Timmons v. Twin Cities Area New Party - Oral Argument

Argument of Richard S. Slowes

Chief Justice Rehnquist: We'll hear argument next in Number 95-1608, Michele Timmons v. The Twin Cities Area New Party.

Mr. Slowes, you may proceed whenever you're ready.

Mr. Slowes: Mr. Chief Justice, and may it please the Court:

This case is here on a writ of certiorari from the Eighth Circuit Court of Appeals.

The issue is whether the laws of Minnesota and those of some 40 other States that limit each candidate to one party designation on the election ballot should be overridden by the desire of a party to place on that ballot as its candidate someone who is already on the ballot as a candidate of another party.

In this case, Minnesota's law preventing multiple party nominations prevented the respondent New Party from placing on the Minnesota election ballot as its candidate Representative Andy Dawkins, a Democratic-Farmer-Labor legislator who was already on the ballot as the DFL candidate.

The case involves a narrow aspect of political party activity.

It is not about the ability of a party to generally select its candidates.

It is not about the ability of a party to generally get its candidates on the ballot.

It is about the narrower issue of a political party that wishes to put on the ballot somebody else's candidate who is already there.

Minnesota's law that precludes that activity does not freeze the status quo.

In fact, in Minnesota in the 1994 election a third party qualified as a major party.

Justice Scalia: Somebody else's candidate that is already there.

Who gets the first peck?

I mean--

Mr. Slowes: In this instance what happens is, and what really controls here, Justice Scalia, is that the candidate must file an affidavit of candidacy, and on the affidavit of candidacy he must indicate his political party.

Justice Scalia: --Yes.

Mr. Slowes: In this instance, Representative Dawkins had filed an affidavit of candidacy for the Democratic-Farmer-Labor primary.

That affidavit of candidacy was already on file when the New Party attempted to file another affidavit.

Justice Scalia: What if the New Party had filed... well, the same thing would happen if the New Party had... what if the New Party had put up Dawkins first?

Does that mean the Democratic-Farmer-Labor Party wouldn't have been able to run Dawkins?

Mr. Slowes: If Representative Dawkins had said yes--

Justice Scalia: To the New Party?

Mr. Slowes: --I'll file this affidavit of candidacy listing the New Party as my party, filed it with the county officials--

Chief Justice Rehnquist: I presume he would not have done that if he wanted to be elected.

[Laughter]

I mean that if he was going to get the DFL nomination, he would... he could only get one.

He would have settled for the DFL.

Mr. Slowes: --I would presume that's so, Mr. Chief Justice.

In fact, in his affidavit which he submitted in this case he indicated he is a lifelong DFL member, that he believes in the DFL party, and if elected to the legis--

Justice Stevens: What if he sent both in at the same time?

What would you do?

Mr. Slowes: --Your Honor, that would not be permitted by the law.

First of all, the law--

Justice Stevens: What is the State interest in preventing that from happening?

Mr. Slowes: --The State interests are multiple, Justice Stevens, and what they have to do with, a number of issues that this Court has recognized as compelling State interests, although we don't believe that the Court has to conclude that they're compelling in this instance.

One of them is the concern that multiple party candidacies can lead to voter confusion about how to effectively cast your ballot.

When the name appears on the ballot numerous times... in fact, this recently happened in Connecticut in one of their elections where fusion was used.

Some of the voters thought that they had to fill in every line where the name appeared for the vote to count.

Justice O'Connor: I guess you could have instructions on the ballot telling people what to do in that event.

Mr. Slowes: Justice O'Connor, in fact that's kind of the narrow tailoring that the Eighth Circuit suggested for that.

We think--

Justice O'Connor: But that would be possible, I guess, to have instructions along with a ballot that did permit parties to name the same person as their candidate.

Mr. Slowes: --Yes, Your Honor, it would be possible.

Justice Stevens: Or, indeed, I suppose you could count the vote whether you voted on one line, two lines, or either, or both.

Mr. Slowes: Your Honor, that would--

Justice Stevens: I... it seems to me you have to be pretty dense to be confused on this one.

[Laughter]

Mr. Slowes: --Well, apparently some voters in Connecticut were, Your Honor, and one of the issues in the recount was how do you deal with the ballots where there are multiple markings.

Justice Ginsburg: Yes, but are we supposed to erase from our mind that there is at least one State that has had a lot of experience with fusion candidates, and there's no large confusion.

It's not a major problem.

So whatever one might speculate about the lack of intelligence of the voters, we do have the State of New York, where this has gone on without huge confusion.

Mr. Slowes: That's indeed the case, Your Honor.

Justice Scalia: New Yorkers are smarter, I think.

That's probably the answer.

[Laughter]

Mr. Slowes: I think that I have to be careful, if I'm going back to Minnesota, about making that argument, Your Honor.

[Laughter]

But I think a State can make a judgment.

Indeed, there is that record in New York.

But it's a singular record.

There is no indication from other States on what will happen.

There's not a broad range of empirical experience with this.

Justice O'Connor: How many States have these antifusion laws like your State?

Mr. Slowes: There are approximately 40, Your Honor.

It's difficult to get a precise count, because some of the statutes are ambiguous, and there aren't rulings about them.

Justice O'Connor: And most of them have been in effect how many years?

Mr. Slowes: Roughly since the turn of the century, Your Honor, so there's not a broad range of empirical evidence, but there's also--

Justice Souter: What's your answer to the suggestion that someone made here that, assuming somebody gets confused and votes twice, all the State has to do is count it once?

Why isn't that the answer, the simple answer to the voter confusion point?

Mr. Slowes: --Because we can't be certain that the ballot is going to be easily understandable in terms of what they really intended to do.

Justice Souter: Well, if they marked... if Joe Doaks is running on two lines and they mark Joe Doaks on each line, isn't it a fair inference that they want Doaks?

[Laughter]

Justice Scalia: Don't you have to know what party they voted for Doaks on in order to determine who gets on the ballot without having to go through a petition process the next time around, or not?

Mr. Slowes: Justice Scalia--

Justice Scalia: Is there any minimum party size?

Mr. Slowes: --In the circumstances of this case, which was a legislative election for a legislative seat--

Justice Scalia: Right.

Mr. Slowes: --the vote count has no effect on the future party status.

Justice Scalia: Okay.

