California Democratic Party v. Jones

530 U.S. 567

Case Year: 2000

Case Ruling: 7-2, Reversed

Opinion Justice: Scalia

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Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Kennedy, O'Connor, Rehnquist, Souter, Thomas


1st Concurring Opinion



1st Dissenting Opinion

Author: Stevens

Joiner(s): Ginsburg

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


To gain access to the California general election ballot, a candidate running as a member of a political party must win that party's primary election. Under California law the primaries were closed, meaning that only registered members of a political party could vote in that party's primary. In 1996 California voters passed Proposition 198, which replaced the closed primary system with a "blanket" primary. In a blanket primary, the voters are given a ballot containing the names of all candidates for office, regardless of party affiliation, and they may vote for any single candidate for any office. Thus, a voter might cast a ballot for a Republican candidate for governor and at the same time select a Democratic candidate for state senator. The candidate from each party receiving the highest number of votes becomes the nominee of the party for that office. Consequently, participation in the selection of a party's nominee is not restricted to members of that party. Alaska and Washington State have similar blanket primary systems. Proponents of the blanket primary argue that it fosters voting participation and gives voters greater freedom of choice because they are not restricted to candidates from a single party.

Four political parties in California (the Democratic Party, the Republican Party, the Libertarian Party, and the Peace and Freedom Party) filed suit to have the blanket primary law declared unconstitutional as a violation of the freedom of association. Each party operated under organizational rules restricting voting in their party primaries to its own members. The state defended the law based on its authority to regulate voting and elections. Both the federal district court and the court of appeals upheld the law as a means of enhancing the democratic nature of the election process and the representativeness of elected officials.



This case presents the question whether the State of California may, consistent with the First Amendment to the United States Constitution, use a so-called "blanket" primary to determine a political party's nominee for the general election. . . .

Respondents rest their defense of the blanket primary upon the proposition that primaries play an integral role in citizens' selection of public officials. As a consequence, they contend, primaries are public rather than private proceedings, and the States may and must play a role in ensuring that they serve the public interest. Proposition 198, respondents conclude, is simply a rather pedestrian example of a State's regulating its system of elections.

We have recognized, of course, that States have a major role to play in structuring and monitoring the election process, including primaries. See Burdick v. Takushi (1992); Tashjian v. Republican Party of Conn. (1986). We have considered it "too plain for argument," for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion. . . .

What we have not held, however, is that the processes by which political parties select their nominees are, as respondents would have it, wholly public affairs that States may regulate freely. To the contrary, we have continually stressed that when States regulate parties' internal processes they must act within limits imposed by the Constitution. In this regard, respondents' reliance on Smith v. Allwright (1944) and Terry v. Adams (1953) is misplaced. In Allwright, we invalidated the Texas Democratic Party's rule limiting participation in its primary to whites; in Terry, we invalidated the same rule promulgated by the Jaybird Democratic Association, a "self-governing voluntary club.". . . They do not stand for the proposition that party affairs are public affairs, free of First Amendment protections--and our later holdings make that entirely clear. See, e.g., Tashjian.

Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself. Consistent with this tradition, the Court has recognized that the First Amendment protects "the freedom to join together in furtherance of common political beliefs," Tashjian, which "necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only," [ Democratic Party v. Wisconsin ex rel.] La Follette [1981]. That is to say, a corollary of the right to associate is the right not to associate. " 'Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being.' "

In no area is the political association's right to exclude more important than in the process of selecting its nominee. That process often determines the party's positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party's ambassador to the general electorate in winning it over to the party's views. . . .

Unsurprisingly, our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party "select[s] a standard bearer who best represents the party's ideologies and preferences.". . .

. . . Proposition 198 forces political parties to associate with--to have their nominees, and hence their positions, determined by--those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival. In this respect, it is qualitatively different from a closed primary. Under that system, even when it is made quite easy for a voter to change his party affiliation the day of the primary, and thus, in some sense, to "cross over," at least he must formally become a member of the party; and once he does so, he is limited to voting for candidates of that party.

The evidence in this case demonstrates that under California's blanket primary system, the prospect of having a party's nominee determined by adherents of an opposing party is far from remote--indeed, it is a clear and present danger. For example, in one 1997 survey of California voters 37 percent of Republicans said that they planned to vote in the 1998 Democratic gubernatorial primary, and 20 percent of Democrats said they planned to vote in the 1998 Republican United States Senate primary. Those figures are comparable to the results of studies in other States with blanket primaries. . . . The impact of voting by nonparty members is much greater upon minor parties, such as the Libertarian Party and the Peace and Freedom Party. . . .

The record also supports the obvious proposition that these substantial numbers of voters who help select the nominees of parties they have chosen not to join often have policy views that diverge from those of the party faithful. The 1997 survey of California voters revealed significantly different policy preferences between party members and primary voters who "crossed over" from another party. . . .

