826 F.2d 814 | 9th Cir. | 1987
This case involves a First Amendment challenge to various sections of the California Elections Code. The challenged sections specify the membership of the state central committees of ballot-qualified political parties and the term of office of committee chairs, and prohibit both state and county central committees from endorsing candidates in party primaries.
Plaintiffs are various county central committees of the Democratic and Republican parties, the state central committee of the Libertarian party, members of these and other party central committees, and various other groups and individuals active in partisan politics in California. They sued the Secretary of State and Attorney General of California and the district attorneys of various counties (hereinafter “the State”) for declaratory and injunctive relief under 42 U.S.C. § 1983 seeking to vindicate their asserted First Amendment right to endorse candidates running in California’s direct primary elections and to structure and conduct the internal affairs of their respective political parties free of unjustified interference by the state.
In the first count of their first amended complaint, plaintiffs challenge the constitutionality of Cal.Elec.Code § 11702, which prohibits state and county central committees from endorsing, supporting, or opposing candidates for partisan office in direct primary elections. Plaintiffs' second count challenges sections of the Elections Code and the state constitution that prohibit central committees from endorsing candidates in nonpartisan county, city and school elections. Plaintiffs’ third count challenges Code sections that prescribe the membership of state central committees, the term of office of state committee chairpersons, the time and place of state and county central committee meetings, and the dues to be paid by county committee members.
Plaintiffs moved for summary judgment on all three counts. In response, the State moved to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(1) and (6) and crossmoved for summary judgment. The district court granted summary judgment on plaintiffs’ first count, ruling that section 11702’s ban on preprimary endorsements violated the First Amendment. The court stayed all proceedings on plaintiffs’ second count under the abstention doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The court granted partial summary judgment on plaintiffs’ third count, ruling that the sections prescribing the membership of state central committees and the term of their chairs violated the First Amendment.
In San Francisco County Democratic Central Committee v. Eu, 792 F.2d 802, 820 (9th Cir.1986), we affirmed the district court’s judgment granting summary judgment to plaintiffs. Our judgment was, however, vacated by the United States Supreme Court, which remanded the case to this court “for further consideration in light of Tashjian v. Republican Party of Connecticut, 479 U.S. -, 107 S.Ct. 544, 93 L.Ed.2d [514] (1986).” Eu v. San Francisco County Democratic Committee, - U.S. -, 107 S.Ct. 864, 93 L.Ed.2d 820 (1987). Having considered the matter further after supplemental briefing by the parties, we conclude that Tashjian supports our previous decision and accordingly reinstate our judgment affirming the district court for the reasons set forth in this modified opinion.
I
Plaintiffs contend that California’s political parties and their governing bodies — the state and county central committees — are voluntary associations entitled to the full protection of the First Amendment. They argue that California’s prohibition of preprimary endorsements and the state’s regulation of party structure and internal affairs abridge their freedom of political expression and association.
“Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association.” Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957). Because “[e]xercise of these basic freedoms ... has traditionally been through the media of political associations,” id,., political parties as well as individual party adherents enjoy First Amendment rights. See Tashjian v. Republican Party of Connecticut, - U.S. -, 107 S.Ct. 544, 548-49, 93 L.Ed.2d 514 (1986); Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981); Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975).
In this case we must apply these settled First Amendment principles to the restrictions imposed on California political parties by various provisions of the California Elections Code. To place the important
Like our national political parties,
Spurred on by the Progressive reformers, the state legislature took the first— and most fundamental — step toward democratizing political parties by enacting a direct primary law, which transferred the power to nominate candidates from party organizations to the voters themselves. See Hart v. Jordan, 168 Cal. 321, 143 P. 537 (1914); Katz v. Fitzgerald, 152 Cal. 433, 93 P. 112 (1907); see also California Politics, supra at 35. As part of the same reform movement {see Opinion, Legislative Counsel of California, February 23, 1978, Excerpt of Record 465), the California legislature required political parties to form state and county central committees and adopted rules for party governance.
The Elections Code provisions regulating party governance are byzantine in their complexity
Most importantly, the Elections Code assigns to each party’s state central committee the “statutory function of party leadership” by placing it “at the very helm of the party’s general election campaign.” 23 Ops Cal.Atty.Gen. 119, 123 (1954); see Cal.Elec.Code §§ 8776, 8940.
In practice, commentators have noted that the statutory organization of the central committees is so cumbersome as to make only titular leadership realistically possible.
Thus, the legislative design favors elected officials over party members who do not hold elective office. The design particularly favors incumbent state legislators, who enact and amend the legislation regulating party affairs. Members of the California State Assembly and Senate can control as many as 400 positions; in comparison, the California delegation to the United States Congress and Senate controls only 143 positions. See Cal.Elec.Code § 8660.
Finally, all party central committees have been prohibited from endorsing or opposing candidates in party primaries. Commentators have claimed that, like the
II
At the outset, we consider various threshold issues raised by the State in its motion to dismiss below and renewed on appeal. The State presents four reasons for reversing the district court without reaching the merits: (1) plaintiffs’ complaint fails to raise a justiciable controversy; (2) plaintiffs lack standing to bring the action; (3) the action is barred by the Eleventh Amendment; and (4) the district court should have abstained under the Pullman doctrine from adjudicating the first and third causes of action. We find none of these arguments persuasive.
A
Article III limits the exercise of federal judicial power to actual cases and controversies. NAACP v. City of Richmond, 743 F.2d 1346, 1350 (9th Cir.1984). A plaintiff who challenges a statute must demonstrate “a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979); see also O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). But “[o]ne does not have to await the consummation of the threatened injury [to seek relief]. If the injury is certainly impending that is enough.” Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308 (quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). When a plaintiff seeks to engage in conduct proscribed by statute and a credible threat of prosecution exists, he need not “expose himself to actual arrest and prosecution to be entitled to challenge [the] statute____” Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974)); see also Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 746, 35 L.Ed.2d 201 (1973). This is especially true in a First Amendment case because of “the sensitive nature of constitutionally protected expression.” Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965).
