Amicus Curiae Brief — Tashjian v. Republican Party of Conn.

Supreme Court, U.S, es

FILED =

ae See FEB 27 100

In Che JOSEPH F. SPANIOL, JRe |

Supreme Court Of Che Unitea-Stetes ——

OCTOBER TERM, 1985

JULIA H. TASHJIAN,

Secretary of the State of Connecticut,

Appellant,

4,

REPUBLICAN PARTY OF THE STATE OF

CONNECTICUT, LOWELL P. WEICKER, JR..,

STEWART B. McKINNEY, NANCY L. JOHNSON

end THOMAS J. D’AMORE, JR..,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

AMICUS CURIAE BRIEF OF WILLIAM J. CIBES, JR.

(Associate Professor of Government, Connecticut College),

CLYDE McKEE (Professor of Political Science, Trinity

College), SARAH McCALLY MOREHOUSE (Professor of

Political Science, University of Connecticut at Stamford),

WAYNE R. SWANSON (Professor of Government,

Connecticut College), POLITICAL SCIENTISTS,

IN SUPPORT OF APPELLANT

TIMOTHY D. BATES

Counsel of Record

Copp, Berall and Hempstead

302 Captain’s Walk

PO. Box 670

New London, CT 06320

(203) 442-4491

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................

STATEMENT OF INTEREST OF AMICI........

SUMMARY OF ARGUMENT ..................

A Aes Serre Ty opens yee re

I.

II.

III.

BEFORE ASSESSING THE STATE’S INTER-

EST, A COURT MUST FIRST DETERMINE

THE EXTENT TO WHICH BARRING UN-

AFFILIATED VOTERS FROM PARTICIPAT-

ING IN A PARTY PRIMARY ELECTION

INFRINGES ON THE PARTY MEMBERS’

FREEDOM OF ASSOCIATION ............... 3

DECISIONS OF THIS COURT HAVE

ESTABLISHED THE STANDARD FOR

EVALUATING WHETHER LEGISLATIVE

ENACTMENTS, SUCH AS CONNECTICUT'S

PROHIBITION OF UNAFFILIATED VOTER

PARTICIPATION IN PARTY PRIMARY

ELECTIONS, UNCONSTITUTIONALLY

INFRINGE FREEDOM OF ASSOCIATION ..... 6

THERE HAS BEEN NO SUBSTANTIAL

INFRINGEMENT OF APPELLEES’

FREEDOM OF ASSOCIATION ............... 8

A. The Party’s Associational Right To Attract

New Members Is Not Substantially

EPR pt Ls i AEE Tee bao, - &

IV.

TABLE OF CONTENTS (continued)

B. Connecticut Has Not Substantially Inter-

fered With The Internal Organization Or

Affairs Of The Group Which Has Asso-

ciated To Pursue Political Ends............. 10

1. The state is not forcing the Party to

accept members who may distort its

LE SI 10

2. The state is not hindering the Party’s

internal, non-elcctoral decision-making

Cie ws cee y ese bese s 12

C. The National Party’s Rules And Decisions

Are Not Regulated By The State, And The

Connecticut Statute Has No Extra‘Territorial

Ne ewe ce wcces 13

CONNECTICUT'S LEGITIMATE INTER-

ESTS IN ADOPTING THE REGULATION

HERE INCLUDE ENCOURAGING PARTY

COHESION, SHARPENING POLITICAL

DEBATE, AND PREVENTING DISTOR-

TION OF THE ELECTORAL PROCESS....... 14

TABLE OF CONTENTS (continued)

Page

V. POLITICAL SCIENTISTS HAVE CON-

CLUDED THAT DISTORTION OF VIEWS

OF PARTY MEMBERS MAY OCCUR IN

PRIMARY ELECTIONS OPEN TO ALL

VOTERS, THUS DIMINISHING THE

COHESIVENESS OF THE PARTY, AND

ACCORDINGLY HAVE SUGGESTED THAT

UNAFFILIATED VOTERS BE BARRED

FROM PRIMARY ELECTIONS .............. 19

VI. DEPARTING FROM THE STANDARD OF

REVIEW ESTABLISHED BY THIS COURT,

AND FOLLOWING THE CIRCUIT COURT'S

ANALYSIS, MAY CALL INTO QUESTION

MANY ELECTORAL LAWS OF THE

a aia 650% k sd 6 434 Kus pease ee en 25

iii

TABLE OF AUTHORITIES

Cases: | Page(s)

Anderson v. Celebrezze, 460 U.S. 780

ge a tas oe ee ae 9, 13, 14, 16

Bates v. City of Little Rock, 361 U.S. 516 (1960)...... 12

Commonwealth v. Rogers, 181 Mass. 184, 63 N.E.

sg rg ne Luh ee ee a 6 15

Cousins v. Wigoda, 419 U.S. 477

CE ee be en aan aw ek 5, 6, 7, 10, 11, 13, 14

Democratic Party of the United States

v. Wisconsin ex rel. LaFollette,

450 U.S. 107 (1981) .......... 5, 6, 10, 11, 13, 18, 22

Healey v. Wipf, 22 S.D. 343, 117 N.W. 521 (1908) ...... 4

Kusper v. Pontikes, 414 U.S. 51 (1973) .......... 6, 9, 18

Marchioro v. Chaney, 442 U.S. 191

I tien Rat tas basta al i pd Is 3, 6, 7, 8, 11, 12, 27

NAACP v. Alabama ex rel. Patterson,

ae ee ne ae ee 12

Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.

1976) aff'd mem., 426 U.S. 989 (1976)............ 17

Ray uv. Blair, 343 U.S. 214 (1952) ................... 17

Rice v. Elmore, 165 F. 2d. 387 (4th Cir. 1947) ..... .. 13

Roberts v. Jaycees, US. , 104 S.Ct.

cir is ent eee ear aa 5, 10, 12, 13

iv

TABLE OF AUTHORITIES (continued)

Cases: Page(s)

Rosario v. Rockefeller, 410 U.S. 752 (1973) ......... 9,18

Smith v. Penta, 81 N.J. 65, 405 A.2d 350 (1979) ...... 17

Storer v. Brown, 415 U.S. 724 (1974) ........... 4, 7, 12

Tansley v. Grasso, 315 F. Supp. 513 (D. Conn. 1970)... . 4

Williams v. Rhodes, 393 U.S. 23 (1968)............... 7

Connecticut General Statutes:

I aa 6 a ee oa ae ea oak Wea oe ee 12

I ia on Fas Ha rk ta Oe Pe en ee oe 9, 26

Nd 5s boa a ed bE ee 4 eee 26

Cs) vse bac hea Rea Cre ee cena eee 26

Ts ak ake ha cae ane a eae Oe eee eee 26

rr rea ah nanan nar tay a al. J 26

Ks Oud rea os ee os Cee eee ee ee 26

I SS fata rea nh gh Te ee eae 26

ES for so ok eo alk oa ee ee ae ee ae 25

SRR RI Ate aN ry RM Ur pe Rar 19, 25

Scr GREE re PS oo eek fe ES eee 26

SR ee NP NN A SB ER Bins tn loan tah Pa 26

ER at eg See aia aie lane Re cane et eee 19

S56. 60 n CA eee ere cae eee 10, 26

TABLE OF AUTHORITIES (continued)

