MORSE v. REPUBLICAN PARTY OF VIRGINIA

Transcript: 

Argument of Pamela S. Karlan

Justice Stevens: We will now hear argument in Number 94 203, Morse v. The Republican Party of Virginia.

You may proceed.

Ms Karlan: Thank you.

Justice Stevens, and may it please the Court--

This case presents the question whether section 5 of the Voting Rights Act requires a preclearing method of nominating candidates for the United States Senate that restricts the right to vote to persons who give 45.

Under the facts of this case, if you don't pay 45, you have absolutely no say in how the Republican nominee for Senate in Virginia is selected.

Section 5 requires the preclearance of all voting standards, practices or procedures, or prerequisites to voting, no matter how small the change, and was enacted to keep States and political parties from denying the recently won gains in registration under the Voting Rights Act.

In Presley v. Etowah County Commission, this Court reaffirmed the broad scope of section 5, and identified once again a series of categories or typologies of case which require preclearance, and under the facts alleged in our complaint, this case falls within two of those typologies.

Unknown Speaker: Ms. Karlan, may I inquire, your brief suggests possibly three different theories of why section 5 might have been violated, and the first is that the 45 fee affects the process of selecting the nominee, and the second is that being a delegate to the convention is an elective party office, and third is the threat that the change from a primary election to a nominating convention required preclearance.

Now, were either of those last two theories contained in the complaint, and were they raised below?

Are they actually here, or do we just look at the 45 fee question?

Ms Karlan: Well, Your Honor, they were properly presented below.

As Your Honor knows, this case came up on an expedited schedule with no discovery permitted to the plaintiffs.

The result was that we found out when we received the affidavit of David Johnson contained in the Joint Appendix that the Republican Party had switched from a primary to a convention, and that this fee effective... this fee would only be possible were that change in there.

We then raised that issue at oral arguments--

Unknown Speaker: The change from a primary to a convention, was that... it was not part of your complaint?

Ms Karlan: --No, Your Honor, it was not part of our complaint.

Unknown Speaker: You talked about it.

Ms Karlan: That's correct.

Under our complaint, the facts of which must be taken as true for these purposes, we alleged that this was in effect a primary election itself, because as we alleged, and the district court assumed, anyone who pays 45 is entitled to go and cast a vote for a nominee.

Unknown Speaker: Well, the court below did not deal with those... with the second and third so called theories?

Ms Karlan: No, Your Honor, it did.

It held that nothing connected with the convention required preclearance, not the imposition of a fee, not the rules governing who could attend, and not the decision under section--

Unknown Speaker: But do you think it dealt with the issue of whether the change itself from a primary to a convention required preclearance?

Ms Karlan: --It said, Your Honor, that nothing connected with the convention, including implicitly the decision to hold one, is covered--

Unknown Speaker: And certainly not expressly.

It didn't expressly deal with that, did it?

Ms Karlan: --No, Your Honor, but under Federal Rule of Civil Procedure 15, we were entitled to conform the pleadings to the proof, and had this case not been done in the expedited manner in which it was done, we could have amended the complaint.

Now, under Rule 15, the failure to amend the complaint need not keep the Court from reaching that issue.

If this Court concludes that that's the central question, and that that issue wasn't sufficiently developed, then the proper response from the Court would be to reverse the judgment of the district court granting the motion to dismiss, and remand for further proceedings in which that issue can be expressly litigated.

Now, there are two theories of section 5 alleged in the complaint under which, under the text of the Voting Rights Act, this practice is covered.

The first of these is that the Republican Party's practices here, given the facts alleged, constitute a primary in and of themselves.

A primary election, after all, is an election in which individual voters who are adherents of a political party nominate a candidate by casting ballots.

Unknown Speaker: Ms. Karlan, may I ask you a preliminary question... at least, I think it's preliminary to that.

The section that you're dealing with speaks of

"whenever a State or a political subdivision. "

It seems to be addressed to a State or a political unit of a State.

How, then, can you proceed under section 5 against a political party?

Ms Karlan: Well, Justice Ginsburg, a political party under the circumstances of this case is a State actor in the same way that the Fifteenth Amendment by its terms simply guarantees the right to vote against abridgement or denial by a State, and has been held to cover political parties when they're engaged in the public nominating function.

Unknown Speaker: I can see that... you... you're referring to constitutional... decisions under the Constitution like Terry and Smith v. Allwright, but here we have a statute, and the statute addresses State or political subdivisions.

Is there any definition of those words in the statute itself?

Ms Karlan: There is no definition of State in the statute itself, Your Honor.

The statute was by its terms specifically enacted to enforce the guarantees of the Fifteenth Amendment, and thereby it seems clear from the legislative history intended to reach political parties as well.

For example, we cite in our brief, Your Honor, the statement from the House subcommittee of the Judiciary that was responsible for the hearings on section 5 stating directly an election of delegates to a State party convention is covered, and a statement by Representative Bingham, the author of the language defining the term 14(c)(1), making clear that party canvases and caucuses that selected people who were involved in the nomination of candidates to public office were covered by the act because they were State actors.

Unknown Speaker: Ms. Karlan, how can that be?

Can I not follow a political party that... say a feminist group wants to start a women's political party.

Only women can be members.

Anybody in the world can vote for their candidates, but it's a women's party.

That's not permitted under this legislation?

It's action by the State simply because that party excludes men from participating in the political party?

Ms Karlan: Your Honor, section 5 of the Voting Rights Act would not cover the decision to form a party as discriminatory on the basis of race, but the Nineteenth Amendment--

Unknown Speaker: Their selection of a candidate.

Their selection of a candidate.

Ms Karlan: --The Nineteenth Amendment, Your Honor, would say that if that party performs the public electoral function of nominating a candidate for United States Senator, they would be covered by the Constitution.

Unknown Speaker: May I ask if the Virginia statutes draw a distinction between new parties such as Justice Scalia's feminist party, and established parties like the Republican Party and the Democratic Party?

Ms Karlan: Yes, Justice Stevens, but--

Unknown Speaker: What is the difference under Virginia law?

Ms Karlan: --Under Virginia law, a political party within the meaning of the Virginia statute only comes into being if at one of the last two Statewide general elections some candidate of that party received 10 percent of the votes cast for Statewide office, so that the party to which Justice Scalia refers would not itself be covered.

However--

Unknown Speaker: Unless it was successful.

Ms Karlan: --Ultimately, yes.

Unknown Speaker: And won election, and thereupon it would have to be, I suppose, disbanded.