Mr. Slowes: Those... only Statewide elections count in Minnesota for major party status, so that's really not an issue here.

Justice Kennedy: Well, but I take it the argument--

Justice Scalia: --But that argument would be a valid argument in other elections, although not in this one?

Mr. Slowes: If it were a Statewide election there would be that issue, and then the State would have the question of how are we going to appropriately deal with this issue.

Justice Kennedy: But I take it the respondent's argument would address a Statewide election if the respondent prevails, would it not?

Mr. Slowes: It... they claim that it does not, Your Honor, because there are three statutes that are... affect fusion in Minnesota.

One of them specifically addresses that issue, but in terms of a Statewide election, the statutes that are at issue here would apply to Statewide elections as well, so if they are struck down then it would strike down fusion for Statewide elections and you--

Justice Kennedy: And then there would be a problem with determining the amount of votes garnered for each party, or a potential problem.

Mr. Slowes: --The State would have to retune its system, figure out how it is going to deal with the issue of how you count the votes for a major party, along with the issues such as are we going to have an aggregated or a disaggregated ballot.

That is, does the candidate get a separate line for each party that nominates him.

Justice Souter: But why are these such difficult issues for the State to deal with?

Why, for example, can't the State simply decide that in the case in which there is a question of party qualification based on the vote, that one... that the major party will be deemed to have preeminence, and the vote will count for that purpose, that a minor party will not be allowed in an ambiguous case to count the vote.

Why can't the State come up with some kind of a tie-breaker rule which would be easier or less restrictive on voter choice than the antifusion rule?

Mr. Slowes: Your Honor, I'm not suggesting that the State's ability or inability to figure out how it wants to count these votes toward major party status is the preeminent interest that justifies the fusion ban, but I think it illustrates a slightly different point, and that is, what goes into creating a fair and orderly and efficient electoral process involves a lot of judgments, essentially a lot of political engineering about how the pieces of the system will work together.

This is just one of those pieces, and what we are suggesting is that where the States--

Justice Stevens: If that's not the preeminent interest, what is the preeminent interest?

If voter confusion isn't your justification, what are your stronger justifications?

Mr. Slowes: --The justifications... I think voter confusion is an interest, Your Honor, and that's a side point of it.

Justice Ginsburg: May I ask with respect to voter confusion if that is not offset by voter information?

That is, it's one thing to have a candidate only on the line of major party.

It's quite another thing to have that same candidate on the line of minor party that has certain goals and objectives.

So when the public sees someone not only in the line of major party but also of minor party, whether it's to the left or right of the political spectrum, that is telling the voters more about that candidate, so isn't... is that irrelevant, that informing function of being, say, on the liberal party line or on the conservative party line in the State of New York, to take that as an example?

Mr. Slowes: Justice Ginsburg, our position is not that it's irrelevant.

Our position is that that kind of communicative use of the ballot is not constitutionally compelled.

In fact, we don't elect parties at the elections, we elect candidates.

We use the ballot to decide which of these candidates is going to hold the official office that the election is for.

In fact, if Mr. Dawkins were elected on the DFL ballot, or as a DFLer, there's nothing that prevents him from the next day turning around and becoming a Republican.

Justice Kennedy: I'm interested in Justice Stevens' question.

Where we are so far is, it was suggested first by Justice Scalia that it might be important for the State to determine which party garners the most votes, and then you were asked a question, well, couldn't we presume that the preemininent party gets the votes.

I very much doubt that minor parties would agree with such a presumption.

And then you said, well, that's not really our interest.

That's a side thing.

We're talking about, really, the whole election dynamic.

And then Justice Stevens said, well, what is your particular interest, and I never did get the answer to that.

Mr. Slowes: I'm sorry, Justice Kennedy, I--

Justice Kennedy: Well, you've had a number of questions, but--

Mr. Slowes: --And I... let me try to address that.

Other interests that are involved: one of the concerns, and this relates to the confusion as well, is that confusion sets up a situation that is ripe for ballot manipulation.

It creates a situation where candidates can, in a sense, create bogus minor parties so that they can get their name on the ballot more than one time to give them an advantage, or perhaps taking it even a step further--

Justice Stevens: --But that bogus minor party would have to meet all the State statutory requirements for becoming a party eligible to get on the ballot.

Mr. Slowes: --That's correct, Justice Stevens, and--

Justice Stevens: And so they would be splintering their own strength by going out of the way to create another party, wouldn't they, and has this ever happened?

Mr. Slowes: --Let me go back to the first question, Your Honor.

In Minnesota we make it very easy for minor parties--

Justice Stevens: Right.

Mr. Slowes: --to get on the ballot.

In this district it would take 500 signatures on a nominating petition--

Justice Stevens: Right.

Mr. Slowes: --to get someone on the ballot.

That's all there is to it.

It doesn't require party organization.

It doesn't require a lot of things that other States require, so--

Justice Stevens: And you're saying a major party would do that why?

Mr. Slowes: --Because major party candidates might very well, if they're, for example... this wasn't the case with Mr. Dawkins, but if they're in a case, an election where they do have a tough contest with an opposing major party, they might decide that it's to their advantage either to have their name on the ballot more than one time, or they might even prefer to have their name on the ballot not only as a Democratic candidate, but also as the no-new-taxes candidate, and the tough-on-crime candidate, and the fusion system, especially in a State like Minnesota that is friendly to minor parties getting on the ballot and makes it easy to do it, opens the door for that kind of ballot manipulation.

Justice O'Connor: Would you explain how the Minnesota system works?

When you say get on the ballot, are you referring to get on the ballot for the primary election?

Mr. Slowes: There are--

Justice O'Connor: Or getting on the general election ballot?

I thought there was some special provision in your State for minor parties to put a candidate on the general election ballot.

Mr. Slowes: --Justice O'Connor, there are two ways to get on the ballot in Minnesota.

For major parties, which we now have three of, those candidates have to go through a primary election, and--

Justice O'Connor: But this... this party, the Twin Cities Area New Party, did not have to go on the primary election ballot, is that right?

Mr. Slowes: --That's correct, Your Honor.

They're in the second category.

We only have two categories.

Either you are a major party, or you're just everything else--

Justice O'Connor: And if you're everything else, how do you get past the primary and on the general election ballot?