Relying on Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), the State claims that the action is not justiciable because the Elections Code provisions that plaintiffs challenge have never been enforced. In Poe, the Supreme Court held that a constitutional challenge to a Con
Rather than Poe, we believe resolution of the justiciability issue is controlled by Babbitt, 442 U.S. at 302-03, 99 S.Ct. at 2310-11, and Epperson v. Arkansas, 393 U.S. 97, 101-02, 89 S.Ct. 266, 268-69, 21 L.Ed.2d 228 (1968). In both cases, the Court found justiciability notwithstanding a record of non-enforcement because, as distinguished from Poe, the record did not show that the statutes had been “commonly and notoriously” violated.
The State further contends that, under Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), federal courts lack the authority to determine that a violation of a challenged state statute is a criminal offense unless the statute has already been enforced through a criminal prosecution.
B
Closely related to the case or controversy requirement is the requirement that plaintiffs have standing to bring the action.
The fact that no state central committee currently has bylaws that conflict with the challenged statutes hardly indicates that those statutes do not restrict the parties’ First Amendment rights. Parties cannot qualify for the ballot unless they conform their operations to the statutory blueprint prescribed for one of the existing ballot-qualified parties. See Cal.Elec.Code § 9955. The State nonetheless argues that a party’s decision to become ballot-qualified makes its conformance with those statutes voluntary and thus removes any constitutional difficulty. See Appellant’s Supplemental Brief on Remand at 4. A state cannot, however, constitutionally condition a party’s access to the ballot — the lifeblood of any party — upon that party’s forgoing its First Amendment freedoms. The First Amendment bars the government from attaching unconstitutional conditions even to benefits the government has no obligation to bestow. See, e.g., Regan v. Taxation With Representation, 461 U.S. 540, 545, 103 S.Ct. 1997, 2001, 76 L.Ed.2d 129 (1983) (“the government may not deny a benefit to a person because he exercises a constitutional right”); Perry v. Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). The bar applies even more forcefully when the government attempts to attach unconstitutional conditions to a party’s right of access to the ballot.
We also reject the State’s suggestion that if political parties are reluctant to violate the statutes they must obtain standing by adopting bylaws that conflict with the statutes and then disregarding those bylaws in actual practice. Institutions are not required to make the empty gesture of passing rules that are void as a matter of law and ignored as a matter of institutional practice in order to satisfy standing requirements. Certainly a failure to make such a futile gesture gives us no grounds for inferring that the parties’ bylaws merely reflect a neat coincidence of what the parties want and what the statutes require. The State correctly points out that in Tashjian the Republican Party of the State of Connecticut had adopted a party rule that conflicted with state election law. See 107 S.Ct. at 546-47. But the Supreme Court nowhere suggested in Tashjian that the adoption of a conflicting bylaw was necessary to confer standing or to show infringement of a First Amendment right.
Finally, the State makes the rather astonishing argument that the legislative action in this case can be equated with voluntary action by the political parties. The State asserts that:
when the nominees of a party who are actually elected to the Legislature enact legislation affecting the organization and procedures of the party institutions the legislation is an act of self-governance by the party itself. Appellants presented evidence in the district court to support their motion for summary judgment and to oppose appellee’s (sic) motion demonstrating that by custom and practice the political parties represented in the legislature accept each other’s party legislation. Obviously, the legislators, who are inherently their party, are also exercising the legislative power of the state.
Appellants’ Supplemental Brief Pursuant to Court Order Dated August 5,1985, at 3.
The State’s argument collapses on its own terms. State legislators are not “inherently their party.” Nor do legislative enactments that bind the parties and carry criminal penalties represent the parties’ own voluntary action. The exercise of the coercive power of the state is the antithesis of voluntary action by political associations. Regardless of the motives of individual leg
The State has simply failed to make any showing that the political parties have voluntarily adopted the statutory restrictions. Indeed, the uncontroverted affidavits of party representatives indicate the contrary: they would reform the composition of their parties’ central committees if the statutes were invalidated. Moreover, all committee plaintiffs say they would make preprimary endorsements if the practice were not prohibited. The obvious fact that the State Central Committee of the Libertarian Party of California is a named plaintiff would seem to satisfy even the State’s assertion that plaintiffs cannot state a cause of action unless they show that “the statutes conflict with the policies and will of” the state central committees. See Appellants’ Supplemental Brief on Remand From the United States Supreme Court at 6-8.
Even if the State were correct in asserting that the state central committees have no standing to challenge the statutes until they adopt conflicting bylaws, the State has still failed to show that plaintiffs do not have standing to bring suit for the infringement of their First Amendment rights as party officials, county committees, and party members. Indeed, the State’s argument that the only bodies capable of challenging the statutes prescribing the membership and terms of the state central committees are the state central committees themselves turns the associational interest at stake on its head. The associational rights of political parties and their members to choose their own governing body would be of little avail if a statute imposing a state-created and selected governing body could only be challenged by the governing body the state imposed. We thus reject the State’s apparent assertion that political parties and their members must endure leadership chosen by the State until that leadership votes itself out. Nor do we accept the State’s assertion that only the state central committees can challenge the statutes forbidding preprimary endorsements. The State never offers any satisfactory explanation as to why the county committees cannot challenge the statutes prohibiting preprimary endorsements as an infringement of their rights to speak freely. Nor has the State explained why the individual party members cannot challenge these statutes as an infringement of their First Amendment right to listen. See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978) (“the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757, 96 S.Ct. 1817, 1823, 48 L.Ed.2d 346 (1976) (acknowledging “a First Amendment right to ‘receive information and ideas,’ and that freedom of speech ‘ “necessarily protects the right to receive.” ’ ” (quoting Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972)).
