Rules of the Democratic Party of the United States (National
Party) provide that only those who are willing to affiliate
publicly with the Democratic Party may participate in the process
of selecting delegates to the Party's National Convention.
Wisconsin election laws allow voters to participate in its
Democratic Presidential candidate preference primary without regard
to party affiliation and without requiring a public declaration of
party preference. While the Wisconsin delegates to the National
Convention are chosen separately, after the primary, at caucuses of
persons who have stated their affiliation with the Democratic
Party, those delegates are bound to vote at the Convention in
accord with the results of the open primary election. Thus, while
Wisconsin's open Presidential preference primary does not itself
violate the National Party's rules, the State's mandate that
primary results shall determine the allocation of votes cast by the
State's delegates at the National Convention does. When the
National Party indicated that Wisconsin delegates would not be
seated at the 1980 National Convention because the Wisconsin
delegate selection system violated the National Party's rules, an
original action was brought in the Wisconsin Supreme Court on
behalf of the State, seeking a declaration that such system was
constitutional as applied to appellants (the National Party and
Democratic National Committee) and that they could not lawfully
refuse to seat the Wisconsin delegation. Concluding,
inter
alia, that the State had not impermissibly impaired the
National Party's freedom of political association protected by the
First and Fourteenth Amendments, the Wisconsin Supreme Court held
that the State's delegate selection system was constitutional and
binding upon appellants, and that they could not refuse to seat
delegates chosen in accord with Wisconsin law.
Held: Wisconsin cannot constitutionally compel the
National Party to seat a delegation chosen in a way that violates
the Party's rules.
Cousins v. Wigoda, 419 U.
S. 477, controlling. Pp.
450 U. S.
120-126.
(a) The National Party and its adherents enjoy a
constitutionally protected right of political association under the
First Amendment, and
Page 450 U. S. 108
this freedom to gather in association for the purpose of
advancing shared beliefs is protected by the Fourteenth Amendment
from infringement by any State, and necessarily presupposes the
freedom to identify the people who constitute the association and
to limit the association to those people only. Here, the members of
the National Party, speaking through their rules, chose to define
their associational rights by limiting those who could participate
in any binding process leading to the selection of delegates to
their National Convention. Pp.
450 U. S.
120-122.
(b) Wisconsin's asserted compelling interests in preserving the
overall integrity of the electoral process, providing secrecy of
the ballot, increasing voter participation in primaries, and
preventing harassment of voters, go to the conduct of the open
Presidential preference primary, not to the imposition of voting
requirements upon those who, in a separate process, are eventually
selected as delegates. Therefore, such asserted interests do not
justify the State's substantial intrusion into the associational
freedom of members of the National Party. Pp.
450 U. S.
124-126.
93 Wis.2d 473,
287
N.W.2d 519, reversed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, and STEVENS, JJ.,
joined. POWELL, J., filed a dissenting opinion, in which BLACKMUN
and REHNQUIST, JJ., joined,
post, p.
450 U. S.
126.
Page 450 U. S. 109
JUSTICE STEWART delivered the opinion of the Court.
The charter of the appellant Democratic Party of the United
States (National Party) provides that delegates to its National
Convention shall be chosen through procedures in which only
Democrats can participate. Consistently with the charter, the
National Party's Delegate Selection Rules provide that only those
who are willing to affiliate publicly with the Democratic Party may
participate in the process of selecting delegates to the Party's
National Convention. The question on this appeal is whether
Wisconsin may successfully insist that its delegates to the
Convention be seated, even though those delegates are chosen
through a process that includes a binding state preference primary
election in which voters do not declare their party affiliation.
The Wisconsin Supreme Court held that the National Convention is
bound by the Wisconsin primary election results, and cannot refuse
to seat the delegates chosen in accord with Wisconsin law. 93
Wis.2d 473,
287 N.W.2d
519.
I
Rule 2A of the Democratic Selection Rules for the 1980 National
Convention states:
"Participation in the delegate selection process in primaries or
caucuses shall be restricted to Democratic voters only who publicly
declare their party preference and have that preference publicly
recorded. [
Footnote 1]"
Under
Page 450 U. S. 110
National Party rules, the "delegate selection process" includes
any procedure by which delegates to the Convention are bound to
vote for the nomination of particular candidates. [
Footnote 2]
The election laws of Wisconsin [
Footnote 3] allow non-Democrats --
Page 450 U. S. 111
including members of other parties and independents -- to vote
in the Democratic primary without regard to party affiliation and
without requiring a public declaration of party preference. The
voters in Wisconsin's "open" [
Footnote 4] primary express their
Page 450 U. S. 112
choice among Presidential candidates for the Democratic Party's
nomination; they do not vote for delegates to the National
Convention. Delegates to the National Convention are chosen
separately, after the primary, at caucuses of persons who have
stated their affiliation with the Party. [
Footnote 5] But these delegates, under Wisconsin law,
are bound to vote at the National Convention in accord with the
results of the open primary election. [
Footnote 6] Accordingly, while Wisconsin's open
Presidential preference primary does not itself violate National
Party rules, [
Footnote 7] the
State's mandate that the results of the primary shall determine the
allocation of votes cast by the State's delegates at the National
Convention does.
In May, 1979, the Democratic Party of Wisconsin (State Party)
submitted to the Compliance Review Commission of the National Party
its plan for selecting delegates to the 1980 National Convention.
The plan incorporated the provisions of the State's open primary
laws, and, as a result, the Commission disapproved it as violating
Rule 2A. [
Footnote 8] Since
compliance with Rule 2A was a condition of participation at
Page 450 U. S. 113
the Convention, for which no exception could be made, [
Footnote 9] the National Party
indicated that Wisconsin delegates who were bound to vote according
to the results of the open primary would not be seated.
The State Attorney General then brought an original action in
the Wisconsin Supreme Court on behalf of the State. Named as
respondents in the suit were the National Party and the Democratic
National Committee, who are the appellants in this Court, and the
State Party, an appellee here. The State sought a declaration that
the Wisconsin delegate selection system was constitutional as
applied to the appellants and that the appellants could not
lawfully refuse to seat the Wisconsin delegation at the Convention.
The State Party responded by agreeing that state law may validly be
applied against it and the National Party, and cross-claimed
against the National Party, asking the court to order the National
Party to recognize the delegates selected in accord with Wisconsin
law. The National Party argued that, under the First and Fourteenth
Amendments, it could not be compelled to seat the Wisconsin
delegation in violation of Party rules.
The Wisconsin Supreme Court entered a judgment declaring that
the State's system of selecting delegates to the Democratic
National Convention is constitutional and binding on the
appellants. 93 Wis.2d 473,
287 N.W.2d
519. The court assumed that the National Party's freedom of
political association, protected by the First and Fourteenth
Amendments, gave it the right to restrict participation in the
process of choosing Presidential and Vice Presidential candidates
to Democrats.
Id. at 511-512, 287 N.W.2d at 536. It
concluded, however, that the State had not impermissibly impaired
that right. The court said that the State's primary election laws
were themselves intended to permit persons to vote only for the
candidates of the party they preferred, and
Page 450 U. S. 114
that, as a practical matter, requiring a public declaration of
party affiliation would not prevent persons who are not Democrats
from voting in the primary. [
Footnote 10] Moreover, the court reasoned that, to
whatever extent appellants' constitutional freedom of political
association might be burdened by the Wisconsin election laws, the
burden was justified by the State's "compelling . . . interest in
maintaining the special feature of its primary . . . which permits
private declaration of party preference."
Id. at 521, 287
N.W.2d at 541.