In concluding that the burden Proposition 198 imposes on petitioners' rights of association is not severe, the Ninth Circuit cited testimony that the prospect of malicious crossover voting, or raiding, is slight, and that even though the numbers of "benevolent" crossover voters were significant, they would be determinative in only a small number of races. But a single election in which the party nominee is selected by nonparty members could be enough to destroy the party. In the 1860 presidential election, if opponents of the fledgling Republican Party had been able to cause its nomination of a pro-slavery candidate in place of Abraham Lincoln, the coalition of intraparty factions forming behind him likely would have disintegrated, endangering the party's survival and thwarting its effort to fill the vacuum left by the dissolution of the Whigs. Ordinarily, however, being saddled with an unwanted, and possibly antithetical, nominee would not destroy the party but severely transform it. . . .

In any event, the deleterious effects of Proposition 198 are not limited to altering the identity of the nominee. Even when the person favored by a majority of the party members prevails, he will have prevailed by taking somewhat different positions--and, should he be elected, will continue to take somewhat different positions in order to be renominated. . . .

In sum, Proposition 198 forces petitioners to adulterate their candidate-selection process--the "basic function of a political party"--by opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome--indeed, in this case the intended outcome--of changing the parties' message. We can think of no heavier burden on a political party's associational freedom. Proposition 198 is therefore unconstitutional unless it is narrowly tailored to serve a compelling state interest. It is to that question which we now turn. Respondents proffer seven state interests they claim are compelling. Two of them--producing elected officials who better represent the electorate and expanding candidate debate beyond the scope of partisan concerns--are simply circumlocution for producing nominees and nominee positions other than those the parties would choose if left to their own devices. Indeed, respondents admit as much. . . . Both of these supposed interests, therefore, reduce to nothing more than a stark repudiation of freedom of political association: Parties should not be free to select their own nominees because those nominees, and the positions taken by those nominees, will not be congenial to the majority. . . .

Respondents' third asserted compelling interest is that the blanket primary is the only way to ensure that disenfranchised persons enjoy the right to an effective vote. By "disenfranchised," respondents do not mean those who cannot vote; they mean simply independents and members of the minority party in "safe" districts. These persons are disenfranchised, according to respondents, because under a closed primary they are unable to participate in what amounts to the determinative election--the majority party's primary; the only way to ensure they have an "effective" vote is to force the party to open its primary to them. This also appears to be nothing more than reformulation of an asserted state interest we have already rejected--recharacterizing nonparty members' keen desire to participate in selection of the party's nominee as "disenfranchisement" if that desire is not fulfilled. We have said, however, that a "nonmember's desire to participate in the party's affairs is overborne by the countervailing and legitimate right of the party to determine its own membership qualifications." Tashjian. . . .

Respondents' remaining four asserted state interests--promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy--are not, like the others, automatically out of the running; but neither are they, in the circumstances of this case, compelling. That determination is not to be made in the abstract, by asking whether fairness, privacy, etc., are highly significant values; but rather by asking whether the aspect of fairness, privacy, etc., addressed by the law at issue is highly significant. And for all four of these asserted interests, we find it not to be. . . .

. . . The burden Proposition 198 places on petitioners' rights of political association is both severe and unnecessary. The judgment for the Court of Appeals for the Ninth Circuit is reversed.

It is so ordered.


Today the Court construes the First Amendment as a limitation on a State's power to broaden voter participation in elections conducted by the State. The Court's holding is novel and, in my judgment, plainly wrong. I am convinced that California's adoption of a blanket primary pursuant to Proposition 198 does not violate the First Amendment, and that its use in primary elections for state offices is therefore valid. . . . A State's power to determine how its officials are to be elected is a quintessential attribute of sovereignty. This case is about the State of California's power to decide who may vote in an election conducted, and paid for, by the State. The United States Constitution imposes constraints on the States' power to limit access to the polls, but we have never before held or suggested that it imposes any constraints on States' power to authorize additional citizens to participate in any state election for a state office. In my view, principles of federalism require us to respect the policy choice made by the State's voters in approving Proposition 198. . . .

The so-called "right not to associate" that the Court relies upon, then, is simply inapplicable to participation in a state election. A political party, like any other association, may refuse to allow non-members to participate in the party's decisions when it is conducting its own affairs; California's blanket primary system does not infringe this principle. But an election, unlike a convention or caucus, is a public affair. Although it is true that we have extended First Amendment protection to a party's right to invite independents to participate in its primaries, Tashjian v. Republican Party of Conn.(1986), neither that case nor any other has held or suggested that the "right not to associate" imposes a limit on the State's power to open up its primary elections to all voters eligible to vote in a general election. . . .

In my view, the First Amendment does not mandate that a putatively private association be granted the power to dictate the organizational structure of state-run, state-financed primary elections. It is not this Court's constitutional function to choose between the competing visions of what makes democracy work--party autonomy and discipline versus progressive inclusion of the entire electorate in the process of selecting their public officials--that are held by the litigants in this case. . . .

. . . I respectfully dissent.