C
The State next argues that plaintiffs’ action is barred by the Eleventh Amendment. It is settled law, however,
D
Finally, relying on Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the State contends that the district court should have abstained from adjudicating plaintiffs’ first and third counts pending the resolution of litigation in state court raising similar challenges to the Elections Code. In Pullman, the Supreme Court held that abstention may be appropriate “when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 2327, 81 L.Ed.2d 186 (1984). Pullman abstention is inappropriate, however, “when a state statute is not ‘fairly subject to an interpretation which will render unnecessary’ adjudication of the federal constitutional question.” Id. (citation omitted); see also Canton v. Spokane School District No. 81, 498 F.2d 840, 845 (9th Cir.1974).
Here, the State does not advance an interpretation of the Elections Code that would moot the constitutional questions raised by plaintiffs. Nor could the State do so. Section 11702 is clear on its face that central committees may not make preprimary endorsements, and other provisions prescribe in minute detail committee membership and limit the terms of committee chairs. Thus the district court’s refusal to invoke Pullman abstention was not an abuse of discretion.
Ill
Before considering plaintiffs’ claims that the Elections Code unjustifiably burdens their First Amendment rights, we address the State’s contention that the state and county central committees of California’s ballot-qualified political parties have no First Amendment rights because they are public entities, not private associations. The State asserts that the legislature transformed the committees from voluntary political associations into public entities “integral [to] the state’s election system,” Appellants’ Supplemental Brief, p. 15, when it dictated the committees’ organization and powers and charged them with the responsibility of conducting the general election campaigns of party nominees. Id., p. 13.
In essence, the State argues that by regulating the committees, the legislature may deprive them of First Amendment rights. The State’s argument is flawed by “bootstrap reasoning.” Abrams v. Reno, 452 F.Supp. 1166, 1170 (S.D.Fla.1978) (“Without begging the question of the right of a political executive committee to exist and function without the breath of life provided by the election code, it seems to be bootstrap reasoning to suggest that election code regulation permits the denial of substantial constitutional rights”), aff'd, 649 F.2d 342 (5th Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1710, 72 L.Ed.2d 133 (1982). Even if the California Elections Code had expressly characterized the committees as public agencies,
We recognize that California has extensively regulated political parties. The State, however, turns constitutional analysis upside down when it argues that its Elections Code provisions are immune from constitutional attack because they deprive the party committees of First Amendment status. The question is not whether the committees lack First Amendment rights because of state regulation. Rather, the question is whether the challenged statutory provisions must fall because they violate the committees’ First Amendment rights. Turning to this question, we address in Part IV the constitutionality of the provisions that regulate the structure and internal affairs of the parties. In Part V, we consider the constitutionality of the ban on preprimary endorsements.
IV
Our analysis of plaintiffs’ constitutional claims begins with the fundamental premise that “a significant impairment of First Amendment rights must survive exacting scrutiny.” Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976) (plurality); see also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 436, 70 L.Ed.2d 492 (1981). If, as plaintiffs allege, the state statutes interfere with their rights to free association and free expression, the statutes can survive First Amendment scrutiny only if the State shows that they are “necessary to serve a compelling interest.” Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); see also Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 308, 38 L.Ed.2d
We first consider whether the statutes’ regulation of the selection of state committee members and the term of office of committee chairs burdens plaintiffs’ First Amendment rights. We then consider whether this regulation serves compelling state interests. See Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983).
.A
“[T]he right of individuals to associate for the advancement of political beliefs” is fundamental, Williams v, Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), and includes the “freedom to identify the people who constitute the association, and to limit the association to those people only.” Wisconsin ex rel. La Follette, 450 U.S. at 122, 101 S.Ct. at 1019; see also Tashjian, 107 S.Ct. at 549. Because the right of association would be hollow without a corollary right of self-governance, “there must be a right not only to form political associations but to organize and direct them in the way that will make them most effective.” Ripon Society Inc. v. National Republican Party, 525 F.2d 567, 585 (D.C.Cir.1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). “The Party’s determination ... of the structure which best allows it to pursue its political goals is protected by the Constitution.” Tashjian, 107 S.Ct. at 554; see also Ripon Society Inc., 525 F.2d at 585 (“a party’s choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the protection of the Constitution____”) (emphasis in original).
It is readily apparent that the California statutes burden the parties’ right to govern themselves as they think best. By legislative fiat, the State vests party leadership in the central committees, determines the size of the committees, and apportions their membership according to a statutory formula. Whether this formula is or is not “best calculated to strengthen the party •and advance its interests,” Ripon Society Inc., 525 F.2d at 585, is irrelevant to First Amendment analysis. See Tashjian, 107 S.Ct. at 554, It is the right of the party, not the State, to decide how the party shall be governed. See id.
In stacking the deck heavily in favor of elected officials and party nominees, the legislature has dictated to each ballot-qualified party an organizational structure that may not be the party’s choice. For example, a party trying to adapt to changing conditions may have interests that differ from the interests of entrenched incumbents. Commentators have noted that the pro-incumbent composition and unwieldy size of California’s state central committees have made them “fairly rigid organization[s] incapable of adjusting and responding to changing conditions.” California Politics, supra at 186.
Moreover, we believe that the challenged statutes directly interfere with the parties’ free expression by inevitably coloring the message that the parties communicate to the electorate. See Tashjian, 770 F.2d 265, 282 (2d Cir.1985) (“in light of the intimate relationship between the structure of a political association and the message ultimately transmitted by that group, ... the inexorable effect of [regulating the structure of political parties] is to alter the Party’s message”), aff'd, - U.S. -, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). By favoring incumbents, the California legislature may give ballot-qualified parties a pro-incumbent image that impedes their associational goals.
The parties’ associational right to choose their own leadership is also burdened by the single-term limit on committee chairs. In limiting committee chairpersons to one two-year term — regardless of their popularity and effectiveness — the legislature has impaired the parties’ ability to commit their fortunes to experienced and successful leadership. As Judge Patel recognized below, parties are “gravely weakened if the members are not permitted to make use of an able leader for a long enough period of time to ensure effective administration.” San Francisco County Central Committee v. Eu, No. C-83-5599 at 20 (Order filed May 3, 1984).
