“Federal appeals court upholds order barring county-line ballots” [updated]

New Jersey Monitor reports. Also the New Jersey Globe. And NorthJersey.com

(If I have any comments on the opinion that I think worth blogging, I will update this post accordingly.)

UPDATE: Having read the opinion, I think the cases raises important and difficult issues that require further thought and implicate complicated–and not necessarily consistent–areas of Supreme Court doctrine. What struck me most about the case is that it concerns a primary rather than general election, and therefore arguably the political party itself has First Amendment interests that are significantly stronger than would be the case if the discriminatory treatment among candidates concerning placement on the ballot was in the context of a general election. For example, the court’s opinion acknowledges that if the party itself were to endorse one of the candidates in the primary–in effect, telling the primary voters that they ought to cast their ballots for one of the primary candidates rather than any of the others–that would be constitutionally permissible. On page 30 of the opinion, the court states: “Nothing in the preliminary injunction prohibits the CCDC from including county parties’ slogans on the ballot, endorsing candidates, communicating those endorsements, or
associating by any other constitutional means.” But if the party can communicate favoritism for one of its candidates directly on the ballot in its own primary election, I find it hard to understand why the party can’t elevate its favored candidate to a preferred position on the primary ballot. What’s the constitutional principle indicating where the constitutional line is being drawn in this context?

More broadly, there is the vexing question of what electoral matters the government gets to control, in contrast to what matters the party as a matter of First Amendment right gets to control. It would be a lot simpler if the government got to control everything with respect to a government-run election, but the government never administered the party’s own process for choosing the party’s nominee. In other words, if the only type of government-run primary elections were the kind of all-candidates nonpartisan primaries operated by California and Alaska in the context of their “top-2” and “top-4” systems, respectively, then parties would have no First Amendment associational rights to assert in that context, because those primary elections wouldn’t be about choosing a party’s nominee. In that system, the parties could choose whether or not to nominate or endorse a candidate in its own internal proceedings separate from the government-run elections.

But what happens when the government volunteers to pay for and run a primary election for the purpose of nominating the party’s chosen nominee? Does the government get to control the process entirely then? Not according to California Democratic Party v. Jones. If the government chooses to assist the party in its procedures for selecting its nominee, the government must accept that the party is entitled to make fundamental decisions concerning those procedures–like who gets to participate. But what if the party wants its nomination process to be weighed in favor of the candidate endorsed by the party’s governing officials? Can the party insist upon that as a matter of First Amendment right, or can the state override the party’s chosen procedures for how to govern itself and its nomination process?

This area of election law is, frankly, something of an intellectually incoherent mess, and this new opinion unfortunately does not help insofar as it applies Anderson-Burdick balancing as if there isn’t a fundamental distinction between primary and general elections for purposes of constitutional analysis. There is probably much more that can and should be said on this topic, but that’s enough for now.

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