Qtt-- Authorities: Page(s)

D. Adamany, ‘‘Cross: Over Voting and the Democratic

Party’s Reform Rules,’ 70 Am. Pol. Sci. Rev. 536

ra ee ae ae Oe ee ON ee ew ee ews 22

American Political Science Association, Toward a

More Responsible Two-Party System (1950) ...... 23

C.A. Berdahl, ‘‘Party Membership in the United

States, I’’ 36 Am. Pol. Sci. Rev. 16 (1942)........ 16

C.L. Carr and G.L. Scott, ‘““‘The Constitutionality of

State Primary Systems: An Associational Rights

Analysis,’ 10 J. Contemp. Law 83 (1984).......... 5

S. Gottlieb, ‘“‘Rebuilding the Right of Association:

the Right to Hold a Convention as a Test Case,’

BD Be ts HE BE ED oc ce ste ce seer snnes 5

R.*Hedlund, M.W. Watts and D.M. Hedge, “‘Voting

in an Open Primary,’ 10 Am. Pol. Q. 197 (1982)... 21

M.E. Jewell, Parties and Primaries: Nominating

ie ab ab ackls's s 24

M.E. Jewell, ‘Political Parties, Courts, and the

Nominating Process,’ Paper presented to

the Southern Political Science Association,

Dai cs tka daseeb ewes ees 23, 24

VO. Key, Politics, Parties, & Pressure Groups

LR Nh PORN De dg 5 5 6 ewes 23

J. Lengle, Representation and Presidential

Primaries: The Democratic Party in the

ere ee eee 20, 22

C.E. Merriam and L. Overacker, Primary

ee ee a aks 4.4 04 0 6 8 4,15

S. Morehouse, State Politics, Parties and

SS eins. iy kek a op 0a Ns 20, 23, 25

vl

TABLE OF AUTHORITIES (continued)

Other Authorities: Page(s)

Note, ‘Freedom of Association and State Regulation

of Delegate Selection: Potential for Conflict at

the 1984 Democratic National Convention,’ 36

pee 14

Note, “It’s My Party and I'll Cry If I Want To: State

Intrusions Upon the Associational Freedoms of

Political Parties—Democratic Party of the\U/nited

States v. Wisconsin ex rel. LaFollette,’ 1983 Wis.

ie a SNE RS ans ae er Ie a 6

G. Orren, ‘“‘The Nomination Process: Vicissitudes

of Candidate Selection,’ in The Elections of

1984, at 27 (M. Nelson ed. 1985)................ 21

D. Price, Bringing Back the Parties (1984)..... 22, 23, 24

E. Schattschneider, Party Government (1942) ........ 19

G.L. Scott and C.L. Carr, ‘Political Parties Before

the Bar: The Controversy Over Associational

Rights,’ 5 Univ. of Puget Sound L. Rev.

eee Oe ee 5

L. Tribe, American Constitutiona!

See Ma ee ce a aa a 8, 9, 10, 18

Vii

STATEMENT OF INTEREST OF AMICI

Amici who have joined this brief are professors of political

science at colleges located in the state of Connecticut. In that

capacity, amici teach and study the political party system as

it pertains to government, particularly in Connecticut, where

they live and work. Because of this convergence, amici have

a special insight into the party system and election process

in Connecticut. Amici believe that the state legislature acts

properly in regulating participation in primary elections so

that those who associate with political parties are protected

from those who attempt to intrude upon their association.

In addition, an author of this brief, William Cibes, is a

state representative as well as an associate professor of

political science. He thus brings a unique perspective to the

issues facing the Court in this matter.

The parties to this appeal have consented to the filing

of this brief by amici, and the consent letters are filed with

this Court.

SUMMARY OF ARGUMENT

Those who challenge a state’s regulation of primary elec-

tions on the ground that the freedom of association of

members of a political party is thereby violated must first

demonstrate that the action of the state has substantially

infringed the protected right to associate for political pur-

poses. This Court has clearly delineated, in a series of cases,

criteria for determining when such a substantial infringement

has occurred. A severe burden on the right to associate is

imposed if a party is prevented from attracting new members

to its ranks, thus freezing the political status quo. A substan-

tial infringement occurs if a state a) forces a political party

to accept members it does not desire, b) regulates purely

internal, non-electoral processes of the party, or c) infringes

on intrinsic aspects of a completely private organization.

There may also be a significant burden if the regulation of

the state has an extra-territorial reach. Since none of these

criteria of ‘substantial infringement’”’ is present in this case,

and since no substantial infringement in fact occurs in this

case, the state need not demonstrate that it has a compelling

interest in restricting to members of a political party the right

to participate in a primary election of that party. Instead, the

state need only demonstrate the legitimacy of its interest in

adopting the statute at issue here. As amici politica! scien-

tists will demonstrate, a state has a legitimate interest in

preventing major political parties from making short-term

expedient decisions which undermine the long-term integrity

of the electoral process. Because the Circuit Court has erred

in requiring that Connecticut show a compelling interest in

regulating the participation of unaffiliated voters in primary

elections, this Court should reverse the decision of the Court

below.

to

ARGUMENT

I. BEFORE ASSESSING THE STATE’S INTEREST, A

COURT MUST FIRST DETERMINE THE EXTENT

TO WHICH BARRING UNAFFILIATED VOTERS

FROM PARTICIPATING IN A PARTY PRIMARY

ELECTIOP INFRINGES ON THE PARTY

MEMBERS’ FREEDOM OF ASSOCIATION.

The constitutional analysis which this Court should apply

in the instant case is a straightforward extension of Marchioro

v. Chaney, 442 U.S. 191 (1979), a case not considered by either

of the lower courts here.

Marchioro recognizes a constitutional coilective freedom

of association possessed by members of political parties, as

well as a basis for state regulation of certain activities in which

political parties engage, and provides a procedural and

substantive guideline for judicial reconciliation of these often

conflicting principles. That guideline procedurally requires

that a court first determine whether the freedom of associa-

tion is substantially infringed by state regulation. If it is, but

only if it is, the covrt must evaluate whether the state has

a compelling interest in regulating the activity. Otherwise,

the state need only show a legitimate interest in the regula-

tion in question.

Substantively, this two-step procedure permits the

recognition that all assertions of a political party’s right to

be free from regulation are not equally precious. State regula-

tion may, for example, prevent the very existence of a party

as an expressive association. Surely the state must then

demonstrate a compelling interest in destroying the party’s

ability to communicate a coherent message. On other occa-

sions, as here, the regulation of the state may be minimal, not

precluding or penaliziiig the exercise of an essential expressive

function. In such a situation, Marchioro permits the power

of the state to be employed if the state can demonstrate a valid,

rational reason for its action, as it has done here.