In short it seems clear to us that if “the freedom to join together in furtherance of common political beliefs ‘necessarily presupposes the freedom to identify the people who constitute the association,’ ” Tashjian, 107 S.Ct. at 549 (quoting Wisconsin ex rel. La Follette, 450 U.S. at 122, 101 S.Ct. at 1019), then a fortiori that same political freedom necessarily presupposes the freedom to identify the people who run the association. Thus, in holding that the First Amendment rights of the Republican Party and its members to reach out to non-members were infringed by a law preventing independents from voting in Republican primaries, the Court in Tashjian provided fresh authority for our holding that the First Amendment rights of political parties and their members to choose their own leaders are infringed by laws prescribing the membership and terms of parties’ governing bodies. We note in particular that the Court found the associational interests
B
Having concluded that the challenged statutes burden appellees’ First Amendment rights, we turn to “the precise interests put forward by the State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789, 103 S.Ct. at 1570.
The State claims that it has a compelling interest in sheltering the parties from factional strife so that the governing committees will be in a strong position to carry out their statutory responsibility of running the general election campaigns of party nominees. This interest in avoiding factionalism, the argument goes, justifies state interference with the associational rights of political parties and their adherents. The State further claims that unless statutes determine the composition of the parties’ governing bodies for the parties, those parties will be so divided by internal political battles for control of the governing bodies that the parties will be unable to run effective campaigns in the general election. The State argues that vesting control of the state committees in elected officials and party nominees assures that the committees will be broadly representative and resistant to factionalism.
The State also cites its professed interest in restraining factions as a justification for limiting the terms of party chairs. The State maintains that when the term limitation is combined with the statutory requirement that chairs rotate between northern and southern California, friction between these distinct regional interests is minimized.
In sum, the State argues that the Elections Code provisions regulating the membership of party governing committees and limiting the terms of committee chairs serve the state’s assertedly compelling interest in avoiding “splintered parties and unrestrained factionalism.” Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); see also Tashjian, 107 S.Ct. at 553. In advancing this argument, the State misperceives the nature of the state interest recognized as compelling in Tashjian and Storer. To be sure, in Storer the Court recognized that a state has a compelling interest in “the stability of its political system.” 415 U.S. at 736, 94 S.Ct. at 1282. But, as the Supreme Court pointed out in Tashjian, “[t]he statute in Storer was designed to____prevent the disruption of political parties from without, and not, as in this case, to prevent the parties from taking internal steps affecting their own process for the selection of candidates.” Tashjian, 107 S.Ct. at 553-54.
This distinction between disruption from within and disruption from without, which the Court so clearly delineated in Tashjian as a basis for distinguishing Storer, is the distinction that the State fails to come to grips with in this case. The California statutes under attack make no effort to prevent the disruption of political parties from forces outside the party; rather they intrude directly on internal party affairs by dictating who can serve on the various state central committees. Indeed, it would seem that if any issue involves the internal workings of a political party, it is the process of selecting the party’s leadership.
Rather than explaining how the statutes serve a compelling interest by actually preventing disruption from an outside force, the State seems content to argue mainly that its regulation of internal party affairs is not illegitimate because the bylaws of all the parties’ state central committees in fact conform with the statutory requirements.
In short, the State’s defense of its statutes forces it to take a paradoxical position. To show that the statutes advance a compelling interest, the State must show that the statutes actually accomplish something by forcing the parties to adopt rules they otherwise would not adopt. But in its attempt to show that the statutes do not illegitimately intrude on internal party decision-making, the State must argue that the parties would have adopted the same rules in the absence of the statutes. In making these arguments, the State never attempts to explain why, even if it were correct in its judgment that the rules of governance prescribed by the statutes best served the interests of the various parties, the parties could not adopt those rules voluntarily.
The State argues that its statute is well designed to save the Republican Party from undertaking a course of conduct destructive of its own interests. But on this point “even if the State were correct, a State, or a court, may not constitutionally substitute its own judgment for that of the Party.” Democratic Party of United States v. Wisconsin, 450 U.S., at*831 123-24, 101 S.Ct., at 1019-1020 (footnote omitted). The Party’s determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution.
107 S.Ct. at 554.
Moreover, any state regulation of political parties beyond that necessary to further orderly elections must be viewed with great skepticism. To be sure, some state regulation that affects political parties serves a compelling interest in protecting “the integrity of the electoral process.” Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973). As the Supreme Court said in Storer, “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.” 415 U.S. at 730, 94 S.Ct. at 1279. Thus, a state may restrict access to the ballot. See Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972) (a state “has a legitimate interest in regulating the number of candidates on the ballot”). Toward this end, a state may require that candidates meet minimum standards to qualify for the ballot in order to keep “its ballots within manageable, understandable limits.” Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 1319, 39 L.Ed.2d 702 (1974). For example, independent candidates may be required to present nominating petitions that demonstrate “a significant modicum of [electoral] support.” Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971); see also American Party of Texas v. White, 415 U.S. 767, 782, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1974). A state may also require the payment of filing fees to weed out spurious candidacies, see Bullock, 405 U.S. at 145, 92 S.Ct. at 856, so long as the fees are not excessive or a bar to indigent candidates. Lubin, 415 U.S. at 717-18, 94 S.Ct. at 1320. Further, a state may protect the integrity of its primary elections by imposing a waiting period before voters can switch their registered party affiliation, Rosario, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), and before candidates registered with one party can renounce their affiliation to run as independent candidates. Storer, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974).