The court declared that the votes of the state delegation at the
National Convention for Presidential and Vice Presidential
candidates must be apportioned and cast as prescribed by Wisconsin
law, and that the State's delegates could not, for that reason, be
disqualified from being seated at the Convention. [
Footnote 11] The National Party and the
Democratic National Committee then brought this appeal under 28
U.S.C. § 1257(2).
Wisconsin held its primary on April 1, 1980, in accord with its
election laws. Subsequently, the State Party chose delegates to the
1980 Democratic National Convention, in compliance with the order
of the Wisconsin Supreme Court and Wis.Stat. §§ 8.12(3)(b), (3)(c)5
(1977). This Court noted probable jurisdiction of the appeal on
July 2, 1980. 448 U.S. 909. On the same day, the Court stayed the
judgment of
Page 450 U. S. 115
the Wisconsin Supreme Court. On July 20, 1980, the Credentials
Committee of the National Convention decided to seat the delegates
from Wisconsin, despite this Court's stay, [
Footnote 12] and despite the delegates'
selection in a manner that violated Rule 2A. [
Footnote 13]
II
Rule 2A can be traced to efforts of the National Party to study
and reform its nominating procedures and internal structure after
the 1968 Democratic National Convention. [
Footnote 14]
Page 450 U. S. 116
The Convention, the Party's highest governing authority,
directed the Democratic National Committee (DNC) to establish a
Commission on Party Structure and Delegate Selection
(McGovern/Fraser Commission). This Commission concluded that a
major problem faced by the Party was that rank-and-file Party
members had been underrepresented at its Convention, and that the
Party should
"find methods which would guarantee every American
who
claims a stake in the Democratic Party the opportunity to make
his judgment felt in the presidential nominating process."
Commission on Party Structure and Delegate Selection, Mandate
for Reform: A Report of the Commission on Party Structure and
Delegate Selection to the Democratic National Committee 8
(Apr.1970) (emphasis added) (hereafter Mandate for Reform). The
Commission stressed that Party nominating procedures should be as
open and accessible as possible to all persons who wished to join
the Party, [
Footnote 15] but
expressed the concern that
"a full opportunity for all Democrats to participate is diluted
if members of other political parties are allowed to
participate
Page 450 U. S. 117
in the selection of delegates to the Democratic National
Convention."
Id. at 47. [
Footnote
16]
The 1972 Democratic National Convention also established a
Commission on Delegate Selection and Party Structure (Mikulski
Commission). This Commission reiterated many of the principles
announced by the McGovern/Fraser Commission, but went further to
propose binding rules directing state parties to restrict
participation in the delegate selection process to Democratic
voters. Commission on Delegate Selection and Party Structure,
Democrats All: A Report of the Commission on Delegate Selection and
Party Structure 2, 15 (Dec. 6, 1973) (hereafter Democrats All). The
DNC incorporated these recommendations into the Delegate Selection
Rules for the 1976 Convention. In 1974, the National Party adopted
its charter and by-laws. The charter set the following
qualifications for delegates to the Party's national
conventions:
"The National Convention shall be composed of delegates who are
chosen through processes which (i) assure all Democratic voters
full, timely and equal opportunity to participate and include
affirmative action programs toward that end, (ii) assure that
delegations fairly reflect the division of preferences expressed by
those who participate in the presidential nominating process, . . .
[and] (v)
restrict participation to Democrats only. . .
."
Democratic National Committee, Charter of the Democratic Party
of the United States, Art. Two, § 4 (emphasis added).
Page 450 U. S. 118
Rule 2A took its present form in 1976. Consistent with the
charter, it restricted participation in the delegate selection
process in primaries or caucuses to "Democratic voters only who
publicly declare their party preference and have that preference
publicly recorded." But the 1976 Delegate Selection Rules allowed
for an exemption from any rule, including Rule 2A, that was
inconsistent with state law if the state party was unable to secure
changes in the law. [
Footnote
17]
In 1975, the Party established yet another commission to review
its nominating procedures, the Commission on Presidential
Nomination and Party Structure (Winograd Commission). This
Commission was particularly concerned with what it believed to be
the dilution of the voting strength of Party members in States
sponsoring open or "crossover" primaries. [
Footnote 18] Indeed, the Commission based its
concern in part on a study of voting behavior in Wisconsin's open
primary.
See Adamany, Cross-Over Voting and the Democratic
Party's Reform Rules, 70 Am.Pol.Sci.Rev. 536, 538-539 (1976).
The Adamany study, assessing the Wisconsin Democratic primaries
from 1964 to 1972, found that crossover voters comprised 26% to 34%
of the primary voters; that the voting patterns of crossover voters
differed significantly from those of participants who identified
themselves as Democrats; and that crossover voters altered the
composition of the delegate slate chosen from Wisconsin. [
Footnote 19] The Winograd
Commission
Page 450 U. S. 119
thus recommended that the Party strengthen its rules against
crossover voting, Openness, Participation and Party Building:
Reforms for a Stronger Democratic Party 68 (Feb. 17, 1978)
(hereafter Openness, Participation), predicting that continued
crossover voting
"could result in a convention delegation which did not fairly
reflect the division of preferences among Democratic identifiers in
the electorate."
Ibid. And it specifically recommended that
"participation in the delegate selection process in primaries or
caucuses . . . be restricted to Democratic voters only who publicly
declare their party preference and have that preference publicly
recorded."
Id. at 69. Accordingly, the text of Rule 2A was
retained, but a new Rule, 2B, was added, prohibiting any exemptions
from
Page 450 U. S. 120
Rule 2A. Delegate Selection Rules for the 1980 Democratic
Convention, Rule 2B. [
Footnote
20]
III
The question in this case is not whether Wisconsin may conduct
an open primary election if it chooses to do so, or whether the
National Party may require Wisconsin to limit its primary election
to publicly declared Democrats. [
Footnote 21] Rather, the question is whether, once
Wisconsin has opened its Democratic Presidential preference primary
to voters who do not publicly declare their party affiliation, it
may then bind the National Party to honor the binding primary
results, even though those results were reached in a manner
contrary to National Party rules.
The Wisconsin Supreme Court considered the question before it to
be the constitutionality of the "open" feature of the state primary
election law, as such. Concluding that the
Page 450 U. S. 121
open primary serves compelling state interests by encouraging
voter participation, the court held the state open primary
constitutionally valid. Upon this issue, the Wisconsin Supreme
Court may well be correct. In any event, there is no need to
question its conclusion here. For the rules of the National Party
do not challenge the authority of a State to conduct an open
primary, so long as it is not binding on the National Party
Convention. The issue is whether the State may compel the National
Party to seat a delegation chosen in a way that violates the rules
of the Party. And this issue was resolved, we believe, in
Cousins v. Wigoda, 419 U. S. 477.
In
Cousins, the Court reviewed the decision of an
Illinois court holding that state law exclusively governed the
seating of a state delegation at the 1972 Democratic National
Convention, and enjoining the National Party from refusing to seat
delegates selected in a manner in accord with state law although
contrary to National Party rules. Certiorari was granted
"to decide the important question . . . whether the [a]ppellate
[c]ourt was correct in according primacy to state law over the
National Political Party's rules in the determination of the
qualifications and eligibility of delegates to the Party's National
Convention."
Id. at
419 U. S. 483.
The Court reversed the state judgment, holding that
"Illinois' interest in protecting the integrity of its electoral
process cannot be deemed compelling in the context of the selection
of delegates to the National Party Convention."
Id. at
419 U. S. 491.
That disposition controls here.
The
Cousins Court relied upon the principle that "[t]he
National Democratic Party and its adherents enjoy a
constitutionally protected right of political association."