Some statements by lower courts, especially when the

exercise of state regulatory power over primary elections was

first questioned, may be read broadly to appear to grant an

almost total discretion to states to regulate at least those

activities ot political parties which touch on elections. An early

South Dakota decision, quoted in a 1920s study of primary

elections, asserts that ‘‘ ‘we are aware of no decision wherein

it is held that the legislature is without power to prescribe

any mandatory rule whatever for the regulation of party pro-

cedure so far as it concerns nominations to public office’ ”’

Healey v. Wipf, 22 S.D. 343, 117 NW. 521, 522 (1908), as quoted

by C.E. Merriam and L. Overacker, Primary Elections 119

(1928). The statement by this Court in Storer v. Brown, 415

U.S. 724 (1974), that “‘[i]t is very unlikely that all or even a

large portion of the state eiection laws would fail to pass

muster under our cases,” id. at 730, might also be read, stand-

ing alone, to confer this Court’s imprimatur on any election-

related state statute. A three-judge district court in Con-

necticut has also observed that ‘‘[t]he states have broad

discretion in formulating election policies.’ Tansley v. Grasso,

315 F. Supp. 513, 519 (D. Conn. 1970). Such observations

might appear to justify any state law which coul’’ ve inter-

preted to affect an election, regardless of the remoteness of

the impact, or the adverse effect it might have on associational

freedom.

But there must be limits to such state regulation, lest it

be possible ‘‘for a Democratic legislature to make the test [of

party allegiance] at a primary election a belief in free coinage

of silver, or Republicans to make adherence to a protective

tariff a requirement,’ as Merriam aid Overacker, supra at 125,

summarize a California court’s opinion. Although primary

election laws ‘‘regulating the internal affairs of a political

party’’ were “‘universally conceded to be constitutional,’

Merriam and Overacker observe that “‘[t]he courts were careful

topointout . . . that this legislative power to regulate party

affairs must be exercised within the bounds of reason and not

arbitrarily.’ Supra at 120.

On the other hand, appellee Republican Party in this case

essentially argues that the freedom of collective association

constitutionally prevents the state of Connecticut from

statutorily barring voters unaffiliated with the Party from

voting in a primary election to nominate candidates of the

Party if the Party, by Party rule, decides to permit such un-

affiliated voters to participate. Specifically, appellees’ claim

in this case is that the state of Connecticut, in pursuing the

goal of protecting the members of a political party from intru-

sion by others, may do so only if it has demonstrated a com-

pelling interest.

Such an argument stands the freedom of collective

association on it : head. Those commentators who have ad-

dressed the issue aave almost uniformly defended a collective

freedom of association because of their belief that political

parties should be free from intruders, thrust upon them by

state action, who could distort the collective choice of those

who are members of the group. See S. Gottlieb, ‘“‘Rebuilding

the Right of Association: the Right to Hold a Convention as

a Test Case,’ 11 Hofstra L. Rev. 191 (1982), C.L. Carr and G.L.

Scott, ““The Constitutionality of State Primary Systems: An

Associational Rights Analysis,’ 10 J. Contemp. Law 83 (1984)

and G.L. Scott and C.L. Carr, ‘‘Political Parties Before the Bar:

The Controversy Over Associational Rights,’ 5 Univ. of Puget

Sound L. Rev. 267 (1982). Dicta in a number of cases in this

Court and in lower courts indicate a similar reason for insisting

on the right of association. See, e.g., Cousins v. Wigoda, 419

U.S. 477 (1975), Democratic Party of the United States v.

Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981), and Roberts

v. Jaycees, US. , 104 S.Ct. 3244 (1984).

It would indeed be ironic should the freedom of collec-

tive association now be applied to prevent the state of

Connecticut from achieving ar end which the freedom of

association 1s supposed to facilitate: the protection of groups

from invasion by those with different beliefs.

II. DECISIONS OF THIS COURT HAVE ESTAB-

LISHED THE STANDARD FOR EVALUATING

WHETHER LEGISLATIVE ENACTMENTS,

SUCH AS CONNECTICUT’S PROHIBITION

OF UNAFFILIATED VOTER PARTICIPATION

IN PARTY PRIMARY ELECTIONS, UNCON-

STITUTIONALLY INFRINGE FREEDOM OF

ASSOCIATION.

This Court, in a long line of cases dealing with the power

of a state to regulate various activities of a political party,

has clearly and undeviatingly established the standard of

review to be applied, a standard fully elaborated in Marchioro

and other cases. A judicial inquiry must first determine if a

state law imposes ‘‘substantial burdens on the freedom to

associate” or if only ‘‘minor restrictions on associational activ-

ities’ are imposed. Note, ‘It's My Party and I’ll Cry If I Want

To: State Intrusions Upon the Associational Freedoms of

Political Parties—Democratic Party of the United States v.

Wisconsin ex rel. LaFollette,’ 1983 Wis. L. Rev. 211, 220. Only

then does the court proceed to the second step of the analysis,

which varies according to the decision at the first step.

If, on the one hand, as in Democratic Party, supra, the

Court finds a ‘‘substantial intrusion into the associational

freedom of members of the National Party,’ id. at 126, the

Court must then consider ‘“‘whether the State has compelling

interests that will justify the imposition of its will’ on the

party. Id. at 124. In Kusper v. Pontikes, 414 U.S. 51 (1972),

this Court first considered whether the statute there at issue

“substantially restrict{ed]”’ the voter’s right to change his affil-

iation, id. at 57. Only when it had determined that there had

been a “‘significant encroachment upon associational

freedom,” id. at 58, did it proceed to evaluate the extent of

Illinois’ interest, stating that the interference ‘‘could not be

justified upon a mere showing of a legitimate state interest.’

Id. at 58. In Cousirs v. Wigoda, supra, this Court also appar-

ently first considered the petitioners’ contention that the in-

junction there at issue was a “‘ ‘significant interference’ with

protected rights of political association.’ Jd. at 488. Only then

did it proceed to determine if ‘Illinois had a compelling inter-

est.’ Id. at 489. Also apposite to this inquiry is Storer v.

Brown, 415 U.S. 724 (1974), dealing with a California dis-

affiliation requirement for candidates. Citing Williams v.

Rhodes, 393 U.S. 23 (1968), this Court stated the requirement

that there first must be a finding that the statute ‘‘severely

burdened the right to associate for political purposes;”’ if so,

then the discriminations “‘had to be justified by compelling

state interests.’ Storer, supra at 729. In each instance, the

plaintiff had to meet the initial burden of showing that his

associational right had been substantially restricted before

the Court would even consider whether the state’s interests

were compelling.

If, on the other hand, as in Marchioro v. Chaney, supra,

t. is Court finds that “there can be no complaint that the

party’s right to govern itself has been substantially burdened

by statute,” id. at 199, this Court then must only determine

if the state’s interest is ‘‘legitimate.’ Jd. at 196. The Marchioro

Court specifically distinguished Cousins: ‘‘In Cousins, unlike

this case, there was a substantial burden on associational

freedoms. This fact alone distinguishes the two cases, and

renders Cousins inapposite’’ Jd. at 199 n.15. Moreover, it

summarized with approval the ruling of the Washington

Supreme Court:

The state court reasoned that although “* ‘substan-

tial burdens’ ’’ on the right to associate for political

purposes are invalid unless “‘ ‘essential to serve a com-

pelling state interest; ’’ these appellants failed to

establish that this statute had imposed any such

burden on their attempts to achieve the objectives

of the Democratic Party. Since this initial burden had

not been met, the court upheld the constitutionality

of the challenged statute.