It is equally clear, however, that our deference to a state’s interest in orderly elections must be tempered by the risk that state regulation will favor some parties and some party factions over others. For example, a state’s interest in “the stability of its political system”, Storer, 415 U.S. at 736, 94 S.Ct. at 1282, does not extend to state regulation that effectively restricts the ballot to the major parties or that ensures that the major parties remain ballot-qualified. Williams, 393 U.S. at 32, 89 S.Ct. at 11; see also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185-86, 99 S.Ct. 983, 990-91, 59 L.Ed.2d 230 (1979). As the Supreme Court noted in a related context, “care must be taken not to confuse the interest of partisan organizations with governmental interests.” Elrod, 427 U.S. at 362, 96 S.Ct. at 2684. Thus, although a state’s interest in orderly elections allows it to impose reasonable, non-discriminatory restrictions on ballot access, a state may not go to bat for political parties to assure that they remain ballot-qualified. In other words, a state has no interest in regulating political parties for the purpose of helping them win or retain voter support. Political parties are nothing more than voluntary associations of individuals who band together in pursuit of shared political goals. A party’s survival depends upon its ability to compete in the free marketplace of political ideas and ideals. The First Amendment limits states to a neutral role in that competitive process. A state may not interfere with the associational rights of political parties beyond what is necessary to assure honest and orderly elections.
In short, a state’s interest is in orderly elections, not orderly parties, and it may regulate political parties only as an incident to regulating elections. Moreover, although under Tashjian a state’s interest in orderly elections can sometimes justify laws that protect parties from disruption, it
Thus, the State’s reliance on Storer v. Brown is misplaced. In Storer, the Court upheld a California “sore loser” statute that required independent candidates for political office to disaffiliate from their former political party at least one year prior to the party primary. Storer recognized that a state’s legitimate interest in limiting access to the general election ballot entitles it to reserve that ballot for “major struggles,” free of the destabilizing effect of “continuing intraparty feuds.” Storer, 415 U.S. at 735, 94 S.Ct. at 1281; see also American Party of Texas, 415 U.S. at 781, 94 S.Ct. at 1306 (a state “may insist that intraparty competition be settled before the general election____”). But critical to the Storer holding was that California’s disaffiliation provision did not attempt to control intraparty feuding during the primary campaigns. To the contrary, the primary was recognized as the forum in which “contending forces within the party finally settle their differences.” Storer, 415 U.S. at 735, 94 S.Ct. at 1281; see also Anderson, 460 U.S. at 803, 103 S.Ct. at 1577 (the Storer Court did not “suggest that a political party could invoke the powers of the State to assure monolithic control over its own members and supporters.”). Nothing in Storer suggests that a state may preempt intraparty feuding to help the parties win elections.
Some intraparty feuding is as inevitable in the process of choosing party officials as it is in the process of choosing candidates to carry a party’s banner in the general elections. The State’s argument here, that it can prescribe party rules of governance in order to preempt intraparty struggles over questions of party governance, is certainly a far cry from Storer, which merely held that a state can regulate the timing of otherwise unregulated intraparty struggles over choosing candidates. In other words, Storer recognized that a state’s compelling interest in orderly general elections justified requiring that party adherents finally settle their differences over the selection of party candidates a reasonable time before election day. However, government’s power to regulate the timing of some intraparty feuds in order to protect general elections from disruption hardly gives government the power to preempt party decision-making in order to protect political parties from the disruption inherent in deciding matters for themselves. Such governmental preemption of party decision-making goes well beyond the government’s legitimate interest in orderly elections. Intraparty feuding may indeed weaken and divide a party and result in defeat at the polls, but the government’s concern is in an orderly election process, not in helping parties maintain their strength and win elections. The State confuses campaigns with elections, partisan interests with state interests. We hold, therefore, that no compelling state interest is served by the California Elections Code provisions regulating the membership of party governing committees and limiting the terms of committee chairs.
C
Moreover, even should we assume that the State has a compelling interest in minimizing party factionalism, it has failed to carry its burden of showing “a substantially relevant correlation between the governmental interest asserted,” Pacific Gas & Electric Co. v. Public Utilities Commis
The Rodda affidavit fails to controvert plaintiffs’ declarations concerning the impact that the challenged Elections Code provisions have on political parties. Plaintiffs’ declarations demonstrate that these provisions weaken rather than strengthen the leadership of ballot-qualified parties. For example, the provisions regulating state committee membership stifle party debate by overrepresenting elected officials. See Declarations of David E. Sturrock and Bert Coffey. Plaintiffs have also shown the difficulty of effecting a change in party leadership because party initiatives are left to the mercy of a slow-moving, possibly recalcitrant legislature. See Declaration of Hugh Bone.
Finally, plaintiffs’ declarations show that the state’s extensive regulation of party leadership discourages able people from taking an active role in party organization and hinders a party’s recruitment of new leaders. See Declarations of Bert Coffey and Austin Ranney. Although the State claims that the challenged statutes invigorate and democratize the parties, as the Progressives ostensibly set out to do, see supra at 8-13, the record demonstrates the opposite: in fact, the parties have become weak and fossilized. Thus, we conclude that the State has failed to demonstrate that the statutes advance its professed interest in strong party leadership.
V
Finally, we consider the constitutionality of California’s outright ban on partisan preprimary endorsements, Cal. Elec.Code § 11702.
The State argues that the ban on preprimary endorsements serves two governmental interests that it claims are compelling: (1) protecting the party from factionalism; and (2) protecting primary voters from confusion and undue influence. We will address each interest in turn.
A
The State asserts that the ban on preprimary endorsements serves the governmental interest in averting internal party dissension and factionalism. The State again cites Tashjian for the proposition that the state has a compelling interest in preventing party committees from disintegrating into hostile factions because such factionalism would weaken the parties’ ability to run the general election campaigns of party nominees. According to the State, section 11702 advances this interest by disengaging the committees from the primary contest. Thus, the argument goes, opportunistic primary candidates have no reason to seize control of the party leadership. Likewise, the leadership’s enforced neutrality among primary rivals encourages the preservation of party resources for the eventual party nominee.