Id. at
419 U. S. 487.
See also id. at
419 U. S. 491
(REHNQUIST, J., concurring). This First Amendment freedom to gather
in association for the purpose of advancing shared beliefs is
protected by the Fourteenth Amendment from infringement by any
State.
Kusper v. Pontikes, 414 U. S.
51,
414 U. S. 57;
Williams v. Rhodes, 393 U. S. 23,
393 U. S. 30-31.
See also NAACP v. Alabama ex rel.
Patterson,
Page 450 U. S. 122
357 U. S. 449,
357 U. S. 460.
And the freedom to associate for the "common advancement of
political beliefs,"
Kusper v. Pontikes, supra at
414 U. S. 56,
necessarily presupposes he freedom to identify the people who
constitute the association, and to limit the association to those
people only. [
Footnote 22]
"Any interference with the freedom of a party is simultaneously an
interference with the freedom of its adherents."
Sweezy v. New
Hampshire, 354 U. S. 234,
354 U. S. 250;
see NAACP v. Button, 371 U. S. 415,
371 U. S.
431.
Here, the members of the National Party, speaking through their
rules, chose to define their associational rights by limiting those
who could participate in the processes leading to the selection of
delegates to their National Convention. On several occasions, this
Court has recognized that the inclusion of persons unaffiliated
with a political party may seriously distort its collective
decisions -- thus impairing the party's essential functions -- and
that political parties may accordingly protect themselves "from
intrusion by those with adverse political principles."
Ray v.
Blair, 343 U. S. 214,
343 U. S.
221-222. In
Rosario v. Rockefeller,
410 U. S. 752, for
example, the Court sustained the constitutionality of a requirement
-- there imposed by a state statute -- that a voter enroll in the
party of his choice at least 30 days before the general election in
order to vote in the next party primary. The purpose of that
statute was
"to inhibit party 'raiding,' whereby voters in sympathy with one
party designate themselves as voters of another party so as to
influence or determine the results of the other party's
primary."
Id. at
410 U. S. 760.
[
Footnote 23]
See also
Kusper v. Pontikes, supra at
414 U. S.
59-60.
Page 450 U. S. 123
The Wisconsin Supreme Court recognized these constitutional
doctrines in stating that the National Party could exclude persons
who are not Democrats from the procedures through which the Party's
national candidates are actually chosen. 93 Wis.2d at 499, 287
N.W.2d at 530. But the court distinguished
Cousins on the
ground that this case "does not arise
in the context of the
selection of delegations to the National Party Convention. . . .'"
[Footnote 24] Id.
at 525, 287 N.W.2d at 543. The court's order, however,
unequivocally obligated the National Party to accept the delegation
to the National Convention chosen in accord with Wisconsin law,
despite contrary National Party rules.
The State argues that its law places only a minor burden on the
National Party. The National Party argues that the burden is
substantial, because it prevents the Party from "screen[ing] out
those whose affiliation is . . . slight, tenuous, or fleeting," and
that such screening is essential to build a more effective and
responsible Party. But it is not for the courts to mediate the
merits of this dispute. For even if the State were correct,
[
Footnote 25] a State, or a
court, may not constitutionally
Page 450 U. S. 124
substitute its own judgment for that of the Party. A political
party's choice among the various ways of determining the makeup of
a State's delegation to the party's national convention is
protected by the Constitution. [
Footnote 26] And as is true of all expressions of First
Amendment freedoms, the courts may not interfere on the ground that
they view a particular expression as unwise or irrational.
[
Footnote 27]
IV
We must consider, finally, whether the State has compelling
interests that justify the imposition of its will upon the
appellants.
See Cousins, 419 U.S. at
419 U. S. 489.
[
Footnote 28] "Neither the
right to associate nor the right to participate in political
activities is absolute."
CSC v. Letter Carriers,
413 U. S. 548,
413 U. S. 567.
The State asserts a compelling interest in preserving the overall
integrity of the electoral process, providing secrecy
Page 450 U. S. 125
of the ballot, increasing voter participation in primaries, and
preventing harassment of voters. [
Footnote 29] But all those interests go to the conduct of
the Presidential preference primary -- not to the imposition of
voting requirements upon those who, in a separate process, are
eventually selected as delegates. [
Footnote 30] Therefore, the interests advanced by the
State [
Footnote 31] do not
justify
Page 450 U. S. 126
its substantial [
Footnote
32] intrusion into the associational freedom of members of the
National Party.
V
The State has a substantial interest in the manner in which its
elections are conducted, and the National Party has a substantial
interest in the manner in which the delegates to its National
Convention are selected. But these interests are not incompatible,
and, to the limited extent they clash in this case, both interests
can be preserved. 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. Since the Wisconsin Supreme Court
has declared that the National Party cannot disqualify delegates
who are bound to vote in accordance with the results of the
Wisconsin open primary, its judgment is reversed.
It so ordered.
[
Footnote 1]
Rule 2A provides in full:
"Participation in the delegate selection process in primaries or
caucuses shall be restricted to Democratic voters only who publicly
declare their party preference and have that preference publicly
recorded. Documentary evidence of a process which complies with
this rule shall accompany all state Delegate Selection Plans upon
their submission to the National Party. Such rules, when approved
by the Compliance Review Commission and implemented, shall
constitute adequate provisions within the meaning of Section 9 of
the 1972 Democratic National Convention mandate."
[
Footnote 2]
Rule 12B of the Delegate Selection Rules for the 1980 Democratic
National Convention provides in part:
"At all stages of the delegates selection process, delegates
shall be allocated in a fashion that fairly reflects the expressed
presidential preference or uncommitted status of the primary voters
or, if there is no binding primary, the convention and caucus
participants except that preferences securing less than the
applicable percentage of votes cast for the delegates to the
National Convention shall not be awarded any delegates."
Rule 12D provides in full:
"For the purpose of fairly reflecting the division of
preferences, the
nonbinding advisory presidential
preference portion of primaries shall not be considered a step in
the delegate selection process."
(Emphasis added.)
[
Footnote 3]
Wisconsin's election laws are contained in Wis.Stat., Tit. II,
chs. 12 (1977). The laws in issue in this case relate to the
Presidential preference vote at the spring election, held on the
first Tuesday in April in each year in which the Electors for
President and Vice President are to be chosen. The relevant
provisions are as follows:
"5.37 Voting machine requirements."
"
* * * *"
"(4) Voting machines may be used at primary elections when they
comply with . . . the following provisions: All candidates' names
entitled to appear on the ballots at the primary shall appear on
the machines; the elector cannot vote for candidates of more than
one party, whenever the restriction applies, and an elector who
votes for candidates of any party may not vote for independent
candidates at the September primary; the elector may secretly
select the party for which he or she wishes to vote, or the
independent candidates in the case of the September primary; the
elector may vote for as many candidates for each office as he or
she is lawfully entitled to vote for, but no more."
"
* * * *"
"5.60 Spring election ballots. At spring elections the following
ballots, when necessary, shall be provided for each ward."
"
* * * *"
"(8) BALLOTS FOR PRESIDENTIAL VOTE. There shall be a separate
ballot for each party . . . listing the names of all potential
candidates of that party . . . and affording, in addition, an
opportunity to the voter to nominate another potential candidate by
write-in vote or to vote against the choices offered on the ballot.
. . . Each voter shall be given the ballots of all the parties
participating in the presidential preference vote, but may vote on
one ballot only."
"8.12 Presidential preference vote."
"
* * * *"
"(3) DELEGATES TO NATIONAL CONVENTION. (a) In canvassing the
presidential preference vote, the specific candidate for president
receiving a plurality in any district or in the state at large is
entitled to control all the delegates representing such area. . . .