Ms Karlan: Under the Nineteenth Amendment, which is not at issue in this case, yes, Your Honor, which says that no State shall abridge or deny the right to vote on account of sex.

Unknown Speaker: Well, but the question is whether or not this is a State or a political subdivision, and it seems to me in light of the two cases Justice Ginsburg mentioned, Terry v. Adams and Smith v. Allwright, that you have a difficult position to maintain.

The Congress was well aware of those cases.

They were well aware of the White Primary cases, and yet they used the words, State and political subdivision.

They didn't say, or any other entity which is a State actor--

Ms Karlan: Well, but--

Unknown Speaker: --and that's what you want... and you want us to say the latter.

Ms Karlan: --Well, but Justice Kennedy, the provision under which the exclusions in Terry and in Smith v. Allwright were found discriminatory was a provision that only applied to the States, so Congress could reasonably assume that if it was State action for a political party to bar someone from a preprimary in which there was no governmental involvement whatsoever--

Unknown Speaker: I am assuming that State action cases are correct.

The point is, is that this jurisprudence was in front of the Congress, and they chose this rather limited language.

Ms Karlan: --No, Your Honor, this language is not limited.

This is the same language under which the courts held that political parties were covered.

Now, Your Honor--

Unknown Speaker: The court held political parties were covered in those cases when election as the nominee of that political party was effectively election to the office.

Ms Karlan: --No, Your Honor--

Unknown Speaker: That's quite a different situation from what one has here.

Ms Karlan: --No, Your Honor.

In United States v. Classic, the case on which both Smith and Terry rely, the court said that the primary was an integral part of the election process whether it always, sometimes, or never resulted in the election of a candidate.

Unknown Speaker: No question about that, but those cases did not purport to be interpreting this language.

This statute was later enacted, and they did not focus on the words, State or political subdivision.

They talked about State action, of course.

Ms Karlan: Well, Your Honor, if I may draw a historical point not in the record, in 1965, the States that were covered by the Voting Rights Act were all States in the solid South, which was solidly Democratic.

Had Congress passed a law with the understanding that you have advanced, one that didn't apply to political parties, it is patently clear that the Voting Rights Act would have been strangled at its birth, because all of the discrimination would simply have been conducted by the Democratic Party in the South, and the Voting Rights Act would have been a dead letter.

Now, it's clear that that's so from both the statement in the House report and Representative Bingham's statement of what the language involving voting was intended to cover.

Unknown Speaker: Well, Ms. Karlan, the Attorney General has adopted a number of regulations pursuant to section 5 and the provisions of the Voting Rights Act.

Do you concede that all the Attorney General's regulations that are relevant here are valid?

Ms Karlan: I believe that they are all valid, yes, Your Honor, and they do provide that when political parties perform the State--

Unknown Speaker: And you rely on those regulations to make your case?

Ms Karlan: --They certainly support our case, but even if those regulations were invalid, our case would go forward, because our claim is that this is a primary election in the same way that the behavior in Terry is a primary--

Unknown Speaker: Do you think that absent those regulations, your position would be sustained here?

Ms Karlan: --I would hope so, Your Honor.

I don't think our position depends on the Attorney General's regulations.

His regulations are based on the same understanding which we have advanced, which is that State action covers a political party when it's engaged in the process of nominating a candidate for public office.

Unknown Speaker: Ms. Karlan, you say that this would not have been... it would have been a dead letter if it couldn't have been applied against the Democratic Party in the South in the era when it was enacted.

How many times was it applied against the Democratic Party in the South?

Ms Karlan: Your Honor, I only have the list of the number of times where objections were lodged, and that was about a dozen.

There's a citation to the Turner affidavit by the Assistant Attorney General.

Unknown Speaker: How recent is that dozen?

Ms Karlan: That was in 1982, Your Honor.

Unknown Speaker: 1982, a good deal after the South was--

Ms Karlan: No, that was--

Unknown Speaker: --in the situation that you described.

Ms Karlan: --No, Your Honor, that's a list of all of the objections imposed as of the date 1982, not objections in the year 1982.

Unknown Speaker: Just 12.

Ms Karlan: Yes, Your Honor.

Unknown Speaker: Ms. Karlan, may I go back to the textual argument?

You... if I understand what you're saying, you're saying that "State" is to be construed to include anyone who exercises a State function.

The process of winnowing candidates down is a State function, therefore, it applies here.

Is that--

Ms Karlan: Yes, Your Honor.

Unknown Speaker: --basically what you're saying?

If that's the way the Congress intended the word State to be construed, why did it refer to political subdivision at all?

Because it seems to me... maybe I'm missing something, but it seems to me that political subdivision would be included on your definition without specific reference to it, without the need for specific reference to it, whenever it was engaged in... in effect in discharging any of the processes by which the State government would ultimately bring an election or a series of choices to be made in election before the people, so why is it in there at all?

Ms Karlan: The reason it's in there, Justice Souter, is because section 5 of the Voting Rights Act only applies to particular places.

Sometimes those places are entire States, but in some cases, like North Carolina or New York, only particular political subdivisions, only particular geographic regions--

Unknown Speaker: Ah.

Ah.

Ms Karlan: --are covered by the statute at all.

Unknown Speaker: Okay.

Ms Karlan: So if you only provided no State, it wouldn't define, for example, the preclearance cases that this Court has seen from North Carolina or from New York, UJO v. Carey, for--

Unknown Speaker: Why is that?

Wouldn't a political subdivision still be a State?

Wouldn't it still be State action?

Ms Karlan: --No, Your Honor.

It's not fair to define State action here to define which geographic areas of the country are covered, because if you only said State, then that wouldn't explain why, for example, a change in electoral rules in Manhattan is covered but not a change in Westchester County.

That's when the triggering provisions--

Unknown Speaker: Well, at least it would have been a serious question.

I mean--

Ms Karlan: --That's correct.

The triggering provisions of section 4 identify political subdivisions for purposes of deciding what's covered by preclearance, not for purposes of deciding what the standard is, or whom the actor is.

If there are no further questions, I'll--

Unknown Speaker: --I have one further question.

Under your view, if, in a covered jurisdiction, there is a small group of citizens, two or three of them, who have substantial community influence and many, many funds, if they meet in someone's home to decide who's going to be the candidate, and their voice is in effect conclusive as to who will be the successful candidate in a particular party, are they covered?

Ms Karlan: --No, Your Honor.

Unknown Speaker: Why?

Ms Karlan: Because they are not exercising a delegated State function, as the Virginia Republicans are under section 509(B) in this case.

Unknown Speaker: Mr. Bender.