The State’s reliance on Tashjian is misplaced. As we discussed above, a state has a compelling interest in protecting political parties from disruption only when that disruption comes from outside the party. We thus held that the government has no legitimate interest in preventing political parties from adopting rules of governance that the government deems divisive. We now hold similarly that the government has no legitimate interest in protecting parties from the disruption that the State argues will result if parties are free to make preprimary endorsements. Political parties are entitled to decide for themselves whether making preprimary endorsements creates disruption that hurts the parties’ chances in the general election. If a party makes a judgment that the costs of making preprimary endorsements outweigh the benefits, presumably that party will simply abstain. But the power to decide whether a party should exercise its First Amendment right to free speech belongs to the party and its adherents, not the government. See, e.g., Tashjian, 107 S.Ct. at 554. The government simply has no legitimate interest in protecting political parties from disruptions of their own making.
Moreover, even if protecting parties from disruptive party endorsements were a compelling or legitimate state interest, the State has made no showing that banning preprimary endorsements sufficiently advances the interest in party cohesion to justify an outright prohibition on political speech.
Plaintiffs’ uncontroverted affidavits, on the other hand, bear out the following: First, section 11702 has eroded the parties’ ability to identify, recruit, and promote “strong opposition candidates.” Declaration of David E. Sturrock. In the void caused by silencing the committees’ power of endorsement, each candidate forms an ad hoc committee to run his primary campaign and, if he is successful, that committee goes on to run the general election campaign independently of the party organization. The result of banning preprimary endorsements, according to the affidavit of Williams College political scientist James MacGregor Burns, is that party control degenerates into a “personalistic system that caters to irresponsible political campaigning and public service.” Thus, as Burns concludes, “taking away the endorsement
Second, plaintiffs showed that in states that permit partisan primary endorsements, the practice is generally used in a selective, circumspect fashion so as not to endanger party unity. Several affiants experienced in the politics of other states testified that when no candidate has been the clear favorite of the party leadership, the leadership has either refrained from issuing controversial endorsements or endorsed several candidates in the same race. See, e.g., Declarations of Eugene Lee and James MacGregor Burns. Moreover, the ability to issue endorsements has helped party leadership distinguish candidates genuinely allied with the party from candidates who are essentially masquerading as party adherents. In California, conversely, the ban on preprimary endorsements has on occasion allowed hostile candidates to win the party nomination. For instance, in a much-publicized episode discussed in plaintiffs’ affidavits, a grand dragon of the Ku Klux Klan campaigned for and won the 1980 Democratic party nomination for Congress in the San Diego area while the Democratic county central committee remained powerless to oppose him. See Declaration of Edmond Constantini.
In sum, the State has failed to show that section 11702 serves party cohesion. Thus, even if we considered the State’s interest in preventing parties from undermining party cohesion to be compelling or legitimate, we would conclude that the State has failed to show that the interest is furthered by banning preprimary endorsements.
B
The State further claims that the ban on preprimary endorsements is justified by the governmental interests in protecting party adherents from confusion and undue influence when they vote in primaries. The State asserts that voters might be confused if they are not sheltered from the views of party leadership!
With the exception of cases upholding laws carefully tailored to proscribe fraud and corruption, see, e.g., Buckley, 424 U.S. at 26-27, 96 S.Ct. at 638, the State cites no authority for the proposition that the government can regulate the flow of information between political associations and their members. Prohibiting the governing body of a political party from supporting some candidates and opposing others patently infringes both the right of the party to express itself freely and the right of party members to an unrestricted flow of political information. See Pacific Gas & Electric, 106 S.Ct. at 907 (“The First Amendment protects the public’s interest in receiving information”); cf. Brown v. Hartlage, 456 U.S. 45, 60, 102 S.Ct. 1523, 1532, 71 L.Ed.2d 732 (1982) (“[by] the free exchange of ideas ... the people are to choose ... between candidates for political office”) (emphasis added). We cannot accept the State's claim that denying voters access to the views of party leadership somehow enhances their First Amendment rights.
In any case, we would reject the “highly paternalistic approach’ of statutes like [section 11702] which restrict what the people may hear.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Simply put, the State has given voters too little credit. It has made no showing in support of its charge that voters will be confused and overly influenced by party endorsements. In contrast, plaintiffs’ affidavits confirm what is implicit in the First Amendment: when the people are exposed to a public debate that is “uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), they are fully capable of thinking for themselves. Plaintiffs have made a showing that voters understand that endorsements are intended to counsel, not preempt their votes, and that the primary victor alone constitutes the general election candidate of the party. Party endorsements are unrestricted in all other states, see supra at n. 28; and plaintiffs’ affidavits show that the electorate of these states typically considers the party’s imprimatur as simply one relevant datum in the pool of information on rival candidates for the party nomination. See Declarations of Donald Fraser, Malcolm Jewell, and Bert Coffey. Thus, the State’s fear that party members will blindly rubber-stamp the party’s endorsement is speculation not borne out by either experience or common sense. Moreover, we agree with the Second Circuit that “a state certainly does not have a compelling interest in shielding from confusion those voters who engage in unthinking and Pavlovian reliance on party labels.” Tashjian, 770 F.2d at 284, aff'd, - U.S. -, 107 S.Ct. 544, 93 L.Ed.2d 514. To the extent that the risk of confusion arises because the central committees carry the official imprimatur of the State, the State’s own statutes — not the inherent coerciveness of party endorsements — are the root of the problem. California’s ban on preprimary endorsements is a form of paternalism that is inconsistent with the First Amendment.
In sum, California’s asserted interests— protecting the parties from factionalism and protecting the voters from confusion and undue influence — are insufficient to justify its ban on preprimary endorsements. Accordingly, we hold that section 11702 violates the First Amendment.
CONCLUSION
The judgment of the district court invalidating the provisions of the California Elections Code that regulate the selection of state central committee members, limit the term of office of committee chairs, and prohibit state and county central committees from endorsing, supporting, or opposing candidates in party primary elections is AFFIRMED.
. The First Amendment is made applicable to the states through the Fourteenth Amendment. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939).