As an alternative to this procedure, the state chairperson of any
political party having a presidential preference ballot may inform
the board . . . that the delegates from such party are to be
certified on the basis of proportional representation. In such
case, each presidential candidate shall be apportioned delegates
committed to support him or her as nearly as possible in accordance
with the percentage of the vote in a district or in the state at
large which such candidate receives. . . ."
"
* * * *"
[8.12(3)(b) and 8.12(3)(c)5 are described in
n 6,
infra]
"
* * * *"
"(am) No later than the last Monday in April following the
presidential preference vote, the board shall notify each state
party organization chairperson . . . of the results of the
presidential preference vote cast within his or her party, and the
number of delegates from each congressional district and from the
state at large which are to be pledged to each presidential
candidate and the number which are to be uninstructed."
[
Footnote 4]
What characterizes the Wisconsin primary as "open" is that the
"voter is not required to declare publicly a party preference or to
have that preference publicly recorded." 93 Wis.2d 473, 485,
287
N.W.2d 519, 523.
See Wis.Stat. §§ 5.60(8), 10.02(3)
(1977). "The major characteristic of open primaries is that any
registered voter can vote in the primary of either party." R.
Blank, Political Parties, An Introduction 316 (1980).
"The states with open primaries [including Wisconsin] allow any
qualified voter to participate in a party primary without
designating party affiliation or preference."
D. Ippolito & T. Walker, Political Parties, Interest Groups,
and Public Policy: Group Influence in American Politics 175
(1980).
[
Footnote 5]
The State Party limits participation in the selection of
delegates to the National Convention to
"persons who are willing to subscribe to the general principles
of the Democratic Party and do so publicly by executing an
appropriate statement to that effect."
93 Wis.2d at 486, 287 N.W.2d at 524.
[
Footnote 6]
The Convention delegates are bound for a limited period by the
outcome of the Presidential preference vote in their respective
districts or by the outcome of the total Presidential vote in the
State at large. Wis.Stat. § 8.12(3)(b) (1977). Each delegate must
pledge to support the candidate to whom the delegate is bound and
to vote for that candidate on the first ballot and on any
additional ballot, unless the candidate dies or releases the
delegate or until the candidate fails to receive at least one-third
of the votes authorized to be cast. Thereafter the delegates vote
at the Convention is based on personal preference. §
8.12(3)(c)5.
[
Footnote 7]
Cf. Rule 12D at
n
2,
supra.
[
Footnote 8]
See n 1,
supra.
[
Footnote 9]
Rule 2B precludes any exemption from Rule 2A requirements.
See n 20 and
accompanying text,
infra.
[
Footnote 10]
The court reasoned that, because a primary voter must vote on
only one party's ballot, he effectively declares his affiliation,
albeit privately.
[
Footnote 11]
The order of the Wisconsin Supreme Court was as follows:
"It is adjudged and declared that the Wisconsin electoral
statutes involved in this controversy are constitutional, in full
force and effect, and binding on the petitioner and respondents;
that the presidential preference primary shall be conducted in
accordance with the Wisconsin statutes; and that Wisconsin
delegates to the Democratic Party national convention shall be
apportioned as required by statute in accordance with the results
of the presidential preference vote, and are not disqualified as
delegates solely by reason of the apportionment being determined as
required by the Wisconsin statutes."
93 Wis.2d at 525-526, 287 N.W.2d at 643.
[
Footnote 12]
In oral argument, counsel for the National Party asserted that
the Party did not have the time or resources, at that late date, to
establish a procedure to select an alternative slate of
delegates.
[
Footnote 13]
This case is not moot. The Wisconsin Supreme Court's order is
not explicitly limited to the 1980 Convention. The effect of the
order "remains and controls future elections."
Moore v.
Ogilvie, 394 U. S. 814,
394 U. S. 816.
In any event, even if the order were clearly limited to the 1980
election year, the controversy would be properly before us as one
"capable of repetition, yet evading review."
Rosario v.
Rockefeller, 410 U. S. 752,
410 U. S. 756,
n. 5;
Dunn v. Blumstein, 405 U. S. 330,
405 U. S. 333,
n. 2.
[
Footnote 14]
Wisconsin's open primary system has a history far longer than
that of Rule 2A of the National Party. The open primary was adopted
in 1903, and, in the words of the Wisconsin Supreme Court, it has
"functioned well" ever since. 93 Wis.2d at 514, 287 N.W.2d at 537.
The open primary is employed in Wisconsin not only to express
preference for Presidential candidates, but to choose "partisan . .
. state and local candidates . . . and an extensive array of
nonpartisan officers" as well.
Ibid. For a history of
Wisconsin's open primary,
see Part II of the Wisconsin
Supreme Court opinion.
Id. at 491-495, 287 N.W.2d at
526-528.
See also Berdahl, Party Membership in the United
States, 36 Am.Pol.Sci.Rev. 16, 39-41 (1942).
Wisconsin's open primary apparently is still very popular. On
September 5, 1979, by a unanimous vote of its Senate and a 92-1
vote of its Assembly, the Wisconsin Legislature reaffirmed by joint
resolution the
"firm and enduring commitment of the people of Wisconsin to the
open presidential preference primary law as an integral element of
Wisconsin's proud tradition of direct and effective participatory
democracy."
And on September 14, 1979, a bill to create a modified closed
primary was defeated in committee. 93 Wis.2d at 490, n. 14, 287
N.W.2d at 526, n. 14.
[
Footnote 15]
The McGovern/Fraser Commission adopted guidelines to eliminate
state party practices that limited the access of rank-and-file
Democrats to the candidate selection procedures, as well as those
that tended to dilute the influence of each Democrat who took
advantage of expanded opportunities to participate. Mandate for
Reform at 12. For example, the guidelines required that the
delegates ultimately chosen, and their apportionment to particular
candidates, had to reflect the candidate preferences of Democrats
participating at all levels of the selection process.
Id.
at 44. Among other measures recommended by the Commission were (1)
the abolition of the unit rule at any stage of the delegate
selection process, so that majorities could not bind dissenting
minorities to vote in accordance with majority wishes; (2) adequate
public notice of times and places of meetings related to the
delegate selection process; (3) the requirement that ballots
indicate the Presidential preference of candidates, or of slates of
delegate; and (4) the prohibition of discrimination against racial
minorities, women, and young people.
Id. at 44-46.
See
also Segal, Delegate Selection Standards: The Democratic
Party's Experience, 38 Geo.Wash.L.Rev. 873, 880-881 (1970).
[
Footnote 16]
The recommendations of the McGovern/Fraser Commission were
subsequently incorporated into the Call to the 1972 Convention,
which set forth the formal requirements of the delegate selection
and nominating processes for the Convention. They were also
favorably received by at least one group monitoring their
implementation at the 1972 Democratic National Convention.
See Americans for Democratic Action, "Let Us Continue . .
.", A Report on the Democratic Party's Delegate Selection
Guidelines (1973).
[
Footnote 17]
Under Rule 20, state parties must take "provable positive steps
to achieve legislative changes to bring the state law into
compliance with the provisions of these rules." If a state party
takes such provable positive steps but is unable to obtain the
necessary legislative changes, the state party may be eligible for
a Rule 20 exemption. In 1976, the Wisconsin State Party obtained
such an exemption from the 1976 version of Rule 2A.
[
Footnote 18]
A crossover primary is one that permits nonadherents of a party
to "cross over" and vote in that party's primary.
