Justices again study primary election rules

Thursday, January 20, 2005

WASHINGTON — As they have before, Supreme Court justices yesterday struggled to find a way to preserve political parties’ First Amendment freedom of association while also allowing states to regulate elections.

In the case before the Court, Clingman v. Beaver, Oklahoma’s Libertarian Party was thwarted in its effort to create an open primary to choose its candidates — a primary in which not only Libertarians but members of other parties could vote. But Oklahoma, like roughly half the states, has a more closed primary law; only a party’s own members, plus registered independents, may vote in that party’s primary.

The Libertarian Party claimed the First Amendment gives it the right to invite anyone it wants to help choose its candidates. But the state argues that allowing wide-open primaries could destabilize both parties and elections. One scenario it offers is that disgruntled supporters of one party’s second-place candidate could take over the primary of a small party, no matter what its philosophy, as a way to get their candidate on the ballot.

A federal district court found that the state’s interest in ensuring that primary results “accurately reflect the voting of the party members” outweighed the burden on the Libertarian Party. But the 10th U.S. Circuit Court of Appeals last April reversed, finding that the law’s restrictions are serious enough that the statute would have to survive “strict scrutiny” — the highest level. Under that standard, the law failed, “absent a clearer demonstration of political instability.”

In recent cases involving similar clashes between parties and states, the Court has said states do have valid interests at stake, but it has tended to rule on the side of political parties, agreeing that parties, not state election officials, should be able to decide who can participate in their affairs. Most recently in the 2000 case California Democratic Party v. Jones, the Court struck down a state law that forced parties to open their primaries more widely than some parties preferred.

Yesterday’s case posed the opposite situation of a party wanting to open its primary wider than the state law permits.

Several justices appeared skeptical of the Oklahoma law, with Justice Anthony Kennedy intimating that the law unfairly favors major parties. “Does the state have an interest in insulating major parties from competition?”

Assistant Attorney General Wellon Poe Jr. did not flinch at the suggestion, replying that the state had an interest in a “stable political system, which may be a two-party system.”

Justice Ruth Bader Ginsburg then wondered why the Democratic and Republican parties had not joined the case to defend the statutes. Justice Antonin Scalia found their absence unsurprising, suggesting that the parties might not want to appear to be excluding potential voters from their primaries. “They are, after all, politicians, aren’t they?”

Scalia also seemed sympathetic toward the law, which he suggested would guarantee that a party’s candidates reflect the party's own philosophy without dilution by voters who are not party members. Poe agreed that open primaries result in practices that would lead voters to “reduce their reliance on the party label.”

But Justices John Paul Stevens and David Souter asked for and did not get more specific evidence that the law achieves its objectives.

Poe was assisted by Gene Schaerr, a lawyer for eight other states that agree with Oklahoma that the 10th Circuit ruling, if upheld, would interfere with valid state regulation of elections.

Promoting party loyalty, he said, is a “legitimate concern” of states, as is the prevention of “poaching” and other strategies. Schaerr offered another possible scenario in which Democratic Party members vote in a Republican primary with the aim of helping a weak candidate win the Republican primary.

But Libertarian Party lawyer James Linger said none of these concerns were the business of the state. “The integrity of a political party should be defined by the political party and not by the state.”

Linger said the state’s justifications were “flimsy” and “paternalistic” and were insufficient to rescue the law. The Libertarian Party was entitled to seek to broaden its appeal by inviting other party voters to participate in its primary, Linger said, adding that it might actually help other parties by weeding out less committed members.

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