Daniel H Lowenstein. Handbook of Party Politics. Editor: Richard S Katz & William Crotty. 2006. Sage Publishing.
Tocqueville famously observed that in America, most political questions of the moment become the subject of litigation sooner or later (2000: 257). In the case of questions relating to political parties, it was later. Indeed, until the final decades of the nineteenth century, American parties had little to do with any sort of law. When legal regulation finally came, it was imposed by state legislatures. It was not until well into the twentieth century that the courts entered the fray independently of legislatures. When they did, it was initially to add new legal restraints on parties, primarily as part of the effort to extend voting rights to African-Americans in southern states. Since the 1970s, the courts have more frequently employed the Constitution to protect the parties against regulation imposed by legislatures. This chapter briefly describes the regulation of parties by legislatures and later by the courts and then describes and analyzes in greater detail the more recent constitutional protection of parties against legislative control, especially in connection with the nomination of candidates. Attention is given to the efforts of minor parties and independent candidates to obtain judicial protection. Finally, some other areas of law affecting parties are briefly canvassed.
National political parties at first functioned as caucuses formed by leaders in Congress and later became mass organizations that served not only the goals of ambitious politicians but also mobilized political efforts on the great dividing controversies—especially over the scope of the federal government’s powers and functions and over slavery (Aldrich, 1995; Silbey 2002). By and large, the formation and operation of the parties occurred with neither protection nor regulation by the law. In the period beginning in the 1880s and continuing for about three decades, state legislatures imposed numerous far-reaching regulations on parties. One of the first and most important was the adoption of the secret or ‘Australian’ ballot. Although this change did not operate directly on the parties, it affected them greatly because it entailed a state-provided ballot, thus ending the usual practice of casting ballots provided to voters by parties. Other important legislation included regulation of party membership and governance and the requirement that parties nominate candidates in direct primary elections. As a corollary to the adoption of the state-provided ballot and the direct primary, legislatures determined other important questions such as the requirements for candidates and parties to appear on the ballot.
State courts almost invariably upheld these and other regulations against claims that they violated state constitutional guarantees of free elections and freedom of speech and association. The state courts regarded the new laws as intended to protect the rights of voters, in part because judges shared with Mugwumps and Progressives the view that party leaders and elected officials were often corrupt. Because of the parties’ central role in elections, the courts were willing to regard them as quasi-state agencies subject to legal control (Winkler, 2000).
The parties’ relation to the state gained new importance in the mid-twentieth century when African-Americans challenged their exclusion from Democratic Party primaries in the South. The Fifteenth Amendment prohibits denial of the vote on racial grounds and the Fourteenth Amendment guarantees equal protection of the laws. When the Supreme Court enforces these and other constitutional rights it invokes the ‘state action’ doctrine, which assumes that a given action is attributable either to the state or to a private person. When the state acts, it is subject to the Fourteenth and Fifteenth Amendments and other constitutional provisions guaranteeing individual rights. When private persons act, they are protected by the constitutional restraints on the government.
The white primary cases were a series of decisions by the Supreme Court prompted by persistent efforts of the Texas legislature and the Texas Democratic Party to use the state action doctrine to shield their exclusion of blacks from primaries. In the decisive case of Smith v. Allright, 321 US 649 (1944), the Court decided that the primary and general elections were ‘fused … into a single instrumentality.’ Texas’s detailed regulation of and involvement in the primaries turned the nomination process into a state function, despite its being conducted by the ostensibly private Democratic Party. Smith v. Allright did not itself end the disfranchisement of blacks in the South—it took the Voting Rights Act of 1965 to accomplish that—but it helped (Lawson, 1999). The white primary cases are generally regarded as one of the bright spots in the history of the Supreme Court.
However, in the 1970s, when parties sought and the courts intimated they might be ready to offer a measure of protection against state regulation, some scholars began rethinking the Court’s treatment of party nominations as state action. Controversy focused on the last and the most difficult of the white primary cases. The case arose in Fort Bend County, Texas. In that county, the Jaybird Democratic Association, a group founded in 1889, held a straw vote every year several months before the official Democratic primary. The Jaybird vote was open to any white voter. The winner of the Jaybird vote had no special official status under state law and had to compete on an equal basis with every other candidate in the primary. In practice, however, losers in the Jaybird primary seldom ran in the primary and the Jaybird victor always won the primary and general elections. In Terry v. Adams, 345 US 461 (1953), a majority split between three separate opinions held that the Jaybirds’ exclusion of blacks from the straw vote violated the Fifteenth Amendment. Terry continues to trouble and divide scholars (Kester, 1974; Rotunda, 1975; Katz, 2004).
What prompted continued interest in the white primary cases was the obstacle they were thought to pose to extension of constitutional protection to parties. The difficulty is, if the conduct of the party primary is regarded as state action, does that mean the state can determine how the primaries are conducted free of any constitutional protection for the parties whose nominations are at stake?