Id. at 195 (footnote omitted).

The standard employed in these cases confirms ‘‘the

analytic paradigm employed in determining the constitu-

tionality of state impingements upon party autonomy” which

one leading commentator suggested in 1978: ‘‘mild restric-

tions on political parties must relate rationally to some

legitimate state interest; if a state rule substantially erodes

the freedom of association of party members, however, the rule

will be upheld only if it is shown necessary to serve a com-

pelling state interest.’’ L. Tribe, American Constitutional Law

786 (1978).

In the instant case, however, the Circuit Court ‘‘was con-

strained to conclude”’ only that ‘‘to some limited extent’’ Con-

necticut had placed restrictions 9n the state Republican Party.

See J.S. App. at 111 (emphasis added). Despite this evalua-

tion, the Circuit Court then held, in a clear misapplication of

this Court’s rulings, that the compelling interest test must

be used to determine whether the regulation was constitu-

tionally justified.

III. THERE HAS BEEN NO SUBSTANTIAL

INFRINGEMENT OF APPELLEES’

FREEDOM OF ASSOCIATION.

As in Marchioro v. Chaney, the “‘initial burden,’ supra

at 195, of demonstrating that the state has imposed a substan-

tial restriction on the right of association has not been met.

This Court has not left lower courts in the dark in defining

the standard to be applied, but has clearly established criteria

for measuring ‘‘substantial burden.’

A. The Party’s Associational Right To Attract New

Members Is Not Substantially Burdened.

Connecticut has not substantially interfered with the

right of members of the Republican Party to associate with

whomever they desire to attract to membership in their party.

Unlike the requirement which locked a voter into a pre-existing

party affiliation, declared unconstitutional by this Court in

Kusper v. Pontikes, supra, and even unlike the delayed-

enrollment scheme upheld in Rosario v. Rockefeller, 410 U.S.

752 (1973), Connecticut specifically permits Connecticut

Republicans to continue to attract party members by permit-

ting them to affiliate with the party until noon of the business

day before a primary election. Conn. Gen. Stat. § 9-56. There

is no 23-month waiting period before affiliation takes effect.

which in essence “‘absolutely precludefd]’’ the appellee in

Kusper from voting in her chosen party’s primary, and thus

absolutely barred members of that party from attracting her

support during that period. Kusper, supra at 58. The statute

here ‘‘does not freeze the status quo,’ Anderson v. Celebrezze,

460 U.S. 780, 806 at 817 (1983) (Rehnquist, with White, Powell,

and O’Connor, dissenting) which all Justices of this Court

agreed was impermissible in the context of filing deadlines

on presidential candidates imposed by Ohio. Jd. at 794.

Even if it may be assumed, arguenda, that it is crucial

to a party’s electoral success at the general election to attract

new members during the primary election campaign—an

assumption which may be empirically baseless—the state

erects no substantial barrier here. The Party is able to place

a host of potential candidates for its nomination in the field.

They may campaign actively, seeking the support not merely

of party members, but of unaffiliated voters, free to solicit

and encourage them to affiliate with the party and add to its

numbers, ur til the day before the primary election. All that

is minimally required is that those whom the party is able

to attract to its ranks declare their allegiance to the party by

registering with it one day before they cast their vote.

Professor Tribe concludes, after an analysis of Kusper,

supra, and Rosaria, supra, that “contemporaneous affiliation,”

a requirement essentially similar to Connecticut’s one-day

waiting period, is justifiable. In terms as applicable to the

party members’ collective freedom of association as to an

individual’s right to associate, he suggests that “‘|aJbsent a

willingness to profess such affiliation, it would be tenuous to

assert that substantial associational rights were being

abridged; without a commonality of interest, there is little

association to abridge.’ Tribe, supra at 793.

B. Connecticut Has Not Substantially Interfered

With The Internal Organization Or Affairs Of

The Group Which Has Associated To Pursue

Political Ends.

1. The state is not forcing the Party to accept

members who may distort its views.

Unlike the Illinois state lav’ found to be superseded by

the decision of the Democratic national convention in Cousins

v. Wigoda, supra, unlike the Wisconsin rule which bound the

Wisconsin delegates to the national party convention to honor

the results of the Wisconsin open primary in voting for

presidential candidates, declared void in Democratic Party,

supra, and unlike certain other government actions referred

to in Roberts v. Jaycees, supra, as infringing on the right to

associate for expressive purposes, the Connecticut statute

does not intrude “‘into the internal structure or affairs of an

association’”’ in that it does not “‘force[ ] the group to accept

members it does not desire.’’ It does not “‘impair the ability

of the original members to express only those views that

brought them together.’ Roberts v. Jaycees, supra at 3252.

Like the Minnesota Human Rights Act upheld by the Court

in Roberts, the statute “requires nochangein. . . creed .

and it imposes no restrictions on the organization’s ability

to exclude individuals with ideologies or philosophies different

from those of existing members.” Roberts, supra at 3254. On

the contrary, the Connecticut statute here at issue, Conn. Gen.

Stat. § 9-431, seeks to protect the associational rights of

members of the Republican Party from interlopers.

10

2. The state is not hindering the Party’s internal,

non-electoral decision-making process.

Unlike the actions of Illinois in Cousins v. Wigoda, supra,

which sought to override the internal rules of the Democratic

Party for the selection of delegates to be seated at its national

convention, and unlike the Wisconsin statute in Democratic

Party v. Wisconsin, supra, which bound by state law votes

of delegates to the national convention, the Connecticut

statute here in question does not deal with the internal pro-

cesses of the Republican Party, but with a primary election

which determines which candidate will be granted access to

the general election ballot.

Marchioro v. Chaney, supra, clearly distinguishes

‘* ‘purely internal party decisions; ’’ id. at 197, from the

“critical role played by political parties in the process of select-

ing and electing candidates for state and national office.’ Jd.

at 196. This Court classified as internal functions the State

Committee’s power to

act as the party’s governing body when the Conven-

tion isin adjournment [,]. . . authority to organize

and administer the party’s administrative apparatus,

to raise and distribute funds to candidates, to con-

duct workshops, to instruct candidates on effective

campaign procedures and organization, and generally

to further the party’s objectives of influencing policy

and electing its adherents to public office.

Id. at 193.

Regulation of these matters might well be a significant in-

fringement of associational freedom. However, statutes which

regulate ‘‘the orderly participation of the political party in

the electoral process,” id. at 197, are supportable. ‘““The State’s

interest in ensuring that this process is conducted in a fair

and orderly fashion is unquestionably legitimate; ‘as a prac-

tical matter, there must be a substantial regulation of elections

11

if they are to be fair and honest and if some sort of order, rather

than chaos, is to accompany the democratic processes. ’’ Id.

at 196, quoting Storer v. Brown, supra at 730.

