# Appendix — Tashjian v. Republican Party of Conn.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 208

## Text

3 f ——
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

a

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.

ee

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 -
er

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agua ~— ae,

a = on a 9 a
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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
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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-

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t : 5 . . “7 - 2 : : . ; ay
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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 -
3 ait ater - : reer te a
ee i a a ee TS ee ee ee er eae peereer es
. > _—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-

4
er’

i? SAT |
7 j Ty} are :

ae a a ¥ : aa
‘ - Yana at ‘a a

-
- a)

ok

Pat od —

a. -” —_—
er. Pee 4 - . "€
: Ck a ve er F : ~~ >
- r r « ry ~ = 4 — a ee ‘
_ ze o — Te Coes ees,
= age ass 3 © 7 : . 7 on * 7 Oo -_ a ,
—_ ao ° i a i a - ‘ — 7 = s
. = 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 =
/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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0412%3A03. Public record. Not legal advice.