As we trace the Supreme Court’s movement from regulation to protection we shall see that the Court’s eminently wise solution to the state action problem has been to ignore it (Persily 2001b: 758). The first important stirrings in the direction of protection for parties came in a series of controversies in the 1970s over the selection and seating of delegates at national Democratic conventions. Brown v. O’Brien, 409 US 1 (1972), went to the Supreme Court on the eve of the 1972 Democratic National Convention. The credentials committee, whose rulings would be subject to review by the convention delegates, had upheld challenges to the California and Illinois delegations. The California challenge was based on the fact that California had conducted a winner-take-all primary. George McGovern, who had won the primary, was assured the nomination for president if he received all the California delegates, whereas the nomination might be up for grabs if the California delegation were divided among the candidates in proportion to their vote percentages. The Illinois delegation, which was controlled by Chicago Mayor Richard Daley, was challenged for under-representing women, minorities, and young people.
A federal appellate court overruled the credentials committee by restoring the full McGovern delegation from California, but left standing the rejection of the Daley delegates from Illinois. The Supreme Court undid the appellate court’s intervention because of the lack of time for adequate consideration and the availability of the convention as a forum to reconsider the credentials committee’s decisions.2 But the Court also expressed ‘grave doubts’ about the appellate court’s decision to intervene and noted ‘[h]ighly important questions’ concerning justiciability whether the actions of the credentials committee were state actions, and the involvement of ‘vital rights of association.’
Another case involving the Illinois delegate controversy arose later, when an Illinois state judge held the anti-Daley delegates in contempt of court for accepting delegate seats at the convention, in violation of an injunction the judge had issued previously. In Cousins v. Wigoda, 419 US 477 (1975), the Supreme Court ruled that the state judge had no power to control the actions of the national convention.
The most interesting of the cases involving the national conventions was Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 US 107 (1981), prompted by the Democratic National Committee’s call for the 1980 convention, which required that participation in the selection of delegates be limited to Democrats only. Wisconsin had employed an ‘open’ primary since 1903, when it became the first state to adopt the direct primary system for nominating candidates (Wekkin, 1984). An open primary is one in which each voter may vote in the primary of whichever party he chooses on election day, without regard to party membership or affiliation. Wisconsin Democrats defied the national party by conducting an open primary in 1980. A Wisconsin state court ordered the national party to seat Wisconsin’s delegates at the convention, despite the violation of the national party rules. The Supreme Court reversed the state court’s order.
Speaking for the Court, Justice Stewart emphasized that he was not ruling that the national Democrats could prevent Wisconsin from conducting an open primary. Wisconsin had an interest in conducting its elections as it chose and the national Democrats had an interest in how the delegates to their convention were selected. These interests were not incompatible:
The National Party rules do not forbid Wisconsin to conduct an open primary. But if Wisconsin does open its primary, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules.
At first blush this seems silly and one is inclined to agree with Justice Powell, who made the point in dissent that the purpose of holding a primary is to determine how much support the competing presidential candidates will receive from the state’s delegation to the national convention. What good does it do to tell the state that it is perfectly free to run its primary any way it chooses, but that the primary will count only if it is run the way the national party orders? However, subsequent events showed that Stewart was right and Powell wrong. La Follette left both the Wisconsin party and the national party with considerable leverage. Despite the Supreme Court’s ruling and the violation of the national party’s rules, the Democratic convention seated the Wisconsin delegation. In 1984, the Wisconsin Democrats yielded by selecting delegates at caucuses, but by 1988 the national Democrats had given in, revising the national rules to permit Wisconsin to use an open primary.
The law of Cousins and La Follette is that although the states may select delegates pretty much as they choose within their own borders, the national party at its convention is free to accept or reject the delegates sent by the state and may choose to replace these delegates with substitutes selected using any method it cares to honor. This seems to be a victory for the national party, because it has the last word. But the last word that the national party actually will utter is determined politically. In the political process, the states carry weight. Despite the diminished glory of contemporary conventions, they still receive public attention—attention that a national party will not lightly direct toward an arcane flap over delegate selection (Lowenstein, 1993: 1771-7).
O’Brien, Cousins, and La Follette each contained suggestions that the Court would protect the parties from undue state regulation, but none did so unequivocally. Because they were disputes between the national party and state law (with the state party lining up on the side of state law in La Follette), questions of federalism loomed large in each case. Confusion could result if there were no single arbiter of the rules for seating at the convention and there was no alternative to the convention itself serving as the arbiter (Peltason, 1999: 14). Furthermore, the three cases could also be read as exercises in judicial restraint, as the Court sought to ensure that both state and federal judges played as small a role as possible in party affairs. Because the recognition of parties’ rights was equivocal, the need to reconcile the cases with the state action rulings in the white primary cases was abated.