[
Footnote 19]
In 1964, crossovers made up 26% of the participants in the
Wisconsin Democratic primary. Seven percent of those identifying
themselves as Democrats voted for Governor George Wallace, but 62%
of the crossovers voted for him. Three-quarters of Governor
Wallace's support in the Democratic primary came from crossover
voters. Adamany, Cross-Over Voting and the Democratic Party's
Reform Rules, 70 Am.Pol.Sci.Rev. 536, 541 (1976).
In 1968, crossovers constituted 28% of the participants in the
Wisconsin Democratic primary. Forty-eight percent of those who said
they were Democrats voted for Senator Eugene McCarthy, while 39%
voted for President Johnson. Of the crossovers, however, 70% voted
for Senator McCarthy, while only 14% voted for President Johnson.
Participation of crossovers increased Senator McCarthy's margin of
victory over President Johnson in Wisconsin by 2 1/2 times.
Id. at 539.
In 1972, crossovers amounted to 34% of the participants.
Fifty-one percent of the self-identified Democrats voted for
Senator George McGovern, while only 7% voted for Governor Wallace.
Of the crossovers, however, only 33% voted for Senator McGovern,
while 29% voted for Governor Wallace. The study figures indicate
that two-thirds of Governor Wallace's support in the Democratic
primary came from crossover voters.
Ibid. The study found
that "the participation of crossover voters will . . . alter the
composition of national convention delegations."
Id. at
540.
These data, of course, are relevant only insofar as they help to
explain the derivation of Rule 2A. The application of Rule 2A to
the delegate selection procedures of any State is not in any way
dependent on the pattern or history of voting behavior in that
State.
[
Footnote 20]
Rule 2A was the only rule applicable to the 1980 Convention that
permitted no exemption. Rule 2B reads in full: "A Rule 20 exemption
[
see n 17,
supra] shall not be granted from Rule 2A
requirements."
[
Footnote 21]
In its answer to the complaint filed by the Wisconsin Attorney
General, the National Party stated that it would
"recognize only those delegate votes at the 1980 Convention
which are the product of delegate selection processes, whether in
binding primaries, conventions, or caucuses, which are restricted
to Democratic voters who publicly declare their party preference
and have that preference publicly recorded."
The National Party nowhere indicated that the Wisconsin primary
cannot be open; it averred only that any process adopted by the
State that binds the National Party must comply with Party rules.
And in the joint stipulation of facts before the Wisconsin Supreme
Court, the National Party did not declare that Wisconsin must
abandon its open primary. The National Party said only that, if
Wisconsin does not change its primary laws by requiring public
party declaration consistent with Party rules, it would be
satisfied with some other, Party-run, delegate selection system
that did comply with Party rules. This statement is consistent with
Rule 2C of the 1980 Delegate Selection Rules, which provides
that
"[a] State Party which is precluded by state statute from
complying with this rule [2A] shall adopt and implement an
alternative Party-run delegate selection system which complies with
this rule."
Cf. Rule 20, at
n 17,
supra.
[
Footnote 22]
"Freedom of association would prove an empty guarantee if
associations could not limit control over their decisions to those
who share the interests and persuasions that underlie the
association's being."
L. Tribe, American Constitutional Law 791 (1978).
[
Footnote 23]
The extent to which "raiding" is a motivation of Wisconsin
voters matters not. As the Winograd Commission acknowledged, "the
existence of
raiding' has never been conclusively proven by
survey research." Openness, Participation, at 68. The concern of
the National Party is, rather, with crossover voters in general,
regardless of their motivation.
[
Footnote 24]
The appellees similarly argue that
Cousins is
inapposite. They contend that the decision in
Cousins
involved the direct election of individual delegates to the
National Convention, while this case does not. But appellees, like
the Wisconsin Supreme Court, fail to recognize that the problem
presented by this case is not the "openness" of Wisconsin's primary
in and of itself, but the binding effect of Wisconsin law on the
freedom of the National Party to define its own eligibility
standards.
[
Footnote 25]
It may be the case, of course, that the public avowal of party
affiliation required by Rule 2A provides no more assurance of party
loyalty than does Wisconsin's requirement that a person vote in no
more than one party's primary. But the stringency, and wisdom, of
membership requirements is for the association and its members to
decide -- not the courts -- so long as those requirements are
otherwise constitutionally permissible.
[
Footnote 26]
Cf. Ripon Society, Inc. v. National Republican Party,
173 U.S.App.D.C. 350, 368, 525 F.2d 567, 585 (en banc) ("[A]
party's choice, as among various ways of governing itself, of the
one which seems best calculated to strengthen the party and advance
its interests, deserves the
protection of the Constitution
. . .") (emphasis of the court),
cert. denied, 424 U.S.
933.
[
Footnote 27]
The State Party argues at length that empirical data do not
support the National Party's need for Rule 2A. That argument should
be addressed to the National Party -- which has studied the need
for something like Rule 2A for 12 years,
see 450 U.
S. supra -- and not to the judiciary.
The State also contends that the National Party should not be
able to prevent "principled crossovers" from influencing the
selection of its candidate, and that the appellants have not
presented any evidence that "raiding" has been a problem. These
contentions are irrelevant.
See n 23,
supra. It is for the National Party --
and not the Wisconsin Legislature or any court -- to determine the
appropriate standards for participation in the Party's candidate
selection process.
[
Footnote 28]
Obviously, States have important interests in regulating primary
elections,
United States v. Classic, 313 U.
S. 299. A State, for example, "has an interest, if not a
duty, to protect the integrity of its political processes from
frivolous or fraudulent candidacies."
Bullock v. Carter,
405 U. S. 134,
405 U. S.
145.
[
Footnote 29]
The Wisconsin Supreme Court identified the interests of the
State as follows:
"The state's interest in maintaining a primary and in not
restricting voting in the presidential preference primary to those
who publicly declare and record their party preference is to
preserve the overall integrity of the electoral process by
encouraging increased voter participation in the political process
and by providing secrecy of the ballot, thereby ensuring that the
primary itself and the political party's participation in the
primary are conducted in a fair and orderly manner."
93 Wis.2d at 512, 287 N.W.2d at 536.
[
Footnote 30]
The State contends repeatedly that the issue whether it call
prevent the National Party from determining the qualifications of
National Convention delegates is not presented. But this contention
utterly ignores the Wisconsin Supreme Court order and Wis.Stat. §§
8.12(3) (b), 3(c)5 (1977). The State Party acknowledges near the
end of its brief that
"[p]erhaps the real issue in this case is not whether Wisconsin
can conduct an open primary, but rather whether it can make the
results of the open primary binding upon Wisconsin delegates to the
National Convention."
[
Footnote 31]
The State attempts to add constitutional weight to its claims
with the authority conferred on the States by Art. II, §1, cl. 2,
of the United States Constitution:
"Each state shall appoint, in such Manner as the Legislature
thereof may direct, a number of Electors, equal to the whole Number
of Senators and Representatives to which a State may be
entitled."
See In re Green, 134 U. S. 377,
134 U. S. 379;
McPherson v. Blacker, 146 U. S. 1,
146 U. S. 27-28;
Ray v. Blair, 343 U. S. 214;
Oregon v. Mitchell, 400 U. S. 112,
400 U. S. 291
(opinion of STEWART, J., joined by BURGER, C.J., and BLACKMUN, J.);
see also Cousins v. Wigoda, 419 U.
S. 477,
419 U. S.
495-496 (REHNQUIST, J., concurring in result). Any
connection between the process of selecting electors and the means
by which political party members in a State associate to elect
delegates to party nominating conventions is so remote and tenuous
as to be wholly without constitutional significance. In
Cousins, despite similar arguments by Illinois. all nine
Justices agreed that a State could not constitutionally compel a
national political convention to seat delegates against its will.
