Freedom of association to again take center stage at Supreme Court

Monday, January 24, 2000

Freedom of association, an unstated but valued component of the First Amendment’s guarantees, is rarely at issue in cases before the Supreme Court.

But twice this month — most recently on Jan. 21 — the court has agreed to consider important cases testing the limits of state power to intrude on freedom of association. In both cases — one involving Boy Scouts in New Jersey, the other involving political parties in California — organizations are asserting that they, not the state, should be able to decide with whom they will associate.

Both cases will be argued in April, with decisions by the summer, guaranteeing that this will be an important term for freedom of association and the First Amendment in general. The newly granted case of California Democratic Party v. Jones is the tenth First Amendment-related case on the court’s docket for this term, an unusually high number.

The California case also represents the court’s continuing willingness to get involved in state election law cases when important First Amendment issues are raised.

Four political parties in California — the Democratic, Republican, Libertarian and Peace and Freedom — filed the challenge to California’s so-called “blanket primary” system, which resulted from voters’ approval of Proposition 198 in 1996. The suit is formally directed against Bill Jones, California’s secretary of state.

Under the blanket primary system, all California primary voters are given ballots that list candidates of all parties, allowing them to vote for any candidate of any party — unlike the traditional primary in which registered Democrats, for example, would be given a Democratic primary ballot listing only that party’s candidates. Only three other states — Alaska, Washington and Louisiana — have similarly wide-open primaries, though considerably more states allow a more limited form of cross-voting. In those 21 states, voters can choose on primary day which party’s primary to participate in, but once they do, they can only vote for that party’s candidates.

Supporters of the proposition claim it enfranchises independent and minority party members who could not vote in traditional primaries, and forces candidates to appeal to broader constituencies, rather than to party extremists who might have been able to dominate primaries in the past.

But the political parties claim that the new system puts the most important decision they make — which candidate to field in a general election in the hands of non-members. Who the candidate is also helps determine the party’s platform and ideology, the parties argue. “By inviting nonmembers to participate in the primary,” the parties argued to the court, the new primary system “will allow outsiders to determine a party’s ideology.” That, they say, violates their First Amendment associational rights.

In a unanimous ruling last March, the 9th U.S. Circuit Court of Appeals agreed with the political parties that “the blanket primary wrests a measure of control of the primary process from the party and its members.” As such, the new system places burdens on the parties’ First Amendment rights that are “not negligible,” the court agreed.

But the appeals panel nonetheless upheld the blanket primary, asserting that the burdens on the parties do not outweigh the benefits the state was seeking to promote through passage of the new system. The court said that parties and primaries are already regulated to a certain extent, and that other states that have tried blanket primaries have not found that it had major negative effects on the vitality of political parties.

At the same time, the appeals court said the blanket primary has positive goals the state is entitled to pursue. According to the state, the appeals panel said, “Proposition 198, like other Progressive Era reforms, enhances the democratic nature of the election process and the representativeness of elected officials.” The state also argued that blanket primaries protect “voter privacy” by not forcing voters to publicly declare their party affiliation as a prerequisite for participating.

Predicting the outcome of the case is difficult. Two years ago, in Timmons v. Twin Cities Area New Party, the Supreme Court upheld a state regulation that prohibited candidates from appearing under the banner of two parties on an election ballot. But last year, in Buckley v. American Constitutional Law Foundation, the high court struck down Colorado election regulations that impinged on the free-speech rights of party activists who solicited signatures for ballot initiative petitions.

The other freedom of association case on the court’s docket is Boy Scouts of America v. Dale. In that case, the organization is challenging a New Jersey Supreme Court ruling that would force the group to allow homosexuals to become leaders and members.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.