Appendix — Tashjian v. Republican Party of Conn.

Supreme Court brief1986

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895 "" 66 ® T TLE D>

NOV 4 1985

JOSEPH F. SPANIOL, JR.

CLERK

No.

In the Supreme Court of the United States

October Term, 1985

JULIA H. TASHJIAN,

Secretary of the State of Connecticut,

Appellant,

Vv.

REPUBLICAN PARTY of the STATE of

CONNECTICUT, LOWELL P. WEICKER, JR.,

STEWART B. MCKINNEY, NANCY L. JOHNSON

and THOMAS J. D'AMORE, JR.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Appendix to Jurisdictional Statement

Volume I

JOSEPH I. LIEBERMAN

Attorney General of the

State of Connecticut

Elliot F. Gerson Barney Lapp

Deputy Attorney Daniel R. Schaefer

General Henry S. Cohn

Counsel of Record Assistant Attorneys

30 Trinity Street General

Hartford, Connecticut

06106

(203) 566-3747

Counsel for Appellant

Table of Contents

Volume I

August 8, 1985 Opinion of the

Second Circuit Court of Appeals.

Volume II

December 5, 1984 Opinion of

United States District Court

for the District of Connecticut,

granting injunctive relief ..

August 8, 1985 Judgment of

the Court of Appeals .......,

September 20, 1985 Notice

OU ime. Seo Mek eiheis cs ew ct et

Relevant Constitutional

and Statutory Provisions .....

June 15, 1984 Letter of Professor

Ronald D. Rotunda to

Judge Jose A. Cabranes ......

June 5, 1984 Joint Statement of

Facts in District Court .....

July 6, 1984 District Court

ruling on Motion for

Summary Judgment .........

July 24, 1984 Supplemental

Joint Statement of Facts

in District Court .... sees

July 10, 1984 Answers

to Interrogatories

oe Geeerese Geemt «he is ee ce

142-213

214-216

217-221

222-238

239-242

243-273

274-280

281-287

288-298

~ +: re

UNITED STATES COURT OF APPEALS

For the Second Circuit

No. 1165 August Term, 1984

(Argued May 16, 1985:Decided August 8, 1985)

Docket No. 85-7011

REPUBLICAN PARTY

OF THE STATE OF CONNECTICUT,

LOWELL P. WEICKER, JR.,

STEWART B. MCKINNEY,

NANCY L. JOHNSON and

THOMAS J. D'AMORE, JR.,

Plaintiffs~Appellees,

-against-

JULIA H. TASHJIAN,

Secretary of the State

of the State of Connecticut,

Defendant-Appellant.

Before: KAUFMAN, OAKES, and CARDAMONE,

Circuit Judges.

Tashjian appeals from a judgment of

the United States District Court for the

District of Connecticut (Cabranes, J.)

enjoining the enforcement of Section

9-431 of the Connecticut General Stat-

utes.

Affirmed.

ELLIOT F. GERSON, Deputy Attorney

General, Connecticut (Joseph I.

Lieberman, Attorney General of

Connecticut, Barney Lapp, Daniel R.

Schaefer, Henry S. Cohn, Assistant

Attorney Generals, Hartford,

Connecticut, of counsel), for

Defendant-Appellant.

STANLEY A. TWARDY, JUr., Silver, Golub &

Sandak, Stamford, Connecticut (David S.

Golub, of counsel)

RALPH G. ELLIOT, Tyler, Cooper & Alcorn,

Hartford, Connecticut, for

Plaintiffs-Appellees.

STEPHEN E. GOTTLIEB, Albany Law School,

Albany, New York, for amici curiae,

political scientists.

JAMES A. WADE, Robinson & Cole,

Hartford, Connecticut, for amicus

curiae, Democratic Party of the State

of Connecticut.

MARTIN MARGULIES, University of

Bridgeport School of Law, Bridgeport,

Connecticut and MARTHA STONE,

Connecticut Civil Liberties Union

Foundation, Hartford, Connecticut, for

amicus curiae, Connecticut Civil

Liberties Union.

IRVING R. KAUFMAN, Circuit Judge:

Fascinated by the penchant of Ameri-

cans to band together and gather strength

from association, Alexis de Tocqueville

wrote:

The most natural privilege

of man, next to the right of

acting for himself, is that of

combining his exertions with

those of his fellow creatures,

and of acting in common with

them. The right of association

therefore appears to me almost

as inalienable in its nature as

the right of personal liberty.

No legislator can attack it

without impairing the founda-

tions of society.

A. de Tocqueville, 2 Democracy in America

203 (Bradley, ed. 1954).

It is this ability and propensity of

our citizenry to unite and pursue desired

goals that form the foundation of Ameri-

can political thought. Indeed, the very

existence of this nation stands as a tes-

tament to the efficacy of political orga-

nization.

The bundle of freedoms bestowed by

the first amendment, often perceived as

safeguarding the individual from the will

of the group, also serves to protect the

group against the tyranny of the. state.

Having just emerged from an impassioned

struggle for independence, the framers

appreciated that effective political

change could best be achieWed through

collective activities, and further recog-

nized that the right to associate for po-

litical purposes was a natural concomi-

tant of the right—to espouse political

views.

If our system of government is to

remain responsive to the will of the peo-

ple -- as it must -- the untrammeled

freedom to join together in pursuit of

political goals must be secured against

State intrusion, and our political orga-

nizations must retain the freedom to in-

vite into their ranks those citizens with

whom they wish to associate.

Mindful of these tenets, we are

called upon today to reconcile the

tenison between a political party's right

to self-determination and a state's in-

terest in regulating primary elections.

Specifically, we are faced with a chal-

lenge by the Republican Party of the

State of Connecticut against a state law

that prohibits individuals with whom the

party members wish to associate from

participating in the party's primary.

The district court held that the

state-mandated closed primary substan-

tially interfered with Republican Party's

right of political association by de-

termining who is eligible to participate

in the Party's candidate selection

a eS ee

process. In addition, the court conclud-

ed that the interests proffered by Con-

necticut to support its state regulation

were not compelling. For the reasons set

forth below, we affirm the judgment of

the district court.

Because the legal issues presented

in this appeal are framed, to a large ex-

tent, by reference to political exigen-

cies, we believe it would prove helpful

to set forth the significant aspects of

Connecticut's electoral scheme.

POM tar

I. BACKGROUND

A. Connecticut's Primary Election System

Pursuant to Connecticut law, poten-

tial candidates for electoral office are

divided into three categories: those

representing "major parties," those of

"minor parties," and independents (or

"petitioning parties") .+/ By virtue of

l/ A “major party" is one (a) whose

candidate in the preceding guberna-

torial election received at least

twenty percent of the total votes

for that office, or (b) whose candi-

date for the office in question re-

ceived, at the last preceding regu-

lar election for the office, at

least ten percent of the total

votes. Conn. Gen. Stat.

§ 9-372(5)(A). A "minor party" is

one whose gubernatorial candidate

(footnote cont'd)

- =a ane “ae ——

oo 7 . —. ee ee ee ge oo ee + ett a ——

a - —2 ~ ee tet = —— a Oe ee A ——

a ils a a ts Ta ae a cial a a ea Se a eel we ~~

its performance in past gubernatorial

elections, the Republican Party is a

major party. As such, its candidates are

automatically accorded space on the gen-

eral election ballot, while other candi-

dates may have their names place on the

(footnote cont'd from previous page)

received less than twenty percent of

the total vote in the preceding

election, and whose candidate for

the office in question received less

than ten percent, but at least one

percent of the total vote for that

office in the preceding election.

Id. § 9-372(6). Independents, or

"petitioning parties," are candi-

dates or parties that have qualified

for nomination for elective office

pursuant to the provisions of $$

9-453a through 9-453u inclusive, or

in instances of nominations for va-

cancy elections for the offices of

State senator or state representa-

tive, as provided in § 9-216.

-10-

ballot only after fulfilling the petition

requirements set forth in §§ 9-453a

through S§§ 9-453u.°/conn. Gen. Stat.

§ 9-379.

In 1955, the Connecticut General As-

sembly enacted a "challenge" primary law,

codified as Conn. Gen. Stat. § § 9-372 et

seq, which authorized each major party to

2/ Minor parties nominate candidates

in @ manner prescribed by the

party's own rules, which must be

filed with the Secretary of the

State. Conn. Gen. Stat. § § 9-452,

9-453. Candidates not nominated by

a major or minor party may still ap-

pear on-the ballot by presenting the

Secretary of the State with a peti-

tion bearing signatures equal to one

percent of the votes cast for the

same office at the preceding elec-

tion. Id. § 9-453d.

-ll-

select candidates to be nominated for

electoral office. Party endorsements are

made at state or district conventions,

and only enrolied party members may vote

to select those delegates who attend the

convention. Id. $$ 9-387, 9-390, 9-407.

If a candidate is not opposed at the con-

vention, he becomes the party's nominee

in the general election and no primary

election is held. Id. S$§ 9-408. 9-409.

A candidate rejected by the convention,

however, is eligible to challenge the en-

dorsed candidate in a primary election if

he has received on any roll call conven-

tion vote at least twenty percent of the

votes of the delegates present and vot-

ing, and files a document with the

o)2=

———. as art at ny -

i= Wath oh ons oe

agua ~— ae,

a = on a 9 a

a nS te Sa as

i ee oe.

ae a uae Seal :

Secretary of the State certifying that he-

has garnered the requisite vote total.

Id. § 9-400. Party primaries are held at

the expense of the State, and the pri-

maries for all major political parties in

Connecticut are held on the same day,

during the same hours and at the same

polling places. Separate voting machines

are used for each party on primary day.

Mindful of these aspects of Con-

necticut's primary election apparatus, we

turn to the voting eligibility require-

ments, which constitute the crux of the

instant appeal. Section 9-431 of the

Connecticut General Statutes provides, in

pertinent part:

-}3-

No person shall be permitted to

vote at a primary of a party

unless he is on the

last-completed enrollment list

of such party in the municipal-

ity or voting district. .

To enroll in a political party, a person

must execute an application for enroll-

ment form, requiring him to state his

name, address, desired party affiliation,

previous party affiliations within the

past six months and the date of which he

applied to remove his name from the mem-

bership list of the political party with

which he was previously affiliated.

Party enrollment lists are a matter of

public record, Id. § 9-55, and Con-

necticut does not require lists of

unaffiliated voters to be available at

-14-

the polls on primary day. Connecticut

Public Act 84-118, which became effective

on January Ba 1985, allows an

unaffiliated voter to participate in a

party's primary election if he enrolls in

that party prior to twelve o'clock noon

on the last business day before the pri-

mary. Id. $$ 9-56, 9-57. Finally, a

voter enrolled in a party may at any time

apply to have his name removed from the

party's enrollment list, and to transfer

to che enrollment list of another party.

He may not, however, vote in any primary

for six months following the date of his

application for transfer. Id. § 9-59.

-15-

B. The Republican Party's Challenge

to Section 9-431

The Connecticut Republican Party

(the "Party") is comprised of individuals

who associate for the common advancement

of political beliefs and ideas. Its ul-

timate goal, as stated in the preamble to

its Constitution, ?/is to "seek out,

3/ The Preamble to the Convention and

Committee Rules of the Republican

Party of the State of Connecticut

provides as follows:

Among the goals of the Republi-

can Party of Connecticut are

to seek out, designate, and se-

cure the election of qualified

(footnote cont'd)

-16-

designate, and secure the election of

(footnote cont'd from previous page)

candidates for public office at

the Federal, State and Local

levels of government. The Re-

publican Party believes in each

individual's dignity, ability

to solve his or her own prob-

lems with minimal governmental

interference and support, sound

fiscal policies which will pro-

vide opportunity for all of our

citizens.