. The district court invalidated the following sections: Cal.Elec.Code §§ 8660, 8661, 8663—67, 8669 (Democratic State Central Committee); §§ 9160, 9160.5, 9161, 9161.5, 9162—64 (Republican State Central Committee) (West Supp.1984); § 9274 (Republican State Central Committee Chairman); and § 9816 (Peace & Freedom State Central Committee Chairperson) (West 1977).
. We review a summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). Summary judgment is appropriate if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(b). We also review de novo the district court’s denial of the State's motion to dismiss under Fed.R.Civ.P. 12(b)(1) & (6) for want of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. See, e.g., Trerice v. Pedersen, 769 F.2d 1398, 1400 (9th Cir.1985).
. Plaintiffs also claim that the State’s regulation of ballot-qualified parties violates their rights to equal protection of the laws under the Fourteenth Amendment. It is unnecessary to reach this claim.
. See also Weisburd, Candidate-Making and the Constitution: Constitutional Restraints on and Protections of Party Nominating Methods, 57 S.Cal.L.Rev. 213, 265 (1984) [hereinafter Weisburd, Candidate-Making and the Constitution ] ("parties as parties have associational rights”).
. See, e.g., O’Brien v. Brown, 409 U.S. 1, 4, 92 S.Ct. 2718, 2720, 34 L.Ed.2d 1 (1972) (per curiam) ("our national political parties first came into being as voluntary associations of individuals”); see also A. De Tocqueville, 2 Democracy in America 129 (Bradley, ed. 1954); D. Broder, The Party’s Over: The Failure of Politics in America 172 (1971).
. The most notorious special interest and the chief impetus to reform was the Southern Pacific Railroad Company, nicknamed "the Octopus" because of its allegedly ubiquitous corrupting influence on state government. California Politics, supra at 32. According to one commentator, the Southern Pacific "literally ran the state’s politics.” Id. at 31.
. The political reforms that the Progressives wrote into California law during the first two decades of this century parallel laws adopted in other states. Between 1890 and 1920, most states adopted "elaborate legal codes closely regulating the state parties’ internal affairs: the codes generally stipulated what committees and conventions the parties must have, the procedures by which their members are selected, who may participate in making the parties’ decisions, and what powers, if any, each party organ has over the others.” A. Ranney, Curing the Mischief of Faction: Party Reform in America 18 (1975). For a thorough catalogue of the reform measures implemented in the other states, see J. Starr, The Legal Status of American Political Parties I, 34 Amer.Pol Sci.Rev. 439 (1940).
. See Friedman, supra at 71 (describing the laws governing the parties as "an illogical, disordered pattern”).
. See Friedman, supra at 69 ("[i]n statutory contemplation California party organs have been left with one major role — to campaign for the general election success of the party nominees selected by the voters at the primary”); see also 23 Ops.Cal.Atty.Gen. 119, 121-23 (1954).
. The separate Elections Code provisions prescribing the membership of the Republican, American Independent, and Peace and Freedom central committees differ in some respects from the Democratic Party provisions. See, e.g., Cal. Elec.Code §§ 9000 — 9510 (Republican Party). For instance, Elections Code § 8774 requires that the chairperson of the Democratic Party state central committee serve a single term to be fixed by party bylaws and that the chair alternate between residents of northern and southern California. Section 9274 duplicates the north-south rotation requirement of section 8774 but specifies a fixed term of two years for the Republican Party chair.
. The state-wide officeholders are the Governor, the Lieutenant Governor, the Treasurer, the Controller, the Attorney General, the Secretary of State, and members of the State Board of Equalization. Cal.Elec.Code § 8660(a)(1)-(7).
. The miscellaneous state committee members include the following: (1) the national committeemen and national committeewomen of the party; (2) such immediate past party officers as are provided by party by-laws; (3) the President of the California Democratic Council and the President of the Federation of Young Democrats; and (4) former elected, nonjudicial officeholders. Cal.Elec.Code § 8660 passim.
. Partisan politics in California has been further inhibited by other provisions of the Elections Code. California has adopted non-partisan municipal elections, the initiative and referendum, and at one time allowed cross-filing, which permitted candidates with declared allegiance to one party to run simultaneously for the nomination of another party. Each of these Progressive-era innovations has curbed the ability of the party organization to shape the party’s political agenda and support sympathetic candidates. See California Politics at 4 & 294-95; cf. Ranney, Curing the Mischief of Faction, supra at 17-19.
. The State argues without authority that no case or controversy is raised by a challenge to an unenforced criminal statute unless that statute was recently enacted. This argument is refuted by Epperson, where the Court held the statute justiciable despite its unenforced presence on the books for forty years. See 393 U.S. at 109, 89 S.Ct. at 273 (Black, J., concurring). Indeed, the aftermath of Poe teaches that federal courts should not lightly determine that a statute has fallen into desuetude. The very statute the Court characterized as a dead letter in Poe was struck down in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), after the state prosecuted two persons, including a doctor, for openly counseling married persons on the use of contraceptives. We note that the Supreme Court did not cite Poe in either Babbitt or Epperson.
. The State also asserts that criminal penalties are not associated with the violation of the challenged statutes. We agree with Judge Patel, however, that, in light of the plain statutory language of Cal.Elec.Code §§ 29102 & 29430, the apparent disavowal of any intention to enforce these laws is "anomalous.” San Francisco County Democratic Central Committee v. Eu, No. C-83-5599, at 6 (Order filed May 3, 1984).
. On appeal, the state has also raised the question whether the various appellee central committees have actually authorized participation in this litigation. The district court ruled that the state waived the issue of capacity to sue by failing to comply with Rule 9(a), Fed.R.Civ.P., and by failing to raise the question on summary judgment. Order Following Remand, June 1, 1984. The district court also ruled that the state had failed to challenge declarations establishing authorization to bring suit. Id. See, e.g., Declaration of Mary Gingell, member of the Executive Committee of the State Central Committee of the Libertarian Party of California. VII Appendix to Appellants’ Emergency Motion for Stay on appeal, at 934. We see no reason to disturb these rulings on appeal.