Mr. Slowes: --To get on the ballot you're required to file a nominating petition.

Justice O'Connor: You mean on the general election ballot?

Mr. Slowes: On the general election ballot.

All you have to do is file a nominating petition that has the requisite number of signatures.

Justice O'Connor: But the major parties can't do that.

Mr. Slowes: Major--

Justice O'Connor: They go through a primary.

Mr. Slowes: --Yes, Your Honor.

Major party candidates have to go through a primary.

Everybody else can get on by filing a nominating petition with... the number of signatures differs per... for office, but for this office it was--

Justice O'Connor: So all we're talking about here is access to the general election ballot, in effect.

Mr. Slowes: --That's correct, Your Honor.

Justice O'Connor: And whether the minor party can nominate the same candidate as some other party--

Mr. Slowes: That's--

Justice O'Connor: --who's gotten there by primary election.

Mr. Slowes: --That's all we're talking about, Your Honor, that's correct.

And as I was saying, because it is so easy to get on that general election ballot for nonmajor party candidates, it opens the door for this kind of ballot manipulation.

The Eighth Circuit and the respondent suggest that we can take care of that by simply raising our signature threshold, make it tougher to get on the ballot.

Justice Stevens: May I put another question to you that... what concerns me in the background?

I remember when General Eisenhower ran for President there was a real possibility both major parties might have nominated him, and it would seem to me that each of those parties would have had a strong associational interest in picking the nominee of its choice.

Now, why is it that they shouldn't be allowed to both nominate General Eisenhower if they wanted to?

What is the powerful interest that would prevent each party from picking its own nominee?

Mr. Slowes: Your Honor, their interests again are as I've started... tried to be telling you.

Justice Scalia: Excuse me.

I thought they could pick their own nominee.

Mr. Slowes: They--

Justice Scalia: Not in Minnesota--

--No, they can.

They just can't have it shown on the ballot as a nominee of that party.

Isn't that the case?

Mr. Slowes: --It all depends on the nomenclature you're using.

If you're talking about nominating a candidate as meaning, we're going to name this candidate and he will be on the ballot as our candidate, then that's what's prevented by fusion.

What is not prevented is endorsement of a candidate.

Unknown Speaker: Right.

Mr. Slowes: Supporting the candidate--

Chief Justice Rehnquist: California for many years had cross-filing.

That was how Earl Warren got elected in the primaries without ever even going through a general election.

Could a State ban that?

Mr. Slowes: --Yes.

In fact, California has.

California was unhappy with that.

Chief Justice Rehnquist: Yes.

They didn't like it.

Mr. Slowes: There was a criticism about--

Chief Justice Rehnquist: And changed it.

Mr. Slowes: --what happened.

It reduced party responsibility, or reduced responsibility for governing, and there's... actually there's criticism of the New York system, that it does the same thing by allowing major parties to cross-nominate, it can prevent problems.

Everybody doesn't see this as a universal panacea.

And Justice Stevens, the answer to your question is, again, what this Court has looked at in the past in evaluating election statutes is, is the State setting up formidable barriers to participation, and when it's looked at the rights of parties to nominate the candidates, it really hasn't gone so far as to say that a party has a right to select a particular candidate.

It has to have the door open to--

Justice Stevens: It just can't select the one it wants and also get it on the ballot.

I understand.

Of course, you can say you can nominate anybody but you can't have your nominee's name appear on the ballot.

That's all.

I understand that.

Mr. Slowes: --Well, that's correct, Your Honor, and the members of the... and the members of that party have the kinds of associational rights that this Court has found are most important.

That is, they retain the right to work collectively to advance a candidate that they support, and they can vote for that candidate.

The Minnesota... the law of Minnesota keeps nobody off the ballot.

It's unlike all of the statutes that this Court has struck down in this area.

It doesn't keep anybody--

Justice O'Connor: What case of ours is closest to supporting your view, do you think?

Mr. Slowes: --Your Honor, we think that--

Justice O'Connor: Is it Storer, or what?

Mr. Slowes: --Yes, Your Honor.

We think that Storer is... supports us.

In Storer, the Court upheld California disaffiliation statutes that prevented two independent... two former Democratic Party members from running for Congress as independent candidates.

The suit was brought not just by those potential candidates, but by some of their supporters.

The disaffiliation statute upheld in Storer was far more restrictive of supporters' rights, of parties' rights, because it eliminated a much huger pool of candidates than does a fusion ban, and yet the Court upheld it.

And in fact, Your Honor, in Anderson--

Justice Ginsburg: But for a limited amount of time.

I remember you had to... when you change, disaffiliate from one, it's a waiting period.

It's a time period, the disqualification.

You can become qualified again.

This is a rule that operates forever, no more than one party per candidate.

Mr. Slowes: --The disaffiliation requirement in California was 12 months before the primary, so somebody had to disaffiliate, I believe it was, something like 17 months before the general election.

It was quite a long time.

But there's another difference that makes the Storer case even more of a restriction than this, in that it not only had a much broader range of candidates who were excluded, but they were totally excluded from the ballot.

Justice Stevens: But it had a quite different justification, too.

Mr. Slowes: It had a justification of preserving the stability of the party system and the electoral system, and that's some of the justification for this statute.

I kind of haven't been able to get through them, but that's certainly one of the interests that Minnesota is interested in, and that is avoiding the excessive factionalism that the Court found was problematic in a case like Storer.

Justice Ginsburg: Why isn't the answer to that, or at least part of the way to an answer, that the major party consents to this, so you don't have the factionalism that you have when... in the... what has been called the sore loser statute that was involved in Storer.

Here, if the major party says no go, then there's nothing... nothing the minor party can do.

Mr. Slowes: Justice Ginsburg, in Storer, where the same answer could have been that if we just do a consent requirement then that will avoid splintering, the Court, facing a statute that was much more restrictive than Minnesota's, didn't require narrow tailoring.

The dissent by Justice Brennan suggested that there were things that could have been done to the California statute to tailor it more narrowly.

Shorten the disaffiliation period.

Apply it only to sore losers.

Chief Justice Rehnquist: The Minnesota statute doesn't presently require the consent of the DFL party for this.

It just requires the consent of the candidate?

Mr. Slowes: Well, the Minnesota statute doesn't permit it, Your Honor, even with the--

Chief Justice Rehnquist: That's right, yes.