Argument of Paul Bender

Mr. Bender: Thank you, Mr. Justice Stevens, and may it please the Court--

Under Virginia law, a political party that gets 10 percent or more of the vote at an election is entitled to place the candidate it selects for the U.S. Senate on the ballot in a preferred position as long as the party maintains a certain kind of organization prescribed by the State.

The party is then entitled under Virginia law to choose its candidate either through a primary, or through a convention, or through some other means.

Both the district court and the appellees in this case agree that if the party chooses to choose its candidate through a primary election, that changes in the rules about who can vote at that primary election to choose the candidate are covered by section 5.

I think that's common ground.

The district court, however, decided that if the party chooses not to use the primary elections as a way of choosing its candidates, but instead to choose through a convention, then section 5 does not apply.

Unknown Speaker: Well, Mr. Bender, I can understand an argument to the effect that if the State permits a party to change from a primary election to a convention method, that that action by the State in allowing that change is something that in and of itself could be challenged under section 5, but I'm not sure that's what was done here.

I'm not sure that question is here before us, and we're reaching it by a very different route, as I see it.

Mr. Bender: I think the question is whether, under State law, a party or any other group has a right to put a candidate on the ballot in a preferred position if they maintain a certain organization.

Those are the facts of this case.

If a party is given that power under State law, whether, when the party makes a change and who can participate in that selection process, whether that is subject to preclearance--

Unknown Speaker: Well, back up a minute.

Do you think that it would be open to challenge under section 5 if the State allows a change from a primary election to a convention method?

Mr. Bender: --Yes, if the State... if State law did that--

Unknown Speaker: Do you think that question is before us in this case?

Mr. Bender: --I don't think that question is before you in this case.

I think the district court did not decide that question.

If... it's unclear in this case whether that kind of change was made, because they apparently have never used a... have never used a primary, even though on a couple of occasions the party has said it was going to have a primary.

That question of whether that change was made has not been decided below and would have to be remanded, but I don't think you have to do that, because the change in... it seems to me the basic principle here is that the change in the people who can select a candidate to go on the ballot is a change sufficiently related to the general election so that that change needs to be precleared, and that's true whether the change occurs through a matter of State law, or the change occurs through a matter of city law, or county law, or political party law when the political party is given the right to put the candidate on the ballot in a preferred position.

Unknown Speaker: Mr. Bender, what do you mean by a preferred position?

Suppose a State just says, every party that in the last election got 1 percent or more of the vote is entitled automatically to be listed on the ballot in the next election?

Mr. Bender: I think that case would come out the same way--

Unknown Speaker: It would come out--

Mr. Bender: --although it's a little bit closer.

Unknown Speaker: --That gives the Government the right to require that party to submit to the Government for its approval any change in the process by which that party selects its candidates?

Mr. Bender: I wouldn't say any change in the process by which the party selects the candidates.

I think this case involves something that's very close to the election process, and that is the people who can select the party's candidates.

If you affirm the decision of the district court in this case, that would mean that in a State like Virginia, where parties have an automatic place on the ballot, that major parties could preclude members of certain races from voting for the candidate to go on the ballot.

Unknown Speaker: It's very close to the political process, but it's also very close to freedom of association.

Mr. Bender: Right.

Unknown Speaker: The ability of people to band together under what rules they desire to take political action.

Mr. Bender: And I think the--

Unknown Speaker: Your position is that by simply agreeing to put whoever forms such an association on the ballot, the State acquires considerable control over the manner in which those people have to conduct their political life.

Mr. Bender: --I think the Attorney General's regulations about the coverage of political parties, which have existed since 1982... the Attorney General has actually precleared party submissions since 1972, and has--

Unknown Speaker: A few of them.

How many has he precleared?

Mr. Bender: --Over 1,000.

Unknown Speaker: Party submissions?

Mr. Bender: Yes.

Unknown Speaker: In what... outside of the context of primaries?

Mr. Bender: No.

Including the context of primaries.

Unknown Speaker: How many outside of the--

Mr. Bender: About--

Unknown Speaker: --context of primaries?

Mr. Bender: --Over... between 300 and 400 outside of the context of primaries.

One, for example, comes from Virginia, which is in the lodging that was made with the Court.

In 1982, the Democratic Party in Virginia precleared, and Assistant Attorney General Reynolds tried to preclear, and Assistant Attorney General Reynolds did preclear a change almost identical to the change, in terms of its relation to the voting process almost identical to the change in this case.

It was a change in the way the vote was going to be allocated at the party's convention, and they... the Democratic Party in Virginia applied for preclearance, and preclearance was given, and as I say, there have been over 300 of those kinds of submissions over the years.

The Attorney General's regulations--

Unknown Speaker: It's a necessary part of your position, is it not, that you cannot form a party on any basis that it would be unconstitutional or unlawful for the State to discriminate on the basis of?

Mr. Bender: --The key to this case is the State's relationship to the party.

If... people can form a party, form a group as in Justice Kennedy's question, and decide that they're going to support a nominee at the election, and if you need 15,000 signatures to put their nominee on the ballot, they're going to go out and get the 15,000 signatures.

If five of them have been doing that for 10 years and decide let's let a sixth person into that group, there needs to be no preclearance, because there isn't the kind of connection there is here between State law and what the party does.

Parties have an official position--

Unknown Speaker: But if the State agrees to let them on the ballot, the State can effectively preclude a party from being formed that is all black, that is all white, that is all rich people, that is all poor people, or whatever.

Mr. Bender: --If it lets them on the ballot in the same way it lets anybody else on the ballot, then preclearance doesn't apply.

Unknown Speaker: 1 percent of--

Mr. Bender: Preclearance applies when it has special rules for parties, and it... don't... I don't think you should denigrate the preferred position that parties get.

In Virginia, they are listed first on the ballot.

Every study of elections that I know says that that is worth an enormous amount, to be listed before the independent candidates.

Virginia has given them that privilege.

Unknown Speaker: --So we will only prevent these specialized parties when they're successful.

Mr. Bender: No, not when they're successful.

We only require preclearance of the party's rules when the party is given by the State some power that other people don't have.

The Attorney General's regulation under section 5 attempts to cut down... this Court's decisions about what has to be precleared because of its relationship to a general election are very broad, starting with the Allen case.

Unknown Speaker: And is that rationale that you're offering to us now that the delegated power, the preferred position, is that what makes it a political subdivision under the statute?

Mr. Bender: No, it's not a political subdivision, Justice Kennedy, it's the State under the statute.

Unknown Speaker: A State.

Mr. Bender: The concept of the State.

As Ms. Karlan said, the political subdivision is in there because they're talking about the coverage formula.