The watershed case in which the entitlement of parties to the protection of the First Amendment was firmly established was Tashjian v. Republican Party of Connecticut, 479 US 208 (1986). Connecticut had a closed primary system and an unusually large number of voters not registered in either party. Republican Senator Lowell Weicker was known as a maverick and figured he could get an extra measure of protection against a primary challenge from a more conservative or ‘regular’ Republican if independents could vote in the Republican primary. Republican state legislators, however, had no desire to change the system under which they had been elected. The Republicans agreed on a compromise allowing independents to vote in the Republican primary for the top offices on the ticket, but retaining the closed primary for lower offices, including state legislators.
Democrats, who controlled the state legislature, refused to change the existing law, which closed all primaries to everyone but party members. Later the Republicans took control of the legislature and passed a bill embodying their compromise, but a Democratic governor vetoed it. The Republicans then went to court, claiming that the state’s refusal to allow them to include independents in a portion of their primary was a denial of the party’s freedom of association. In Tashjian, the Supreme Court agreed with the Republicans and struck down the closed primary law, not because the closed primary itself was unconstitutional but because it was up to the party, not the state legislature, to decide who could vote in the party’s primary.
The Court emphasized that the nomination of candidates is the ‘basic function’ of a political party. It soon became clear, however, that the party’s constitutionally protected right of association extended beyond the nomination process. In Eu v. San Francisco County Democratic Central Committee, 489 US 214 (1989), the Court freed parties from laws dictating their governance on a host of matters such as the term of office for party chairs. Eu also extended the party’s constitutionally protected control over its nominations by preventing California from enforcing a statute that prohibited parties or their official committees from endorsing candidates in primaries. The political significance of the latter ruling is questionable. Party endorsements in primary races have had declining electoral value and may now be worth little (Maisel and Bibby 2002: 75).
The Supreme Court gave no explanation in Tashjian and Eu of where parties stood under the state action doctrine or how these decisions could be reconciled with the white primary cases. Perhaps for this reason, commentators tend to assume that the legal and constitutional questions related to parties reduce to the question of the conceptual relation of parties to the state (Peltason, 1999; Persily and Cain, 2000; Maisel and Bibby, 2002). But despite the lack of an articulated rationale from the Supreme Court, there is little or no doubt on this question at present. Parties are both state actors subject to constitutional and statutory limits on their ability to deprive individuals of constitutional rights and private actors whose own constitutional rights merit protection.
For a long time, a number of leading constitutional law scholars have contended that the state action doctrine should be regarded as a matter of degree rather than as an either/or proposition. As these scholars would have it, when an action or practice is challenged, the degree of state involvement and the extent to which personal privacy and autonomy are at stake are elements that should be part of the substantive constitutional determination, in contrast to the state action doctrine, which posits an either/or question as a threshold bar to substantive consideration of a constitutional claim (Horowitz, 1957; Van Alstyne and Karst, 1961; Glennon and Nowak, 1976; Tushnet, 1988). The Supreme Court has shown no sign of accepting this view in general but has followed it silently in the case of political parties (Rush, 1993). Occasional cases continue to be brought to stop claimed party infringement of individual rights. For example, in Morse v. Republican Party of Virginia, 517 US 186 (1996), a divided Court interpreted the preclearance requirement of Section 5 of the Voting Rights Act to extend to a party’s decision to nominate its candidates at a convention (Petterson, 2002). However, current-day litigation occurs far more often because a party seeks protection of its speech and associational rights against legal control. The preponderance of this form of litigation has two causes. Disputes comparable to the white primary cases seldom arise because of the politically motivated tendency of parties toward inclusion rather than exclusion. On the other hand, cases in which parties seek judicial protection are encouraged by the courts’ recognition of the parties’ unique position as mediators between the government and the electorate and as organizing forces in elections (Lowenstein, 1993; Persily, 2001b).
Currently, a far more difficult and practically significant conceptual issue than state action is the question of just whom the Court is protecting when it upholds the associational rights of parties. Political science has long understood parties to be loose organizations whose major activities are conducted outside their formal structures. The most common classification recognizes three aspects of a party: the party in the electorate, the party organization, and the party in or running for office (Key 1964; Hershey and Beck, 2003). Even that classification simplifies the complex and loose structure of political parties. As several legal scholars have pointed out, the ‘party’ asserting a violation of associational rights in litigation is often one element of the party seeking to nullify a political victory achieved by other elements of the same party (Lowenstein, 1993, 1998; Persily 2001a, 2001b; Garrett, 2002; Kang, 2006). That was not much of a problem in Tashjian, in which the Republicans stood united behind the compromise they had reached. Their conflict plainly was with the Democrats. But it was very much a problem in Eu, in which the plaintiffs were ‘[v]arious county central committees of the Democratic and Republican Parties, the state central committee of the Libertarian Party, members of various state and county central committees, and other groups and individuals active in partisan politics in California.’ Setting aside the Libertarians, why should this ragtag group of plaintiffs be assumed to speak for the major parties more than the Democratic and Republican legislators who had adopted the laws in question? In Eu, dissident Democrats and Republicans invoked the ‘party’s’ associational rights in order to persuade the courts to overturn the wishes of more politically influential elements within the parties.