Yes, okay.

Mr. Slowes: --While the disaffiliation statute in Storer also didn't permit a candidate to run, there was obviously candidate consent because the candidate--

Chief Justice Rehnquist: Did the respondent in this case obtain the permission of the DFL party?

Mr. Slowes: --No, Your Honor, and there's nothing in the record to suggest that they attempted to obtain that permission.

They did obtain the permission--

Chief Justice Rehnquist: Of the candidate.

Mr. Slowes: --of Candidate Dawkins, and that is in the record.

There's nothing in the record about any attempts to get DFL permission, or whether the DFL gave permission and, indeed, there has been much made about the fact that the DFL did not object, but, of course, the law prohibited this, so there was no reason for the DFL to object.

Again, getting back to the interests of the State, what we have here is we have issues of confusion, and while the Eighth Circuit... and Justice O'Connor, you suggest that they can use instructions, but we think that part of the reality of voting is that first of all not all voters are as comfortable as everybody might be with a lengthy written ballot with detailed instructions.

That's just the reality of it.

I don't want to get into Justice Scalia's debate about whether New Yorkers are smarter than Minnesotans--

Justice Scalia: For the record, I was being facetious.

[Laughter]

--running for election anywhere, but even so--

Mr. Slowes: --But that is the reality.

The other thing about it is that voters, a lot of voters don't have a lot of time to spend in the voting booth.

They may be voting on their way to work, trying to get to work on time.

They may be voting on the way home, trying to pick up the kids at day care, and they can't be standing there with a long ballot reading the instructions.

Justice Souter: --Mr. Slowes, may I ask you a general question, I think that goes to the weight that we should give, or at least the weight that I should give to all of the justifications that the State is raising here?

If we were deciding this case, I guess without the benefit of history, I could listen to your arguments and I would say, there's something plausible about them, and the people who write election laws probably know a lot more about voter behavior than I do, and I may not think these are overwhelming justifications, perhaps.

I mean, they don't just hit me that hard, but I probably ought to defer to people who know more about this subject than I do.

The trouble that I have in giving any kind of deference that way, however, is the history, and if I understand the history correctly, the reason we've got these antifusion laws in so many States was basically a very widespread effort sometime ago simply to maintain the relative hegemony of the two parties, the Republicans and the Democrats.

They weren't worried about voter confusion.

They didn't want other parties, and is it unfair... do you think it's wrong for me in assessing the weight that I should give to your justifications to bear that history in mind, and perhaps to be skeptical that the reasons that you very ably give are really the reasons that the legislatures in these many States either gave in the first place or maintain to this day for keeping their laws on the books?

Mr. Slowes: Justice Souter, there are a number of responses to that question.

First of all, with respect, yes, I think it is unfair for you to look back that many years, particularly because this Court has said in United States v. O'Brien and other cases that a legitimate constitutional State statute will not be struck down merely because there's some allegation of improper motive.

And here, to compound that, the allegation of improper motive is a) indirect... there's nothing in the record to suggest what the Minnesota legislature was thinking or said about this statute.

There's nothing in the record that reflects what the Minnesota legislature--

Justice Scalia: Well, you wouldn't concede the major point, would you, that there is something wrong about the State establishing its electoral machinery in such fashion as to facilitate and encourage a two-party system as opposed to the kind of systems... proportional voting, for example.

That alone favors a two-party system.

Is there anything wrong with that, so long as you don't ban third parties?

Mr. Slowes: --There is a balancing that has to be done, Justice Scalia.

We believe, and this Court has recognized in some cases that, indeed, and that's part of what was animating Storer in some sense, that the State does have an interest, a generalized interest in preserving, in a sense, political stability, and that--

Justice Souter: Well, are you... maybe I misunderstood your argument.

I didn't understand you to be putting any weight on the, in effect the preservation of a major two-party system as such, so I just didn't think... I mean, Justice Scalia has raised a good point, but I didn't think it was the point that you were making.

Mr. Slowes: --Your Honor, I didn't make that point, and in honesty I don't make that point strongly.

I think that is... I think that is--

Justice Scalia: I was just saying if that were the value, it would not necessarily be unconstitutional, as I thought you were conceding.

Mr. Slowes: --Well, I'm sorry, Your Honor, I would agree.

I think that--

Justice Breyer: What am I supposed to do legally if I think that's the whole point?

That is, if I think, which I'll... if I think that the whole point to justify these things is a two-party system and the democratic advantages that that entails, weighed against a multiparty system and the democratic advantages and disadvantages that that entails, all right.

Suppose I think that this represents a judgment of the legislature to go in the two-party direction as opposed to proportional representation.

But as you say, you're not putting any weight on that, so should I simply say forget it and move on to the arguments... what am I supposed to do?

Mr. Slowes: --I would say, Your Honor, that States do have a permissible choice to be made there, as long as they don't go so far as to close the door to minor party--

Justice Breyer: How do I measure so far?

I take it the single member district is constitutional.

I take it.

Maybe.

I don't know.

Is... what about the first past the post?

What about the reforms Italy wants to make in order to move in the two-party direction?

Or just winner take all.

What is the test?

I mean, winner take all.

Mr. Slowes: --Our position is that the disproportionate burden argument that the respondents are making would really take you into all of those areas, because they suggest that if there is an aspect of the system that would be more beneficial to minor parties... they say fusion is more beneficial to minor parties.

Therefore, by not permitting it you are impermissibly burdening minor parties, and the same could certainly be said for an absence of multimember districts or proportional representation--

Unknown Speaker: Of course.

Mr. Slowes: --which would certainly help minor parties.

The same might be said about nonpartisan ballots, which are had in many States.

Minor parties--

Justice Scalia: So why don't you just say, so what?

Mr. Slowes: --What it comes down to, Your Honors, is that these are issues of political engineering.

The Court has not established a bright line test, Justice Breyer, to say that we can tell where is so far.

What it has is the balancing test from Anderson.

But if you look at the landscape of the cases, where it has found that States have gone too far, they have gone far beyond anything that the Minnesota statute does.

Justice Breyer: But then why isn't the argument, well, New York is not Italy, nor is it Fourth Republic France, and this goes... is not really a problem, and therefore there really isn't a justification.

Here it goes too far.