See id. at
419 U. S. 488;
id. at
419 U. S. 492
(REHNQUIST, J., concurring in result);
id. at
419 U. S. 496
(POWELL, J., concurring in part and dissenting in part).
[
Footnote 32]
Because the actual selection of delegates is within the control
of persons who publicly proclaim their allegiance to the Democratic
Party, the Wisconsin Supreme Court apparently deduced that the
effects of the open primary on the nominating process were minimal.
But the court ignored the fact -- the critical fact in the case --
that, under Wisconsin law, state delegates are bound to cast their
votes at the National Convention in accord with the open primary
outcomes.
JUSTICE POWELL, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST
join, dissenting.
Under Wisconsin law, the Wisconsin delegations to the
Presidential nominating conventions of the to major political
parties are required to cast their votes in a way that
Page 450 U. S. 127
reflects the outcome of the State's "open" primary election.
That election is conducted without advance party registration or
any public declaration of party affiliation, thus allowing any
registered voter to participate in the process by which the
Presidential preferences of the Wisconsin delegation to the
Democratic National Convention are determined. The question in this
case is whether, in light of the National Party's rule that only
publicly declared Democrats may have a voice in the nomination
process, Wisconsin's open primary law infringes the National
Party's First Amendment rights of association. Because I believe
that this law does not impose a substantial burden on the
associational freedom of the National Party, and actually promotes
the free political activity of the citizens of Wisconsin, I
dissent.
I
The Wisconsin open primary law was enacted in 1903. 1903 Wis.
Laws, ch. 451. It was amended two years later to apply to
Presidential nominations. 1905 Wis Laws, ch. 369.
See 93
Wis.2d 473, 492,
287
N.W.2d 519, 527 (1980). As the Wisconsin Supreme Court
described in its opinion below:
"The primary was aimed at stimulating popular participation in
politics, thereby ending boss rule, corruption, and fraudulent
practices which were perceived to be part of the party caucus or
convention system. Robert M. La Follette, Sr., supported the
primary because he believed that citizens should nominate the party
candidates; that the citizens, not the party bosses, could control
the party by controlling the candidate selection process; and that
the candidates and public officials would be more directly
responsible to the citizens."
Ibid.
As noted in the opinion of the Court, the open primary law only
recently has come into conflict with the rules of the National
Democratic Party. The new Rule 2A was enacted
Page 450 U. S. 128
as part of a reform effort aimed at opening up the party to
greater popular participation. This particular rule, however, has
the ironic effect of calling into question a state law that was
intended itself to open up participation in the nominating process
and minimize the influence of "party bosses."
II
The analysis in this kind of First Amendment case has two
stages. If the law can be said to impose a burden on the freedom of
association, then the question becomes whether this burden is
justified by a compelling state interest.
E.g., Bates v. Little
Rock, 361 U. S. 516,
361 U. S. 524
(1960). The Court in this case concludes that the Wisconsin law
burdens associational freedoms. It then appears to acknowledge that
the interests asserted by Wisconsin are substantial,
ante
at
450 U. S.
120-121, but argues that these interests
"go to the conduct of the Presidential preference primary -- not
to the imposition of voting requirements upon those who, in a
separate process, are eventually selected as delegates,"
ante at
450 U. S. 125.
In my view, however, any burden here is not constitutionally
significant, and the State has presented at least a formidable
argument linking the law to compelling state interests.
A
In analyzing the burden imposed on associational freedoms in
this case, the Court treats the Wisconsin law as the equivalent of
one regulating delegate selection, and, relying on
Cousins v.
Wigoda, 419 U. S. 477
(1975), concludes that any interference with the National Party's
accepted delegate selection procedures impinges on constitutionally
protected rights. It is important to recognize, however, that the
facts of this case present issues that differ considerably from
those we dealt with in
Cousins.
In
Cousins, we reversed a determination that a state
court could interfere with the Democratic Convention's freedom
to
Page 450 U. S. 129
select one delegation from the State of Illinois over another.
At issue in the case was the power of the National Party to reject
a delegation chosen in accordance with state law because the
State's delegate selection procedures violated party rules
regarding participation of minorities, women, and young people, as
well as other matters.
See id. at
419 U. S. 479,
n. 1. The state court had ordered the Convention to seat the
delegation chosen under state law, rather than the delegation
preferred by the Convention itself. In contrast with the direct
state regulation of the delegate selection process at issue in
Cousins, this case involves a state statutory scheme that
regulates delegate selection only indirectly. Under Wisconsin law,
the "method of selecting the delegates or alternates [is]
determined by the state party organization," Wis.Stat. § 8.12(3)(b)
(1977). Wisconsin simply mandates that each delegate selected, by
whatever procedure, must be pledged to represent a candidate who
has won in the state primary election the right to delegate votes
at the Convention. [
Footnote
2/1]
In sum, Wisconsin merely requires that the delegates "vote in
accordance with the results of the Wisconsin open primary."
Ante at
450 U. S. 126.
While this regulation affecting participation in the primary is
hardly insignificant, it differs substantially from the direct
state interference in delegate selection at issue in
Cousins. This difference serves to emphasize the
importance of close attention to the way in which a state law is
said to impose a burden on a party's freedom of association.
Cf. Marchioro v. Chaney, 442 U. S. 191,
442 U. S. 199
(1979). All that Wisconsin has done is to require the major parties
to allow voters to affiliate with them -- for the limited purpose
of participation in a primary --
secretly, in the
privacy
Page 450 U. S. 130
of the voting booth. [
Footnote
2/2] The Democrats remain free to require public affiliation
from anyone wishing any greater degree of participation in party
affairs. In Wisconsin, participation in the caucuses where
delegates are selected is limited to publicly affiliated Democrats.
Brief for Appellee Democratic Party of Wisconsin 19. And, as noted
above, the State's law requires that delegates themselves affirm
their membership in the party publicly.
In evaluating the constitutional significance of this relatively
minimal state regulation of party membership requirements, I am
unwilling -- at least in the context of a claim by one of the two
major political parties -- to conclude that every conflict between
state law and party rules concerning participation in the
nomination process creates a burden on associational rights.
Instead, I would look closely at the nature
Page 450 U. S. 131
of the intrusion, in light of the nature of the association
involved, to see whether we are presented with a real limitation on
First Amendment freedoms.
It goes without saying that nomination of a candidate for
President is a principal function performed by a national political
party, and Wisconsin has, to an extent, regulated the terms on
which a citizen may become a "member" of the group of people
permitted to influence that decision. If appellant National Party
were an organization with a particular ideological orientation or
political mission, perhaps this regulation would present a
different question. [
Footnote 2/3]
In such a case, the state law might well open the organization to
participation by persons with incompatible beliefs, and interfere
with the associational rights of its founders.
The Democratic Party, however, is not organized around the
achievement of defined ideological goals. Instead, the major
parties in this country "have been characterized by a fluidity and
overlap of philosophy and membership."
Rosario v.