The problem of who should be recognized as speaking for the party can be particularly acute when someone who plausibly claims to represent the party wishes to prevent a candidate from running in the party’s primaries. In such cases, the would-be candidates and any voters who support them have rights—or interests, at least -that must be considered, and the conflict will involve the would-be candidate, conflicting groups within the party, and, often, state laws. The most important cases to date have involved efforts to exclude David Duke from the Republican presidential primary in Florida and Georgia in 1992 and to exclude Steve Forbes in 1996 and John McCain in 2000 from the Republican presidential primary ballot in New York.
Georgia’s statutes ordered the Secretary of State to create a preliminary list of persons recognized by the news media throughout the country as presidential candidates. A committee composed of the party leaders in the two houses of the legislature and the state party leader was authorized to remove candidates from this list. The Secretary of State included Duke on the list and, as you probably have guessed, the three-member Republican committee removed him. A federal appellate court went back and forth but in the end upheld the removal of Duke from the ballot.
In New York, a statutory scheme made it difficult for even a strong candidate to satisfy the signature requirements to qualify for the presidential primary ballot in all parts of the state, especially a candidate without the support of the state party organization. The courts generally ruled favorably to Forbes and McCain.
Nathaniel Persily (2001a: 2212-13), at the conclusion of a thorough study of these cases, suggests that for party leaders to control access to the primary ballot they should be required ‘to develop [their] criteria well before the primary campaign begins.’ His suggestion would have worked well in New York, where the legislature had enacted ad hoc rules shortly before the primary campaign, when the lineup of candidates was known. However, his proposal would not work well for parties confronted with would-be candidates like David Duke. It was reasonable for Republican leaders to decide Duke’s candidacy would be detrimental to their party, on the basis not of objective criteria but of a judgment that Duke’s background would associate the party with ideas repugnant to the overwhelming majority of its adherents. An improvement on Persily’s proposal would be to permit the party to bar candidacies either on the basis of objective criteria adopted well in advance as he suggests, or on the basis of openly discretionary judgments. It is unlikely that responsible Republicans would have openly ruled that Forbes or McCain should have been excluded from the ballot. If they had done so, they would have faced severe criticism. Instead, they attempted to avoid an open discretionary judgment by hiding behind onerous and discriminatory petition requirements.
None of the controversies involving candidate access to the primary ballot have reached the Supreme Court. The next case in the Tashjian-Eu line to do so was California Democratic Party v. Jones, 530 US 567 (2000), which like Tashjian involved party control over who could vote in primaries. Jones arose when a group of ideologically moderate Republicans circulated initiative petitions to switch California from closed to ‘blanket’ primaries. Blanket primaries are even more open than ‘open’ primaries. In an open primary, a voter can obtain a primary ballot for any party without regard to party membership or affiliation. In a blanket primary, there is only one ballot, listing all the candidates for nomination in all parties. The voter can vote for one candidate for each office, but only the candidates in each party are running against each other for that party’s nomination. A voter can vote in the Democratic primary for one office, the Republican primary in a second, the Libertarian primary in a third, and so on. The supporters thought this system would make it easier for them to win Republican primaries in California.
The initiative, known as Proposition 198, was approved by the voters in 1996 by a 60-40 margin. Both major parties and some minor parties preferred the closed primary and challenged Proposition 198 on the authority of Tashjian. Jones resembled Tashjian in that the political parties who challenged the blanket primary were unified. It is no doubt true, as some scholars have argued, that a majority of registered Democrats and registered Republicans who voted did so in favor of Proposition 198 (Garrett, 2002: 128). However, they were voting as citizens, not as Democrats or Republicans, and the question no doubt framed itself for most of them as giving themselves more options. A Democratic voter, say, would win the opportunity to vote for a Republican rather than a Democrat when the Republican choice seemed more consequential or interesting. It is not at all clear that a majority in either party would vote in a party election simply to open their own primary to non-members, thus diluting their own votes in favor of others who would be unlikely to hold congenial opinions.
What is remarkable about the Jones decision is not that the Supreme Court decided in favor of the parties but that it has been a relatively controversial decision. Two members of the Court—Justices Stevens and Ginsburg -dissented, and the four federal judges in the lower courts had ruled for the state. Political scientists, who tend to be friendly to strong parties, have defended the decision (Cain, 2001), but legal scholars have criticized it (Ortiz, 2000; Hasen, 2001; Issacharoff, 2001; Magarian, 2003). The hostility among legal scholars to the result in Jones is reflective of a shift in the past decade or so, during which many of them have expressed varying degrees of discomfort with the two-party system. Previously, legal scholars usually ignored parties but when they gave them any attention at all, they tended to take a favorable or at least neutral view of the major parties (Gottlieb, 1982; Geyh, 1983; Fitts, 1988).