In the instant case, the Connecticut Republican Party

does not even purport to be defining criteria for party member

ship. The Party rule involved here does not deal with member-

ship in the Party per se, or with standards for determining

membership—because those who vote in the primary do not

by that act become party members—but only with who may

participate in the state electoral process of selecting people

who will receive the party’s nomination for state office. This

matter clearly falls under the rubric of electoral decision-

making and hence is not internal.

3. The Party is not a purely private organization.

Unlike the various state actions which sought disclosure

of the membership lists of private organizations, such as those

struck down in NAACP v. Alabama ex rel. Patterson, 357 U.S.

449 (1958) and Bates v. City of Little Rock, 361 U.S. 516 (1960),

and unlike other statutes considered in cases cited in Roberts

v. Jaycees, supra at 3250-52, the Connecticut statute here

does not regulate a purely private organization, the members

of which have an “‘intrinsic’’ right to “‘enter into and main-

tain certain intimate human relationships [which] must be

secured against undue intrusion by the State because of the

role of such relationships in safeg uarding the individual

freedom that is central to our constitutional scheme.” Jd. at

3249. The Republican Party is not distinguished by its

‘relative smallnesc, a high degree of selectivity in decisions

to begin and maintain the affiliation, and seclusion from others

in critical aspects of the relationship.’ Jd. at 3250. Indeed,

the names of those affiliated with the Republican Party or

any other political party are open to anyone for public inspec-

tion, and are disseminated widely so that the affiliated voters

may be targeted to receive information. Conn. Gen. Stat.

§ 9-55. There has been no showing in this case that the Party

12

“employs any criteria for judging applicants for membership.’

Roberts, supra at 3251.

As the Fourth Circuit Court of Appeals observed in

another context in Rice v. Elmore, ‘‘The fundamental error

in [South Carolina’s] position consists in the premise that a

political party is a mere private aggregation of individuals,

like a country club, and that the primary is a mere piece of

party machinery.’ 165 F. 2d. 387, 389 (4th Cir. 1947) (footnote

omitted).

C. The National Party’s Rules And Decisions Are

Not Regulated By The State, And The Connecti-

cut Statute Has No Extra-Territorial Reach.

This Court has never expressly ruled on the question of

whether states may regulate the conduct of primary elections

by state parties which determine the party’s nominee in a state

election. The majority in Cousins emphasized that ‘‘the only

question that we decide today,’ id. at 483 n.4, is ““whether the

Appellate Court was correct in according primacy to state law

over the National Party’s rules in the determination of the

qualifications and eligibility of delegates to the Party’s

National Convention,” id. at 483, a view with which Justice

Powell agreed: ‘‘state regulation of state primaries or conven-

tions for state offices raises different considerations requir-

ing a wholly different balance.’ Jd. at 496, 497 n* (Powell, J.,

concurring and dissenting).

But unlike the injunction overturned in Cousins, supra,

unlike the statute struck down in Democratic Party, supra,

and unlike the early filing deadline for Presidential candidates

declared void in Celebrezze, supra, the Connecticut statute

does not have extra-territorial application. It does not

‘seriously undercut or indeed destroy the effectiveness of the

National Party Convention’”’ which ‘‘serves the pervasive

13

national interest in the selection of candidates for national

office,’ which “national interest is greater than ay interest

of an individual State.’ Cousins v. Wigoda, supra at 490. Here

no state restriction is imposed on a “‘nationwide electora: pro-

cess,’ which the ‘State has a less important interest in

regulating. . . than statewide or local elections, because the

outcome of the former will be largely determined by voters

beyond the State’s boundaries.’ Anderson v. Celebrezze, supra

at 795.

Indeed, the possibility of conflict between state regula-

tion and national rules does not even arise with the Republican

Party in Connecticut, or in any other state. In the one instance

in which a conflict might exist, in the selection of delegates

to the national convention, ‘‘Republican rules maintain that

state laws shall govern in any conflict with state party pro-

cedures.” Note, ‘‘Freedom of Association and State Regula-

tion of Delegate Selection: Potential for Conflict at the 1984

Democratic National Convention,’ 36 Vand. L. Rev. 105, 105

n.3 (1983).

IV. CONNECTICUT’S LEGITIMATE INTERESTS IN

ADOPTING THE REGULATION HERE INCLUDE

ENCOURAGING PARTY COHESION, SHARPEN-

ING POLITICAL DEBATE, AND PREVENTING

DISTORTION OF THE ELECTORAL PROCESS.

Although states which adopted statutes or regulations

possessing any of the foregoing attributes might be required

to demonstrate a compelling state interest, Connecticut need

only show that it had a legitimate state interest in adopting

the statute here in question. On the basis of the important

ends to be achieved, and on the authority of prior cases, it

can accomplish—and indeed has accomplished—that task.

The legitimate interest of the state in regulating primary

elections was in early cases justifiec in part as a protection

14

against fraud, bribery and other evils, in part because of the

sovereign power of the state, and in part as a logical exten-

sion of the adoption of the ‘“‘Australian ballot’”’ (a secret ballot

listing all candidates who qualify for an office, prepared,

distributed and tabulated by government officials at public

expense, used by ail states since 1888).

The easiest, and what might be termed the typically

legal, method of upholding a primary law is to declare

that its provisions are a part of the Australian ballot

law. Since certain parties are accorded under this plan

special privileges upon the ballot, they must in return

submit to special requirements. The privilege of hav-

ing the names of candidates placed upon the ballot

upon certification of party officials, instead of by peti-

tion, is, so the argument mins, to be paid for by minute

legal regulation of the procedure of the party.

Justice Holmes stated this clearly when he said in

Commonwealth v. Rogers: ‘““The legislature has a

right to attach reasonable conditions to that advan-

tage, if it has a right to grant the advantage’—that

is, the right to have the names of candidates placed

upon the ballot without a petition.

Merriam and Overacker, supra at 119, quoting Holmes in Com-

monwealth v. Rogers, 181 Mass. 184, 63 N.E. 421, 423 (1902).

See generally, Merriam and Overacker, supra at 108-140.

The state recognizes and encourages major political party

participation in the electoral process by establishing a state-

funded and regulated system of conventions and primaries

leading to the general election. The major parties may choose

to utilize this route for nomination of their candidates in the

general election, or members of those parties may use alter-

native methods, such as petitioning, to qualify candidates for

the ballot. The Republican Party in this case seeks to use the

first alternative, the state created primary system, while at

15

the same time undermining that system and causing confu-

sion among the parties and voters. The state certainly has

a legitimate interest in maintaining order, political coherency,

and stability in the nominating process it created.

Ultimately, however, the most important interest to be

protected by state regulation of the party affiliation of voters

in primary elections is the enhancement of the quality of

political debate through clear articulation of competitive

policies by cohesive political parties. A state may legitimately

foster the development of a political system in which the short-

term interests of a temporary candidate coalition do not under-

mine the long-term interest of the public in a robust debate.

