party
nomination were similarly disqualified if they belonged to a
different
party within the previous year.
A three-judge court in Green v. State of Texas, supra, at 145, held constitutional certain sections of the Texas Election Code which “prohibit electors vtho vote for a candidate for one office in a particular party primary from voting in another party primary for a candidate running for a different office.” The court stated:
“Far from abridging federal rights, the Texas statutes here under review serve to protect the political rights of Texans to join political parties and to enjoy the free right of association appurtenant thereto with some protection against raids and interference from independents or members of other political parties.”
In
Rosario v. Rockefeller, supra,
the Suprеme Court upheld New York’s “delayed enrollment” scheme which barred voters from participation in a primary election unless they were enrolled in the party prior to the preceding general election-—a requirement which resulted, in practice, in “waiting periods” of up to eleven months. Affirming a decision of the Second Circuit,
As we have noted, the phrase “presеrvation of the integrity of the electoral process” contemplates, in the nominating context, the assurance that primary election results reflect the will of party members, undistorted by the votes of those unconcerned with, if not actually hostile to, the principles, philosophies, and goals of the party. The phrase contemplates the pre
It is clear from these cases that, in order to protect party members from “intrusion by those with adverse political principles,” and to preserve the integrity of the electoral process, a state legitimately may condition one’s participation in a party’s
nominating
process on some showing of loyalty to that party, and that is precisely what Connecticut does in
Plaintiffs argue that
Plaintiffs’ claim that Connecticut could prevent raiding and other distortive and deceptive conduct by a less drastic means, namely, criminal sanctions against the perpetrators, is not persuasive. Assuming
arguendo
that the “least drastic means” test applies here, that standard does not require the State to choose ineffectual means to accomplish its goals.
Storer
v.
Brown, supra,
The State obviously cannot conduct a test on each voter to determine his political ideas before allowing him to vote in a primary election, and the enrollment requirement of
From the party’s point of view, enrollment also serves an important housekeeping function. Candidates need to know who is in the electorate, so that they (the candidates) can attempt to persuade those individuals to vote for them. Party members who wish to establish, as party policy, a particular course of conduct through the election of a particular candidate, similarly need to know who their supporters are. 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. But, without the public list of party members which is provided by the enrollment process, such electioneering would become quite difficult. The enrollment requirement of
Plaintiffs also argue that
“[T]o the extent Ohio’s election laws limit the right to participate in a party primary or be a candidate for political office, a person is excluded by reasonable restriction but not by a political caste system. There can be no discrimination of constitutional proportion when a man refrains from entering a party primary of one of the two major political parties because he regards himself an independent or a member of a minority party.”
“Not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review.”
Bullock v. Carter,
“[Ajppellants . . . assert that under [certain Court decisions], substantial burdens on the right to vote or to associate for political purposes are constitutionally suspect and invalid under the First and Fourteenth Amendments and under the Equal Protection Clause unless essential to serve a compelling state interest. It has never been suggested that [the rule of these decisions] automatically invalidates every substantial restriction on the right to vote or to associate.” (Emphasis supplied.)
There must be more than a minimal infringement on the rights to vote and of association, therefore, before strict judicial review is warranted. See
Buckley v. Valeo, supra,
and
United States Civil Service Commission v. National Association of Letter Carriers,
We, therefore, conclude that
Plaintiffs, in their argument, have pointed to several perceived flaws in the primary election system which the Connecticut legislature has established. It is asserted, for example, that, “There are, moreover, reasons to believe that if independent voters were able to vote in primary elections, the stability of the political system would actually be enhanced”; and that participation by independent voters in primary electiоns “will benefit the two-party system by drawing more citizens into the political process at this crucial stage.” They also argue that it is “irrational” for the legislature “.to presume” that “independent voters are at all likely to engage in raiding,” and, as discussed
supra,
that
“. . .a major factor in the increase in proportion of unaffiliated voters is the discontent and dissatisfaction of large numbers of citizens with the political parties . . .,”
and that excluding independent voters from participation in primary elections serves to increase the feeling of these citizens that they are excluded from an important part of the political process. The amicus brief declares that
The comparative merits of various forms of primary election systems have been widely debated in this presidential election year. In particular, the “open” аnd “crossover” primaries, which permit independents and/or members of other parties to participate in a given party’s primary, have been the subject of controversy. 8
We, therefore, hold that the election laws of the General Statutes of the State of Connecticut, governing primaries are not in violation of the Constitution of the United States, that they provide for legitimate goals through constitutionally permissible means and that there is no need or occasion for the judicial relief requested by the plaintiffs.