What all the commentators have failed to do -and indeed, what the Supreme Court majority barely did—was to consider how clearly Jones was controlled by the precedent of Tashjian. One scholar (Pildes, 2001: 151) dismissed the question with a vague reference to ‘open precedents,’ perhaps in the postmodern belief that all precedents are ‘open.’ At least Pildes, unlike most other commentators, referred to the question of precedent. Neither he nor anyone else has attempted to explain why Tashjian was not controlling. The dissenting justices in Jones asserted that although Tashjian ‘extended First Amendment protection to a party’s right to invite independents to participate in its primaries,’ doing so did not suggest that parties had a ‘right not to associate’ that would nullify a state’s effort to open primaries to non-party voters. These justices and, presumably, the scholars who criticize Jones read Tashjian as expressing a constitutional preference for open primaries over closed. Under that view, a closed primary would require the assent of both state law and the party. Either state law or the party could impose an open primary. But that view is flatly contradicted by Justice Marshall’s opinion for the Court in Tashjian. Justice Marshall was as explicit as he could be that the Court was not addressing the relative merits of different types of primaries but simply holding that it was for the party and not the state legislature to decide:
The relative merits of closed and open primaries have been the subject of substantial debate since the beginning of this century, and no consensus has as yet emerged. [The state] invokes a long and distinguished line of political scientists and public officials who have been supporters of the closed primary. But our role is not to decide whether the state legislature was acting wisely in enacting the closed primary system in 1955, or whether the Republican Party makes a mistake in seeking to depart from the practice of the past 30 years.
Of course, the Court could have overruled Tashjian in Jones. It did not do so and no commentator has said it should have. It follows that the Court’s role in Jones was ‘not to decide whether [initiative voters were] acting wisely in enacting’ the blanket primary, but to order the state to permit the parties to run their primaries as they choose.
Tashjian and Jones do not remove all control over candidate selection from the state. For one thing, the majority in Jones stated explicitly that although the state cannot generally control who may vote in primaries, it can require that party nominations be by primaries rather than by conventions or other methods. The Court left open whether a party on its own could open its primary to members of other parties. It will be recalled that in Tashjian, the Republican plaintiffs wanted to conduct what is known as a ‘semi-closed’ primary, in which independent voters but not those affiliated with other parties might participate. If the Republicans had proposed to conduct a fully open primary, they would have affected the association between the Democratic Party and its members. Accordingly, the Court in Jones left open whether a party can switch to a fully open primary unilaterally.
On May 23, 2005, as this book was going to press, a divided Supreme Court resolved this question in Clingman v. Beaver, 125 S. Ct. 2029, a case that might be read as undermining Tashjian and thereby greatly diminishing the parties’ constitutional right of association. Oklahoma employs a ‘semi-closed’ primary, in which independents may, at a party’s option, vote in the party’s primaries. In Clingman, the Court rejected the Libertarian Party’s claim that it was constitutionally entitled to allow voters to participate in the Libertarian primaries despite being registered as Republicans or Democrats or as members of other parties. The members of the majority disagreed on how much this restriction imposed on the Libertarians’ freedom of association, but all of them agreed that the imposition was insufficiently serious to require ‘strict scrutiny,’ which had been applied in Tashjian. If the Court had upheld the Oklahoma system on the ground that the state has an interest in protecting the association between other parties and their members that was not present in Tashjian, the conclusion might have been debatable, but it would not have cast doubt on Tashjian itself. By ruling that the strict standard of review used in Tashjian is not applicable, the decision may have far-reaching implications. The majority distinguished Tashjian on the ground that in Connecticut but not in Oklahoma, voters had to register as a member of the party in order to vote in its primary. That is true, but some will see it as of little significance when, in both cases, the main point is that the state is preventing a willing party from allowing willing voters to participate in its nominating process. It remains to be seen whether Clingman becomes a step toward the overruling of Tashjian and, presumably, Jones.
Even if Tashjian and Jones stand, a state can structure its elections as Louisiana has done, without any party nominations at all. Louisiana holds a two-stage election. In the first stage, all candidates of all parties run against each other. If any candidate gets a majority of votes he is elected. If no candidate wins a majority, the two with the most votes run against each other in the second stage. Typically, they would consist of one Republican and one Democrat, but in a strong one-party area they might be two Republicans or two Democrats. Although candidates are identified as members of a party, they appear on the second-stage ballot not as party nominees but by virtue of their finishing among the top two in the first stage. The state is not unconstitutionally interfering in a party’s nomination process because there are no party nominations. Few state legislatures are likely to be attracted by the Louisiana system and California voters rejected a variant when it was proposed as an initiative in 2004, though a similar measure was approved in Washington. Persily (2001b: 811-15) argues that the state’s option to adopt the Louisiana system is a sufficient political check in the unlikely event that either of the major parties should incline to closing its primaries to an excessive degree.