Mr. Slowes: Because, Your Honor, it gets back to the argument you just made a few minutes ago.

New York can make that judgment, that we think in our State this kind of system can work, and we can have a workable, stable political system.

That should not dictate to the other States that they adopt that same system as long as the systems that they adopt do not establish formidable barriers to minor party--

Justice Stevens: Yes, but if the justification's strong enough, I don't know why they couldn't exclude third parties altogether.

It seems to me that's the logical position to take, but the Court has said you can't.

Mr. Slowes: --The Court has said you can't, and there may be--

Justice Stevens: Yes.

Maybe that line of cases is just wrong.

Mr. Slowes: --There is a line that this Court... again, it's not a bright line, but there is a line beyond which the States cannot go in terms of preserving the stability of the system.

Williams v. Rhodes, and Anderson v. Celebrezze.

When... thank you.

Argument of Laurence H. Tribe

Chief Justice Rehnquist: Thank you, Mr. Slowes.

Mr. Tribe, we'll hear from you.

Mr. Tribe: Thank you, Mr. Chief Justice, and may it please the Court:

I don't think this case is about political engineering.

I suppose if we really had a case in which it was demonstrated that we would become Italy or Fourth Republic France unless we compromise the First Amendment we would have a very much more apocalyptic picture, but I think what's interesting is that in the argument that you heard this morning you didn't hear very much about what the State's brief says are the real reasons.

I think in answer to Justice Stevens' question, if confusion isn't that big a problem... and it doesn't seem New Yorkers are all that confused and, with respect, I guess they're not that much smarter than Minnesotans... if confusion isn't the problem--

Justice Scalia: Maybe New Yorkers like confusion.

[Laughter]

Mr. Tribe: --Well, that may be.

That may be.

Either--

Unknown Speaker: Just because--

Mr. Tribe: --Just because--

Chief Justice Rehnquist: --New Yorkers like it, it doesn't mean Minnesotans have to like it.

Mr. Tribe: --That's right.

Minnesotans might like things to be more orderly.

What their brief does is talk about all kinds of somewhat fuzzier values, values, values, they say, that are really more important than the literal rights of association and speech in the First Amendment.

They're basically saying... and they say it in their brief at pages 9, 12, 14, 16 to 18, 24, 44.

The repeated theme is that even if the ban on consensual fusion literally abridges the right of people to get together in a party and pick their standard bearer and get him on the ballot even if he's already on the ballot, and even if that's one of the rights that you would normally have under the First Amendment, we have to ask whether protecting those rights here would, in their language, serve First Amendment values, and they say it wouldn't, because... here again I quote from their brief... it really wouldn't enrich political discussion with different ideas unless new parties, and I quote, presented candidates overlooked by the major parties.

In other words, new faces.

That's what third parties are good for, the subtext being that the major parties really have covered the ideological waterfront between them, and unless you're ready to come up with a new face... if it's just Dwight Eisenhower, or Earl Warren, or here... not to put him in the same company... Andy Dawkins all over again, then what else is new?

We really think that we should orchestrate the consensual alliances of citizens in political association in such a way as to move things away from... and again, their brief complains about single issue campaigns.

They say there would be a tendency, and again I guess I heard this again in the argument this morning, a tendency to end up with various groups that would, heaven forbid, say they were in favor of lower taxes, or some other single issue.

Well, you can have a view one way or the other on whether that's--

Chief Justice Rehnquist: There's some sense to that, isn't there, Mr. Tribe?

If a candidate is both DFL and then gets behind small, third party, lower taxes party, tough on crime, it makes the ballot into a form of really communication, which in Burdick we said the State didn't have to do.

Mr. Tribe: --Well, Mr. Chief Justice, I think that as a theoretical proposition, if there were a demonstrable danger that the ballot would become a laundry list of slogans, and if you could prove that that was at all likely to happen, that it was more than some kind of theoretical possibility, that that would be different.

But in Williams v. Rhodes the Court said that theoretically imaginable dangers of multitudinous fragmentary groups getting on the ballot aren't enough, and that you can deal with that by making it less easy to get on the ballot.

To deal with it in a slanted way, not by neutrally raising the requirement but by saying you can get on the ballot, it doesn't matter whether you do or do not pass the threshold numerical limit, but what we don't want you to do is be on the ballot if the person you favor is the same one someone else has--

Justice Ginsburg: We've always--

Chief Justice Rehnquist: --How about California's prohibition against cross-filing?

If we rule for you here, does that strike that down, too?

Mr. Tribe: --Cross-filing by major parties?

Chief Justice Rehnquist: Well, cross-filing by candidates.

A candidate filing in both the Republican, or seeking the nomination of both the Republican and the Democratic Parties.

Mr. Tribe: Well, it would depend, Mr. Chief Justice, on whether you had a sore loser situation.

That is, I do think that the Court's decisions make it quite clear that a State has the power, as in Storer, to protect the integrity of both political parties and of various routes to the ballot, and to do that--

Justice Kennedy: But there's no sore loser at the beginning of the primary.

Chief Justice Rehnquist: Yes.

There's no sore loser... the primary begins, he's on both ballots, and he wins both ballots.

Mr. Tribe: --Well, I think it would be a different case, certainly, because the Court has said among other things that you can limit individuals to a single nominating act.

It's a little like an extrapolation from the one-person-one-vote rule.

It's not clear that people should be able to get lots of bites at the same sort of preliminary apple.

That is, it may well be that as one of the rules of the road a State could say that at the primary stage if you're running for office through that particular avenue you have to pick one primary or the other.

Chief Justice Rehnquist: Why would that be justified and Minnesota's rule here not be justified?

Mr. Tribe: Well, to be honest, Mr. Chief Justice, I'm not sure that even that would be justified, but if that would be, it would not be justified unless you gave a veto power.

That is, if you said that when both parties are perfectly happy to have this happen, when neither of them vetoes the simultaneous entry of a candidate into both primaries, then the idea that the State would simply be protecting parties from fragmentation wouldn't justify it.

Chief Justice Rehnquist: In an open primary system a party can't veto a candidate.

I mean, in most States if I want to run for the nomination of the Socialist Party and they have an open primary ballot the Socialist Party can't get together and say, well, we don't want him.

I have a right to run, and if a majority favor me, I get nominated.