The Republican Party of

Connecticut stands, as it al-

ways has, open to all inter-

ested persons and offers to

them equal opportunities of

participation without regard to

race, color, creed, sex or na-

tional origin.

In its stance as a

statewide political organiza-

tion, dedicated to governmental

improvement on all levels, the

Republican Party of Connecticut

encourages fullest voter par-

ticipation in its activities

and supports the broadest pos-

(footnote cont'd) —

-17-

qualified candidates for public office at

(footnote cont'd from previous page)

sible membership registration.

To achieve the goal of

governmental improvement, the

Republican Party of Connecticut

solicits the ideas, the inter-

est and the participation of

all segments -- our young peo-

ple, our seniors, businessmen

and labor. Only by this means

can the Republican Party ade-

quately reflect the interests

of all the people and work on

their behalf. And to this end,

the Republican Party is dedi-

cated.

The Republican Party of

Connecticut is further pledged,

in the interests of fuller

voter participation, to conduct

its business in public. All

party meetings at all levels

shall be conducted after suffi-

cient advance notice and in

such public places as to invite

citizen observation.

(footnote cont'd)

-18-

the Federal, State and Local levels of

government," who will implement its

policies, philosophies and programs.

Correlative to this objective, the Party

seeks to nominate those candidates who

(footnote cont'd from previous page)

The Republican Party's

rules of operation are designed

and followed to afford all

members equal opportunity to

take part in party affairs, to

run for public or party office,

and to serve as delegates to

party conventions on all levels

-- local, district, s*ate or

national.

The Republican Party of

Connecticut believes in a fully

informed membership and a fully

informed citizenry; for it is

only when all peopie completely

know and understand our goals

that we will be able to achieve

them.

-19-

enjoy the broadest spectrum of popular

support and, therefore, appear most like-

ly to obtain electoral success at the

polls.

In recent years, however, the Repub-

lican Party has been thwarted in its

quest for electoral success. A

contributing factor to its repeated

November failures may be that there are

far more registered Democrats than Repub-

licans in Connecticut. Recent party reg-

istration figures underscore the magni-

tude of this disparity. At the time this

action was commenced, */connecticut had

4/ Presently in Connecticut there are

718,772 registered Democrats,

(footnote cont'd)

-20<

659,268 registered Democrats, 425,695

registered Republicans, and 532,723 reg-

istered but unaffiliated voters.

Animated by the Democratic Party's

Statistical hegemony, and keenly aware of

(footnote cont'd from previous page)

608,613 registered but unaffiliated

voters, and 477,749 registered Re-

publicans. The Hartford Courant,

Jan. 4, 1985 at A6. Not

surprisingly, the Republican Party

has experienced little electoral

success in recent years. In fact,

Since 1958, the Republican Party has

captured only four of sixteen

statewide elections for Governor and

United States Senator. During this

Same period, the Party was victori-

ous in only 25 of the 84 elections

for United States Representative.

See State of Connecticut Register

and Manual 72-82 (1983); 42 Cong. Q.

2923 (Nov. 10, 1984).

-2l1-

Connecticut's untapped reservoir’ of

unaffiliated voters, the Republican

Party's State Central Committee in August

1983 established a subcommittee to study

the Party's existing rules, and devise a

strategy to improve the Party's chances

for future electoral success. After ana-

lyzing the Party's electoral plight, the

subcommittee concluded that allowing

unaffiliated voters to participate in Re-

publican Party primaries would increase

the Party's chances of winning general

elections, ensure the nomination of can-

didates with greater bipartisan support,

broaden the involvement of unaffiliated

voters in the electoral process. and

strengthen the two-party system. To

~22<

measure the support of this_ proposal

among the Party's rank and file, State

Republican Chairman Thomas D'Amore called

the state party convention to _ consider,

inter alia, "proposed changes [in party

rules] to allow unaffiliated voters to

vote in Republican Party candidate selec-

tion primaries."

On January 14, 1984, delegates to

the State Republican convention approved

an amendment to the party rules permit-

ting unaffiliated individuals to vote in

Republican Party primaries for the of-

fices of United States Senator, United

States Representative, Governor and the

gubernatorial "underticket."°/

5/ The Rule would not affect voter

qualifications in other Republican

(footnote cont'd)

-23-

Specifically, the Party Rule provided:

Any elector enrolled as a mem-

ber of the Republican Party and

any elector not enrolled as a

member of a party shall be eli-

gible to vote in primaries for

nomination of candidates for

the offices of United States

Senator, United States Repre-

sentative, Governor, Lieutenant

Governor, Secretary of the

State, Attorney General, Comp-

troller and Treasurer.

Because the Party Rule was in direct

conflict with Section 9-431, which pro-

hibits unaffiliated voters from voting in

any party primary, Republican legislators

(footnote cont'd from previous page)

Party primary elections, including

those for seats in the Connecticut

Senate and House of Representatives.

-24-

STO Pee

sought to amend Section 9-431 during the

1984 session of the Connecticut General

Assembly. To this end, in February 1984

State Representative Mae Schmidle intro-

duced Bill No. 5525 (the "Schmidle

Bill"), which provided in relevant part:

EXCEPT WHERE PROVIDED OTHERWISE

BY STATE PARTY RULES, no person

shell be permitted to vote at a

primary of a party unless he is

on the last-completed enroll-

ment list of such party in the

municipality or voting district

The Schmidle Bill was referred to

the Committee on Governmental Administra-

tion and Elections, where debate focused

on the practical difficulties that would

-25-

accompany implementation of the provi-

sions of the Bill. On February 28, 1984,

Albert Lenge, Director and Elections At-

torney in the Office of the Secretary of

the State, appeared before the Committee

and testified that implementation of the

Party Rule would be “workable.” Despite

Lenge's testimony, the Schmidle Bill fell

prey to fierce Democratic opposition in

the General Assembly. ©/

6/ On March 7, 1984, the Committee on

Governmental Administration and

Elections voted 13 to 8 against the

Schmidle Bill. The Committee fur-

ther voted 12 to 9 against reporting

the bill out of Committee with an

unfavorable report, thereby pre-

venting the proposed legislation

from being considered by the entire

General Assembly. On March 15, the

Committee reconsidered its earlier

(footnote cont'd)

~%Z0

Undaunted by the de..ise of the

Schmidle Bill, Republican legislators

sought alternate means to implement the

Party Rule. Specifically, they drafted

two amendments to Bill No. 5105, "An Act

Concerning the Time Limit for Enrollment

of Unaffiliated Voters." The amendments

provided that:

Where state party rules so pro-

vide, an elector whose name

(footnote cont'd from previous page)

vote and reported unfavorably on the

bill to the House of Representa-

tives, indicati.iiq the Committee's

opposition. Burdened with an unfa-

vorable report, the bill languished

in the House and was never presented

for a vote.

does not appear on any enroll-

ment list shall be entitled to

vote in a primary conducted by

such party for nomination for

election to the office of gov-

ernor, lieutenant governor,

secretary of the state, trea-

surer, comptroller, attorney

general, senator or representa-

tive.

On April 11, 1984, both amendments

were defeated decisively in the House,

and the increasingly partisan tenor of

this

issue was manifest in the recorded

vote. ’/one week later, a similar partisan

At the time of the vote, there were

87 Democrats and 63 Republicans in

the Connecticut House of Representa-

tives. One amendment was defeated

by a vote of 92 to 54; all 83 Demo-

Ccrats voted against the bill and

none in its favor. The second

amendment was defeated by a vote of

(footnote cont'd)

-28-

struggle ensued on the floor of the Con-

necticut Senate. There, all twenty-three

Senate Democrats voted against an amend-

ment incorporating the provisions of the

Schmidle Bill; all thirteen Republicans

voted in support.

(footnote cont'd from previous page)

93 to 54, with 85 Democrats voting

against the bill and none in favor,

and 8 Republicans voting against the

bill and 54 in favor. Indeed, on

June 28, 1985, Connecticut Governor

William A. O'Neill, a Democrat,

upheld his promise to veto any leg-

islation that would enable the Re-

publican Party to implement its

rule. See The Hartford Courant,

Jan. 4, 1985 at 1. After Senate

Bill No. 5, Public Act No. 85-320,

which would have permitted

unaffiliated voters to participate

in certain primary elections, was

passed by both houses of the Con-

necticut legislature, Governor

O'Neill vetoed the bill.

-29-

C. The District Court Proceedings

Frustrated in its efforts to imple-

ment the Party Rule through legislation,

the Republican Party turned its attention

to the judiciary. On May 10, 1984, the

Republican Party of the State of Con-

necticut®/filed a complaint in the United

States District Court for the District of

8/ The other named plaintiffs were the

Chairman of the Republican State

Central Committee, Thomas J.

D'Amore, Jr., and the Connecticut

Republican Party's principal federal

elected officials -- United States

Senator Lowell P. Weicker, Jr. and

United States Representeétives

Stewart R. McKinney and Nancy L.

Johnson. Named as defendant was

Julia oH. Tashjian, Connecticut's

Secretary of the State, who is re-

sponsible for administering Section

9-431.

-30-

Connecticut, seeking to enjoin the en-

forcement of Section 9-431 of the Con-

necticut General Statutes as unconstitu-

tional.

The Party asserted that Section

9-431 substantially infringed its first

amendment right to associate for the ad-

vancement of common political objectives.

Accordingly, it maintained that the stat-

ute could be upheld only if it was neces-

sary to advance compelling state inter-

ests and only if it advanced those

interests in the manner least restrictive

of the ability of the Republican Party to

Structure its candidate selection process

as it deems appropriate. In response,

=3i<

the State of Connecticut claimed that

Section 9-431 only incidentally burdened

the Republican Party's right of political

association and that the statute advanced

legitimate state interests. In addition,

Connecticut contended that the proposed

Party Rule violated Article I, section 2,

clause 1 of, and the seventeenth amend-

ment to, the United States Constitution

by permitting unaffiliated voters to par-

ticipate in primary elections for con-

gressional offices, while denying them an

opportunity to vote in primary elections

for seats in the State legislature.

On July 13, 1984, the Republican

Party moved for summary judgment pursuant

to Fed. R. Civ. P. 56. Two days later,

Connecticut moved to dismiss the Republi-

can Party's complaint, pursuant to Fed.

R, Civ. P. 12(b)(6).?/aAfter examining the

Joint Statement of Facts and Joint Sub-

mission of Documents prepared by the par-

ties, reviewing the extensive materials

submitted by the amici curiae 10/ ana

9/ Because Connecticut supplemented its

Rule 12(b)(6) motion with affidavits

and documentary evidence that were

accepted by the district court,

Judge Cabranes properly treated the

motion as one for summary judgment.

Rule 12(b)(6) requires that, when

"Matters outside the pleading are

presented to and not excluded by the

court, the motion shall be treated

as one for summary judgment and dis-

posed of as provided in Rule 56."

See Eklof Marine Corp. v. United

States, No. 85-6016, slip op. 3821,

3823-24 (2d Cir. May 14, 1985).

