Jessica C. Furst, Election Law: “Three’s a Crowd”: Supreme Court Protection for the Two-Party System

58 Fla. L. Rev. 921 (2006) | | | |

TEXT :: Oklahoma’s semiclosed primary law permits a political party to invite voters registered as Independent to vote in that party’s primary election. The Libertarian Party of Oklahoma (LPO) notified state election officials of its intent to open its primary to all voters, regardless of their registered party affiliations. Pursuant to the semiclosed primary law, the election board secretary restricted approval to only voters registered with the LPO or as Independents. Respondents, members of the LPO joined by registered Republicans and Democrats, sued in district court. The court found that the statute did not substantially burden Respondents’ First Amendment associational rights. Thus, the district court held the law constitutional in light of the state’s interests in strong political parties and representative election results. The Tenth Circuit Court of Appeals disagreed, finding the state had offered no interest compelling enough to justify the statute’s severe burden on Respondents’ associational rights. The United States Supreme Court granted certiorari, recognizing the potentially widespread impact of the court of appeals’ decision to enjoin the statute. The Court reversed, and, HELD, Oklahoma’s semiclosed primary law did not violate Respondents’ First Amendment associational rights and therefore was a reasonable restriction justified by important state interests.

The Constitution grants states authority to regulate elections. However, absent the most critical of state interests, this authority does not permit state regulation to infringe on constitutionally-protected individual rights. In Tashjian v. Republican Party of Connecticut, the Court confronted such an issue. Appellees, the Connecticut Republican Party and affiliated party officials, claimed Connecticut’s closed primary statute violated their First Amendment associational rights. The district court agreed, granting a motion for summary judgment, and the court of appeals affirmed. The Supreme Court noted probable jurisdiction to determine if the abridgement of voters’ fundamental rights could be upheld in light of asserted state interests.


While the Court acknowledged Connecticut’s Article I authority to draft the challenged statute, the Court also emphasized that even that authority, absent a compelling state interest, did not justify a statute infringing upon voters’ associational rights. Applying strict scrutiny, the Court weighed each of the state’s four asserted interests. The Court dismissed the first two proffered interests succinctly, finding administrative convenience to be an illegitimate state interest, and the prevention of party raiding to be unrelated to the statute in question. The Court found the third interest-avoiding voter confusion-to be a worthy concern, though still not compelling enough to justify abridgment of a fundamental right. Most significantly, the Court interpreted the final asserted interest as aimed at protecting the effectiveness and integrity of political parties and found this rationale less than compelling when asserted to protect a party against itself. Thus, finding no state interest compelling enough to offset the great infringement on voters’ fundamental rights, the Court upheld the decision of the lower courts and adjudged the Connecticut closed primary statute unconstitutional for its impermissible burden on appellees’ First Amendment right to associate.

Two years later, the Court, in Eu v. San Francisco County Democratic Central Committee, echoed the Tashjian Court’s determination to protect the associational rights of political parties by requiring a compelling state interest to uphold any restriction of the right to politically associate. Appellees, committees and individuals affiliated with a variety of political parties, brought suit in federal court, alleging that the California Elections Code violated the associational rights of their members. Aligning with the decision in Tashjian, the Court defined a political party’s right to associate in part as a right to determine the people who comprise the association. Thus, the implication of the fundamental right to associate led the Court to analyze the state’s asserted interests by applying strict scrutiny.

While agreeing that an interest in a stable government was compelling, the Court found the statute’s regulation of internal party activities an impermissible method of regulating government stability. The Court similarly dismissed the state interest in protecting primary voters from confusion and undue influence, prohibiting the state from protecting voters by restricting the flow of information to them. In sum, the Court found none of the state’s asserted interests compelling enough to justify regulation of a party’s internal affairs and the resulting infringement on that party’s associational rights.

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