The two things are--

Unknown Speaker: But that's what makes it the State.

Mr. Bender: --And as the Court said in Sheffield, the concept of State and political subdivision are territorial, and within that territory, every entity, as Sheffield said, which would be the State under the Court's State action principles... and it's clear that a party in this respect would be the State.

Every entity that would be the State is covered, so the State is used in section 5 as the word State is used in this Court's State action jurisprudence, not in the formal sense of the State, and you can see that in the Dougherty case, for example, where a school board put a financial burden on an employee and said they had to take a leave in order to run for election, and the Court held that that had to be precleared.

Now, that school board has nothing to do with voting.

Unknown Speaker: Well then, the term State is coterminous with our State action jurisprudence?

Mr. Bender: Yes, except that the Attorney General's regulations should be given a lot of deference in dealing with that definition, and the Attorney General's regulations have tried to trim that concept some so as not to interfere with the constitutionally protected right of political association.

Unknown Speaker: Mr. Bender, I thought you had said that State is not coterminous with State action, because you're saying that the addition of this element of preference, as you put it, is crucial.

You said that if a State allowed any party onto the ballot on the same... to place a candidate on the ballot on the same terms as any other party, that that would not trigger applicability, and yet that would be State action, would it not, because each of the parties, including the little splinter group that was in the hypo, would be performing a State function of winnowing candidates down?

Mr. Bender: I think the question, Justice Souter, is whether the action of a group of people in deciding who they're going to support for election, who they're going to go out and get signatures for, is State action, and I'm very doubtful whether, if five of us get together and decide to get 50,000 signatures--

Unknown Speaker: Okay, but once they organize themselves and say, the five of us are going to be the X Party, and the State says, yes, five signatures on a petition is enough to get on the ballot, they would then be, on your theory, performing State actions.

Mr. Bender: --I don't think so.

I think the line would be drawn there if they're treated--

Unknown Speaker: Why?

Mr. Bender: --May I finish answering--

Unknown Speaker: Finish the answer.

Mr. Bender: --If they're treated just like any other group of people, then I don't think they are.

At least under--

Unknown Speaker: But they are performing the State function even in that case.

Mr. Bender: --They are performing a State function... I don't think so.

I think... I don't see how deciding who you're going to support for election is performing a State function.

Unknown Speaker: So winnowing possible candidates down is not a State function.

Mr. Bender: Not in itself, no.

Unknown Speaker: Okay.

Thank you, Mr. Bender.

Mr. Getchell.

Argument of E. Duncan Getchell, Jr.

Mr. Getchell: Justice Stevens, and may it please the Court--

The opinion of the district court should be affirmed because it's in accord with the plain meaning of the statute and the regulation.

The Voting Rights Act applies to a State or political subdivision which is covered by certain terms in section 4 of the act when that State or political subdivision alters a qualification or prerequisite for voting or a standard practice or procedure without... with respect to voting and voting, as you would expect in a statute about voting, is a defined term, and voting is defined as those actions necessary to make a vote effective in a primary, special, or general election.

Unknown Speaker: Mr. Getchell, do you concede the validity of the Attorney General's regulations here?

Mr. Getchell: Not if they are construed as the Attorney General would have them be construed, because I think that would raise grave First Amendment issues.

Unknown Speaker: Well, the regulations seem to extend the application to political parties in some circumstances.

Do you concede that that's a valid interpretation, that a political party can be a State actor?

Mr. Getchell: There are certain actions performed by the political parties which are clearly delegated public electoral functions, involving exclusively--

Unknown Speaker: Well, could you answer my question?

Do you concede that a political party can be a State actor?

Mr. Getchell: --It can be.

Unknown Speaker: Under the statute?

Mr. Getchell: It can be.

I think the only area where it ever is is when it is conducting a primary, and when it is setting rules for a primary, because a primary implicates the machinery of the State, the electoral machinery of the State, the state ballot boxes, the State officers, the State polling places.

It has traditionally been a State function because it's neutral.

It exists only to count votes.

On the other hand, a convention is intensely political.

The nominating process itself, the decision to nominate anybody, is personal and political, it's not--

Unknown Speaker: Well, that's a curious line to draw, because where the State is conducting primary election activities by way of administering them, I assume that any change can be challenged by a suit against the State itself, so the line you would draw is a little curious, I would think.

Mr. Getchell: --I think the line that I have drawn is the one that the Attorney General sought to draw in the regulation.

The statute itself doesn't address political parties at all.

The regulation says that the party--

Unknown Speaker: No.

So I would have thought you might just say, well, the statute doesn't reach political parties, but that's not your approach.

Mr. Getchell: --It does not reach political parties on its face.

The jurisprudence that has developed in the lower courts has drawn the distinction between primaries when it is deemed to be acting as the State and conventions and other--

Unknown Speaker: What jurisprudence are you talking about?

Mr. Getchell: --I am talking about Williams v. The Democratic Party, which this Court summarily affirmed in 1972.

The Congress has twice readopted the Voting Rights Act since then, presumably knowing of that jurisprudence.

Basically, that case said it does not apply to conventions.

MacGuire v. Amos, decided the same year, although it was dicta in a footnote, distinguished Williams v. Democratic Party to note that a convention was not involved in the Alabama case.

So without conceding that in all circumstances that that regulation is valid, it was not our purpose to challenge the regulation.

Our purpose was to say that the regulation clearly excludes us, because the regulation only applies to a political party if 1) the political party is exercising a traditional public electoral function, and b) that function has been delegated.

Unknown Speaker: Well, Mr. Getchell, is it fair to say that it is only exercising that function, on your view, if it is in fact using traditional State machinery?

Mr. Getchell: Yes, Your Honor.

Unknown Speaker: So that in... it is fair to say, I take it, then, on your view that although there are some circumstances in which the party would be covered, there are no circumstances in which the party would be covered which could not also be subject to a challenge directly to the State itself.

Mr. Getchell: I believe that to be the case, Your Honor.

Unknown Speaker: Okay.

So if we had a 45 fee for a primary, that would be subject to preclearance, is--

Mr. Getchell: Well, if it were viewed as a direct qualification for voting in the primary, it presumably would be.

On the other hand, if it were viewed as a delegate registration fee, this Court has struck down exorbitant delegation... I mean, delegate or candidate registration fees, but it said that it was not saying that they were improper in all circumstances.

Unknown Speaker: --But if the convention, as I understand it, is effectively a substitute for the primary, they both serve the same function in selecting candidates who will appear in preferred positions on the ballot, the function is identical, is it not?