10/ Because of the far-reaching implica-

tions of this case for primary elec-

(footnote cont'd)

-33-

conducting an evidentiary hearing, Judge

Cabranes denied both motions, finding a

number of disouted factual issues. The

parties then conducted further discovery

and prepared a Supplemental Joint State-

ment of Facts, which was submitted to the

district court on July 24. That same

day, Connecticut renewed its motion to

(footnote cont'd from previous page)

tions in particular and the

two-party system in general, and the

benefits to be derived from the pre-

sentation of divergent ideological

and political viewpoints, the dis-

trict court invited a variety of in-

terested persons and organizations

to participate as amici curiae,

Among the amici were the American

Civil Liberties Union, the Con-

necticut Civil Liberties Union, as

well as a number of prominent law

professors and political scientists.

dismiss, and on the following day, the

Republican Party again moved for summary

judgment.

On December 5, 1984, Judge Cabranes

granted the Republican Party's motion for

summary judgment, and denied Con-

necticut'’s motion to dismiss. The court

concluded that Section 9-431 "substan-

tially impinges” on the Republican

Party's first amendment right of politi-

cal association by allowing the Con-

necticut legislature to "substitute its

j.dgment for that of the perty OR .« « «

the question of who is and (who) is not

sufficiently allied in interest with the

Party to warrant inclusion in its

-35-

candidate selection process." Subjecting

Section 9-431 to "strict judicial scruti-

ny," the district court found that the

interests proffered by Connecticut to

Support its mandated closed primary --

avoiding voter confusion, preventing

raiding, and preserving the integrity of

the electoral process -- were not compel-

ling.

In addition, Judge Cabranes conclud-

ed that the Republican Party Rule did not

violate Article I, section 2, clause l of

the seventeenth amendment of the United

States Constitution. Those provisions

were intended to "dissuad[e] states from

Capriciously restricting the franchise in

-36-

congressional elections." The district

court found that the Party Rule would

"open[ ] the political process. by

including greater numbers of voters in

congressional primaries" and would fur-

ther "the democratic values underlying

Article I, section 2."

Accordingly, Judge Cabranes_ perma-

nently enjoined enforcement of Section

9-431 "as applied to the Republican Party

Rule." The State of Connecticut timely

filed a notice of appeal.

II. ARTICLE I, § 2 AND THE

SEVENTEENTH AMENDMENT

Before addressing the principal

o37~

issues raised by this appeal, we dispose

of the State's claim that the Party Rule

is foreclosed by Article I, § 2 of, and

the seventeenth amendment to, the United

States Constitution. The Party Rule per-

mits unaffiliated voters to participate

in primaries for United States Represen-

tatives and Senators, while denying them

the corresponding opportunity to vote in

primaries for state representatives. Ac-

cording to the State, Article I, § 2 and

the seventeenth amendment require "abso-

lute symmetry” between federal and state

voter eligibility requirements -- as ap-

plied to primary elections -- within a

particular state.+1/concomitantly, it

ll/ Connecticut maintains that the

Party's Rule is unconstitutional be-

(footnote cont'd)

-~38-

asserts that the order of the district

(footnote cont'd from previous page)

cause the qualifications sections of

Article I, § 2 and the seventeenth

amendment do not permit federal

voter qualifications to be more gen-

erous than state qualifications. In

accordance with this view, Con-

necticut asserts that neither Con-

gress nor the state legislatures are

authorized to set federal voter

qualifications, and that the quali-

fications for electors of Congress

are wholly borrowed from the various

State qualifications for voting for

state representatives. Under this

view, eligibility to vote for United

States Representatives and Senators

would merely track the underlying

State's preexisting system. In sup-

port of its position, Connecticut

cites the Supreme Court's descrip-

tion of the workings of the qualifi-

cations provision set forth in Ex

Parte Yarbrough, 110 U.S. 651, 663

(1884):

The States in prescribing

the qualifications of voters

for the most numerous branch of

their own legislatures, do not

do this with reference to the

(footnote cont'd)

-39-

court -- which implicitly validated the

(footnote cont'd from previous page)

election for members of Con-

gress. Nor can they prescribe

the qualification for voters

for those eo nomine. They de-

fine who are to vote for the

popular branch of their own

legislature, and the Constitu-

tion of the United States. says

the same persons shall vote for

members of Congress in that

State. It adopts the qualifi-

Cation thus furnished as_ the

qualification of its own elec-

tors for members of Congress.

See also Katzenbach v. Morgan, 384 U.S.

641, 047 (1960).

The Party, on the other hand, argues

that Art I § 2 and the seventeenth amend-

ment should be interpreted consistent

with the intentions that animated the

Framers’ inclusion of the qualifications

language -- a compromise provision per-

mitting suffrage to be determined by ref-

erence to state law, but insuring that

the states could not establish stricter

voting requirements for the selection of

federal representatives than they had for

(footnote cont'd)

-40-

Party's "open-primary”"” rule -- must £

vacated. We disagree.

A careful examination of Article I,

& Be Che ,12/ reveals that the clause is

(footnote ccnt'd from previous page)

State legislators. Essentially, we are

urged to hold that a state's qualifica-

tions merely set the minimum standard by

‘which federal voter requirements in that

state must be measured, rather than de-

termine the only acceptable standard. An

electoral scheme that establishes a

broader franchise for federal elections

than state races would, therefore, be

perfectly permissible.

Because we hold that the qualifica-

tions sections of Article I, § 2 and the

seventeenth amendment are not applicable

to primaries, we, unlike our concurring

colleague, find it unnecessary to reach

this question.

12/ Article I, § 2, cl. 1 provides:

(footnote cont'd)

comprised of two distinct and severable

(footnote cont'd from previous page)

The House of Representa-

tives shall be composed of Mem-

bers chosen every second Year

by the People of the several

States, and the Electors, in

each State shall have the Qual-

ifications requisite for Elec-

tors of the most numerous

Branch of the State Legisla-

ture.

The seventeenth amendment, calling for

the popular election of Senators, was

Styled after Article I, § 2. It pro-

vides, in pertinent part:

The Senate of the United.

States shall be composed of two

Senators from each State,

elected by the people thereof,

for six years; and each Senator

shall have one vote. The elec-

tors in each State shall have

the qualifications requisite

for electors of the most numer-

ous branch of the State legis-

latures.

(footnote cont'd)

-42-

provisions. The initial phrase, "The

House of Representatives shall be com-

posed of Members chosen every second Year

by the People,” reflects the Framers' de-

Sire to establish in at least one legis-

lative branch a representative democracy

directly accountable to the state citi-

zenry. ee J. Story, The Constitution, §

573 at 422-423 (Sth ed. 1891). The lan-

guage, "chosen... by the people," has

been interpreted to create in favor of a

class of qualified voters a

(footnote cont'd from previous page)

According, the two sections share a

common interpretation. See Phillips v.

Rockefeller, 435 F.2d 976, 979 (2d Cir.

1971).

-43-

constitutionally pr tected "right" to

participate in the selection of represen-

tatives, as well as a protection against

interference with the privileges of suf-

frage -- including the expectation that

one's vote will be counted. See, e.q.,

United States v. Classic, 313 U.S. 299

(1941).

The concluding portion, "and the

Electors in each State shall have the

Qualifications requisite for Electors of

the most numerous Branch of the State

Legislature," unlike the preceding lan-

guage, has not been subject to intense

judicial scrutiny. Because this language

constitutes the core of the State's

-44-

position, determining its intended place

within the federal electoral scheme will

ultimately lead to the resolution of this

issue.

An inquiry into the events” sur-

rounding the adoption of the qualifica-

tions clause reveals that its inclusion

in Article I, § 2 was the result of com-

promise at the Federal Convention of

1787. Before approving this language,

the Framers entertained various proposals

aimed at devising a uniform national

standard for the selection of House mem-

bers. These proposals were rejected,

largely because the Framers foresaw great

resentment by the people of those States

-45-

that had adopted broader principles of

suffrage than might be accepted under a

national scheme.!3/the Framers, however,

13/ Indeed, several members of the Con-

vention suggested that this contro-

versy, though relatively insignifi-

cant in comparison to the undeniably

monumental features of the document,

might even threaten ratification.

Most notable among the proponents of

State determined qualifications was

Oliver Ellsworth, who we observe

with the enchantment of historical

coincidence was Connecticut's repre-

sentative. He is said to _ have

opined:

The right of suffrage was

a tender point, and strongly

guarded by most of the State

Constitutions. The people will

not readily subscribe to the

National Constitution if it

should suggest them to be dis-

franchised. The states are the

best judges of the circumstanc-

es and temper of their own peo-

ple.

(footnote cont'd)

-46-

7 i ae

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an =

va SE A ne le ee ee

= — ° — —_—- i 6 = ee ee Oe

declined to leave the determination of

federal voting eligibility solely to the

States' unfettered discretion. It was

feared that absent some constitutional

prohibition state legislatures would seek

to involve themselves in the selection of

House members. By tying federal suffrage

rights to what was presumably the most

generous state standard -- voting eligi-

bility requirements for "the most numer-

ous Branch of the State Legislature” --

the Framers' sought to insure that the

goal of direct Participation of the

(footnote cont'd from previous page)

J. Madison, Journal of the Federal

Convention, at 468 (1970).

-47-

g ¢ . ae

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ond i

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S er '-. —_—

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SP ae — ee eee S Eo ot eta ok Calis til . 7 . ae ad a

om ne teem ge ae \Sameens = — a a ‘ - idy =

ey Seem ~ a ——— + . - — . ——_ a poo ae ner basen aca nc” aN pe ma — —————— -

oe ee = —- ai = — Se re ee eer ve Re REN - eh iene -

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people of each state, rather than the

legislatures, would be achieved. Article

I, § 2 must, therefore, be properly un-

derstood as a compromise between state

and federal interests, 14/

14/ The Federalist's comments on the na-

ture of this accommodation is par-

ticularly instructive:

The provision made by the

convention appears to be the

best that lay within their op-

tion, It must be sat-

isfactory to every State, be-

cause it is conformable to the

Standard already established by

the State itself. It will be

safe to the United States, be-

cause being fixed by the State

constitutions, it is not al-

terable by the State govern-

ments, and it cannot be feared

that the people of the States

will alter this part of their

constitutions in such a manner

(footnote cont'd)

-48-

The State of Connecticut unquali-

fiedly asserts that "there can be no

question" but that Article I, § 2 and the

seventeenth amendment apply to primaries.

In so doing the State relies principally

on the Supreme Court's decision in

Classic, supra. [In that case, the United

States prosecuted certain Louisiana

(footnote cont'd from previous page)

as to abridge the rights se-

cured them by the Federal Con-

Stitution.

The Federalist No. 52, (J. Cooke ed,

1961).

-49-

Commissioners of Elections for allegedly

falsifying ballot returns in a Democratic

primary for the House of Representatives.

The statutes pursuant to which the Com-

missioners were charged forbade the

abridgement of any “rights, privileges

and immunities secured and protected by

the Constitution and laws of the United

States."