Rockefeller, 410 U. S. 752,
410 U. S. 769
(1973) (POWELL, J., dissenting). It can hardly be denied that this
Party generally has been composed of various elements reflecting
most of the American political spectrum. [
Footnote 2/4] The Party does take positions
Page 450 U. S. 132
on public issues, but these positions vary from time to time,
and there never has been a serious effort to establish for the
Party a monolithic ideological identity by excluding all those with
differing views. As a result, it is hard to see what the Democratic
Party has to fear from an open primary plan. Wisconsin's law may
influence to some extent the outcome of a primary contest by
allowing participation by voters who are unwilling to affiliate
with the Party publicly. It is unlikely, however, that this
influence will produce a delegation with preferences that differ
from those represented by a substantial number of delegates from
other parts of the country. Moreover, it seems reasonable to
conclude that, insofar as the major parties do have ideological
identities, an open primary merely allows relatively independent
voters to cast their lot with the party that speaks to their
present concerns. [
Footnote
2/5]
Page 450 U. S. 133
By attracting participation by relatively independent-minded
voters, the Wisconsin plan arguably may enlarge the support for a
party at the general election.
It is significant that the Democratic Party of Wisconsin, which
represents those citizens of Wisconsin willing to take part
publicly in Party affairs, is here defending the state law.
Moreover, the National Party's apparent concern that the outcome of
the Wisconsin Presidential primary will be skewed cannot be taken
seriously when one considers the alternative delegate selection
methods that are acceptable to the Party under its rules. Delegates
pledged to various candidates may be selected by a caucus procedure
involving a small minority of Party members, as long as all
participants in the process are publicly affiliated. While such a
process would eliminate "crossovers," it would be at least as
likely as an open primary to reflect inaccurately the views of a
State's Democrats. [
Footnote 2/6]
In addition, the National Party apparently is quite willing to
accept public affiliation immediately before primary voting, which
some States permit. [
Footnote 2/7]
As Party affiliation becomes this easy for a voter to change in
order to participate in a particular primary election, the
difference between open and closed primaries loses its practical
significance. [
Footnote 2/8]
Page 450 U. S. 134
In sum, I would hold that the National Party has failed to make
a sufficient showing of a burden on its associational rights.
[
Footnote 2/9]
B
The Court does not dispute that the State serves important
interests by its open primary plan. Instead, the Court argues that
these interests are irrelevant, because they do not support a
requirement that the outcome of the primary be binding on delegates
chosen for the convention. This argument, however, is premised on
the unstated assumption that a nonbinding primary would be an
adequate mechanism for pursuing the state interests involved. This
assumption is unsupportable, because the very purpose of a
Presidential primary, as enunciated as early as 1903, when
Wisconsin passed its first primary law, was to give control over
the nomination process to individual voters. [
Footnote 2/10] Wisconsin cannot do this, and still
pursue the interests underlying an open primary, without making the
open primary binding. [
Footnote
2/11]
Page 450 U. S. 135
If one turns to the interests asserted, it becomes clear that
they are substantial. As explained by the Wisconsin Supreme
Court:
"The state's interest in maintaining a primary and in not
restricting voting in the presidential preference primary to those
who publicly declare and record their party preference is to
preserve the overall integrity of the electoral process by
encouraging increased voter participation in the political process
and providing secrecy of the ballot, thereby ensuring that the
primary itself and the political party's participation in the
primary are conducted in a fair and orderly manner."
"
* * * *"
"In guaranteeing a private primary ballot, the open primary
serves the state interest of encouraging voters to participate in
selecting the candidates of their party which, in turn, fosters
democratic government. Historically, the primary was initiated in
Wisconsin in an effort to enlarge citizen participation in the
political process and to remove from the political bosses the
process of selecting candidates."
93 Wis.2d at 512-513, 287 N.W.2d at 53537 (footnote
omitted).
The State's interest in promoting the freedom of voters to
affiliate with parties and participate in party primaries has been
recognized in the decisions of this Court. In several cases, we
have dealt with challenges to state laws restricting voters who
wished to change party affiliation in order to participate in a
primary. We have recognized that voters have a right of free
association that can be impaired unconstitutionally if such state
laws become too burdensome. In
Rosario v. Rockefeller,
410 U. S. 752
(1973), the Court upheld a
Page 450 U. S. 136
registration time limit, but emphasized that the law did not
absolutely prevent any voter from participating in a primary, and
was "tied to a particularized legitimate purpose" of preventing
"raiding," [
Footnote 2/12]
id. at
410 U. S. 762.
In
Kusper v. Pontikes, 414 U. S. 51
(1973), we struck down an Illinois law that prevented voters who
had participated in one party's primary from switching affiliations
to vote in another party's primary during the succeeding 23 months.
We concluded that such a law went too far in interfering with the
freedom of the individual voter, and could not be justified by the
State's interest in preventing raiding.
Here, Wisconsin has attempted to ensure that the prospect of
public party affiliation will not inhibit voters from participating
in a Democratic primary. Under the cases just discussed, the
National Party's rule requiring public affiliation for primary
voters is not itself an unconstitutional interference with voters'
freedom of association.
Nader v. Schafer, 417 F.
Supp. 837 (Conn.) (three-judge court),
summarily
aff'd, 429 U.S. 989 (1976). But these cases do support the
State's interest in promoting free voter participation by allowing
private party affiliation. The State of Wisconsin has determined
that some voters are deterred from participation by a public
affiliation requirement, [
Footnote
2/13] and the validity of that concern is not something that we
should second-guess. [
Footnote
2/14]
Page 450 U. S. 137
III
The history of state regulation of the major political parties
suggests a continuing accommodation of the interests of the parties
with those of the States and their citizens. In the process,
"the States have evolved comprehensive, and in many respects
complex, election codes regulating in most substantial ways, with
respect to both federal and state elections, the time, place, and
manner of holding primary and general elections, the registration
and qualifications of voters, and the selection and qualification
of candidates."
Storer v.
Page 450 U. S. 138
Brown, 415 U. S. 724,
415 U. S. 730
(1974). [
Footnote 2/15] Today,
the Court departs from this process of accommodation. It does so,
it seems to me, by upholding a First Amendment claim by one of the
two major parties without any serious inquiry into the extent of
the burden on associational freedoms and without due consideration
of the countervailing state interests.
[
Footnote 2/1]
The delegates selected must be approved by the candidate they
are to represent, Wis.Stat. § 8.12(3)(b) (1977), and must pledge
that they are affiliated with the candidate's party and will
support their candidate until he or she fails to receive at least
one-third of the votes authorized to be cast at the Convention, §
8.12(3)(c).
[
Footnote 2/2]
It is not fully accurate to say, as the Court does, that the
"election laws of Wisconsin allow non-Democrats -- including
members of other parties and independents -- to vote in the
Democratic primary."
Ante at
450 U. S.
110-111. The Wisconsin statute states that,
"[i]n each year in which electors for president and
vice-president are to be elected, the voters of this state shall at
the spring election be given an opportunity to express their
preference for the person to be the presidential candidate
of
their party."
Wis.Stat. § 8.12(1) (1977) (emphasis added). Thus, the act of
voting in the Democratic primary fairly can be described as an act
of affiliation with the Democratic Party. The real issue in this
case is whether the Party has the right to decide that only
publicly affiliated voters may participate.
The situation might be different in those States with "blanket"
primaries --
i.e., those where voters are allowed to
participate in the primaries of more than one party on a single
occasion, selecting the primary they wish to vote in with respect
to each individual elective office.
E.g., Wash.Rev.Code §
29.18.200 (1976).
Cf. 93 Wis.2d 473, 504,
287
N.W.2d 519, 532 (1980) ("[T]he legislature has taken steps to
encourage voters to participate in the primary of their party and
to discourage a voter of one party from being tempted to vote in
the primary of another party. Limiting voters to only one party's
ballot discourages voters from voting on a ballot of a party other
than their own because, in order to do so, they would have to
sacrifice their opportunity to participate in their own party's
selection process").