Then why shouldn't the coverage be the same?

Mr. Getchell: I would commend to Your Honor the law review article by a Professor Weisburd that we have cited several times in our briefs, where he makes the political science point that they're quite different animals.

The State provides neutral electoral machinery.

It has no valid interest but that the votes be fairly counted.

The convention is a voluntary, grassroots meeting of people who are seeking a very unneutral end.

They are exercising their core First Amendment rights, and anything that attempts to trench on that would have to be justified by compelling State interest and a narrowly tailored piece of legislation.

Unknown Speaker: In your view, then, would this 45 fee stand on the same level as, say, the requirement of passing a literacy test?

Mr. Getchell: No, Your Honor.

This... practically, what this 45 fee is is reflected by the fact that we are dealing with a voluntary organization.

Because we have the largest political primary, we believe, in the western... I mean, not... we have the largest convention, although they call it a primary.

I'm getting ahead of myself... they want to criticize our convention.

They want to call it an indoor primary because it's so inclusive.

Then, at the same time, they want to say it's exclusive because a fee is charged.

Because the convention is so large, with 14,000 delegates at the most recent convention, we have to hire the largest hall in the Commonwealth of Virginia, and it costs money.

In the affidavit that was filed with respect to the '93 convention, the number was 300,000.

Unknown Speaker: So you're saying the difference in that and a literacy test is that yours is a more reasonable requirement?

Mr. Getchell: I don't see--

Unknown Speaker: But we're asking about whether or not this--

Mr. Getchell: --I--

Unknown Speaker: --the hypothetical literacy test is subject to challenge under either the act or the Constitution.

Mr. Getchell: --I may have misunderstood the hypothetical.

If you are asking whether or not the party, or a party could do unreasonable things, extreme things, be a feminist party, be a racial party, be a party of plutocrats or a party of intellectuals, yes, as long as it doesn't have State action, it can.

Unknown Speaker: So in your--

Mr. Getchell: It would be suicidal.

Unknown Speaker: --In your view... this is what I... I mean, the... it's a difficult question, I realize, but I put the obvious question to you.

In your view, if the Democratic Party or the Republican Party, neither of which would, but there used to be a problem, if either of them said, I have a primary, and only white people can vote, we agree that's illegal.

Mr. Getchell: We agree that's covered.

Unknown Speaker: All right.

So now what they do is, we're not going to have a primary.

Rather, we're going to call every voter who wants to come and vote in the primary to come to my meeting, whoever wants to come, and we will vote, and we'll call it a convention, and only white people can vote.

That, in your opinion, the Voting Rights Act just doesn't cover, and that's what I can't quite understand, why the people who would have written this Voting Rights Act would have wanted not to cover that possible situation, since it did exist many years ago.

Mr. Getchell: They... I think they very definitely wanted to avoid any collision with First Amendment Rights.

Unknown Speaker: So you're saying they didn't want to cover the possibility that the Democratic Party in the South, or the Republican Party, would say, oh, we no longer can insist only whites vote at the primary, so what we'll do is, we'll do exactly the same thing but call it a convention.

Mr. Getchell: I am saying--

Unknown Speaker: You're saying they didn't want to cover that obvious situation, despite Terry v.... you know, the cases that seem quite similar.

Mr. Getchell: --I am saying simply, Justice Breyer, that they didn't cover it.

Now, it could be--

Unknown Speaker: Maybe they wanted to but didn't think they had the power to.

Mr. Getchell: --Well, I believe they would have very grave constitutional problems.

Unknown Speaker: Right, and the evidence that they didn't want to cover it, even though there was a Supreme Court case right on point which said that it was covered under the Constitution, the evidence that they didn't want to cover it is what?

Mr. Getchell: I would submit that it is first in the plain language of the statute.

I would submit that it's secondly in the fact that the statute has twice been reaffirmed, or repassed, knowing what the jurisprudence was.

I would say that the prior practice is not that convention rules have been cleared.

Only one has been brought to this Court's attention, one incidence when the Democratic Party of Virginia did it in 1982, whether in error or out of an abundance of caution I do not know.

I would say that on the legislative history, that all of the legislative history is either for my position or neutral, except for the one statement by Congressman Bingham.

I would say that this Court has traditionally held that one chance statement by one Congressman is not valid legislative history.

I would say that if you look at section 11, which is the criminal part of this act, which has to be narrowly construed, they use the same language about primary, special, and general elections, and I would submit that that would not... that they didn't use that language differently in two different places.

Unknown Speaker: Well, Mr. Getchell, what about the change that Justice Breyer asked about from the conduct of a primary election to holding a party convention instead?

Is that action subject to challenge under section 5?

Mr. Getchell: That challenge, 1) may I say with respect to that question that we submit that no such change was made, that this--

Unknown Speaker: If there were a change, a party says, okay, the statute will reach us if we exclude people under the primary so we want to change to a convention system, would that change be subject to challenge--

Mr. Getchell: --I believe--

Unknown Speaker: --in your view?

Mr. Getchell: --I believe that the statute that permits, in the State's view, a party to call upon it to conduct a primary, when that statute is changed, that is subject to preclearance.

I believe arguably when the State acquiesces in a call for the party to actually conduct the primary, that that requires preclearance.

When the party has a statute like we have in Virginia which says, you can have a convention or a primary, let us know if you want a primary, and elects to make the change, I don't think the party as a party is subject to preclearance, because under your traditional State action case law, Blum v. Yaretsky, for example, if a private actor is making private choices within a statutory framework, that is... does not trigger State action.

So I would say that whenever the State changes its law, or when a State makes... changes a practice, that's subject to preclearance.

Unknown Speaker: May I ask--

Mr. Getchell: What we do is not.

Unknown Speaker: --May I ask you a question?

Do you think the case of Terry v. Adams, the Jaybird case, is still good law?

Mr. Getchell: I think it's good law, but I think--

Unknown Speaker: Well, how do you do... and the word involved there was State, in the Fifteenth Amendment.

Why is the word State narrower or broader in the Constitution than it is in the statute which was enacted to enforce the Fifteenth Amendment?

Mr. Getchell: --I would say that Terry v. Adams and Smith v. Allwright are extremely fact specific.

I would say the commentators have said that as well.

I would adopt Professor Weisburd's analysis, which is those cases were only applicable because of the pervasive State regulation.

The State required that a primary be conducted.

It required that the party decide who could vote in the primary.

It was obviously in complicity with the racist intentions of the Democratic Party.

It furthermore--

Unknown Speaker: But what about the preprimary?

What about the Jaybird case?