In reversing a judgment sustaining a

demurrer to the indictment, the Court

held that by allegedly altering and

falsely counting primary ballots, the

election officials had deprived Louisiana

residents of their "right to choose at a

primary election, a candidate for

-50-

= Oe = = - > > eo ae — et a ae _ ; ee one re -——— = 7 =

-~< : og eae 8 a Se er aD Be PERE a, sk are — Soma

: - ~ SSS DOR PE ee OE ee Se ain = ‘ 7 oe : a

7 b snammemei ae. Wists af! -, oe Pa -_ ae ae to —— - . - : .

eae Sede

election as representative..." Id. at

315. Acknowledging that the framers of

the Constitution had not contemplated the

"elimination of candidates for Congress

by the direct primary" procedure, the

Court nevertheless concluded that a right

to participate in such primaries was "em-

braced in the right to choose representa-

tives secured by Article I, § 2." Id. at

If the freedom of choice secured by

Article I, S§ 2's command, "The House of

Representatives shall be composed of Mem-

bers chosen... by the People,” was to

be meaningfully protected, the Court rea-

soned that freedom must exist at every

~8)-<

bon %

. re

‘

a haf he

iF rc. pe

be ' > ‘ ase =? va co .

x 7 i . a —— pe a ee a es yt Tis

a <I = i * a -_ - =. . - =e Oe ae PS Se me ey AEE Tete agp ll Geto amees _ — on — ——

- 7 na or enone — a ar ee an — olen. = —— — a " i enerened aan ts ag ao ET

aN ade - a 2 ee ay age he aa + ee ea 2 eta :

~ ee ee i a ee ae oe =e ae ar ar ee eae mn : = ema y

level of the selection process. The

Court stated:

Where that state law has

made the primary an integral

part of the procedure of

choice, or where in fact the

primary effectively controls

the choice, .. . this right of

participation is protected just

as is the right to vote at the

election...

Id. at 318.

In Smith v. Allwright, 321 U.S. 649

(1944), the Court invoked Classic in

holding that the fifteenth amendment's

ban on infringement of the "right to

vote” based on race extended to party

conventions as well as general elections.

-52-

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as t &

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. ‘ ° 3

3 é

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7 ae j os 4 — “1 — a eer - Siekee

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Contrary to the State's assertions,

we do not find Classic and its progeny

control the question before us. As we

previously noted, Article I, § 2, cl. 1

contains two distinct provisions concern-

ing suffrage in congressional elections.

The opening reference to members

"chosen . . . by the people," -- like the

fifteenth amendment's protection of the

"right to vote” -- recognizes a substan-

tive right of participation in represen-

tative democracy. Classic and

Allwright'’s extension of that right to

include suffrage in party primaries was

considered necessary to assure the vital-

ity of that privilege in twentieth centu-

ry American politics. We note, however,

-53-

* s * *

tw . , ‘ 7 ’ ;

’ . r <)

ae >

" *

- . °

‘

“

A _*

‘

, ~

“~

]

nae = 7 ‘ 4 2 Ps

= reas —_ — ” a : . ca s ‘ > = a ;

- ee ie) — Ri Sh ah ts “eS oe —* — -= ee ee ene Se ee es 5 PS ee ;

that at no point in either opinion was

the qualifications section of the clause

even discussed. That language, which was

not connected to "chosen by the people”

in a earlier draft of Article rT, § 215/

and constitutes a separate sentence in

the seventeenth amendment, speaks only to

the mechanics of voting and was’ intended

15/ In an earlier version of the Consti-

tution, Article I, § 2 read as fol-

lows:

The members of the House

of Representatives shall be

chosen every second year, by

the people of the several

States comprehended within this

Union, The qualifications of

the electors shall be the same

from time to time, as those of

the electors in the several

States, of the most numerous

branch of their own Legisla-

tures.

-54-

4 *

i Phd «

o ro ~e

¢ . ~ x o

° . “

wat > 4 ‘Th “ad

, 9 ‘

. ’

. = °

’

‘

’ >

;

: ‘

‘

—

: P ha ge |

i . : ; - , * ' ee. 5 ; 7 a Pe

" a er ee ae ee ee ee gt naar tes 7 alr Am ht eat" a gi Zz tw as i re ere eld ghee see peter alarg ener oe ne eS ae a

t : 5 . . “7 - 2 : : . ; ay

wrt 7 - ba = = - ¢ oe oe a i. =. > - l ia ‘ _ *

A ; : are at Te : *

as a procedural safeguard to ensure the

right of the people to select members of

Congress without interference from the

state legislatures.

Viewing the question as one of first

impression, we decline to interpret the

term "Electors" in Article I, § 2 and the

seventeenth amendment to include partici-

pants for party primaries. We observe

that a system of selecting candidates for

federal office by party primary is per-

mitted rather than dictated by the Con-

Stitution. The source of this power, Ar-

esecle ft, $4, 16/orants broad authority

16/ Article I, § 4 provides:

(footnote cont'd)

-55-

to the States to "provide a complete code

for congressional elections." Smiley v.

Holm, 285 U.S. 355, 366 (1932); cf.

Buckley v. Valeo, 424 U.S. 1, 13 n.16

(1976).

Significantly, Article I, § 4 does

not command that the regulation of con-

gressional elections comport with

(footnote cont'd from previous Page)

The Times, Places and Manner of

holding Elections for Senators

and Representatives, shall be

prescribed in each State by the

Legislature thereof; but the

Congress may at any time by Law

make or alter such Regulations,

except as to the Place of

Chusing Senators.

-56-

procedures employed in administering

State elections. Theoretically, then, a

state might choose to institute preferen-

tial ballot access based on direct pri-

maries for state offices, but leave fed-

eral elections to a single vote of the

electorate. If an electoral scheme thet

completely excluded the use of primaries

in congressional elections would be per-

missible, then the Republican Party's

rule cannot be said to violate the Con-

Stitution simply because it seeks to es-

tablish state and federal nominating pro-

cedures that differ only with respect to

voter qualifications.

Moreover, unlike the situation in

-57-

Classic where a narrow reading of the

Constitution would have effectively de-

feated one of the purposes underlying the

text, the concern that prompted the qual-

ifications provision -- that a state

might unilaterally disenfranchise citi-

zens from the selection of federal legis-

lators -- would not be implicated. Arti-

cle I, §$ 4 would allow Congress to

override state procedure by directing the

establishment of preferential ballot ac-

cess in congressional races.

Finally, we note that an interpreta-

tion of the term "Electors" encompassing

persons who participate in a primary

would go well beyond simply expanding the

-58-

reach of the qualifications provision to

include the candidate selection Stage --

essentially the result achieved in

Classic and Allwright. By contrast, the

State's proposed interpretation would re-

quire that we recognize a separate class

of electors and qualifications for each

party's primary. Qualified Republicans

would thus be distinct from qualified

Democrats. Such a multidefinitional ap-

proach is clearly at odds with the Fram-

ers' singular and nonpartisan view of

voting qualifications. We are reluctant

to embrace such a radical and

counterintuitive reading of the qualifi-

cations provision.17/

17/ Such an analytical framework might

also at times produce anomolous_ re-

(footnote cont'd)

-59-

i ee: het —

audi

——— he Ta

Accordingly, we hold that the pri-

mary eligibility requirements at issue

are not subject to the qualifications

provisions of Article I, § 2 and the sev-

enteenth amendment. Because we find no

constitutional impediment to the en-

joining of Section 9-431, and the resul-

tant enforcement of the Republican

Party's "open primary” rule, we turn now

to the essence of this appeal.

(footnote cont'd from previous page)

sults. Under the "absolute symme-

try” theory, for example, a party

seeking to nominate candidates only

for federal office would find itself

without any qualified voters because

none of its members would have qual-

ified to participate ina primary

for state representatives.

-60-

III. THE RIGHT OF ASSOCIATION

In the main, the Republican Party

asserts that Section 9-431 substantially

interferes with its right of political

association by determining who is eligi-

ble to participate in its candidate se-

lection process. Before examining in de-

tail the substance of the Republican

Party's claim, we believe it is helpful

to trace the origins of the right of as-

Sociation and delineate its historical

contours. As shall be seen, the right of

association has venerable roots, but only

recently has it received the imprimatur

of the judiciary and been afforded con-

Stitutional protection.

-6l-

‘

ba m ad i catnes — oe _ ws a — ee =-

SY eae -_ ane BS eee 5 A 1 % sn — + ee

See - s = _ ae. 7 ee aes ee le

‘ unl a -< ’ ~ Stee kd ees —

A. The Origins of the Right of Association

From time immemorial, societies have

been compelled to grapple with an indi-

vidual's sense of anomie. Although each

political order has adopted individuated

solutions, every such effort -- whether

the Greek polis or the Roman civitas --

has embraced the concept of association

as a buffer between the individual and

the state.

The history of American political

thought reveals that the Significance of

voluntary association antedates the

drafting of our Constitution. Before our

ties with England were severed in 1776,

~62-

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: vee Seta = an ee ‘ caning —- ee el ee vous

= a me en f ‘= ay : 7 7 : ; a M bad az , « GA baled a

ae ee ee Oe Ne wr, see ee ee Le ee ee Oe ee FTF at ae eghigh 1c ¥

Committees of Correspondence were estab-

lished to provide "speedy and direct

channels” for communication and enable

the people to "understand their interests

and act in concert," and become effective

"arbiters of their own political desti-

ny." H.R. Doc. No. 702, 57th Cong., lst

Sess. 245 (1902). There existed a vari-

ety of other nongovernmental organiza-

tions and associations that were "close

to the people” and satisfied the myriad

needs of our infant Republic. See R.

Wood, The Creation of the American

Republic, 186-96, 319-28 (1969); The

Federalist No. 56 (J. Madison).

The importance of political

-63-

association was fortified by and memori-

alized in the Constitution, which includ-

ed provisions explicitly designed to pro-

tect political opposition, and accorded

independent vitality by the First Con-

gress, which expressly included the

rights of free speech, assembly and peti-

tion in the text of the first amendment.

Moreover, in the Federalist Papers, James

Madison extolled voluntary private asso-

ciation as maximizing the opportunities

for self-realization, and minimizing the

dangers attendant to centralized power.

See The Federalist No. 10, 57 (J. Cooke

ed. 1961). The Madisonian link between

freedom of association and "true" democ-

racy became embedded in Western political

-64-

hed

‘

* |

P }

~~ r

“e r

, )

”~

~ -

i ae a et Ie

= S Sia AD

oak! Lé;

thought, and was expressed eloquently by

de Tocqueville:

In their political associ-

ations the Americans, of all

conditions, minds, and ages,

daily acquire a general taste

for association and grow accus-

tomed to the use of it. There

they meet together in large

numbers, they converse, they

. listen to one another, and they

are mutually stimulated to all

sorts of undertakings. They

afterwards transfer to civil

life the notions they have thus

acquired and make them subser-

vient to a thousand purposes.

Thus it is by the enjoyment of

a dangerous freedom that the

Americans learn the act of ren-

dering the dangers of freedom

less formidable.

Democracy in America, Supra, at 129.

-65-

we *

7 rs

i, ;

c *

‘

r .

a . -

4) = -

; .

(

“— :*

E ; c

3 !

” be

: aod >

3 ait ater - : reer te a

ee i a a ee TS ee ee ee er eae peereer es

<“ d 6 eee J 7 ~! J 7 =- prety lat wr % —* ee °

. eet, ort ii Reaaial Thad ord . 7 .- 2 ¥) 2

The democracy envisioned by Madison

and marvelled at by de Tocqueville, how-

ever, bears little resemblance to the

realities that today prevail. The struc-

ture of American society has undergone a

vast metamorphosis in the past two

centuries. No longer is the individual

the basic political or economic unit and,

largely for that reason, the concept of

eighteenth century democracy fails to

explain the dynamics of our current

socio-political system. In recent years,

Organizations -- political, social and

economic -- have become the primary

repositories of power. Like all liber-

ties, the right of association must be

defined, to a large extent, by reference

-66-

to the contours) of the existing

socio-political landscape.