A state may legitimately wish to encourage positions on issues

which are clearly defined and carefully framed by the members

of a party who have consciously determined that they want

to associate themselves with others of a like mind. A state

may legitimately choose to prevent the circumvention of the

members of an association by intruders who temporarily inter-

vene “‘not in order to support a principle or policy,’ C.A.

Berdahl, ‘‘Party Membership in the United States, I?’ 36 Am.

Pol. Sci. Rev. 16, 42 (1942), but to gain an advantage by

fragmenting, rather than solidifying, the association.

As this Court summarized in Anderson v. Celebrezze,

supra, ‘‘the State’s important reguiatory interests are gener-

ally sufficient to justify reasonable, nondiscriminatory restric-

tions,’ id. at 788, such as those “‘that protect the integrity

and reliability of the electoral process itself.’ Jd. at 788 n.9.

Specifically, a state “‘has the nght to prevent distortion of the

elec.oral process,’ id., which can occur when voters not affili-

ated with a party decide to cast ballots ix: that party’s primary.

Whether impelled by a deliberate desire to seek the nomina-

t'on of the candidate least likely to win the general election,

or simply attracted by an exciting campaign, independent or

unaffiliated voters can dilute the preferences ot party

members, an outcome which the state has a legitimate interest

in preventing.

16

Courts have recognized that a “‘state has a legitimate

interest in protecting party member.’ associational rights,

by legislating to protect the party ‘from intrusion by those

with adverse political principles; ’’ as a three-judge District

Court wrote in 1976 concerning the statute here at issue.

Nader v. Schaffer, 417 F. Supp. 837, 845 (D. Conn. 1976), aff'd

mem., 426 U.S. 989 (1976), quoting Ray v. Blair, 343 U.S. 214,

221-22 (1952). The Nader court continued:

In addition to protecting the associational rights of

party members, a state has a more general, but

equally legitimate, interest in protecting the overall

integrity of the historic electoral process. This

includes preserving parties as viable and identifiable

interest groups; insuring that the resuits of primary

elections, in a broad sense, accurately reflect the

voting of party members. Parties should be able to

avoid primary election outcomes which will confuse

or misleud the general electorate to the extent it relies

on party labels as representative of certain ideologies,

and preventing fraudulent and deceptive conduct

which mars the nominating process.’

Nader v. Schaffer, supra at 845.

In a subsequent, similar case, the Supreme Court of New

Jersey referred to at least two important interests served by

a closed primary election system with a durational affiliation

requirement. ‘‘First, such a system supports the associational

rights of party members.” Smith v. Penta, 81 N.J. 65, 77, 405

A.2d 350, 356 (1979). Excluding non-members of the party

prevents “‘an erosion in the cohesive partisanship that is basic

to the party’s strength.’ Because participants in the primary

are not merely members of the general public, but those who

adhere to a particular political philosophy, party members may

‘advance their goals, proselytize their beliefs and seek to

acquire or perpetuate their power.’ The court concluded that

‘‘[t]hese interests—and others as well—are the associational

values which state legislation may properly protect.’ Jd. The

state also has a second ‘ strong public interest in maintain-

ing the integrity of tne electoral process.’ Id.

17

This Court has reached a simlar conclusion concerning

the legitimacy of establishing a cutoff point for registration

or party enrollment in New York: the purpose of New York’s

statute was to “inhibit party ‘raiding; whereby voters in svm-

pathy with one party’’—not just members— ‘‘designate

themselves as voters of another party so as to influence or

determine the results of the other party’s primary.’ Rosario

uv. Rockefeller, supra at 760. This Court then said, “‘It is clear

that preservation of the integrity of the electoral process is

a legitimate and valid state goal.’ Id. at 761. This Court also

referred to the “‘legitimate interest of Illinois in preventing

‘raiding, ”’ in Kusper, supra at 61, even though the particular

method chosen did not pass constitutional muster.

Certainly, this Ccurt has recognized that protection of

party members from intrusion by others is in general a

necessary concomitant of the freedom of association. In

Democratic Party, this Court stated—there in reference to a

political party’s own rules which excluded non-party members

from selection of delegates— ‘‘[T]he freedom to associate for

the ‘common advancement of political beliefs’ necessarily

presupposes the freedom to identify the people who constitute

the association, and to limit the association to those people

only.’ Supra at 122 (internal citation omitted and emphasis

added). This Court then citea with approval Professor Tribe’s

comment that “ ‘[f}reedom of association would prove an

empty guarantee if associations could not limit control over

their decisions to those who share the interests and persua-

sions that underlie the association’s being.’ ’’ L. Tribe, supra

at 791, quoted in Democratic Party, supra at 122 n.22. The

Court added that it had recognized on several occasions ‘“‘that

the inclusion of persons unaffiliated with a political party may

seriously distort its collective decisions—thus impairing the

party’s essential functions.’ Jd. at 122. Protecting tie political

party members’ associational rights is not only a legitimate

interest of the state but essential to its protection of the

integrity of the electoral process.

18

V. POLITICAL SCIENTISTS HAVE CONCLUDED

THAT DISTORTION OF THE VIEWS OF PARTY

MEMBERS MAY OCCUR IN PRIMARY ELEC-

TIONS OPEN TO ALL VOTERS, THUS DIMIN-

ISHING THE COHESIVENESS OF THE PARTY,

AND ACCORDINGLY HAVE SUGGESTED THAT

UNAFFILIATED VOTERS BE BA? RED FROM

PRIMARY ELECTIONS.

The very reason a political party exists is to articulate

and fight for the implementation of certain public policies.

Those policies, and the principles underlying them, flow from

the expressed desires of members of the political party.

At the same time, a political party, the policies it espouses,

and its candidates are intertwined inextricably. Candidates

personify the party, and thus the selection of a candidate is

one of a political party’s most important functions. As E.E.

Schattschneider, perhaps the foremost analyst of American

political parties in this century, has said, ‘“The nominating

process thus has become the crucial process of the party. The

nature of the nominating procedure determines the nature of

the party; he who can make the nomination is the owner of

the party.’ E. Schattschneider, Party Government 64 (1942).

Members of political parties nominate their candidates

for public office by convention, by direct primary, or by a

chalienge primary following a convention. The latter scenario

occurs in Connecticut when a candidate receives more than

twenty per cent of the votes cast by the delegates to a con-

vention, and chooses to press his candidacy further. See Conn.

Gen. Stat. §§ 9-400, 415.

When a party chooses its candidates for a general elec-

tion at a convention, it usually also adopts a platform stating

its principles. That platform, on which its candidate stands,

is likely to be a mode! desired by the leading candidate for

the party’s nomination, whose supporters—members of the

political party—dominate not only the nomination process,

19

but also the process of building the platform. S. Morehouse,

State Politics, Parties and Policy 190 (1981).

When a candidate is chosen through the mechanism of

a primary election, the only political principles defended by

the party are those espoused by the winner of the primary.

In the case of a challenge primary, like Connecticut's, the plat-

form adopted by the convention will have been bypassed if

the winner is other than the nominee of the convention. The

political principles for which the party campaigns are accord-

ingly defined, either in a direct primary or a challenge primary,

by the voters who participate in that primary.