. The State also relies on Marchioro v. Chaney, 442 U.S. 191, 99 S.Ct. 2243, 60 L.Ed.2d 816 (1979). In Marchioro, the plaintiffs contended that the policymaking body of a political party enjoys an absolute First Amendment exemption from state regulation. The Supreme Court rejected the claim without reaching the First Amendment issue by pointing out that state law did not require the central committee to perform any policymaking functions; those functions had been freely delegated to the central committee by the party itself. Id. at 198 & n. 13, 99 S.Ct. at 2247 & n. 13; see also Weisburd, Candidate-Making and the Constitution, supra at 270 n. 336. In this case, by contrast, state law compels ballot-qualified parties to adopt the statutory restrictions.
. This court has a "virtually unflagging obligation” to exercise jurisdiction and may abstain only in exceptional circumstances. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). This unflagging ‘“obligation is particularly weighty when those seeking a hearing in federal court are asserting ... their right to relief under 42 U.S.C. § 1983.'” Miofsky v. Superior Court of California, 703 F.2d 332, 338 (9th Cir.1983) (quoting Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir.1980)).
. The status of these committees under the Elections Code is less clear than the State would have us believe. The State contends that under Katz v. Fitzgerald, 152 Cal. 433, 93 P. 112 (1907), "political parties shall be ... regarded as public bodies whose methods are to be controlled by the state." Id. at 435. While a state’s character
. The so-called "white primary” cases are not to the contrary. While the State cites Smith v. Allwright, 321 U.S. 649, 664-65, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944), for the proposition that political parties are "public bodies” because they are part of the state's machinery for choosing officials, that case held only that a state party’s disenfranchisment of black party members in its primary election amounted to state action for purposes of the Fifteenth Amendment. In later cases, the Court has limited Smith to its unusual context: a state-mandated racially discriminatory primary scheme in a one-party state where nomination is tantamount to election. In both Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975), and Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981), the Court "appears to reject the argument that an activity is state action solely because it is integral to a state-created election process." Weisburd, Candidate-Making and the Constitution, supra at 239 (1984).
. The Supreme Court has developed the following detailed methodology for deciding whether laws that impinge on associational freedoms violate the First Amendment,
[A] court ... must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.
Tashjian, 107 S.Ct. at 548 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 597 (1983)); see also Socialist Workers Party v. Secretary of State, 765 F.2d 1417, 1418 (9th Cir.1985). We do not, however, construe Tashjian and Anderson as disturbing the settled rule that laws that restrict First Amendment freedoms must "be demonstrably supported by not only a legitimate state interest, but a compelling one.” Brown v. Hartlage, 456 U.S. 45, 53-54, 102 S.Ct. 1523, 1529, 71 L.Ed.2d 732 (1982). Indeed, in a later passage in Tashjian the Supreme Court makes clear that the inquiry is whether an election code that in- . fringes first amendment rights "is a narrowly tailored regulation which advances the State's compelling interests.” Tashjian, 107 S.Ct. at 550.
. Parties that newly qualify for the ballot by demonstrating adequate electoral strength under Cal.Elec.Code § 6430 are required to conform their operations to the statutory blueprint prescribed for one of the existing ballot-qualified parties. Id. § 9955. The Libertarian party qualified in 1980. Declaration of Mary Gingell.
. Commentators have noted that mandatory organizational provisions damage a party’s freedom to determine its own message. See Weisburd, Candidate-Making and the Constitution, supra at 260-61 ("requiring a particular form of party organization can prevent party adherents from attaining objectives inconsistent with that required form of organization”); cf. Note, Primary Elections and the Collective Right of Freedom of Association, 94 Yale.L.J. 117, 126 (1984) (“a political party's ability to define its boundaries cannot be separated from the party’s ability to determine its political ideology").
. The State’s use of Marchioro v. Chaney, 442 U.S. 191, 99 S.Ct. 2243, 60 L.Ed.2d 816 (1979), to support the challenged governance provisions outstrips the limited rationale of that case. In
. The State does assert that the statutes are necessary to allow political parties to enforce their organizational rules in court but does not explain why judicial enforcement is necessary to advance any state interest. Nor does the State explain why a statute providing for judicial enforcement of parties’ rules, which left the content of those rules up to the parties, would not be a less restrictive alternative.
. Although the State claims that the Progressives’ reform of political parties strengthened party leadership, the Attorney General of California once rendered a formal opinion that the reforms reflect the Progressives' intent "to minimize the role of the established party agencies." 23 Ops.Cal.Atty.Gen. at 122.
. Until recently, Florida was the only state other than California that forbade partisan preprimary endorsements. See Weisburd, Candidate-Making and the Constitution, supra at 271 n. 343. The Florida statute was held to violate the First Amendment in Abrams v. Reno, 452 F.Supp. 1166, 1170 (S.D.Fla.1978), aff’d, 649 F.2d 342 (5th Cir.1981), cert. denied, 455 U.S. 1016, 102 S.Ct. 1710, 72 L.Ed.2d 133 (1982).
. Thus, in our view, the only conceivable basis for justifying the ban on preprimary endorsements would be that the central committees possess no First Amendment rights because they are public entities. We have already rejected the State's argument to that effect. See Part III, supra.
. Legislative findings preceding § 11702 report "considerable public doubt and confusion” arising from the promulgation of deceptive endorsements. Cal.Elec.Code § 11701(3). The California courts that have enforced § 11702 have stated that minimizing voter confusion was the principal motive behind the enactment. See People v. Crutcher, 262 Cal.App.2d 750, 752-53, 68 Cal.Rptr. 904 (1968); California Democratic Council v. Arnebergh, 233 Cal.App.2d 425, 430, 43 Cal.Rptr. 531 (1965), appeal dismissed, 382 U.S. 202, 86 S.Ct. 395, 15 L.Ed.2d 269 (1965).