A corollary of our society's pen-

chant for organization is that the asso-

ciation has achieved a prominence that

could hardly have been imagined two

centuries ago. 18/ Indeed by the middle of

this century, the voluntary association

had become one of the linchpins of our

18/ The rise of the association has par-

alleled the development of democrat-

ic self-confidence and the

increasing complexity of social,

economic and political life. In the

words of Arthur Schlesinger, the as-

sociation has "restored a sense of

self-importance bruised by the ano-

nymity of life amidst great crowds."

A. Schlesinger, The Rise of the City

288-90 (1939).

-67<

democratic process. Yet, it had not been

afforded constitutional protection in its

own right .19/

B. The Constitutional Right of Association

Although the constitutional text

does not mention freedom of association,

the Supreme Court, in NAACP v. Alabama ex

19/ The Court did, however, recognize a

variety of quasi-associational ac-

tivities essential to associational

expression as falling within the

realm of first amendment protection.

Among these hybrid associational

forms accorded first amendment pro-

tection was the holding of the pub-

lic meeting, see De Jonge v. Oregon,

299 U.S. 353 (1937), parade, see Cox

Vv. New Hampshire, 312 U.S. 569

(1942), demonstration, see Haque v.

C.1.0., 307 U.S. 496 (1939).

rel. Patterson, 357 U.S. 449, 460 (1958),

recognized an independent right of asso-

ciation, Such a right, according to the

Court, derives from the first amendment

guarantees of speech, press, assembly and

petition. The issue before the Court was

whether an Alabama statute requiring com-

pulsory disclosure of membership in the

NAACP imposed "the likelihood of a sub-

Stantial restraint upon the exercise by

[the NAACP's] members of their right to

freedom of association." Id. at 462.

Of even greater importance than the

unanimous holding that the NAACP could

not be compelled to deliver to the

Alabama Attorney General the names and

-69-

’

7 _ — -

a ee Ae ee — —

“= ’ 4 - “a wore *.

ie ie Te = >. > _—s ee ns

addresses of its members and agents in

the State of Alabama was the reasoning

relied on by the Court in reaching that

result. The Court implicitly bifurcated

associational rights into their individu-

al and collective components. In

examining the individualistic aspect, the

Court "recognized the vital relationship

between freedom to associate and privacy

in one's associations," and declared that

the constitutional prohibition against

mandatory identification of supporters is

especially robust where the group es-

pouses dissident beliefs. Id.

The principles announced in NAACP v.

Alabama have been reaffirmed consistently

-70-

er’

i? SAT |

7 j Ty} are :

ae a a ¥ : aa

‘ - Yana at ‘a a

- a)

Pat od —

<6 ee ee AG,

7 ; "

as courts continue to protect the _ indi-

vidualistic component of freedom of asso-

ciation not only against direct attack,

but also against inroads by the insidious

interference that often follows public

identification with a controversial orga-

nization. In sustaining a constitutional

challenge to another coerced disclosure

of NAACP membership lists, for instance,

the Supreme Court reasoned that the gov-

ernment's action represented a _ substan-

tial encroachment upon an individual's

right of privacy of association. See

Bates v. City of Little Rock, 361 U.S.

516 (1960).

More recently, in Roberts v. United

“Fl<-

States Jaycees, 104 S. Ct. 3244 (1984),

the Court expounded upon the meaning of

the individual component of freedom of

association. Writing for the majority,

Jystice Brennan noted that "choices to

enter into and maintain certain intimate

human relationships must be secured

against undue intrusion by the State be-

cause of the role of such relationships

in safeguarding the individual freedom

that is central to our constitutional

scheme." Id. at 3249. Freedom of associ-

ation, therefore, is to be protected as a

fundamental component of our personal

liberty. 2°/consistent with this

20/ The emotional enrichment individuals

draw from their affiliations with

(footnote cont'd)

-J2-

interpretation, the Court has accorded

constitutional protection to that select

group of intimate relationships and bonds

that cultivate shared ideals and beliefs.

See Zablocki v. Redhail, 434 U.S. 374,

383-86 (1978) (marriage); Smith v.

Organization of Foster Families 431 U.S.

816, 844 (1977) (raising and educating

children); Moore Vv. City of East

Cleveland, 431 U.S. 494, 503-04 (1977)

(footnote cont'd from previous page)

others, and the overriding tendency

of individuals to frame their

identity by reference to a particu-

lar group, provide the foundations

upon which the individual component

is premised. See Emerson, Freedom of

Association and Freedom of

Expression, 74 Yale L.J. l, 4

(1964).

oJFi3<

‘

a. -” —_—

er. Pee 4 - . "€

: Ck a ve er F : ~~ >

- r r « ry ~ = 4 — a ee ‘

_ ze o — Te Coes ees,

=< % Shieh an a

(cohabitation with relatives).21/rt has

also been held that an individual enjoys

the right to associate with the candidate

of his choice. See Buckley v. Valeo,

supra. This individual association may

be manifested by contributing money to,

or working for, the candidate's campaign,

Or supporting the candidate in the elec-

tion.

9 a ine eT Ly SRT

ae De

- me Skye

21/ These relationships share a variety

of common elements, including their

relative smallness, the intensity of

the affiliation, the depth of the

commitment and the commonality of

beliefs and ideals. As such, affil-

iations with these characteristics

implicate an individual's personal

liberty and should be presumed to

possess the requisite intimacy to

warrant protection under the indi-

vidual right of association rubric.

-74-

By contrast to the fertile develop-

ment of the individualistic aspect of as-

sociational rights, the collective compo-

nent, also conceived in NAACP v. Alabama,

remains largely nascent. In that case,

the Court referred to the ability of

NAACP "members to pursue their collective

effort to foster beliefs,” 357 U.S. at

463. In addition, the Court evinced a

concern with an association's ability to

advocate the beliefs of its members’ and

recognized that an association may be

able to realize objectives that differ

qualitatively from those attainable by

individuals.

The right to speak, petition or

-75-

= g = a ae. A SB —_ aa" : _——s : —e J , J =< ye er eee ae ee e a

OS ge ee eee = Te =“ ee oe

assemble would be hollow indeed if the

corresponding freedom to engage in group

effort toward those ends was not accorded

independent constitutional protection.

Because of this nation's abiding commit-

ment to pluralism, and our candid recog-

nition that the sum of an association may

often be far greater than its’ individual

parts, courts have been particularly hes-

itant to countenance any governmental in-

trusion -- either direct of indirect --

into the core of expressive group effort.

Whether the government seeks to withhold

benefits from individuals because of

their membership in a group or associa-

tion, see Healy v. James, 408 U.S. 169,

180-84 (1972); compe! disclosure of an

~FE=

individual's membership in a group

seeking anonymity, Brown v. Socialist

Workers '74 Campaign Committee, 459 U.S.

87, 91-92 (1982); or interfere with the

internal organization or affairs of the

association, see Cousins v. Wigoda, 419

U.S. 477, 487-88 (1975); such interfer-

ence with the right of collective associ-

ation may be justified only by narrowly

drawn regulations that serve coinpelling

state interests. For, as Justice

O'Connor stated in her concurring opinion

in Roberts v. United States Jaycees,

supra, such state regulation "will neces-

sarily affect, change, dilute, or silence

one collective voice that would otherwise

be heard.” 104 S. Ct. at 3259

oFiq

C. The Right of Political Association

Freedom of association confers a

right to join with others to pursue ac-

tivities independently protected by the

first amendment. Because political advo-

cacy and participation in partisan poli-

tics are lodged at the heart of the first

amendment, freedom of association neces-

sarily includes a right of political

association. Concomitantly, freedom of

association protects the right to form a

political party for the advancement of

partisan political beliefs.

Although the genesis of the consti-

tutional right of political association

-78-

’

. ‘

_ *

e =

a —

7 cor . le

_? Re car Pa

7 “ ia 2 es &

. ~ 4 = ee -

* a ail sll _ - bps — 2 a Loe ie oo — a2 — i a

ae a —_s a 9 ee ; a - a a

may be traced to NAACP v. Alabama, its

maturation occurred more than one decade

later when, in a series of decisions, the

Court transformed political association

from abstract theory into an effective

right.

In Williams v. Rhodes, 393 U.S. 23

(1968), the American Independent Party

challenged Ohio's ballot regulations,

which would have barred George Wallace,

the Party's candidate from inclusion on

the 1968 presidential ballot. Pursuant

to Ohio law, new parties were required to

file nominating petitions signed by a

number of registered voters equal to at

least fifteen percent of the total state

=~79-

‘

’

Be 7 = te i th a eee

— 7 ots ae sant .

ee A Py; d ra game. Te a r = :

aia =a -% “ oy) Po = Eee = pale. (i be Ca ea = ih at + °C y~ 2

vote in the last gubernatorial election.

For a candidate to have his name placed

on the November general election ballot,

these petitions were required to be filed

in February. Although the American Inde-

pendent Party satisfied the numerical re-

quirement by collective 450,000 signa-

tures, it did not file its petition by

the February deadline. The Supreme Court

concluded that the statutory electoral

scheme, which effectively limited the

ballot to two major parties, placed a

substantial burden on the right of indi-

viduals to associate for the advancement

of political ideas.*2/As Justice Black

22/ The Court also_ invoked the strict

scrutiny standard of equal pro-

(footnote cont'd)

-80-

‘

2 .

- ¥ ee eee ait — ew ae

= - > age ass 3 © 7 : . 7 on * 7 Oo -_ a ,

—_ ao ° i a i a - ‘ — 7 = s

. << oe - = ¥, Ss = ah ed : pd — . oe = ' = F - ss

reflected at the outset of his opinion

for the majority, "(t]he State of Ohio

. - has made it virtually impossible

for a new political party, even though it

has hundreds of thousands of members . .

. to be placed on the state ballot." Id.

at 24. Indeed, the Williams Court inti-

mated that a statutory regime denying a

group the fruits of their association --

political impact -- runs afoul of the

first amendment no less than one

precluding association itself. See lL.

Tribe, American Constitutional Law 779

(footnote cont'd from previous page)

tection review because it found a

burden placed on the right of voters

to cast their ballots effectively.

a8) @

(1978). Subjecting the Ohio regulations

to strict scrutiny, the Court found that

none of the interests proffered by Ohio

to justify its ballot access restrictions

was compelling.

Five years later, in Rosario v.

Rockefeller, 410 U.S. 752 (1973), the

Court rejected a challenge to a New York

statute that conditioned eligibility to

vote in a primary on a declaration of af-

filiation made eight to eleven months

prior to the primary election. The Court

noted that the petitioners -- who were

eligible to register and to declare their

party affiliation before‘the cutoff date,

but who did not do so until the deadline

-82-

‘

Steer .

~ v a Come oe

- 4 “le 2

= = 7 <2 ee ee ——— ‘ OR,

2 oe et ~ 7 = : : ; 7

ay . at a ” eae - — nF i 7 eae

a —* <9 , py oe a > = 2 its

ae ; Ss eae = ai aT eee aoe — e+ ae

had passed -- were indeed excluded from

the party wit which they identified.

