Initial Reaction to Clingman: Potential Aid to Minor Parties

The Supreme Court's decision today in Clingman v. Beaver is less significant for its holding (the state may prevent political parties from inviting voters from other political parties to participate in its primary) than for the nuanced differences of opinions among the Justices, expressed in the concurring and dissenting opinions: reading the opinions together, my first impression is that the case could make it somewhat easier for minor parties to challenge burdensome election laws. The bottom line is that the opinions are an invitation for lower courts to consider challenges by minor parties that state election laws as a whole discriminate against minor parties. In addition, the Justices (especially Justice O'Connor) are becoming more sensitive of the need to police election laws passed in the name of political stability for legislative self-interest.
[detailed analysis after the jump]

First, the holding and the votes. In two prior cases, the Court had held that political parties have First Amendment rights of association that allow them to trump a state mandated form of political primary. In the earlier of these cases, Tashjian, the Court held that the state could not prevent a political party from inviting independent voters to vote in that party's primary. Then, in California Democratic Party v. Jones, the Court held that California voters through the initiative process could not compel the parties to participate in a "blanket" primary, in which all voters, regardless of party affiliation, could vote for any candidate from any party for each office during a primary election.

Tashjian's footnote 13 left open the question whether a party could inist on the right to invite voters from other parties (as opposed to merely independents) to vote in that party's primary, and Clingman has now resolved that question. Members of the Libertarian Party of Oklahoma (LPO) challenged Oklahoma's law that prevented it from inviting Democrats, Republicans and others from voting in its primary. The Court, by a 6-3 vote, held that the burden placed on LPO and the voters from other parties who would join them was not severe, and that the state had important regulatory interests to justify the law. Justice Thomas, writing for the Court on this point, stated: "It preserves political parties as viable and identifiable groups; enhances parties electoneering and party-building efforts, and guards against party raiding and sore loswer candidacies by suprned primary contenders." (Slip op at 11, internal quotations, brackets and citations omitted). Of these interests, the strongest appears to be the raiding interest: "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 canddiate in the general election." (Slip op. at 13.) The court refused to consider whether Oklahoma's primary law, working in tandem with other election laws, "severely burden their associational rights by effectively preventing them from changing their party affiliations in advance of a primary election." (Slip op. at 14.) The issue was not raised until the Supreme Court, and the Court therefore declined to consider it.

All of this analysis so far is pretty standard fare, and it was the outcome I had predicted to my election law class about a month ago after I had read the lower court opinions more closely. But what is potentially significant here is what appears in the concurring opinion of Justice O'Connor (joined mostly by Justice Breyer).

Justices O'Connor and Breyer failed to join in one part of the opinion of Justice Thomas, Part II.A, thereby rendering that part simply a plurality opinion and not the opinion of the Court. In Part II.A, Justice Thomas wrote that there was not much of an associational interest at stake for the LPO in this case. It was on this point that Justices O'Connor and Breyer disagreed. Justice O'Connor wrote: "I think respondents' claim implicates important associational interests, and I see no reason to minimize those interests to dispose of this case." Together with the three dissenters, this makes 5 Justices who see significant associational rights at stake in a case like this. In future cases, this constellation of votes may make it easier for those challenging election laws to show that there are significant interests at stake. (This point, however, is somewhat undercut by the concurring Justices signing on to Part II.B of the majority opinion, where the Court makes clear that strict scrutiny does not apply in this case, because the burdens imposed are not severe. That part, by the way, comes very close to overruling Tashjian on application of strict scrutiny in that case.)

Justice O'Connor's opinion is significant in two other ways. First, speaking only for herself in Part III of the opinion, she suggests that in an appropriate case one should look to a state's entire scheme of election laws to see burdens on minor parties: "Nevertheless, respondents' allegations are troubling, and if they had been properly raised, the Corut 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 panolply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition." (O'Connor opn. at 10-11.) Certainly the three dissenters would agree with this statement; Breyer's decision not to join here is somewhat of a puzzle---perhaps he did not want to reach an issue not fairly presented by the respondents in the case. (Election law scholars may recall that in the late 1990s Issacharoff and Pildes criticized the earlier Burdick v. Takushi case on exactly the points raised by O'Connor.)

Second, Justice O'Connor ties increased scrutiny of certain election laws to the potential for self dealing on the part of legislatures:

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 anticompetitive restrictions.

(O'Connor opn. at 6; see also at 7 ["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."]
Again, the three dissenters would certainly sign on to this stricter scrutiny.
The approach Justice O'Connor advocates is very similar to the approach I have argued when policing election laws for self interest: courts should use closer means-ends scrutiny as a substitute for a direct search for bad legislative intent. (I write about this in chapter 3 of my book and I'm planning to write more about this issue this summer.)

The dissenters (Stevens, joined by Ginsburg and joined (mostly) by Souter) agree with much of what Justice O'Connor writes in her concurring opinion to the extent she disagrees with the plurality. Where the concurring and dissenting Justices part company is on the severity of the burden on the LPO, and on whether the state presented enough evidence that it had a legitimate interest in preventing members of other parties from voting in the LPO primary. In my view, Justice Stevens understates the state's interest in providing a clearer voting cue for voters, but he is dead-on right on the raiding point:

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. Such speculation is not, in my view, sufficient to override the real and acknowledged interest of the LPO and the voters who wish to participate in its primary.

(Stevens opn. at 10-11, footnote omitted.) Stevens too would look at election laws as a whole to check for legislative self interest.
In the last part of the dissent, Justice Stevens suggests that the court is motivated here by a desire to protect the two party system from competition. Justice Ginburg joins Stevens here, but Justice Souter does not---a position that is perfectly consistent with Justice Souter's short statement in the Timmons case indicating that states may have a strong interest in preserving the two party system.

Posted by Rick Hasen at May 23, 2005 09:55 AM