Mr. Tribe: Well, I think, Mr. Chief Justice, that the State does not have an interest that would suffice to prevent that.

Where it's possible... I mean, if one said that what this does is pose the problem that Storer involved, that is, a problem in which a political party with its primary loses integrity and finality because those who don't win can pick up their marbles and go elsewhere, that problem can be solved.

But unless there's a general system whereby the State can say only certain people are eligible to run in our primary, and it might well be permissible for the State to allow a party to have those rules, to have a rule of this kind is not at all a neutral, politically neutral regulation.

That is, it's one thing to have--

Justice Scalia: It's not possible to draw a politically neutral electoral system, it seems to me.

You're always making judgments that are either going to favor larger parties, are going to disfavor larger parties, favor smaller, disfavor smaller... I mean, the mere decision whether to have party affiliation shown on the ballot, for example, that's going to make a big difference.

How can you... why is it necessary for the State to draw up a balloting system that does not disfavor small parties?

I think they can do it.

Mr. Tribe: --Well, they certainly don't have... Justice Scalia, I think they certainly don't have to go out of their way affirmatively to handicap things to benefit small parties, but what Minnesota has done is to say that on the ballot not only may you but you must put your party affiliation.

Justice O'Connor: Well, Minnesota and probably 39 other States.

Mr. Tribe: A great many say that.

Justice O'Connor: Yes, so we're talking about a major effect here.

Mr. Tribe: Well, there's no--

Justice O'Connor: A ruling in your favor.

Mr. Tribe: --That's right.

There's no question, Justice O'Connor, that there are a great many States that, at the turn of the century, made this move, the political historians seem to agree, in order to marginalize the growing power of the minor parties, and in order to do that--

Justice O'Connor: Well, or some say to keep the Republicans in office historically.

Mr. Tribe: --Well, that would hardly be a better justification constitutionally--

Unknown Speaker: But that's--

Mr. Tribe: --whatever one's politics.

But the main point is, no one has said, studying the situation, that the reason was one of these plain vanilla reasons like, some people like confusion and others don't, and they should have a right not to be confused, or they can't figure out how to use these ballots.

Justice Scalia: --I think it's pretty plain vanilla to say, I like a two-party system, and this fosters the two-party system.

Mr. Tribe: Well, I think the Court has said that you can't deliberately disadvantage some minor parties.

Justice Breyer: That's exactly the point that's bothering me, and I'm putting this a little more strongly than I think, but I want to get your response to this.

There are a lot of rules deliberately disadvantaging third and fourth and fifth parties... first past the post, single member districts.

There are good arguments for and against such things.

Proportional representation in many parties allows parties to grow more quickly and is a better representation of people's views.

On the other hand, two parties, which is a much worse representation, and interferes with people's ability to choose what they want, has the advantage that we know whom to hold responsible for good or bad government.

Now, you, like I, have read both those positions argued at depth, so where the Constitution is at stake, how can we say that a State doesn't have the right to choose between those two different views of democratic representation?

And I know it's a matter of degree, but what I keep coming back to is thinking this was a fairly marginal method of giving the Republicans, if you like, or Republicans and Democrats, an advantage as to the swing voters who were somewhat indifferent, who would go and look at the columns on the ballot and they'd see DFL here, or they'd see New Party here, and if they saw New Party with a popular candidate, they'd vote New Party all the way down the line.

You see, that would help that party, and it might better reflect views, but it would undermine the kind of responsibility that the classic argument for a two-party system democratically holds is important, so how am I to judge that?

How can I say that the State has no right in these kinds of things to decide either of those two models that it believes is the more... better democracy?

Mr. Tribe: Well, Justice Breyer, I think that I would urge a distinction between the basic architecture of the system, that is, the decision to have single member rather than multimember districts, and having decided that, therefore ruling out proportional representation within the single member districts.

The decision of the basic design, when you said that that was intended to have an effect on minor parties, I think the evidence is that it was, as with most of these things, multifarious in its intentions.

There are some people who think that the choice of a single rather then multimember districts has a number of positive effects on avoiding the submergence of certain minority groups.

When all of those incommensurables are balanced at the threshold designing the system in general, deciding, for example, whether primaries or petitions are to be used as a way of getting on the ballot, deciding where co draw district lines, at that point, as I think Justice O'Connor said in Vandemer, it would be very hard to have justiciable standards for assessing what the State is doing.

Once the building has been designed, once the basic architecture is set, once you have the time, place, and manner regulations, the fundamental architecture, then, if you take aim at the content of political alliances, when you tell two parties within this system you can get together about other things, you can have a mutual nonaggression pact, neither of you will run against the other, you could pool your resources... in 1944--

Justice Scalia: Why does that make any difference?

It's sort of like saying you can paint the whole building green but you can't paint the window frets green.

It's okay in the most fundamental design of the system, in those aspects that have the most impact, to act out of two-party system motivation, but it's... in the details of it, oh, no, you cannot act out of a two-party system moti... that makes no sense at all.

Mr. Tribe: --I think, Justice Scalia, with all respect it's less a matter of, you could paint the big picture, we won't touch you, but you can't paint the little dots.

It's more a matter of, you can design the overall framework, and we're not going to second-guess the kind of republican form of government you create.

But then, when you have essentially content-based rules, when you tell people you can nominate anybody unless the person is popular enough that he might appeal to another party, when you do that--

Justice Scalia: They haven't said that.

They have not said that.

They can nominate whomever they want.

They have just said, look, if we are running the electoral system, we decide whether parties will be shown or not.

You're using our advertising in the system.

You may nominate anybody you like and you may advertise it in the paper.

The New Party backs so-and-so.

Mr. Tribe: --In--

Justice Scalia: But on the ballot, he will not be shown under your party.

You can still support--

Mr. Tribe: --But look, Justice--

Justice Scalia: --whoever you want.

Mr. Tribe: --Justice Scalia, look what that does.

It tells the voters, the members of the New Party, that when they go into the voting booth... let's suppose the New Party decides Mr. Dawkins is the one they want to endorse.

They spend money on him, and under the laws of the State they can... within 100 feet of the polls they can put up signs saying, we believe in Andy Dawkins.

But they don't want to give up the right to have someone on the ballot, so they nominate John Smith, and John Smith is on the ballot, and the voters of the New Party have essentially the choice that members of minor parties have been relegated to in 40 States since the 19... the early 1900's.