Their associational rights were not in-

fringed, according to the Court, because

their disenfranchisement was the result

of their “own failure to take timely

steps to effect their enrollment." Id.

at 758. Accordingly, the Court subjected

the New York statute to only minimal

scrutiny and readily found a legitimate

state interest in preventing party

raiding.

That same Term, in Kusper Vv.

Pontikes, 414 U.S. 51 (1973), the Court

again expatiated upon the right of polit-

ical association, and struck down as

-83-

unconstitutional an Illinois statute pre-

venting persons from voting in a party

primary if they had participated in the

primacy of another party within the pre-

ceding twenty-three months. The Court

found that the petitioner, who had voted

in a 1971 Republican primary, was wed to

that party by the Illinois statute al-

though she no longer wished to be in-

dentified with it. "Unlike the petition-

ers in Rosario, whose disenfranchisement

was caused by their own failure to take

timely measures to enroll,” the Court

noted "there was no action that Mrs.

Pontikes could -have taken to make herself

eligible to vote in the 1972 Democratic

primary.” Kusper, supra, 414 U.S. at 60.

-84-

Focusing on the individual associational

component, the Court concluded that by

"locking her in," the Illinois statute

substantially infringed her right to as-

sociate "effectively with the [political]

party of her choice,” id. at 58, and

could be upheld only if it were shown to

be necessary to further a compelling

state interest that could not be achieved

by a less restrictive means. Examining

the Illinois durational affiliation stat-

ute in light of this standard, the Court

had little difficulty concluding that it

did not represent the least restrictive

means of preventing raiding and

preserving the integrity of the electoral

process.

-85-

: memati =

<i amen ei AE (I OO A a ees pw

ag eT a enn iae tem —— ee a g . : ” =

In 1978, the right of political as-

sociation enjoyed by a party and its ad-

herents was rearticulated and bolstered

in Cousins v. Wigoda, 429 U.S. 477

(1978). There, as in the instant case,

the Court was called upon to harmonize

the discord existing between state law

and party rules. At issue was a ruling

by an Illinois appellate court upholding

an order that prevented the 1972 Demo-

cratic convention from replacing certain

delegates elected in conformity with

Illinois law but in violation of a Demo-

cratic Party rule. The Court reversed,

reasoning that the injunction served no

compelling state interest and that the

State lacked sufficient justification to

-86-

intrude so extensively into the associa-

tional rights of party members. Although

the ratio decidendi of the case was that

a state possesses a meager interest in

preserving the integrity of a national

nominating convention, the Court's lan-

guage suggests that it is the party that

has an associational interest in deciding

who may participate in its activities.

Indeed, the opinion suggests that a

party's right to associate may even pro-

tect a more generalized right of group

self-governance. Id. at 490-91.

D. State Requlation of Primary Elections

In crafting an expansive right of

-§7~

political association, the Supreme Court

provided the analytical tools needed to

reconcile the inevitable tensions among a

political party's right to

self-determination, an individual's right

to participate in primary elections, and

the state's interest in regulating such

elections. These competing rights’ and

interests present three potential chal-

lenges: First, independent voters may

challenge a state-mandated closed pri-

mary, Claiming that they have a right to

vote in that primary election. In addi-

tion, a political party may challenge a

state-mandated open primary on the

grounds that it includes voters lacking a

right to participate in the primary

-88-

election. Finally, there exists the sit-

uation presented by the instant appeal:

A political party may chailenge a

state-mandated closed primary, claiming

the state regulations prohibit individu-

als with whom the party members wish to

associate from participating in the pri-

mary. To date, courts have addressed

only the first two of these challenges.

See generally, Note, "Primary Elections

and the Collective Right of Freedom of

Association," 94 Yale L.J. 117 (1984).

The first category of challenge was

raised in Nader v. Shaffer, 417 F. Supp.

337 (D. Conn.), aff'd mem., 429 U.S. 989

(1976). There, the United States

-89-

District Court for the District of Con-

necticut upheld the constitutionality of

section 9-431 of the Connecticut General

Statutes against a challenge by

unaffiliated voters who sought to partic-

ipate in the Republican Party primaries

against party wishes, 23/

Because denying an individual the

Opportunity to vote for a candidate in a

primary does not infringe his right of

association, see Rosario Vv. Rockefeller,

Supra, the court subjected section 9-43]

to a less than strict level of scrutiny.

23/ At the time, the Republican Party

rules did not permit unaffiliated

voters to vote in primary eleciions.

-90-

The court in Nader held that the state

had a legitimate interest in protecting

party members’ from any intrusion into

their "associational rights," Nader,

Supra, 417 F. Supp. at 846-47, including

the right of candidate Selection, by

those with adverse political principles.

In so concluding, the court implicitly

recognized that associational rights at-

tach to the political party in its candi-

date selection Process, but not to the

independent voter excluded from the pri-

mary. See €@lso Rodriquez Vv.

Popular Democratic Party, 457 U.S. 1, 14

(1982) (political party not required to

include nonmembers in procedure to se-

lect replacement for deceased

commonwealth legislator).

-9l-

This theory of collective associa-

tional rights also explains the Supreme

Court's decision in Democratic Party of

the United States vy. Wisconsin ex rel. La

Follette, 450 U.S. 107 (1981), which

presented the second type of challenge to

State regulation of primary elections.

There, the issue before the Court was

whether Wisconsin could constitutionally

compel the national Democratic Party to

seat at its national convention a delega-

tion chosen in a manner that expressly

violated the party's rules. The rules of

the national Democratic Party permit only

those individuals who are Willing to af-

filiate publicly with the Democratic

Party to participate in the Process of

-92-

selecting delegates to the Party's na-

tional convention. The Wisconsin elec-

tion laws, however, allow voters to par-

ticipate in its Democratic presidential

candidate preference Primary without re-

gard to party affiliation and without

requiring a _ public declaration of party

preference.

Relying on the associational rights

possessed by a political Party and its

adherents, the Court reasoned that free-

dom of association "necessarily presup-

poses the freedom to identify the people

who constitute the association, and to

limit the association to those people

only." Democratic Party, Supra, 450 U.S.

-93-

at 122. Because the members of the Demo-

cratic Party formulated rules defining

their associational rights, Wisconsin

could compel the Democratic Party to seat

a delegation in a manner that violated

the Party's rules only if such a statute

were supported by a compelling interest.

After examining Wisconsin's asserted in-

terests in preserving the overall integ-

rity of the electoral process, increasing

voter participation in primaries and pre-

venting harassment of voters, the Court °

concluded that these claims were insuf fi-

cient to justify the state's "substantial

intrusion into the associational freedom

of members of the National Party.” Id.

at 126 (footnote omitted).

-94-

In discussing the nature of this in-

trusion, the Court noted that "the inclu-

sion of persons unaffiliated with a _ po-

litical party may seriously distort its

collective decisions -- thus_ impairing

the party's essential functions." Id. at

122. Of even greater significance, the

Court reinforced the unstated principle

that "the stringency, and wisdom, of men-

bership requirements is for the associa-

tion and its members to decide." Id. at

123 n.25. After all, “a State... may

not constitutionally substitute its own

judgment for that of the Party." Id. at

123-24; see also Ripon Society, Inc. v.

National Republican Party, 525 F.2d 567,

585 (D.C. Cir. 1975) (en banc) ("[A]

-95-

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"), cert.

denied, 424 U.S. 933 (1976),

Manifest in the Court's decisions in

the area of political association, then,

is the Principle that absent a compelling

interest, a state may not interfere with

the associational rights enjoyed by po-

litical parties and their adherents.

Among these rights is that of 4a political

Party to choose its own Structure, select

its own standard bearers, and formulate

its own platform -- all free from the

-96-

intrusion of state regulation. See

Democratic Party, Supra. This principle

extends to party affairs in general and

to primary elections in Particular.

IV. DISCUSSION

Mindful of these tenets, we turn now

to the precise issue raised by the in-

Stant appeal: Whether Section 9-431 of

the Connecticut General Statutes substan-

tially interferes with the Republican

Party's collective right of political as-

sociation. Or, Phrased in its Simplest

terms, whether the right to delineate the

group of registered voters who may par-

ticipate in a primary election inheres in

-97-

the party alone or whether the state may

Play a substantial role in defining that

group.

For the reasons set forth below, we

believe that, absent compelling inter-

ests, the selection of candidates by a

political party is a function that prop-

erly falls to the party and not the

State. Accordingly, we hold that Section

9-431 Substantially interferes with the

Republican Party's first amendment right

to define its Structure, shape its

policies and engage in effective politi-

Cal association.

-98-

A. The Nature of the Intrusion

At first blush, Connecticut's intru-

Sion into the associational rights of the

Republican Party is not readily appar-

ent.?4/For, on its face, Section 9-431

24/

The State emphasizes that

unaffiliated voters seeking to par-

ticipate in the Republican Party's

primary may do so merely by regis-

tering with the Party one day prior

to the election, and urges that Sec-

tion 9-431 only incidentally burdens

the Republican Party's right of po-

litical association. This argument

is persuasive where independent vot-

ers challenge state laws excluding

them from Participating in primary

elections. See Nader, supra. In

such cases, the ability to comply

with the essentially pro forma re-

quirement of affiliation is exclu-

Sively within the power of the inde-

pendent voter, and the unaffiliated

(footnote cont'd)

-99-

merely prohibits voters who are not en-

rolled in a political Party from

(footnote cont'd from previous page)

voter excluded from the primary can-

not be deemed to have suffered any

infringement of his right to associ-

ate.

This reasoning is inapposite where a

political Party challenges a state

law excluding independent voters

from participating in its primaries.

Although independent voters possess

the ready means to overcome the bur-

den on associational rights imposed

by a closed primary law, the politi-

cal party does not. Indeed, there

is nothing the Republican Party may

do, pursuant to Section 9-431, to

permit unaffiliated voters to par-

ticipate in its primaries. Conse-

quently, the statute's affiliation

requirement Substantially burdens

the associational rights of a party

that seeks to broaden its appeal by

allowing unaffiliated voters to par-

ticipate in its candidate selection

process.

-100-

participating in Primary elections. The

Statute'’s intrusiveness, however, becomes

clear when one realizes that it is ex-

Pressly at odds with the Organizational

aims and electoral aspirations of the Re-

publican Party, which explicitly amended

its rules to permit unaffiliated voters

to vote in certain primary elections.

In essence, then, we are faced with

the situation where a statute -- enacted

by a Democratic controlled state legisla-

ture -- effectively regulates the struc-

ture and candidate selection process of

the Republican Party. In and of itself,

-101-

legislative definition of an associa-

tion's boundaries may not appear to run

afoul of the first amendment. Neverthe-

less, in light of the intimate relation-

ship between the structure of @ political

association and the message ultimately

transmitted by that group, we believe the

inexorable effect of the Connecticut leg-

islation is to alter the Party's message,

and thus strike at the very heart of the

first amendment. It is to these concerns

that we now turn.