Most scholars believe that structural features of American government have been responsible for the two-party system that has characterized our politics for most of our history. The most often mentioned of these features is the single-member district system of electing legislators. The inability of a party that wins less than a plurality in a given district to get any representation is such a well-known deterrent to support of third parties that political science has given it a name, Duverger’s law (Duverger, 1959: 216-28; Riker, 1982). Duverger’s law can explain why there tend to be two major parties in any given area, but it does not explain why a country as large and geographically diverse as the United States does not have regional parties as has sometimes been the case, for example, in Canada. Elmer Schattschneider (1942: 81-3) argued that the electoral college was the most likely cause for our two-party system being national. However, even these two features do not explain why the same two parties have predominated for the last century-and-a-half, after an initial period in which the identity of the two major parties changed every generation or so. The most likely explanation is that the introduction of direct primaries ensured that the major parties would remain flexible and responsive to changing public needs and viewpoints (Lowenstein and Hasen, 2004: 535-6). Voters usually gravitate to third parties only when the major parties get seriously out of touch with them (Rosenstone et al., 1996: 162). Primaries make it unlikely that such situations will persist.
These features of the American system may have prevented third parties from succeeding, but they have not prevented them from trying. Minor parties do not have the representation in the legislature that would permit them to ensure that the state’s laws meet their needs. It is therefore not surprising that they have resorted more often than the major parties to the courts for relief. The most common occasion for such litigation is a third party’s (or independent candidate’s) desire for a place on the ballot. As we have seen, the adoption of the secret ballot in the late nineteenth century made it necessary for the first time for the state to provide a ballot. It followed that the state had to decide which parties and candidates would be listed on the ballot.
The state of Ohio can be credited with assuring third parties and independent candidates seeking ballot access a degree of constitutional protection. Ohio’s rules for third parties to reach the ballot in presidential elections were so restrictive that in 1968 George Wallace, running under the banner of the American Independent Party, was unable to satisfy them. The Ohio requirements for independent presidential candidates were beyond the reach of John Anderson in 1980. The Supreme Court required Ohio to let Wallace and the American Independents on the ballot in Williams v. Rhodes, 393 US 23 (1968), and did the same for Anderson in Anderson v. Celebrezze, 460 US 780 (1983). These cases are founded not on the right of the party or the candidate, but on the voting rights of their supporters.
Despite the Wallace and Anderson legal victories in Ohio, the Court has permitted states to set up barriers that will exclude parties and candidates unable to show at least a reasonably impressive degree of support. Thus, in Jenness v. Fortson, 403 US 431 (1971), the Court upheld Georgia requirements that had kept all or nearly all third-party and independent candidates off the ballot since their adoption nearly three decades earlier. Jenness and similar decisions have been sharply criticized by legal scholars, who tend to favor greater liberality toward third parties (Smith, 1991; Winger, 1996, 2002). The ballot access cases have also been criticized for failing to set a clear standard for determining what requirements are valid, primarily because the ‘standard of review’ that the Court uses has been shifting and sometimes unclear (Tribe, 1988; Latz, 1991). However, if we consider the results of the cases that have reached the Supreme Court rather than the Court’s verbal formulae, the standards do not seem especially unclear. With the assistance of the Court, Wallace and Anderson were able to appear on every state’s ballot in 1968 and 1980. In 1992 and 1996, Ross Perot was able to accomplish the same without the necessity for Supreme Court intervention.
States cannot enforce requirements whose effect is to bar from the ballot candidates or parties with enough support to have a substantial impact on the election. Others can be excluded.
Although the latter result is not to the liking of some scholars, there is good reason for it. One point commonly made against third-party and independent candidates is that with only slight support they may prevent a major party winner from obtaining a majority or swing the result from one major party to the other by taking more votes from one party than from the other. The major parties have been known, by various covert means, to encourage and even subsidize minor candidacies for just this reason. Another reason for not allowing ballot access to candidates without impressive support is that their presence clutters the ballot and makes voting more difficult. This is a lesson that ought to have been learned from Florida in 2000. Ten presidential candidates (and their running mates) appeared on the ballot, although only five were known to more than a handful of voters. If Florida law had barred the remaining five candidates from the ballot, there would have been neither a butterfly ballot in Palm Beach County nor two pages of presidential candidates in Duval County.
One important reason for the difference between the Court and its critics among the scholars is that the Court permits states to regard elections as occasions for selecting the officials who will operate the government rather than as occasions for public expression. What underlies much of the scholarship seeking greater constitutional protection for minor parties is the belief that voting should be protected not only as an instrumental but as an expressive activity (Karst, 1975: 52-65; Winkler, 1993). In Burdick v. Takushi, 504 US 428 (1992), the Court said that ‘[attributing to elections a more generalized expressive function would undermine the ability of States to operate elections fairly and efficiently.’