If those participants are the same as those who associate

with cach other, as members of a party, for the purpose of

influencing public policy in a particular way, then no problem

exists. But if others, *rcluding some who have formally

associated with another party, participate in that primary,

and they have candidate preferences which differ from those

of the members of the party that is conducting the primary

election, then the principles which the members of the party

favor will have been distorted by the intruders.

It is possible, in the abstract, that independents and self-

declared members of party B would choose not to participate

in the primary of party A, even if they were permitted to do

so. And it is also possible that, since there are either no tests

for party membership, or the tests are unenforceable, members

of party B could dissemble and declare themselves to be

members of party A and participate in party A’s primary even

when they supposedly were excluded. J. Lengle, Representa-

tion and Presidential Primaries: The Democratic Party in the

Post-Reform Era 100 (1980). But research has found that either

possibility occurs only minimally in actual practice. Political

scientists Hedlund, Watts and Hedge have observed that more

than forty per cent of the voters in the open Wisconsin

presidential priraaries from 1968 through 1980 were not

members of the party in whose primary election they voted.

And the same authors observed that less than five per cent

26

of party identifiers voted in the other party’s primary in 1976

in Florida, Pennsylvania, and California, where primaries were

closed. R. Hedlund, M.W. Watts, and D.M. Hedge, ‘‘Voting

in an Open Primary,’ 10 Am. Pol. Q. 197, 201-04 (1982).

It is also possible that the candidates, and thus the

political principles, favored by party affiliators do not differ

from the candidates and political principles favored by those

who do not ally themselves with the party but vote in the

primary election anyway. Recent research has demonstrated,

however, that results of open primaries are in fact different

from the results which would occur in those elections if they

had been closed to outsiders. Professor Gary Orren has con-

cluded that Gary Hart ‘‘owed to independents his margin of

victory [over Walter Mondale in the 1984 Democratic

primaries] in several states that permitted independents or

Republicans to pick up Democratic ballots. These included

New Hampshire and Indiana, where he ran just even with

Mondale among Democrats, and Ohio, where he won the

primary even though he lost the Democratic vote.” G. Orren,

“The Nomination Process: Vicissitudes of Candidate Selec-

tion,’ in The Elections of 1984 at 27, 66-67 (M. Neilson ed.

1985) (internal footnote omitted). To the extent that Hart’s

victories in those states made his campaign for the nomination

appear more viable for a longer period of time, the expressed

preferences of those voters unaffiliated with the Democratic

party weakened the candidacy of the contender favored by

those who were members of the association.

Similar distortions occurred in the 1972 Democratic

presidential primaries in Wisconsin and Michigan, both of

which were open to voters other than members of the

Democratic party. In both states, the candidate preferences

of non-Democrats differed from those of Democrats: in

Wisconsin, Hubert Humphrey would have narrowly defeated

George McGovern if the contest had not been open to

Republicans and independents. With the votes of these

intruders, however, McGovern won convincingly: “the victory

reinvigorated his slumping campaign.” Although the order

21

of finish of the candidates would not have been altered in the

Michigan open primary, Humphrey’s share of the delegates

chosen would have increased if the participants had been

limited to Democrats. Political scientist James Lengle con-

cludes that, in an open primary, “the effect of partisan-related

candidate preferences is to distort both the voice of party

members and the strength of the party’s presidential con-

tenders.” Lengle, supra at 100, see generally 98-103. See also

D. Adamany, ‘‘Cross-Over Voting and the Democratic Party's

Reform Rules,’ 70 Am. Pol. Sci. Rev. 536 (1976), cited exten-

sively by this Court in Democratic Party, supra. (Adamany’s

data, which indicated greater support for McGovern than he

actually received, were, as the author states, somewhat con-

taminated by a halo effect, inasmuch as voters were not

sampled until after the general election. Adamany, supra at

537.)

One may praise or condemn the results of these particular

primary elections. The point is that those persons who

associated with the party for the purpose of expressing their

political views had their preferences as to candidates—and

the policies consequently espoused by their party—altered

or distorted because of interlopers in their association. Those

intruders may not have been bent on “‘raiding’’; they may have

voted in that primary only because of the absence of an excit-

ing race in the other party’s primary. (Lengle did not believe

that there was an organized Republican raid in the open

Democratic primaries in either Wisconsin or Michigan in 1972.

Lengle, supra at 102.) But their participation in the primary

election on the same terms as bona fide members of the party

nevertheless distorted the very expression of views for which

the members entered into that association. As David E. Price

concludes, ‘“‘Open primaries dilute the impact of the parties’

core constituencies.” D. Price, Bringing Back the Parties 132

(1984).

The Committee on Political Parties of the American

Political Science Association (APSA) anticipated these empir-

ical findings when it made its recommendations in 1950. ‘“The

meaning of [party] membership itself suggests that those who

22

identify themselves with the group have something in com-

mon which they do not share with those outside it.’ Commit-

tee on Political Parties, Toward a More Responsible Two-Party

System 66 (American Political Science Association, 1950). The

APSA Committee accordingly recommended the adoption of

the closed primary, because “‘it tends to support the concept

of the party as an association of like-minded people. On the

ot}. :r hand, the open primary tends to destroy the concept

oj rwembership as the basis of party organization.” Id. at 71

(emphasis in original).

Political scientists have observed that closed primary elec-

tions produce other benefits which are conducive to cohesive

parties. The lists of party enrollees generated by registration

prior to a closed primary are “‘invaluable tools for the parties

as they undertake voter registration and get-out-the-vote

drives and other efforts at communication and organization.”

Price, supra at 132. Because control of the nomination is in

the hands of the same people who choose the leaders of the

party organization, ‘“‘candidates and officeholders have

stronger incentives to work with party organizers and to sup-

port party positions.” Jd. Recruitment of candidates by party

leaders may be facilitated because there is a greater assurance

that the carefully chosen recruit will win the primary.

Morehouse, supra at 177.

In addition, as V.O. Key observes, ‘‘the open primary at

times makes difficult the maintenance of orientations differen-

tiating the two parties and probably handicaps the lesser

party in those jurisdictions in which one party holds a

substantial advantage. The voters of the lesser party may find

it more attractive to exercise a balance of power in the primary

ot the major party than to engage in the troublesome task

of building up their own party.” V.O. Key, Politics, Parties, &

Pressure Groups 392 (5th ed. 1964). (Malcolm Jewell has

hypothesized, contrary to Key, that in states with open

primary laws, ‘minority parties might attract more interest

in their primary, nominate candidates with broader appeal,

and win more elections.’ M. Jewell, ‘Political Parties, Courts,

23

and the Nominating Process,’ Paper presented to the

Southern Political Science Association, November 7-9, 1985,

p. 10. But Jewell finds the evidence inconclusive: “If the closed

primary is a serious obstacle to minority parties, this is most

likely to be true in southern and border states where registra-

tion and primary turnout heavily favor the Democratic party.’

