First Amendment Problems Arising
from the Mixed Role of Political Parties
Erik S. Jaffe*
In its recently concluded October Term 2007, the Supreme Court decided two cases—New York State Board of Elections v. López Torres and Washington State Grange v. Washington State Republican Party1— involving the role of political parties in elections and the First Amendment limits on state regulation of election procedures. Both cases rejected First Amendment challenges to the laws at issue, reversing the decisions of the Second and Ninth Circuits, respectively. The result in each case was more a function of the posture in which the cases were presented to the Court, however, and tells us little about political parties and the First Amendment per se. Of more interest are the Court's discussion of the role of political parties and the questions left open in its decisions.
Parts I and II of this article will describe the López Torres and Washington State Grange cases, highlighting the relatively narrow grounds for decision and the broader discussions of the role of political parties in our election processes.
Part III will discuss how these two cases illustrate the First Amendment problems and confusion arising from the dual public and private roles, and excessive entanglement, of political parties in the formal election mechanisms of the states and a potential path for avoiding such problems and confusion in the future. I argue that political parties are, and should be treated as, strictly private expressive associations, and that delegating to such parties the governmental function of being a gatekeeper for ballot access is the source of
*Solo appellate attorney, Erik S. Jaffe, P.C., Washington, D.C.
1 552 U.S. ———, 128 S. Ct. 791 (2008); 552 U.S. ———, 128 S. Ct. 1184 (2008).