Mr. Getchell: --That is subject to the same analysis.

It depends upon a pervasive State regulation of the Democratic Party.

Unknown Speaker: I know you cite the professor's article, but which opinion that was written in that case supports your analysis?

Mr. Getchell: The opinions, of course, in both Smith v. Allwright and in Terry v. Adams I believe were plurality opinions, and basically the State action for most or all of the justices noted the fact that it was a one party State, that the nomination was tantamount to election.

The cases clearly view that the public function being delegated is the selection of public officers--

Unknown Speaker: Well, would your position be different in this case if Virginia was a one party State?

Mr. Getchell: --If Virginia were a one party State, it would be subject to suit under the same theory under the Constitution.

Unknown Speaker: Would your construction--

Mr. Getchell: I don't concede this act would apply.

Unknown Speaker: --Would your construction of the Voting Rights Act, the statute, be different if we only had a Democratic Party over 10 percent in any election?

Mr. Getchell: If you had only... if you had the same facts you had in those cases, you would get the same results under the Constitution.

Unknown Speaker: I'm asking about the statute.

Mr. Getchell: Under specifically section 5--

Unknown Speaker: Yes.

Mr. Getchell: --of the statute?

If it could be shown that the party were exercising its--

Unknown Speaker: It's shown that there's only one party that has more than 10 percent of the vote.

Mr. Getchell: --If it has... if there's only one party with 10... more than 10 percent of the vote, then presumably 28 C.F.R. 51.7, the Attorney General's regulation, would cover what the party's doing, because it would be--

Unknown Speaker: No, but would the statute cover it?

Mr. Getchell: --The statute does not by its terms cover it unless you then view the State as the actor.

Unknown Speaker: Well then, how can the regulation cover it, if the statute doesn't?

Mr. Getchell: You would then, under that jurisprudence, have a court entitled logically to say that the party was the State, and therefore the act covered it.

Unknown Speaker: Well, of course.

I mean, why not interpret State there to mean--

Mr. Getchell: Sure.

Unknown Speaker: --what State means under the Constitution?

Mr. Getchell: Sure.

But we're--

Unknown Speaker: It seems to me you would have to concede that the statute would apply.

Mr. Getchell: --But there's no case law that says that when we're engaged merely in the nomination function that we're engaged in a State action.

There is--

Unknown Speaker: In any case, you don't take the position that you have got... that we would have to hold that what you were engaging in was a primary within the meaning of the statute in order to be covered.

You don't take that position, do you?

Mr. Getchell: --I take the position that we have to be the State, that being involved in a primary has been held by many courts to be State action, that--

Unknown Speaker: Right, but you're not saying that as a textual matter this has got to be a primary within--

Mr. Getchell: --No.

Unknown Speaker: --the meaning of this statute?

Mr. Getchell: No.

No.

Unknown Speaker: Okay.

Mr. Getchell: But I think as a practical matter, that's where we end up.

Unknown Speaker: And when you say, be involved in a primary, a party would still be able to maintain its own integrity, however kooky it may be, if it decided to pay for its own primary.

Mr. Getchell: Well--

Unknown Speaker: If it decided, we are having a party sponsored Statewide vote, and it sets up, you know, precincts in which people can come and vote.

That's not what you mean by a primary.

You mean a State run primary.

Mr. Getchell: --I mean a State run primary.

Dr. Weis... Professor Weisburd points out that some States purport to have laws that require primaries, require political parties to engage in primaries.

He points out that after your decision in Democratic Party of the U.S. v. Wisconsin, and particularly footnote 31, those statutes are all presumptively unconstitutional.

If we, as a party, want to avail ourselves of the public apparatus of a primary, then we entangle ourselves with the State, and the State action at least is subject to preclearance, but when we merely nominate with our own people in our own convention, we are not subject to the prior leave of the Government.

It would be terribly unseemly if an organization that exists to change the Government had to preclear the time, place, date, and rules for its convention, even if conceptually you could do that, which you can't, because a convention is a law unto itself.

It makes its own rules.

Unknown Speaker: What would you say with reference to the scope and the meaning of the defined term, voting, in section 14?

Voting is defined as all action necessary to make a vote effective in any primary.

Would you--

Mr. Getchell: In any--

Unknown Speaker: --Would you agree that voting might be... that the voting requirement might be complied with here even if State or subdivision is not?

Mr. Getchell: --No, Your Honor, I most vigorously deny that it would be satisfied here.

Unknown Speaker: So you do not think that the action in question here, the 45 fee, is within the purview of the defined term, voting, in section 14?

Mr. Getchell: No, sir, I do not.

Unknown Speaker: Well, is that because you think a delegate is not a party official?

Mr. Getchell: I think it's because we're not dealing with a primary, special, or general election.

Unknown Speaker: Well, but you don't... as you conceded a moment ago, that's not necessarily the case for statutory applicability, and doesn't... I don't have the voting definition in front of me, but doesn't it include... I guess it was in the later amendment, at least in the tail end of it, voting for a party official?

Isn't that included within the meaning--

Mr. Getchell: Voting for the party official has always been in there, but that means voting in a primary, because voting is a--

Unknown Speaker: --Well, I mean, why?

Isn't... a delegate to a party convention is a party official.

Mr. Getchell: --Yes.

Unknown Speaker: Why, therefore, doesn't the term, or the definition by its terms cover voting for that official?

Mr. Getchell: It is anything necessary to make a vote effective in a primary, special, or general election, which I think has a very distinct meaning that--

Unknown Speaker: Yes, but you stop half way through the definition.

Mr. Getchell: --I don't--

Unknown Speaker: Complete the definition, and you pick up party official.

Mr. Getchell: --I agree--

Unknown Speaker: And party official I presume is a broader concept than merely the concept of those who, in the gross sense, would be subject to a Statewide primary, for example.

Mr. Getchell: --Party officials, particularly in the South, Democratic Party officials when the act was passed, were elected in primaries.

Unknown Speaker: And now they're elected, it appears in some cases, by convention, and I don't see anything in the definition which excludes them from the definition when... insofar as it extends to party officials.

Mr. Getchell: Party officials are not excluded as long as they're elected in primary, special, or general elections.

Unknown Speaker: But the--

--I still have a problem in... the defined term is that voting includes all action necessary to make a vote effective, and that seems to me to cover what you're talking about.

Mr. Getchell: Well, what it would--

Unknown Speaker: I'm not sure that you lose even if we concede that this is voting.

Maybe you do.