[
Footnote 2/3]
Compare NAACP v. Alabama ex rel. Patterson,
357 U. S. 449,
357 U. S.
462-463 (1958), where the Court was careful to assess
the effect of a membership disclosure requirement on associational
freedoms in light of the particular nature of the organization
involved and the likely responses of those opposed to its aims.
[
Footnote 2/4]
See R. Horn, Groups and the Constitution 103-104
(1956); A. Campbell, P. Converse, W. Miller, & D. Stokes, The
American Voter 183-187, 543 (1960); Developments in the Law:
Elections, 88 Harv. L.Rev. 1111, 1166 (1975). The Charter of the
National Democratic Party states that it is "open to all who desire
to support the party and . . . be known as Democrats." Art. Ten, §
1.
This perception need not be taken as a criticism of the American
party structure. The major parties have played a key role in
forming coalitions and creating consensus on national issues.
"Broad-based political parties supply an essential coherence and
flexibility to the American political scene. They serve as
coalitions of different interests that combine to seek national
goals."
Branti v. Finkel, 445 U. S. 507,
445 U. S. 532
(1980) (POWELL, J., dissenting). As Professor Ranney has
written:
"[E]ach party has sought winning coalitions by attempting
accommodations among competing interests it hopes will appeal to
more contributors and voters than will the rival accommodations
offered by the opposition party. This strategy, it is conceded, has
resulted in vague, ambiguous, and overlapping party programs and in
elections that offer the voters choices between personalities and,
at most, general programmatic tendencies, certainly not unequivocal
choices between sharply different programs. But this . . . is not a
vice, but a virtue, for it has enabled Americans through all but
one era of their history to manage their differences with
relatively little violence and to preserve the world's oldest
constitutional democratic regime."
A. Ranney, Curing the Mischiefs of Faction 201 (1975).
[
Footnote 2/5]
See Comment, The Constitutionality of Non-Member Voting
in Political Party Primary Elections, 14 Willamette L.J. 259, 290
(1978) ("Independents and members of other parties who seek to
participate in a party primary will do so precisely because they
identify with the community of interest, if indeed one exists.
Their very motive for participating in the primary would be to
associate with a party presenting
candidates and issues more
responsive to their immediate concerns'"), quoting Rosario v.
Rockefeller, 410 U. S. 752,
410 U. S. 769
(1973) (POWELL, J., dissenting).
[
Footnote 2/6]
The unrepresentative nature of the delegate selections produced
by caucuses is suggested by differences between the results of
caucuses and nonbinding primaries held in the same State.
See 450
U.S. 107fn2/11|>n. 11,
infra.
[
Footnote 2/7]
E.g., Tenn.Code Ann. § 2-7-115(b)(2) (1979).
See Developments in the Law,
supra, 450
U.S. 107fn2/4|>n. 4, at 1164.
[
Footnote 2/8]
As one scholar has stated:
"The distinctions between open and closed primaries are easy to
exaggerate. Too simple a distinction ignores the range of nuances
and varieties within the closed primary states, which, after all,
do account for 82 percent of the states. Take the case of Illinois.
Voters do not register as members of a party; at the polling place,
they simply state their party preference and are given the ballot
of that party, no questions asked. Because Illinois voters must
disclose a party preference before entering the voting booth, their
primary is generally considered 'closed.' One would be hard put,
however, to argue that it is, in operation, much different from an
open primary."
F. Sorauf, Party Politics in America 206 (4th ed.1980)
(hereinafter Sorauf).
[
Footnote 2/9]
Of course, the National Party could decide that it no longer
wishes to be a relatively nonideological party, but it has not done
so. Such a change might call into question the institutionalized
status achieved by the two major parties in state and federal law.
It cannot be denied that these parties play a central role in the
electoral process in this country, to a degree that has led this
Court on occasion to impose constitutional limitations on party
activities.
See Smith v. Allwright, 321 U.
S. 649 (1944);
Terry v. Adams, 345 U.
S. 461 (1953). Arguably, the special status of the major
parties is an additional factor favoring state regulation of the
electoral process even in the face of a claim by such a party that
this regulation has interfered with its First Amendment rights.
[
Footnote 2/10]
See, e.g., Sorauf 204 ("it was an article of faith
among [the Progressives] that, to cure the ills of democracy, one
needed only to prescribe larger doses of democracy").
[
Footnote 2/11]
Any argument that a nonbinding primary would be sufficient to
allow individual voters a voice in the nomination process is belied
by the fact that such a primary often will be ignored in later,
nonprimary delegate selection processes. In 1980, for example,
Vermont's nonbinding open primary produced a lopsided victory,
74.3% to 25.7%, for President Carter over Senator Kennedy. 38
Cong.Q.Weekly Rep. 647 (1980). Party caucuses then produced a state
delegation to the Democratic Convention that favored Kennedy over
Carter by 7 to 5.
Id. at 1472.
[
Footnote 2/12]
"Raiding" refers to primary voting by members of another party
who are seeking to encourage their opponents to select a less
desirable or strong candidate. It does not appear to be a problem
in Wisconsin.
See 93 Wis.2d at 506, 287 N.W.2d at 533
("The petitioner and respondents agree that raiding is not a
significant problem, and that neither the Wisconsin open primary
nor the declaration required by Rule 2A prevents
raiding'")
.
[
Footnote 2/13]
A related concern is the prevention of undue influence by a
particular political organization or "machine." The Progressives
who promoted the idea of a primary election perceived a need to
combat political professionals who controlled access to
governmental power.
See A. Lovejoy, La Follette and the
Establishment of the Direct Primary in Wisconsin 7-8 (1941)
("avowed purpose" was "the elimination of the boss from the
American political scene");
id. at 97 ("Because of their
faith in the American people, the Progressives sought to cure the
ills of democracy with more democracy. . . . For the first time,
the middleman was eliminated between the people and their
representatives"); Sorauf 203-204. The open primary carries this
process one step further by eliminating some potential pressures
from political organizations on voters to affiliate with a
particular party. Although one well may question the wisdom of a
state law that undermines the influence of party professionals and
may tend to weaken parties themselves, the state interests involved
are neither illegitimate nor insubstantial. As noted
supra
at
450 U. S. 133,
the Democratic Party of Wisconsin has filed a brief in support of
the validity of the Wisconsin plan.
[
Footnote 2/14]
A more difficult question in this case is whether Wisconsin can
satisfy the second component of the "compelling interest test" --
whether it can show that it has no "less drastic way of satisfying
its legitimate interests."
Kusper v. Pontikes,
414 U. S. 51,
414 U. S. 59
(1973). The answer to this question depends in many cases on how
the state interest is conceived. Here, a state interest in
protecting voters from the possible coercive effects of public
party affiliation cannot be satisfied by any law except one that
allows private party affiliation. On the other hand, if the state
interest is described more generally, in terms of increasing voter
freedom or participation, there may well be less "drastic"
alternatives available to Wisconsin. Because of my conclusion that
there is no significant burden on the associational freedoms of
appellant National Party in this case, and because the Court's
analysis does not reach this question, I express no view on whether
the State has shown a sufficient interest in this particular method
of regulating the electoral process to satisfy a "less drastic
means" inquiry.
[
Footnote 2/15]
The Court concedes that the States have a substantial interest
in regulating primary elections.
Ante at
450 U. S. 124,
n. 28,
450 U. S. 126.
The power of the States in this area derives from the specific
constitutional grant of authority to the States to "appoint, in
such Manner as the Legislature thereof may direct" Presidential
electors, U.S.Const., Art. II, § 1, cl. 2, as well as from the more
general regulatory powers of the States.
See Cousins v.
Wigoda, 419 U. S. 477,
419 U. S.
495-496 (1975) (REHNQUIST, J., concurring in
result).