Majority backs Oklahoma’s primary-election rules

Tuesday, May 24, 2005

WASHINGTON — By upholding Oklahoma’s semi-closed primary election law yesterday, the Supreme Court gave higher priority to the state’s power to regulate elections than to the First Amendment associational rights of the Oklahoma Libertarian Party.

But a close reading of the two main opinions in the decision may give hope to minor parties that the Supreme Court will be more sympathetic to future challenges to election laws.

“The bottom line is that the opinions are an invitation for lower courts to consider challenges by minor parties that state election laws as a whole discriminate against minor parties,” said Loyola Law School professor Rick Hasen on his Election Law blog yesterday.

Under the law upheld in yesterday’s Clingman v. Beaver decision, political parties may allow only their own members and registered independents to vote in their primaries. When the Libertarian Party of Oklahoma (LPO) notified the state election board in 2000 that it wanted to allow registered Democrats and Republicans to vote in its primary as well, the board turned it down.

The party, joined by individual Democrats and Republicans, went to court claiming the board’s ruling violated their First Amendment freedom of political association. The 10th U.S. Circuit Court of Appeals sided with the Libertarian Party, ruling that the law imposed a severe and unjustified burden on the party’s associational rights.

By a 6-3 vote the Supreme Court reversed the 10th Circuit, rescuing Oklahoma’s law and, by implication, similar primary systems in 23 other states. Justice Clarence Thomas, writing for the majority said, “We are persuaded that any burden Oklahoma’s semiclosed primary imposes is minor and justified by legitimate state interests.”

Thomas went on to say that the Republican and Democratic voters who might want to vote in the Libertarian Party primary “do not want to associate with the LPO, at least not in any formal sense” beyond voting for a Libertarian candidate one time. As a result, the associational interests at stake were minor, Thomas wrote.

On the other hand, the state’s interests in preventing wide-open primaries were important, in Thomas’s view. Assuring that parties retain their identities and are not taken over by voters and candidates hostile to their views was one important goal, he said. “Oklahoma is entitled to protect parties’ ability to plan their primaries for a stable group of voters,” Thomas wrote.

In addition, the law prevents “party raiding” that would manipulate primary outcomes and confuse voters. As an example, Thomas said, “If the outcome of the Democratic Party were not in doubt, Democrats might vote in the LPO primary for the candidate most likely to siphon off votes from the Republican candidate in the general election. Or a Democratic primary contender who senses defeat might launch a ‘sore loser’ candidacy by defecting to the LPO primary, taking with him loyal Democratic voters, and thus undermining the Democratic Party in the general election.”

Thomas was joined in full by Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy. Justice Sandra Day O’Connor, joined by Stephen Breyer, also joined the majority’s conclusion, but wrote a separate concurrence to disassociate herself and Breyer from Thomas’ opinion on one point, and to make additional arguments.

O’Connor said the Libertarian Party’s First Amendment claims were important, “and I see no reason to minimize those interests to dispose of this case.”

In addition, she said that while the semi-closed primary law was the only issue before the Court, other aspects of Oklahoma’s election laws, taken together with the law in dispute, could have convinced the Court that the party’s First Amendment rights were burdened too much.

She noted that under Oklahoma law, a party has to win a certain number of votes to gain ballot access in the next election. The Libertarian Party has repeatedly failed to do so, and must go through a cumbersome process of re-registering its voters and petitioning for ballot access in each election. The state also has deadlines for changing party registration that make it difficult for the Libertarian Party to persuade voters to change their registration in time to vote in its primary.

These other hurdles were mentioned at the Supreme Court oral argument, but were not challenged in earlier stages of the proceedings, O’Connor said, so could not be ruled on yesterday.

O'Connor then went further than Breyer, writing, “Nevertheless, respondent’s allegations are troubling, and if they had been properly raised, the Court would want to examine the cumulative burdens imposed by the overall scheme of electoral regulations upon the rights of voters and parties to associate through primary elections. “A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the effect of severely restricting participation and competition,” she wrote.

Although these last statements by O’Connor were not joined by Breyer, coupled with the views of the three dissenters, they appear to give some hope for minor parties that want to make a comprehensive challenge to state election laws.

“The Court’s decision today diminishes the value of two important rights protected by the First Amendment: the individual citizen’s right to vote for the candidate of her choice, and a political party’s right to define its own mission,” wrote Justice John Paul Stevens in dissent. He was joined by Justices Ruth Bader Ginsburg and David Souter.

Souter did not, however, join the final section of Stevens’ dissent, which ends with this sentence: “Because the Court’s holding today has little to support it other than a naked interest in protecting the two major parties, I respectfully dissent.”

The Libertarian Party of Oklahoma said the ruling was “shocking,” but it too saw a silver lining. “Perhaps now that it seems that a majority of the Supreme Court may favor overturning election law that is clearly unfair to alternative parties,” said spokesman Chris Powell, “maybe our Legislature or state courts will be encouraged to act for ballot-access reform and allow Oklahoma voters the possibility of more choices on Election Day.”

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