Mr. Getchell: --Well, the reason that I'm very concerned about that point of view, Justice Kennedy, is that it is not a State function to nominate, and even though that conceptually, if you don't have a candidate you don't make a vote effective, what is being argued for by the appellants is very, very radical.

It says that if we nominate, then we're part of voting.

Now, this was an argument... again, Professor Weisburd points out this was an argument that was made by commentators in the sixties following the '68 Democratic Convention.

There were some lower courts that seemed to make nomination a public function.

And then he reviewed your First Amendment jurisprudence, particularly in Cousins v. Wigoda and in Democratic Party of the U.S. v. Wisconsin, and I would add to that the Eu case, and it is perfectly... it seems to me perfectly persuasive that this Court would say that everything that happens prior to an election, and the involvement of State apparatus, is First Amendment private activity.

It is not a State function.

And Justice Souter, with all deference, on the idea that winnowing is a State function, that is a notion that comes out the Storer case, but in Virginia there is no winnowing, because in California, if you ran in the primary you couldn't run in the general election, and so the State was at least having the mass of people claiming a right to be on the ballot reduced.

In Virginia, if you are nominated by a convention, if the nomination is by the convention, a losing party can run as an independent.

Unknown Speaker: Okay, well, let's take a simpler tack.

Going back to the definition of voting again, if we start with the assumption that one act which would have an effect on voting in primary, special, and general elections, may be the act of selecting party officials, as the definition seems to say, and if, in fact, a delegate here is a party official, why doesn't that alone extend the act on its terms to cover the situation?

Mr. Getchell: Well--

Unknown Speaker: That doesn't require that the election of the party official be in a primary, special, or general election.

It simply requires that we hold that the act of electing or selecting the party official can ultimately have an effect on the effectiveness of votes in primary, special, or general elections.

If that is the case, that's enough for coverage of this practice, isn't it?

Mr. Getchell: --I can't read the text, Justice Souter, that way.

I think that the text, the meaning of the text is that if you make a change in a practice or procedure or standard for voting--

Unknown Speaker: With respect to voting.

Mr. Getchell: --With respect to a primary, special, or general election for any number of people, including State officers, that you are at least covered by the text of the act.

Unknown Speaker: But if we read the definition of voting as I have just suggested it may be read, then you lose, I take it.

In other words, you can't accept that reading of the term, of the definition of voting and still win this case--

Mr. Getchell: One of the reasons--

Unknown Speaker: --under the section 5 issue--

Mr. Getchell: --Well--

Unknown Speaker: --right?

Mr. Getchell: --I could, I suppose, ultimately, because I would submit that if, in fact, the law is that each of the 126 units in Virginia which has its convention in mass meeting, which leads to up to 100 legislative district conventions and up to 40 State Senate legislative district conventions, and in some years 11 congressional district conventions, and then the State convention, if the rule is that before these people who don't have lawyers, who don't have people to preclear with the Justice Department, before these people can meet, they have to first clear the time, place, and date with the Justice Department--

Unknown Speaker: No, we're not talking about time, place, and date.

We're talking about the possible application of the act to a fee requirement.

Mr. Getchell: --You can't stop with the fee, because if the fee is a practice--

Unknown Speaker: Maybe we don't stop with the fee, but maybe we start with the fee.

Mr. Getchell: --If you... if... well, I would suggest that you should not wish to start with the fee, because I believe that you--

Unknown Speaker: Yes, but somebody does wish to start with the fee--

[Laughter]

--and my difficulty with your argument is that it seems to me quite possible, and in fact even easy, to read the definition as covering this particular requirement for the election of a party official whose selection may have an effect on the effectiveness of votes in the ultimate election.

And the fact that the application in this instance may raise other questions about whether it applies to the timing of these delegate selections and so on is something to consider, but there's still the problem of why, on its face, this does not apply.

Mr. Getchell: --The ordinary rule of construction of this Court is that if you are offered an interpretation of the statute which raises grave constitutional issues, you will avoid it unless you are compelled to that construction by the clear intent of Congress.

And my point is, if you start with the fee, you can never stop there, because the only intellectually coherent grounds for saying that the fee is covered is to say that the party is engaged in State action by the mere act of nominating, and therefore the whole process is ultimately federalized to the same extent it would be if it were State action.

Unknown Speaker: Do we disregard the Attorney General's rejection of that interpretation?

I thought the Attorney General's interpretation were, things close to the election of candidates like the 45 fee were covered but things remote, like the time and the place of meeting, like the formulation of the party's platform, were not covered.

Mr. Getchell: Actually, the amicus brief, Justice Ginsburg, filed by the Government acknowledges that they do contend that the time, the place, the date, are all covered.

And remember, this is 30 years too late, it seems to me, to adopt radical new interpretations--

Unknown Speaker: Where do you say they make that contention?

Mr. Getchell: --In their amicus brief filed by the Solicitor General.

Unknown Speaker: Can I... oh.

Mr. Getchell: Yes, I'm sorry.

Unknown Speaker: Were you finished?

Were you finished?

Mr. Getchell: I was going to make the additional point that it is too far down the road.

Remember, the whole purpose of section 5 was to freeze in time in 1964 the practices that were potentially discriminatory so that States wouldn't change them just as fast as the courts struck them down.

Now, the remedy for section 5 is to go back to where you were in 1964.

Well, in 1964, the Republican Party held its convention for this Senate seat in the John Marshall Hotel, which is boarded up and closed, and it held the next convention in the Hotel Roanoke, which is something else entirely.

This is not the kind of statute or remedy which makes any sense 30 years down the road to give an unexpected interpretation to, and the interpretation would now be extremely unexpected.

Unknown Speaker: How long has the Attorney General's regulation been on the books?

Mr. Getchell: Well, the Attorney General's regulation has been on the books for some period of time.

I don't know the exact date.

Unknown Speaker: Well then, I don't know why you'd say it's unexpected, because this comes right within the--

Mr. Getchell: The interpretation of the regulation, Justice Stevens, is what is unexpected to me.

The regulation on its face says--

Unknown Speaker: --Apparently there are 1,000 different submissions that didn't find it that unexpected.

Mr. Getchell: --I think that the Turner appendix which has been alluded to does not on its face disclose that any of those submissions had to do with conventions.

Only one submission having to do with convention rules has been brought to this Court's attention, and--

Unknown Speaker: What are the other ones, the Solicitor General... you mentioned 300 that did not deal with primaries.

Mr. Getchell: --I don't... I've never heard that number.

That number's not in any of the briefs, or in the record.

What is before the Court are a handful of documents that the Solicitor General mailed to the Court and to counsel last week, or week before last.

Most of them have to do with the Green Party, the Republican Party, and the Democratic Party in Alaska.