They go into the ballot box, and they can either waive their right to vote altogether and give it up, or they can vote for John Smith, whom they and their party doesn't really believe in, or they can vote for Dawkins, and they're told that that would be a good thing to do, but then... then the other party gets credit.

Justice Scalia: And it has very successfully preserved the two-party system in those States that have it, whereas in States like New York it has become a three-party system.

Now, must a State decide that it wants the one rather than the other?

Mr. Tribe: Well, I think that it's clear a State cannot simply forced herd everybody onto the left or right side of the road in terms of political association, and Minnesota doesn't.

It says, you can join together in this party, but at the price of either wasting your vote, waiving--

Justice O'Connor: Well, at bottom the key First Amendment interest is being able to vote for who you want to on a general election ballot.

There is a right in Minnesota very easily to get someone on the general ballot if you're a minor party.

That's not difficult, and at the general election ballot at least all the members of this party can vote for the candidate they truly support.

Mr. Tribe: --Only at this price, Justice O'Connor.

If they vote for Dawkins, and assume for the moment as in many of the cases it's a Statewide candidacy, when they vote for Dawkins they strengthen a party they strongly, or perhaps somewhat disagree with.

They also entitle it to public funds because those votes are counted on the DFL line.

Justice O'Connor: That's right.

Mr. Tribe: And it seems to me that given what this Court said in Burdick, precisely that voting is not simply an exercise in blowing off steam, to be told that the power--

Justice O'Connor: Well, but we've also said there is no right to express something--

Mr. Tribe: --That's--

Justice O'Connor: --in the ballot.

Mr. Tribe: --And I'm not urging that right.

Justice O'Connor: And there's no right of expression there, and this verges closely on that.

We want to show we have nominated this same person.

Mr. Tribe: Look, Justice O'Connor, first--

Justice O'Connor: Yes.

Mr. Tribe: --it is only... it would only be a holding as broad as that of the Eighth Circuit, which we do urge but which we would not require for an affirmance of the judgment, that would lead to that conclusion, because that would be a holding that says, not only do you have a right to consensual fusion, but a right to a separate ballot line or column for the party--

Justice Kennedy: --Well, but unless you have that, a large part of your argument vanishes.

Mr. Tribe: --Well, part.

I don't think--

Justice Kennedy: Because that's the whole point of allowing each party to have a specific issue.

That's completely lost if you aggregate.

Mr. Tribe: --Well, no.

Justice Kennedy, what isn't lost is the point you made in dissent in Burdick, I think, but it is really a point that the whole Court, I suspect, agreed with in that context, and that is, you're not at least required... even if you don't have disaggregation you're not required in casting a vote to help exercise power, not just expression, in a direction that's opposed to your views.

That is, the votes that members of the New Party are permitted to cast for someone on the DFL party line are votes that increase the money, the public money that goes to the DFL later and that helps earn and retain major party status for it.

There's a write-in provision, and this is quite intriguing, I think.

There is a write-in provision in the--

Justice Scalia: Doesn't that just boil down... what you just said, does that not merely boil down to the fact that the New Party can... is entitled to have a candidate but is not entitled to have any particular candidate?

Mr. Tribe: --Well, if the candidate were somehow unqualified, which is not argued here, were it not objectively eligible--

Justice Scalia: This is one of the qualifications, that you not be the candidate of another party.

Mr. Tribe: --But that--

Justice Scalia: Pick a party.

You can be a candidate of any party.

If you're a candidate of some other party, the New Party can pick all the rest of the candidates in the world, but not you.

Mr. Tribe: --Well, I suppose when you're dealing with someone who from this Court's perspective might be rather anonymous, Dawkins, it might not seem like such a terrible thing.

I don't know Mr. Dawkins.

But if it were Earl Warren, or Dwight Eisenhower, or Colin Powell, to tell someone, oh, you can pick anyone, just not that one, why, because the other party--

Justice Breyer: They can vote for him.

But they all can vote for him.

We know why they want Mr. Dawkins.

I suppose the reason the smaller party wants him is he'll attract support.

He'll attract money.

He'll attract a lot of things that help the party.

Mr. Tribe: --And he shares many of their values.

Justice Breyer: Of course.

Oh, yes... oh, that's certainly true.

So of course to stop that is to interfere with the ability of these people to build their party.

And then what bothers me is the other side saying, of course.

You're right.

That's the reason we want this law.

Mr. Tribe: Of course, they haven't--

Justice Breyer: And now, of course, they can't go--

Mr. Tribe: --They haven't said that.

Justice Breyer: --Well, all right.

That's a separate--

Mr. Tribe: Well, it does matter, doesn't it--

Justice Breyer: --That's what I imagine that... and of course this isn't going so far, anywhere near as far as to ban a third party.

It doesn't go nearly as far as the single member district.

It doesn't go nearly as far as first past the post.

There are many greater inhibitions than this one.

So what I'm looking for is, what's the touchstone to decide here whether this interference goes too far in light of the objective?

Mr. Tribe: --I think the touchstone, Justice Breyer, is that this tells people what the substance of their consensual political alliance may be.

The substance.

It may be that it doesn't matter a great deal that somebody that the substance focuses on one person, but it says, you can't organize your associational interests across party lines around an individual.

It would be very much like saying you can't have... you can have a party--

Chief Justice Rehnquist: You can do that.

You just can't get on a separate ballot line.

You can organize your interests all you want to until you get to the voting booth.

Mr. Tribe: --Well, just... Mr. Chief Justice, I think your question and Justice Scalia's suggest to me a considerable difference between a State that says, all we care about is who gets elected.

We're not going to have a party identification.

In that case, the difference between the ability to endorse and the ability to nominate vanishes.

You're all on the same playing field arguing about who you want.

But that is not this case, and it's very important to draw a distinction.

In this case, the State says in its ballot laws that next to each candidate's name must be either the word independent, or a party name or principle of three words or less, and that people can write in for someone but they cannot write in the name of someone who's already there.

So that there is a specific rule that says even though we've designed our ballot in such a way that you can indicate who you want even if that person hasn't been nominated, you can't indicate who you want if it happens to be the nominee of another party.

It is a targeted way, not of saying the purpose of our ballots is not to serve as billboards.

It's to exercise power.