Given the Court’s outlook, it is not surprising that in cases in which third parties or independent candidates have sought benefits other than ballot access, the results, though mixed, have tended to go against them (Lowenstein and Hasen, 2004: 548-79). Thus, in Buckley v. Valeo, 424 US 1, 85-109 (1976), the Court upheld public financing of presidential election campaigns that pose formidable obstacles to third-party eligibility though in Brown v. Socialist Workers ‘74 Campaign Committee, 459 US 87 (1982), the Court also required that third parties be excused from campaign disclosure requirements if they can show that disclosure may expose them to official or private retribution. Arkansas Educational Television Commission v. Forbes, 523 US 666 (1998), held that an independent candidate has no constitutional right to participate in a debate between the major party candidates organized and broadcast by a public television station. And in the most widely despised case involving parties in recent years, Timmons v. Twin Cities Area New Party, 520 US 351 (1997), the Court upheld an anti-fusion law.
Fusion candidacies arise when an individual appears on the ballot as the candidate of two or more parties. Only a few states allow fusion candidacies and only in New York are they a significant part of the electoral system (Epstein, 1999: 65). In Timmons the New Party sought to nominate a state legislative candidate who was already the candidate of the Democratic-Farmer-Labor (DFL) party. The Supreme Court, in a 6-3 decision, upheld the anti-fusion law that prevented the joint nomination.
The scholarly opposition to Timmons was led by Richard Hasen (1997), who read the case as permitting infringement of First Amendment rights in furtherance of the state’s interest in preserving the two-party system. He based his interpretation primarily on the Court’s statement that ‘the Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system.’ Other scholars accepted Hasen’s interpretation (Peltason, 1999: 20; Amy, 2002; Thompson, 2002: 70-80).
Hasen’s reading is a possible one, but it is not the most plausible reading and certainly not the friendliest. He emphasizes the term ‘two-party’ in the final phrase of the quoted passage. The phrase takes on a different meaning if instead we emphasize ‘healthy.’ So read, the Court’s statement does not suggest that preservation of the two-party system is a state interest that can justify constitutional infringements, but rather that given the existence of a two-party system, the state has an interest in keeping it healthy We have seen that certain features of the American system create incentives and disincentives likely to result in a two-party system. Proponents of proportional systems may be unhappy about that consequence, but single-member districts, the electoral college and primaries do not restrict speech or associational rights of parties, candidates, or anyone else. The state cannot restrict such rights to promote the two-party system, but neither does the First Amendment require the state to adopt an institutional structure that will encourage multiple parties. Given the two-party system that the state has the right to promote and that does in fact exist, Timmons says, unre-markably that the state does have an interest in keeping that system healthy.
Opinions will often differ over what makes a healthy system, but the case against the fusion system is strong. Although scholars have criticized anti-fusion laws as ‘entrenching’ the two major parties (Issacharoff and Pildes, 1998: 683-7), the history of fusion in New York casts severe doubt on that claim. Fusion has been much less a device for minor parties to compete against the major parties than a means of putting pressure on candidates. Indeed, the leading student of the subject concludes that the minor parties in New York are better described as pressure groups than as parties (Scarrow, 1983: 63-4). Those parties ‘nominate’ major party candidates much more often than they field their own candidates (1983: 56) and when they do run candidates of their own it is usually punishment of the major-party candidate for not being sufficiently compliant. Thus, the proposal for the creation of the Conservative Party in 1962 stated that its function would be to ‘exercise leverage’ on the major parties (1983: 61). The purpose of the Right to Life Party, according to a spokesman, is ‘not to have our own people elected to office. We leave politics to the politicians. We would prefer to endorse rather than run our own people’ (1981: 61). Howard Scarrow reports that although the Liberal Party ‘began as a group of dedicated idealists, … few today doubt that its dedication to principle has given way to obsession with patronage. Similarly for the Conservatives’ (1983: 73).
There is nothing obviously wrong about providing minor parties with a mechanism for putting pressure on major-party candidates; nor does the fact that fusion can be and is abused differentiate it from most other features of the political system. But if there is nothing obviously wrong about fusion, neither is there anything obviously right about it. Though minor parties find it convenient to be given the tactical tool of fusion, that does not make it a First Amendment requirement. It may seem that a restriction on a party’s ability to nominate the candidate of its choice strikes at the heart of the party’s associational rights, as Tashjian and Jones demonstrate (Fitts, 2002: 103-104). But as the Right to Life spokesman quoted by Scarrow accurately stated, what minor parties do in a fusion system is more akin to endorsing than to nominating. Under parliamentary procedures familiar to all, a candidate is nominated once, though he may be seconded or endorsed many times. The imposition on the New Party in Timmons is not a distortion of its ability to put a candidate before the public, but rather prevention of the party’s desire to use the ballot for expressive purposes—a desire that the Court had said in Burdick the state did not have to accommodate.
Other issues Affecting Parties
We have canvassed the central constitutional issues defining the legal status of political parties. There are other issues that affect the parties in significant ways. Space permits a bare mention of three of these: campaign finance, redistricting, and patronage.
We have already seen that in Buckley v. Valeo the Supreme Court upheld a system of public financing that ordinarily excludes minor parties. Two cases affecting the major parties were decided in the past decade. Both arose out of some expenditures made by the Colorado Republican Party to purchase advertising critical of the Democratic candidate for the United States Senate. Because the expenditures occurred before the Republican candidate had been nominated in the primary, the party could plausibly claim that it had acted independently of the candidate.