The letter is dated September 18 to the Clerk of this Court.

Except for the Virginia convention submission, they all have to do with changes in primaries in Alaska.

Unknown Speaker: Well, perhaps the Solicitor General can tell us where this 300 number appears.

Are you saying, to go back for a second... let's go back 30 years, or 20 years, and you're a Member of Congress, and suppose what you're concerned about is that the major party, the Republicans or the Democrats, say only white people can vote in our primary, and that's terrible, and you want to make it illegal, and probably the Constitution does.

And then the idea comes through, maybe what they'll do is have a primary, they'll just call it a convention, and they won't go into a voting machine, they'll go meet somewhere.

Are you saying Congress, under the Fifteenth Amendment, lacks the constitutional power to forbid that?

Mr. Getchell: I would submit two things.

One is, the Fifteenth Amendment requires State action.

Unknown Speaker: Yes.

What they've done is, the political party is simply going to go do just what they did before, but they won't call it a primary because they won't use a voting machine.

They'll all go to a room some place, anyone who wants to, and they'll raise their hands.

Okay, I'm saying, do you think... is your argument that Congress lacks the constitutional power to do it--

Mr. Getchell: For two reasons--

Unknown Speaker: --Forbid that, yes or--

Mr. Getchell: --For two reasons... yes.

Unknown Speaker: --Yes, okay.

Mr. Getchell: If I may elaborate, for two reasons.

One is that it's not a State function when you have nominations, and it doesn't involve State apparatus.

Secondly, the preclearance of this bill is too blunt, it's not finely tailored when it impinges on First Amendment rights, and Congress therefore wouldn't have adopted section 5 to deal with that problem.

Unknown Speaker: Thank you, Mr. Getchell.

Mr. Getchell: Thank you.

Unknown Speaker: Ms. Karlan, you have 5 minutes.

Rebuttal of Pamela S. Karlan

Ms Karlan: Thank you, Justice Stevens.

I begin with one observation about what Mr. Getchell has told you today, which is, he tells you how the Republicans run their convention in Virginia, and how much it would cost, and how it should be operated, and how difficult it would be to preclear.

Those issues are not before this Court.

The issue before this Court is here on a motion to dismiss.

If his argument depends on what the Virginia Republican Party actually does, then the appropriate judgment from this Court is a reversal and remand so that we can conduct discovery on what the Virginia party actually does.

The second point I want to make is that the word State is, of course, ambiguous.

It depends on a construction of State that draws on the Fifteenth Amendment cases which the Voting Rights Act was intended to enforce.

It understands what State action was, which is when political parties conduct their public nominating function.

It relies on the Department of Justice's regulations, which this Court has always given great deference to.

The third point is about freedom of association.

Justice Scalia, your arguments would depend... would be equally strong in the context of a primary election.

If the Republican Party wanted to hold a primary election restricted to party members, and limit party membership to white voters only, then your argument would say they have that entitlement.

Unknown Speaker: If they paid for it themselves, yes, if it wasn't a State run primary.

Ms Karlan: That might be correct, but Your Honor, the freedom of association point might be the same even if they did, and this court clearly has never taken that broad an approach.

Moreover--

Unknown Speaker: I think the freedom to associate is not the freedom to have the Government pay for your association.

I think once you get the Government in, paying for the primary, it's a different situation.

Ms Karlan: --That's correct.

Now, in this case, there is no freedom of association claim, really, because if you look at the Republican call for the convention contained in the Joint Appendix, they allow all voters to participate.

The only point they make is that they have some kind of interest in charging the 45.

That may be so, but that interest will only be trenched on by section 5 of the Voting Rights Act if the Department of Justice, the United States District Court for the District of Columbia, or this Court, concludes that that practice of charging the 45 has the purpose or effect of discriminating on the basis of race.

At this point, their claim has to be that they would have the right to make people pay even if that excluded all black voters, or a disproportionate number of black voters.

Again, that is the issue to be determined in preclearance.

They have no First Amendment right that they have identified that would be trenched on by requiring preclearance in this case of this fee.

Unknown Speaker: I assume that a State cannot limit the ballot to labor union members.

Ms Karlan: That's correct.

Unknown Speaker: Can a political party limit the ballot to labor union members?

Can you have a labor union political party?

Ms Karlan: That runs a primary election--

Unknown Speaker: No, no primary, just as a convention.

Ms Karlan: --And that receives--

Unknown Speaker: They say, you can't get into the convention unless you are a union member.

Ms Karlan: --And receives a place on the ballot above all other parties?

Unknown Speaker: It's successful on the first election, and therefore is automatically listed on the ballot in later elections.

Ms Karlan: I don't know, Your Honor.

What I do know in this case is that section 509(B)--

Unknown Speaker: Why don't you know?

I don't understand why you... wouldn't the same principle you're announcing to us apply to that as well as to this situation?

Ms Karlan: --I would have to know what the State involvement in that political party's placement on the ballot is, and I don't know what that is, Your Honor.

Unknown Speaker: What is it here... you keep saying preferred position--

Ms Karlan: Yes.

Unknown Speaker: --of the Republicans or the Democrats.

Precisely what does that consist of?

Ms Karlan: Under section 24.2 613 of the Virginia Code, political parties receive placement on the ballot above... lexically above all other candidates, and as Mr. Bender referred, there's a function called roll off, which means as you move down the ballot, fewer and fewer people are still voting, and it turns out that being the number 1 candidate or number 2 candidate on a ballot gives you some substantial bump up in the number of votes you receive.

That's the preferential position.

The second preferential aspect is that the parties need not show that this candidate has any particular level of support, whereas any independent candidate, or nonparty candidate running, must both gain a percentage of the registered voters as signatories and have those people spread across the Commonwealth.

I think the number, if you multiply it out right now, is about 15,000 signatures--

Unknown Speaker: Could--

Ms Karlan: --so that's more difficult as well.

Unknown Speaker: --I didn't mean to interrupt you.

Were you done?

Ms Karlan: No, that was the end of that.

Unknown Speaker: Would you explain to me the significance of the preferential treatment for purposes of the act?

Ms Karlan: Yes, Your Honor.

We contend that the Virginia Republican nomination process is pervasively regulated and results in the party receiving preferential treatment.

The pervasive regulation--

Unknown Speaker: Okay, I'll concede that, but why is that necessary for your case?

Ms Karlan: --It's not necessary to our case.

It buttresses our case.

Unknown Speaker: Okay.

Ms Karlan: We would... thank you.

Justice Stevens: Thank you.

The case is submitted.