The Supreme Court has recognized

that freedom of association serves as a

-102-

capacious shield according constitutional

protection to a variety of specific

rights. Among this bundle of associa-

tional freedoms is the right of a group

of individuals to form a political party

for the advancement of Partisan political

beliefs. See Cousins v. Wigoda, supra,

419 U.S. at 487. Indeed, the "basic

function of political parties” is to nom-

inate Candidates for the expression of

shared political beliefs, Kusper, supra,

414 U.S. at 58. If the right of politi-

cal association is to retain its vitali-

ty, then, a party must remain free to

seek compromise among the varied

-103-

interests of its adherents. Undue state

interference with the Party primary --

including state mandated exclusion of

unaffiliated voters -- stands to distort

the compromise that might have been

Struck among these varied interests and,

therefore, distort the party's choice

among competing political beliefs. By

Prohibiting unaffiliated voters from

participating in Party primary elections,

therefore, the Connecticut legislature

has influenced the content of the compro-

mise emerging from those elections.

Traditionally, unaffiliated or inde-

pendent voters have not parroted the

views expressed by the party faithful,

-104-

but have injected new and innovative

ideas into the political marketplace, and

challenged the status quo at every junc-

ture. See Adamany, "Crossover Voting and

the Democratic Party's Reform Rules," 70

Am. Pol. Sci. Rev. 536 (1976). Because

candidates for elected office frame their

positions largely by reference to what

they perceive to be the concerns of the

relevant electorate, Statutory circum-

scription of primary eligibility require-

ments is certain to affect the content of

the ultimate message transmitted by that

Party. Consequently, the right of polit-

ical association must be deemed to pro-

tect the ability of political party mem-

bers to identify those persons with whom

-105-

fe ae

ee en ee eS a a =:

they wish to associate and allow them to

play a part in determining the shared

ideals of the party. To rule otherwise,

would ignore the teachings of the first

amendment and countenance State control,

albeit indirect, over a political party's

ideology.

Collateral to Section 9-43l's indi-

rect interference with the Republican

Party's formulation of a political mes-

sage is the statute's diminution of the

effectiveness of the association itself.

The Supreme Court has held that a politi-

cal party enjoys the right to determine

the most effective manner in which to as-

sociate, select candidates, and maximize

-106-

its chances of victory in the general

election. See Kusper vy. Pontikes, Supra,

414 U.S. at 58; Williams v. Rhodes,

Supra, 393 U.S. at 30. After all, elec-

toral success -- whether as a means or as

an end -- is the raison d'etre of every

political party. See Storer v. Brown,

415 U.S. 724, 745 (1974).

The Republican Party in Connecticut,

however, has been disappointed repeatedly

in its quest for electoral success. Ad-

mittedly, the Principal reason for these

failures is the existence of fifty per-

cent more registered Democrats than Re-

publicans in Connecticut. The Republi-

can Party has sought to increase the

-107-

likelihood that candidates with a broader

base of popular Support will emerge from

its primaries -- that is, to maximize the

effectiveness of its associations -- by

amending its rules to allow unaffiliated

voters to participate in selected pri-

maries. The legislative branch, however,

has thwarted the Party's efforts to reap

the fruits of an expanded association

and, in so doing, has Substantially in-

terfered with the Republican Party's con-

Stitutionally protected right, see

Williams v. Rhodes, Supra, 393 U.S. at

30-31.

In analyzing the maze of legislative

motive and political effect, we cannot

-108-

ignore the fact that the Democratic

Party, which controls the State legisla-

ture, may have exploited its position to

Structure the electoral Process in such a

way aS to entrench itself in Dower and

immunize itself against successful attack

by the Republican Party. °°>/we are partic-

ularly wary of efforts by government of-

ficials to control the very electoral

25/ Apart from the ability to structure

the political process in an advanta-

geous manner, incumbents enjoy a va-

riety of other benefits that inure

to their electoral advantage. Per-

haps most significant among these is

the surfeit of press coverage ac-

corded incumbents, Particularly in

relation to their challengers. See

C. Tidmarch & B, Karp, "The Missing

Beat: Press Coverage of Congressio-

nal Elections," Congress & the

Presidency 47, 54-55 (Spring 1983).

-109-

System that serves as the primary check

on their power. Indeed, few concepts are

sO antithetical to the notion of repre-

sentative democracy as that of a tempo-

rary majority entrenching itself by

manipulating the system through which the

voters, in theory, may register their

dissatisfaction by choosing new leader-

ship. In this case, there exists at least

the spectre of such entrenchment. Every

attempt by the Republican Party to im-

prove its chances for electoral success

-- in a sense to enhance the compet i-

tiveness of the two-party system in Con-

necticut -- was thwarted by Democrats in

both houses of the state legislature, who

voted unanimously against legislation to

-110-

allow implementation of the Party Rule.

Moreover, on June 28, 1985, the Democrat-

ic Governor of Connecticut upheld his

promise to veto any legislation that

would allow the Republican Party to im-

plement its rule. Asa result of these

developments, we are constrained to con-

Clude that, to some limited extent, the

State of Connecticut has Stifled and in-

hibited robust political debate, placed

obstacles in the path of the Republican

Party's pursuit of elected offices and

new adherents, and thereby minimized the

accountability of elected officials to

their constituents.

Accordingly, we hold that Section

-lll-

9-431 Substantially interferes with the

Republican Party's first amendment right

to define its associational boundaries,

determine the content of its message, and

engage in effective political associa-

tion. As such, the statute must be sub-

jected to strict judicial scrutiny.

B. The State's Defense of Its Regulation

A state regulation that substantial-

ly burdens first amendment rights of po-

litical association may be upheld only if

Ss. necessary to advance compelling

State interests and only if it is tai-

lored to advance those interests in the

least restrictive manner, See Roberts v.

United States Jaycees, supra, 104 S. ct.

at 3258; Democratic Party v. Wisconsin,

supra, 450 U.S. at 124; Cousins v.

Wigoda, supra, 419 U.S. at 489; Williams

v. Rhodes, supra, 393 U.S. at 31; Unity

Party v. Wallace, 707 F.24 99, 62 (2d

Cir. 1983).

The State asserts that its mandated

Closed primary law is narrowly tailored

and is necessary to advance compelling

State interests -- preventing raiding,

avoiding voter confusion, Promoting a

Stable two-party System, and preserving

the integrity of the electoral process.

We address these Claims seriatinm.

-113-

l. Preventing Raiding

Raiding is a practice "whereby vot-

ers 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." Rosario

Vv. Rockefeller, Supra, 410 U.S. at 760.

The State's interest in preventing

raiding, though it may be legitimate in

certain contexts, 26/js inapposite in the

26/ The ability of a Party or a group of

persons to organize an effective

raid in an open primary "has never

been conclusively proven by survey

research." enness, Participation

and Part Building Reforms for a

Stronger Demcratic Party 68 (1978)

(Winograd Commission); see also A.

Ranney, "Turnout and Representation

in Presidential Primary Elections,"

66 Am. Pol. Sci. Rev. 21, 35-36

(1972).

~114-

instant action. The Party Rule allows

only unaffiliated voters to participate

in Republican Party primaries; no such

invitation has been extended to Democrats

Or members of other political parties.

Moreover, we believe the spectre of Demo-

cratic voters severing their party ties

en masse, and claiming independent status

to mount a raid on a Republican Party is

effectively eliminated by another section

of the Connecticut General Statutes, see

Conn. Gen. Stat. § 9-59, which provides

that a person affiliated with one party

may not vote in the primary of another

party within six months after leaving his

Original party.

-115-

Finally, the State's professed in-

terest in preventing raiding is belied by

its recent enactment of Public Act

84-118, permitting unaffiliated voters to

affiliate with a political party until

noon on the day immediately prior to the

primary election. It would appear anoma-

lous for a state truly concerned with

voter raiding to eliminate any obstacle

to independent voters determined to dis-

rupt the candidate selection Process of a

political party.

2. Avoiding Voter Confusion

The second interest articulated by

the State in defense of its closed

-116-

primary law is the need to avoid confu-

sion among voters. The State maintains

that, as a necessary concomitant of pref-

erential ballot access, it may ensure

that the candidate who wins a party pri-

mary accurately represents the views of

the party members, and not those of an

amorphous group of unaligned voters. The

State premises its argument on the as-

Sumption that many voters rely on parti-

san labels as shorthand for particular

ideologies, and thus presume that a can-

didate in the general election running

under a party banner espouses the views

generally held by party members, *’/see N.

27/ In general elections, few voters ex-

ercise independent judgment beyond

(footnote cont'd)

-117-

Nie, S. Verba & J. Petrock, The Changing

American Voter 47-56 (1976), Martin Van

Buren, Inquiry Into the Origin and Course

of Political Parties in the United States

6, 226 (1867). Arguing that such "reli-

ance" is widespread, the State claims it

has an interest in protecting voters from

confusion. Even if this interest were

deemed legitimate, a state certainly does

not have a compelling interest in

shielding from confusion those voters who

(footnote cont'd from previous page)

the most highly publicized races.

The further one moves down the bal-

lot, the more difficult it is for

voters to make selections without

relying on the party label. See Pp.

David, Party Strength in the United

States 302-03 (1972).

-118-

engaged in unthinking and Pavlovian reli-

ance on party labels. Cf. Williams v.

Rhodes, supra, 393 U.S. at 32. Moreover,

the State's position necessarily presumes

a duty to define the composition of po-

litical parties in such a way as to clar-

ify the political and ideological dis-

tinctions between them, In effect,

Connecticut professes to have a compel-

ling interest in deciding the ideological

slant and bases of support for a politi-

cal party. Most decidedly, however, it

is the prerogative of the political party

-- and not the state -- to determine

whether it should be structured as a

broad-based, relatively non-ideological

Organization or as a closely-knit,

-119-

Strongly ideological unit. The mere in-

cantation of a talismanic phrase such as

"voter confusion" cannot transform a

specious interest into a compelling one.

3. Maintaining the Two-Party System

The State further claims that its

Closed primary law maintains party in-

dentity, encourages politics of "coali-

tion and accommodation," A. Bickel,

Reform and Continuity 21-22 (1971), and

is therefore required to preserve a sta-

ble two-party system. In framing its ar-

gument, the State points to the parade of

horribles that would befall democracy if

the Party Rule were inplemented. Beneath

-120-

this veneer of hyperbole, we find little

substantive support for the State's posi-

tion. Moreover, the issue is not, as

urged by the State, which type of party

primary -- open or closed -- is prefera-

ble. Rather, the proper inquiry is

whether the State's insistence that the

Republican Party adhere to a particular

candidate selection process is justified

by a compelling interest.

We are unable to discern how

deviating from the state-mandated closed

primary system will breed the splintered

parties and unrestrained factionalism

feared by the State. Indeed, it would

appear that an open primary would achieve

-121-

precisely the opposite effect,

discouraging factionalism by forging a

broader coalition of interests within a

Single political party. See Dawson, "So-

cial Development, Party Competition, and

Policy,” in The American Party Systems

208-09 (W. Chambers & W. Burnham eds.

1967). 28/see also Anderson v. Celebreeze,

460 U.S. 780 (1983).

28/ The experiences of those states that

have adopted open primaries’ lend

support to this conclusion. See

Hawaii Rev. Stat. §$§ 12-31; Idaho

Code $$ 34-402, 34-404, 34-904;

Mich. Comp. Laws $$ 168.575,

168.576; Minn. Stat. § 204D.08(4);

Mont. Code Ann. § 13-10-301(2); N.D.

Cent. Code § 16.1-11-22; Utah Laws §

20-3-19(2); Vt. Stat. Ann. Tit. 17 §

2363; Wisc. Stat. $$ 5.37, 6.80(e).

