Placing Unnecessary Limits on Voting and Associational Freedoms

Article excerpt

The right to vote candidates of one's choice into office is at the core of representative democracy. The ability to organize on a large scale with willing groups of voters to elect a mutually desirable candidate is prerequisite to any enjoyment of this right. If the ability to appeal to fellow voters is too heavily restricted, then society will travel down the perilous path of having its leaders selected by entrenched party leaders rather than by the considered consensus of the people. Last Term, in Clingman v. Beaver, (1) the Supreme Court acquiesced in a state's decision to hamper voters' freedom to associate for political purposes and their ability to vote for the candidate of their choice. This decision, which authorized states to deny parties and voters registered with other parties the right to come together for primary elections, serves, in Justice Stevens's words, "a naked interest in protecting the two major parties." (2)

The plaintiffs in the trial court were a group of Oklahoma voters, registered with various political parties, as well as the Libertarian Party of Oklahoma (LPO), and several Libertarian candidates for office. (3) The LPO expressed an interest in opening its primary to voters enrolled in other parties, (4) and the voters desired to participate in the Libertarian primary without abandoning their principal party affiliation. (5) All plaintiffs sued in the United States District Court for the Western District of Oklahoma under 42 U.S.C. [section] 1983 and other statutes, claiming that Oklahoma's semi-closed primary system (6) violated their rights to free political association and free speech under the First and Fourteenth Amendments to the U.S. Constitution. (7) The plaintiffs requested that the district court declare unconstitutional the Oklahoma statutes restricting parties from opening their primaries to persons registered with other parties, (8) and that the court enjoin the defendants--the Oklahoma State Election Board and its members--from enforcing those laws. (9)

The district court denied the plaintiffs' request for declaratory and injunctive relief, but not before making several factual findings that were favorable to the plaintiffs. The court first determined that there would be no significant voter confusion from granting the plaintiffs' request. (10) Second, the court dismissed the state's concerns about "raiding" of minor parties, in part because "[t]he reality of raiding as a phenomenon existing other than in the minds of supporters of closed primaries is a matter of conjecture." (11) While the district court acknowledged that "swamping," or "the control of a minor party's candidate selection by voters affiliated with other parties," (12) might well occur, given the extremely small number of Libertarian voters, (13) it did not view this phenomenon as adequate reason for upholding Oklahoma's election statutes. (14) However, the court, applying a balancing test, (15) held the electoral laws constitutional because it found that allowing voters registered with one party to vote elsewhere could alter the primary results of the party of original registration. (16)

The Tenth Circuit reversed. It held that the burden imposed on the plaintiffs by the Oklahoma statute was severe, and thus applied strict scrutiny. (17) The court justified its decision by integrating the Supreme Court's holdings in California Democratic Party v. Jones (18) and Tashjian v. Republican Party of Connecticut (19) to create "the clear and unavoidable implication ... that a state generally may not restrict the ability of a political party to define the group of citizens that will choose its standardbearer." (20) After quickly disposing of the swamping and raiding justifications on grounds similar to those employed by the trial court, (21) the appellate court found Oklahoma's interest in political stability to be not compelling "in the circumstances of" the case at bar. (22) Granting that "some election results might change if Oklahoma switches from a semi-closed primary system," the state did not show why this "would undermine the integrity of the political process, or . …