Nick, following up on my initial post on this important new case, adds his own helpful analysis. My views continue to be very preliminary and tentative (unlike Nick, I had no prior involvement in this case until reading the opinion yesterday). But I’m not (yet?) convinced about the potential distinction that Nick offers between when the party should win concerning a fight with the government over the rules for a partisan primary election and when, instead, the government should prevail. Nick says “who participates in a primary is genuinely associational” but “a manipulative ballot design” is not.

What makes a ballot design “manipulative”? Nick says it’s when it’s “an attempt to distort party members’ choices—not to enable those choices to be freely made.” But what’s the difference between party elites “distorting” the choices of the party’s members versus party elites just “influencing” or even trying very hard to persuade the choices of party members? Are there any circumstances in which the party elites making a choice about which candidates get a more advantageous position on the party’s primary ballot would be a matter for internal party governance, just like the decision of party elites over which candidate to endorse and whether or not to include the information of that endorsement on the primary ballot? A better spot on the ballot might “affect” or “influence” the vote of party members, but it doesn’t negate the freedom to exercise that vote completely. And what if the party would prefer to nominate its candidates by means of a party caucus or convention rather than a primary?

Suppose the very same ballot design were used, not in a party primary funded by the government and operated by government officials, but instead a purely internal party caucus or other electoral procedure used to choose the party’s nominees for the November general election. Would the party have a First Amendment right to use the NJ ballot design in this context, or would it’s doing so violate some constitutional rights of the candidates running in the party’s caucus disfavored by the party’s elite? I assume not. Nor could the state force the party to choose a different ballot design for its own internal party caucus. (Note in this actual case, the party elites and the government were aligned in wishing to permit the challenged ballot design; it was disfavored candidates who as a practical matter challenged both the party elites and the state. This posture, it seems to me, implicates the Supreme Court’s Lopez Torres decision, but frankly I haven’t had a chance yet to think through the implications of Lopez Torres for this case; I don’t recall seeing Lopez Torres cited in the Third Circuit’s opinion, but I might have missed it.) But if these assumptions are correct, we are back with the condrundum–as Nick also notes–of trying to figure when, in the context of a government-run partisan primary, the government gets to control the rules instead of the party, and vice versa.