-122-

By portraying change in the politi-

cal order as anathema, the State ignores

the flux that has traditionally charac-

terized our two-party system. 29/as cir-

cumstances change, parties must be free

to explore the political requisites of a

given period. Whether the course se-

lected by a party leads to success and

power or to failure and decline, the

first amendment guarantees that the deci-

sion be the choice of the Party, not the

State.

29/ "The principle is plain that there

can be no interference with freedom

of expression on the general ground

that it will lead to social change,

Or change at the wrong rate, or in

the wrong direction." T. Emerson,

The System of Freedom of Expression

47 (1970).

-123-

4. Preserving the Integrity

of the Electoral Process

The final interest proffered by the

State in defense of its closed primary

law is preserving the integrity of the

electoral process. Because primary elec-

tions are conducted at state expense, and

because the state strengthens political

parties by conferring preferential gener-

al election ballot access upon candidates

selected in party primaries, it cannot be

gainsaid that a state possesses a strong

interest in the operation of its elector-

al regime.

We can well imagine circumstances in

which the integrity of a state's

-124-

electoral processes is threatened, and

where some level of governmental intru-

sion into the administration of primaries

is necessary to protect the state's vital

interest in the fair and efficient run-

ning of elections. Indeed, states are

inevitably and inexorably involved in the

mechanics of elections, and this in-

volvement may always be characterized as

somewhat "intrusive." Each time a state

sets hours during which polls will be

open, or designates polling places, or

designs a system for absentee balloting,

its choice affects the ability of certain

persons to associate for political ends.

Nevertheless, as these intrusions become

more pronounced, and their effects

-125-

increase, the ill sought to be cured by

governmental involvement must become cor-

respondingly greater.

Notwithstanding Connecticut's claim

that implementing the Party Rule would

render the state's electoral processes

unmanageable and grant the Republican

Party "a practical veto over state law,

and the party [would] become[] a law unto

itself,” Brief for Appellant at p. 45,

we find little evidence in the record to

Support this assertion. Indeed, the

State of Connecticut appears more con-

cerned with the Party's ability to change

its rules at will than with the specifics

of the rule as it has_ enacted. The

-126-

thrust of the State's argument is that

the Party, if it may enact this rule, may

in the future enact any and all rules it

wishes. The fear expressed by the State

in its brief and voiced at oral argument

is that the Republican Party -- and, per-

haps, every other party -- may implement

new rules every year, requiring the State

to change its electoral procedures con-

stantly. The State further raises’ the

spectre of party rules altered on the eve

of election, forcing the State to

recalibrate its electoral system on a mo-

ment's notice.

Indeed, the concerns of the State

appear to be sincerely held. And, as we

-127-

have noted, we can imagine circumstances

where a state might in fact be forced to

spend vast sums of money and endure con-

Siderable inconvenience to effect the

whims of private political associaticas.

But we stress that, in this case, the

State's fears are just that -- fears, and

pure speculation will not Support as mas-

Sive a governmental intrusion into the

affairs of a political association as

that worked by Section 9-431.

As Justice Black noted in Williams

v. Rhodes, supra, 393 U.S. at 33, "No

(‘theoretically imaginable'] danger can

justify the... Crippling impact on the

basic constitutional rights involved in

-128-

this case." These words are particularly

apt in the instant action.

Even if we were to assume, arguendo,

that the State's compelling interest in

preserving the integrity and Stability of

its electoral Process was not overcome by

the hypothetical nature of the potential

abuses, we believe the State's interest

may be justified by means far less dras-

tic than its mandated closed primary.

If, for example, Connecticut's concern

truly lies with the constant changing of

Party rules, the State could Simply im-

pose a limit on the frequency with which

Party rules could be changed. Or, if the

State's fears were caused by the spectre

-129-

of last-minute changes in the manner of

selecting candidates, the legislature

could properly impose restrictions on the

ability of a party to change its rules

for a specified period prior to an elec-

tion. Unlike Section 9-431, such legis-

lation would be appropriately tailored to

achieve the State's interests, while si-

multaneously minimizing the intrusion

into a political party's first amendment

right of association.

V. CONCLUSION

For the foregoing reasons, we affirm

the judgment of the district court, en-

joining the Secretary of the State from

-130-

enforcing Section 9-431 of the Con-

necticut Gene-al Statutes.

OAKES, Circuit Judge (concurring):

While the issues are many and com-

plex, the answer in this case seems to me

evident. For the reasons perhaps best

Stated in the amici curiae brief of the

political scientists (James MacGregor

Burns, Barbara Burrell, William Crotty,

Roman B. Hedges, John S. Jackson III) and

in the Note, Primary Elections and the

Collective Right of Freedom of

Association, 94 Yale L.J. 117 (1984), I

concur in affirming the judgment. Both

-131-

broadly inclusive and narrowly exclusive

models of political Organizations were

anticipated (and are or should be pro-

tected) in light of the Purposes of the

First Amenduent, see The Federalist Nos.

10,47 (J. Madison); G. Wood, The Creation

of the American Republic, 1776-1787

18-28. 189-96, 319-28 (1969). And a po-

litical party is entitled. Democratic

Party v. Wisconsin ex rel. La _ Follette,

430 U.S. 107, 121-22 (1981); Cousins v.

Wigoda, 419 U.S. 477, 487-88 (1975), to

make the choice in the first instance as

to which model it wishes to follow, see

Police Department of the City of Chicago

Vv. Mosley, 408 U.S. 92, 96 (1972), pro-

vided of course that it does not engage

-132-

in invidious discrimination, directly or

deviously. Cox v. Louisiana, 379 U.S.

936, 557-58 (1965); NAACP v. Alabama, 357

U.S. 449, 462-63 (1958). No compelling

contrary state interest has been shown,

as Jeveloped in Judge Kaufman's Opinion.

The "problem" emphasized in the

State of Connecticut brief (pp. 7-14)

that the Republican Party Rule provides

for different voter qualifications for

Congress than it does for the State leg-

islature seems to me to be specious and I

would meet it more Squarely than does

that opinion. All that article I, sec-

tion 2 means, it seems to me, is that

anyone who is permitted to vote for the

-133-

most numerous branch of the state legis-

lature has to be permitted to vote for

Congress and the Seventeenth Amendment

applies the same rule to the election of

senators. This conclusion is buttressed,

first, by the constitutional history of

article I, section 2. As one commentator

puts it:

The difficulty confronting the con-

vention here lay in the fact that

every state had adopted different

qualifications for its electors.

Each state was a law unto itself.

The framers of the constitution,

therefore, saw that the adoption of

a uniform qualification for federal

voting was impossible, as it would

embarrass and inconvenience all the

States, no matter what qualifica-

tions might be adopted . ..,

Should an entirely new qualification

be adopted, it would perplex and

trouble all, and cause irritation by

excluding some from voting for mem-

bers of Congress, who would be able

-134-

to vote for members of the state

legislatures, or vice versa. The

convention, therefore, wisely adopt-

ed the qualifications fixed by the

States in their constitutions and

laws for the election "of the most

numerous branch of the State Legis-

lature."

1 D. Hutchinson, The Foundations of the

Constitution 31 (1975) (footnotes omit-

ted). It is true that the precise com-

promise adopted was by the Committee of

Detail, which did not in the fashion of

today's congressional committees issue a

report, but the Founding Fathers surely

appreciated, as Pennsylvania's James

Wilson put it, that "[i]t would be very

hard & disagreeable for the same persons

at the same time, to vote for representa-

tives in the State Legislature and to be

-135-

excluded from a vote for’ those in the

Natl. Legislature." Madison, Notes of

Debates in the Convention of 1787 40] (A.

Koch ed. 1966). Connecticut's Oliver

Elseworth, for example, warned that "peo-

ple will not readily subscribe to the

Natl. Constitution if it should subject

them to be disenfranchised." Id. Benjamin

Franklin and South Carolina's John

Rutledge spoke against "narrow[ing]” or

"restraining" the right of suffrage. Id.

at 404-405. While the debate centered on

the question whether the right of suf-

frage would be restrained to freeholders,

the sentiments expressed demonstrate that

broadening the right to suffrage rather

than narrowing it was the Father's aim.

-136-

cern

Secondly, there was a general con-

that

(t]he definition of the right of

suffrage is very justly regarded as

a fundamental article of republican

government. It was incumbent on the

convention, therefore, to define and

establish this right in the Consti-

tution. To have left it open for

the occasional regulation of the

Congress would have been improper

for the reason just mentioned. To

have submitted it to the legislative

discretion of the States would have

been improper for the same reason;

and for the additional reason that

it would have rendered too dependent

on the State governments that branch

of the federal government which

Ought to be dependent on the people

alone. To have reduced the differ-

ent qualifications in the different

States to one uniform rule would

probably have been as

dissatisfactory to some of the

States as it would have been diffi-

cult to the convention. The provi-

sion made by the convention appears,

therefore, to be the best that lay

within their option. It must be

Satisfactory to every State, because

it is comfortable to the standard

-137-

already established, or which may be

established, by the State itself.

It will be safe to the United States

because, being fixed by the State

constitutions, it is not alterable

by the State governments, and it

cannot be feared that the people of

the States will alter this Jart of

their constitutions is such a manner

as__to abridge the rights secured to

them by the federal Constitution,

The Federalist No. 52, at 326 (J.

Madison) (C. Rossiter ed. 1961) (emphasis

added). To be "comfortable to” is not to

be identical with. The use of qualifica-

tions of the most numerous branch of the

State legislatures was, then to serve as

a kuffer against a state's imposing

greater qualifications upon the voters

for the House of Representatives than

upon its own voters for the corresponding

branch of the state legislature. As

Madison put it in The Federalist No. $7,

Who are to be the electors of the

federal representatives? Not the

rich, more than the poor; not the

learned, more than the ignorant; not

the haughty heirs of distinguished

names, more than the humble sons of

obscure and unpropitious fortune.

The electors are to be the great

body of the people of the United

States. They are to be the same who

exercise the right in every State of

electing the corresponding branch of

the legislature of the State.

Id. at 351.

Thus, as Professor Corwin has stat-

ed, "It was the original constitutional

scheme to vest the determination of qual-

ifications for electors in the congres-

Sional elections solely in the discretion

of the States, save only for the express

requirement that the States could pre-

scribe nO qualifications other than

-139-

those provided for voters for the more

numerous branch of the legislature.”

Congressional Research Service, Library

of Congress, The Constitution of the

United States of America Analysis and

Interpretation 99-100 (1973). It does

not take away from this argument that the

States' power to prescribe those qualifi-

cations has been further limited, not

only by judicial decision, e.g.,

Carrington v. Rash, 380 U.S. 89 (1965),

and by four constitutional amendments (XV

(race); XIX (sex); XXIV (payment of poll

tax); XXV1 (age)), but by congressional

action under the Fourteenth Amendment,

section 5, e.g., 42 U.S.C. § 1973b(e),

upheld in Katzenbach v. Morgan, 384 U.S.

641 (1966).

-140-

Ane while I do not make much out of

the argument, it is true, of course, that

there was no such thing as a party pri-

mary when article I, section 2, was writ-

ten. There was, however, by the time the

Seventeenth Amendment (setting forth as

qualifications for voters for Senators

the same as for voters for the House) was

adopted (1913); yet the Amendment, though

Proposed by the Congress, does not speak

to primary elections as Congress could

and did do when it felt the necessity,

see U.S. Const. amend. XXIV.

Accordingly, I concur in the judg-

ment ot affirmance.

-141-

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