In Colorado Republican Federal Campaign Committee v. Federal Election Commission (Colorado Republican I), 518 US 604 (1996), the Court held that the party had the same right as other entities—a right established in Buckley v. Valeo- to spend independently of candidates without limitation. In Federal Election Commission v. Colorado Republican Federal Campaign Committee, 533 US 431 (2001), the Court upheld limits on party spending that is coordinated with a candidate. Two justices, Ginsburg and Stevens, would have upheld limits in both situations. Four justices, Kennedy, Rehnquist, Scalia, and Thomas, would have struck them down in both situations. The position of the centrist justices, Breyer, O’Connor, and Souter, was entirely consistent with the Court’s campaign finance doctrine if it is assumed that for purposes of campaign finance regulation parties should be treated the same as other private entities. But in practice, the decisions in combination are perverse. Either of the ‘extreme’ positions would have been better. The two decisions encourage a party to separate its campaigning from its candidates, an incentive that serves no discernible purpose.
The Supreme Court’s most recent campaign finance decision, McConnell v. Federal Election Commission, 540 US 93 (2003), upheld almost all the provisions of the Bipartisan Campaign Reform Act. These included harsh limitations on the financial activities of both national and state parties (Symposium, 2004).
Of all political activity in the United States, perhaps none is as intensely partisan as redistricting. The Supreme Court has decided a great number of districting cases since it determined in Baker v. Carr, 369 US 186 (1962), that such controversies are justiciable. Only two were direct challenges to districting plans on the ground that they were unconstitutional partisan gerrymanders. In the first, Davis v. Bandemer, 478 US 109 (1986), the Court held that partisan gerrymandering claims were justiciable but rejected the particular challenge to the plan for the Indiana legislature. The lead opinion, by Justice White, was obscure, but seemed to indicate that a major party could rarely, if ever, win a partisan gerrymandering claim against its rival (Lowenstein, 1990). Recently, in Vieth v. Jubelirer, 541 US 267 (2004), the Supreme Court unsettled the question thoroughly. Four justices, unable to make sense of Davis v. Bandemer, asserted there are no judicially manageable standards for deciding partisan gerrymandering claims and therefore would have declared such claims non-justiciable. Four dissenting judges believed manageable standards existed, but were unable to agree on what the standard should be, putting forth three competing proposals. The deciding vote was cast by Justice Kennedy who, in an unusually irresponsible move even for a member of the Supreme Court, said there might be a manageable standard but he did not know of any. Therefore he dismissed the case before the Court, but refused to say that partisan gerrymandering claims are non-justiciable. This left lower court judges who must hear future partisan gerrymandering claims in a quandary.
The practice of partisan patronage was already in an advanced state of decline when the Supreme Court, in Elrod v. Burns, 427 US 347 (1976), declared it a violation of the First Amendment for most government employees to be fired for partisan reasons. The Court applied the same rule to government hiring in Rutan v. Republican Party of Illinois, 497 US 62 (1990). More ambitiously, the Court most recently has attempted to bar overly partisan criteria in the award of government contracts, in Board of County Commissioners, Wabaunsee County v. Umbehr, 518 US 668 (1996), and O’Hare Truck Service v. City of Northlake, 518 US 712 (1996). Whether these latest rulings will have much of an effect is perhaps questionable.
For nearly a century, political parties enjoyed minimal contact with the law. When regulation came, it came from the state legislatures and it was far-reaching. The courts did not take much of an affirmative role until well into the twentieth century, when they subjected parties to constitutional restraints, primarily in the cause of extending voting rights to African-Americans in the South. Constitutional regulation is still potentially available, though it is infrequently needed. State legislatures, which of course are constituted by Democrats and Republicans, continue to regulate the parties, though when they regulate the major parties to a large extent they are regulating themselves. Nevertheless, beginning in the 1970s and more clearly in the 1980s, the Supreme Court has extended constitutional protection to the parties. Whether the justices are aware of it or not, in some of the cases they appear to be supporting one side of an intraparty dispute. Minor parties do not constitute state legislatures and therefore are more commonly dissatisfied with the regulations applicable to them. The Supreme Court has assured a place on the ballot for third parties who can demonstrate they are likely to be reasonably competitive. On other issues, minor parties have usually been less successful.
Academics being academics, they tend to be preoccupied with theories. Some believe they can discern a consistent theoretical approach in the Court’s decisions on parties and on election issues more generally (Maveety 1991). Others believe the Court lacks a theory but believe it should find one (Rush, 1993). Some would like to thrust a theory upon the Court (Issacharoff and Pildes, 1998; Pildes, 1999). Curmudgeons find the prospect of a political theory sanctioned and imposed by the judiciary somewhere between preposterous and pernicious (Lowenstein, 2002).