Id. at 11. Jewell observes, however, that only in North Carolina,

Florida, and Tennessee have Republicans attracted large

numbers of voters to their primaries, and “‘it is noteworthy

that North Carolina and Florida are the only two southern

states (except Louisiana) to have closed primary laws.” Jd. He

concludes: ‘“There is not yet convincing evidence that closed

primary laws have significantly handicapped southern

Republican parties in practice as well as in theory.’ Jd. at 12.

See also M. Jewell, Parties and Primaries: Nominating State

Governors (1984), in which Jewell asserts that while it may

be logical to think that ‘‘a closed primary benefits the major-

ity party . . . itis difficult to find examples in specific states

to prove it.” Jd. at 222.)

Moreover, the open primary may reduce the quality of

debate about state policy issues. The need for candidates to

make themselves attractive to the entire electorate at the

primary stage may force them to de-emphasize the formula-

tion of differences in policy between the rarties and appeal

to voters in what has become ‘“‘the first round of the general

election’ on the basis of personality, image and “‘freewheel-

ing candidate and issue appeals based outside the parties.”

Price, supra at 132.

Given the array of benefits of closed primaries and dis-

advantages of open primaries for the political system in

general, political scientists have recommended that ‘‘party

leaders and legislators in states with open-primary and same-

day systems would ‘lo well to examine their debilitating effects

on parties and to consider corrective action.”’ Price, supra at

132. (In ‘‘same-day”’ registration systems, which require no

party affiliation in advance, voters declare their preference

for parties at the polls.)

24

As Sarah McCally Morehouse concludes her leading text

on state politics, “It is certainly not too much to ask that those

who help select the party nominee in a primary should be

party members with more than a passing attachment to the

party... . State laws should restrict voting in primaries to

those who have registered withaparty. . . ’’S. Morehouse,

supra at 488.

States need not follow the advice of the professors, of

course, but should ¢ state legislature conclude that it desires

to adopt the publi olicy of strengthening the party system

within its borders, there are certainly valid reasons to sup-

port the legislature’s conclusion. The state would surely have

at least a legitimate interest in fostering a cohesive party

system, in preventing the dilution and/or alteration of the

views of the members of political parties, and in protecting

the associations formed to espouse the adoption of certain

principles of public policy from intrusion by those preferring

different policies and different candidates.

VI. DEPARTING FROM THE STANDARD OF

REVIEW ESTABLISHED BY THIS COURT,

AND FOLLOWING THE CIRCUIT COURT’S

ANALYSIS, MAY CALL INTO QUESTION

MANY ELECTORAL LAWS OF THE STATES.

If this Court upholds the opinion below, amici submit that

other state regulations of electoral activity may also be called

into question. Political parties might be able to use their rule-

making authority to exempt themselves, practically at will,

from the ambit of such laws as those

—requiring a state convention to determine a political party's

nominee for statewide office, Conn. Gen. Stat. § 9-382;

— guaranteeing a candidate for nomination, defeated by vote

of a convention, the right to challenge the party's nominee

in a primary if the loser received more than twenty percent

of the convention’s vote on any ballot, Conn. Gen. Stat. § 9-400;

25

—guaranteeing the right to a primary for offices voted upon

only by electors in one town, Conn. Gen. Stat. §§ 9-405, 9-406;

—preventing members of another party—not just unaffiliated

voters—from voting in a primary election, Conn. Gen. Stat.

§§ 9-56, 9-59, 9-431;

—preventing voting by proxy or by absentee ballot in a

primary by those who do not meet the qualifications for voting

by absentee ballot, Conn. Gen. Stat. § 9-135;

—prohibiting corporate contributions to candidates in

primary elections, Conn. Gen. Stat. § 9-336b;

—limiting the amount of contributions by an individual to

a candidate in a primary election, Conn. Gen. Stat. § 9-348r;

—preventing non-residents of a district, or non-registered per-

sons, including non-citizens or underage persons, from voting

in primary elections, Conn. Gen. Stat. §§ 9-361, 9-431;

—permitting electors to seek judicial relief from decisions

made by election officials concerning the procedures or results

of a primary election, Conn. Gen. Stat. § 9-328.

Some of these regulatory statutes may be justified by a

compelling state interest, and others may be justified by a

legitimate state interest rather than a compelling one, but they

would surely all be thrown into question by a decision of this

Court overturning or limiting previous Court decisions and

establishing the Circuit Court’s standard as the one to be

followed in cases of state regulation of primary elections.

26

a. ea Ong ae ta AS

CONCLUSION

Appellee Republican Party has contended in the instant

case that the collective freedom of association of its members

prevents the state of Connecticut from imposing by statute

a requirement that only those voters who are affiliated with

the Republican Party may vote in its primary elections, unless

the state can demonstrate a compelling interest in its prohibi-

tion. It has further argued, and the District Court and the

Circuit Court have agreed, that the state has not demonstrated

such a compelling interest.

Amici respectfully contend, however, that appellee and

the courts below have erred in their reading of the decisions

of this Court which are relevant here. Marchioro v. Chaney,

supra, and other cases have clearly established a guide for

reconciling the power of the state to regulate elections and

the right of party members to associate freely for expressive

purposes. The principle of this Court’s line of decisions is that

a court must first determine if there has been a ‘“‘substantial

infringement” of the right to associate. If so, has the state

demonstrated a compelling interest in its regulation? If not,

has the state demonstrated a legitimate interest in its

regulation?

This Court, moreover, has given explicit guidance as to

the criteria which determine if there has been a ‘‘significant

burden’”’ on the freedom of association. Is the association

prevented from attracting new members to its ranks, freez-

ing the political status quo? Is the association forced to accept

members it does not desire? Are internal, non-electoral

procedures and decisions of the party regulated? Is the

association a purely private one, distinguished by its small-

ness and high degree of selectivity? Does the regulation of

the state have an extra-territorial reach, regulating a national

association by rules which may be changed only by a small

portion of those affected by those rules?

In this case, none of the criteria established by this Court

has been satisfied. The Republican Party is not prevented from

attracting new members. It is not forced to accept members

it does not desire. Connecticut does not regulate the Party’s

internal aspects. The Party is not a purely private associa-

tion. Connecticut’s regulations do not attempt to override

rules of the national Republican Party; indeed, those rules

themselves provide that in case of conflict, state law shall

govern. There is accordingly no ‘“‘substantial burden’’ on the

Party’s freedom of association.

Because such a significant infringement does not exist,

Connecticut need only demonstrate a legitimate interest in

its regulation. Again, this Court and other courts have pro-

vided guidance concerning what interests may be recognized

as legitimate. A state may act to protect the integrity of the

electoral process. It may aim to protect the cohesiveness of

political parties, and to protect the expression of their

members’ views from distortion by intruders.

Because Connecticut has demonstrated the legitimacy

of its interest, amici respectfully contend that the Connect-

icut statute in question is cc nstitutional. This Court should

reverse the decision of the Circuit Court of Appeals.

Respectfully submitted,

TIMOTHY D. BATES

Counsel of Record

COPP, BERALL and HEMPSTEAD

3°2 Captain’s Walk

bO. Box 670

New London, CT 06320

(203) 442-4491

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