That the Court said in Burdick is fine.

It's a way of saying, we are designing the system, we're engineering it in such a way as to preclude agreement among people of a certain kind expressed not through some use of the ballot that the State hasn't already legitimated, but through the standard use of the ballot so that it in effect is a targeted way of shaping the kinds of consensual alliances people can have.

If someone said--

Justice Scalia: I presume that your argument would also extend to the write-in prohibition, that if we found for you in this case we would also say that the State could not prevent you from writing in the Democratic candidate.

Mr. Tribe: --Well, I--

Justice Scalia: You want this guy to win, but you don't want anybody to think that you're voting Democratic--

Mr. Tribe: --I think--

Justice Scalia: --and so you write in his name separately.

Mr. Tribe: --Justice Scalia, I think that after Burdick I would certainly argue that you could eliminate all write-ins, but if you allow write-ins, you can't tell people that the name you write must be a name not otherwise on the ballot.

Chief Justice Rehnquist: So... but that isn't involved here, is it?

Mr. Tribe: No, it... it is the Minnesota law, but that's not--

Chief Justice Rehnquist: We--

Mr. Tribe: --That just shows how the law operates, I think.

Chief Justice Rehnquist: --But your principle would involve that.

If we were to rule for you, it would result in quite sweeping changes, and in a lot of States.

Mr. Tribe: Well, most people actually suggest that it would be far more marginal than the plaintiffs in this case anticipated, mostly because the benefits of a third party nomination are often going to be somewhat dubious, and so--

Justice Ginsburg: Mr. Tribe--

Chief Justice Rehnquist: --But this goes to write-ins, too, which isn't a third party.

In other words, if you have to allow people to write in someone who's already on the ballot, you're creating a great deal of additional problems in counting the ballot.

Mr. Tribe: --Mr. Chief Justice, I don't think someone... if Mr. Dawkins, after a favorable decision, if there were one in a case like this, if he were on the ballot already in a way that would allow a voter to indicate upon choosing him whether the voter is voting for him as a member of the DFL or as a member of the New Party, that there would also be an additional right to say, oh, I don't want to vote for him as a member of the New Party.

Up top, I want to write that in.

Chief Justice Rehnquist: But if we're breaking down all these nuances, certainly that would be absolutely permissible.

Maybe there wouldn't be many of them, but you couldn't say no, I don't think.

Mr. Tribe: No, I don't think, Mr. Chief Justice, that it would follow from the right we're talking about that you would have a right--

Justice Scalia: Why isn't the right not to be counted for a party just as important as the right to be counted for a party, which is what you're arguing for here?

I think the right not to be counted--

Mr. Tribe: --Well, I--

Justice Scalia: --as a member of that party is just as important.

Mr. Tribe: --You know, I think... I don't want to just do a 90-degree turn, but I think you're right, Justice Scalia.

I think the fact is that if... if there is a write-in mechanism the State has... they don't have to have one, but if they have one, I don't think they can tell you that you better write a name that isn't already there, and I don't think that would go away even if we prevail.

Justice Kennedy: Mr. Tribe, in California, some ballots have over 200 items to mark.

If you had a State like Minnesota, or a system like Minnesota where only 500 people are required to petition for a party, I think there is a very, very real danger of confusion which just could bog the process down completely.

Mr. Tribe: Well, in California, Justice Kennedy, they disallow fusion and they still have these terribly long ballots.

I don't know that there's any reason at all, given the history, to believe that confusion would be enhanced by fusion.

And in particular, when Justice Souter asked about the history, I think that should tell us a good bit.

Not just why were these things enacted, but where is the evidence that in all the years prior to about 1905, that hundreds of fusion candidacies existed, and the evidence in New York up to the present that either the stability of the political system has been seriously injured, or that people have been obvious... you know, utterly confused about what to do--

Justice Ginsburg: Mr. Tribe, what about judges--

Justice Kennedy: --I'll check the history, but it does seem to me that in those times they did not have initiative, they did not have referendum, they did not have the ability of many citizens to make arguments directly to the public via television and radio.

Mr. Tribe: --Well, I think, Justice Kennedy, that dealing with a problem of unduly long ballots by techniques that are not at least facially neutral, that don't say, well, let's up it from 500 to 1,500, dealing with it by saying we will allow some kinds of political coalitions and not others, we will allow people to have planks in common in their party platforms, words in common in their party names, but we won't allow them to coalesce around a mutually acceptable candidate, it seems to me not a constitutional--

Justice Ginsburg: Is it done... with respect to judges, is the States that generally have no fusion, it's not uncommon to have the same good judge the choice of two, maybe three parties.

Do you know how that works in States that have general no fusion laws?

Mr. Tribe: --With non... in the election for nonpartisan offices it is often the case that several parties nominate or endorse, but it's often, and typically the case with judges, that no party label is attached to the judge's name in those States, and that is a possible solution.

That is, if one agreed with the position that I think Justice Scalia was in part suggesting, that the point of the ballot isn't necessarily to get information about which party, then there is a solution that's neutral.

It perhaps isn't the less restrictive alternative, but it's certainly less targeted against minor parties, and that's to say, no party label on the ballot.

Anybody can endorse anyone they want.

In Tashjian, both the majority and the dissent assumed that that was a paradigmatic exercise of First Amendment rights.

Here, we move from endorsement to nomination, but the only difference is that nomination in a State that does put the party name on the ballot counts for a great many things, and to insist that it not count in precisely those cases when otherwise disparate groups that are not so far from the main stream that they are satisfied to nominate protest candidates coalesce around a nominee, to suggest that that's the one case where it's not permissible--

Justice O'Connor: Well, that's a real problem in cases where two candidates have virtually the same name.

Talk about voter confusion--

Mr. Tribe: --I suppose that--

Justice O'Connor: --and we've seen that recently in Northern Virginia.

It would be pretty disastrous to have two people with the same name and no party designation.

Mr. Tribe: --I suppose you might have to solve it in some other way.

In Texas there were two Morales running recently.

I think it is... it suggests that the problem of confusion, if it is one, is a problem that is not plausibly correlated to the idea of fusion candidacies.

Chief Justice Rehnquist: Thank you, Mr. Tribe.

Mr. Tribe: Thank you.

Chief Justice Rehnquist: The case is submitted.