The record does not disclose that the plaintiffs at any time have sought to have the primary election statutes changed to conform more closely to their views. The laws, as they are now, are not immutable; and, if the plaintiffs, as they imply, are speaking for а generous one-third of the
entire electorate of the State of Connecticut, they should, by using the simple and direct means provided by §§ 9-453a-453s, be able to get one or more of their number on the ballots and, through diligent and thorough campaigning, elect one or more representatives in the legislature. Theoretically the laws are still made by the legislatures and, although the effort to achieve a change in the statutes requires a great deal of time, hard work and infinite patience, it is not impossible. The presently popular course of raising a federal constitutional question and seeking a change in the law by judicial fiat, is quicker, more academically attractive and perhaps more thorough. But such action tends in itself to work in derogation of the separation оf powers and our democratic system of government. The courts should not use this power for the purpose of exercising “some amorphous, general supervision of the operations of government,”
United States
v.
Richardson,
The defendants’ motion to dismiss is granted and the plaintiffs’ motion for summary judgment is denied. Judgment may enter accordingly.
Notes
. Plaintiffs’ original complaint, filed January 15, 1976, named only Secretary of the State Schaffer as a defendant. Subsequently, after a “Motion by Defendant to Bring in Additional Defendants,” the Republiсan and Democratic Parties of Connecticut were added as defendants.
. The request for certification of this case as a class action, with the class comprised of “all those registered voters of the State of Connecticut who are not enrolled in any political party and who are therefore barred from voting in primary elections,” was withdrawn because counsel for the Secretary of the State stipulated at the hearing on the merits that this court’s ruling on the validity of
. A “major party” is one (a) whose candidate in the last preceding gubernatorial election received at least twenty percent of the total votes for that office; or (b) whose candidate for the office in question received, at the last preceding regular election for that office, at least ten percent of the total votes.
. We agree at the outset with plaintiffs, that constitutional standards must be satisfied in primary as well as in general elections,
Smith v. Allwright,
Although plaintiffs cite several cases for the proposition that there is a “right” to vote in primary elections, these cases do not hold that there is a right to vote in primary elections even though the voter refuses to comply with constitutionally legitimate rules and requirements of party membership. Indeed, the leading case of
Smith v. Allwright, supra,
involved a primary election system, established by state statute, under which party membership was “the essential qualification for voting in a primary tо select nominees for a general election,”
id.
at 664,
. In terms of the ease of access to the ballot which the Connecticut statutes provide for parties other than the Republican and Democratic Parties, and persons who are not candidates of those Parties, it is interesting to note that, in the 1970, 1972, and 1974 elections, a total of nine candidates who were neither Republican nor Democratic achieved “major party” status. Further, from 1966 through 1974, a total of sixty candidacies achieved “minor party” status. And from 1966 through 1975, a total of 969 candidates gathered a number of petition signatures sufficient under
. On June 22, 1976 this court granted United States Senator Lowell P. Weicker, Jr.’s motion for leave to file an amicus curiae brief.
. The Court did
not
say, “voters who are
members
of one party . . . It thus left open the possibility that independent voters, as well as members of other parties; could be guilty of “raiding.” But see
Echevarria v. Carey,
. See, e. g., Editorial, “Adulterated Choice,” New York Times, May 25, 1976, at 34, col. T, M. S. Forbes, Jr., “Wallacites and the GOP,”
Forbes,
June 1, 1976, at 19; Barone, “That ‘Crossover’ Nonsense,” Washington Post, May 16, 1976, at C-7; Herbers, “Crossover Voting Makes Primaries More General,” New York Times, May 16, 1976, § IV, at 2; Rovere, “Let