California Democratic Party v. Jones - Oral Argument

Argument of George Waters

Chief Justice Rehnquist: We'll hear argument next in Number 99-401, California Democratic Party v. Bill Jones.

Mr. Waters.

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

This case presents the question of whether the State of California can force political parties to choose their nominees for public office through a blanket primary system which is expressly designed to produce more moderate nominees than those that are favored by the parties themselves.

Under California law, the only means by which a party can nominate his candidates for the ballot is through the blanket primary system.

The blanket primary makes the issue of party affiliation and ideology irrelevant.

It allows any voter to cross party lines and to vote in several different party primaries at the very same election.

It is a wholesale assault on the party... political parties' First Amendment right to choose the standard-bearer who best represents the party's ideology.

This case is a direct descendent of this Court's decision in Tashjian, which held that Connecticut could not enforce a closed primary law on a party that sought to open its primary to Independent voters.

Justice O'Connor: Now, open primaries differ from the blanket primary system imposed here?

Mr. Waters: They differ significantly, Your Honor.

In California... to begin with the open primary, the generic open primary exists in a State where there is no party registration.

Voters come to the polling place, if they're registered they go into the polling place, and in a classic open primary State I believe that they are given the ballots of any political party and they make a choice of which party that they vote in.

Justice O'Connor: Well...

Mr. Waters: But they vote within a party, Your Honor.

Justice O'Connor: if we agreed with you here on the blanket primary thing, wouldn't we be casting some doubt on the open primary system as well?

Mr. Waters: I don't think so, Your Honor, and I think that there are quantitative and qualitative decision differences here between an open primary and a blanket primary, and if I could go into that, I think the qualitative difference is that suggested by Justice Powell in his dissent in the LaFollette case, which involved another issue, but in which Justice Powell discussed at some length the issue of the validity or the constitutionality of open and closed primaries.

And Justice Powell's position there was that what the First Amendment guarantees to the parties is the right to have... to limit their nominating process to voters who affiliate with the party.

He said the question presented in that case, which dealt with Wisconsin, an open primary State, was whether there was an act of affiliation.

What Justice Powell said is, when a Wisconsin voter chooses the ballot of a Democratic or Republican Party, that in itself is an act of affiliation because that voter is choosing to limit him... hisself or herself to the nominees of one party.

Justice Souter: But isn't that just a matter of degree, because... simply because the decision can be made on the spur of the moment when the voter gets to the polls?

The only right that the voter has in the open primary State that the voter does not have in the blanket primary State is the kind of mix-and-match right.

If the voter who has traditionally been either not registered, or registered as a Republican, takes a Democratic ballot in the open primary State, there's no more affiliation between that voter and the party than there is the voter who under the blanket system chooses to vote for... in the Democratic primary for Governor and the Republican primary for State Treasurer.

Mr. Waters: Well, I disagree with that, Your Honor.

Justice Souter: Why?

Mr. Waters: I think that the history of the American regulation of political parties is distinct, and what we have is a history where the Government in virtually every State has operated to try and make it easy for people to affiliate with a party, but in States that have party systems, and California has a party system, Proposition 198 itself, when you register to vote, it's in Proposition 198 you actually state that you affiliate with a political party.

The fact that...

Justice Souter: Isn't that a pretty empty formality?

Mr. Waters: I think it is not.

I think it is not.

I think the Constitution means something, and I think that the Constitution means that a party has a right to limit its nominating process to people who affiliate with it in some sense.

Justice Souter: Okay.

Let's take the...

Mr. Waters: I would prefer to have a higher hurdle.

Justice Souter: Let's take the example of the party that says, we want our affiliates to be real affiliates, and therefore we want them to have registered as such at least 6 months before the primary, or 2 months before the primary, leaving aside the question of late voter registration for reasons of transience.

And in a case in a State in which the State law is, well, you can't require a 30-day affiliation, you can't require anything more than the instantaneous affiliation, isn't the sense of affiliation just as ephemeral there as is the sense of affiliation between in a blanket primary State the fellow who walks in and says, I guess I'll vote for a Democrat for Governor and a Republican in the Treasurer's race?

Mr. Waters: Well, no.

I mean... I just disagree with that, Your Honor.

I think that there is a difference between affiliating... first of all, I think one has to assume that in the American system that most voters operate in good faith, that when they are making... when they choose a party ballot, that they are choosing that for a reason, that the Republican ballot means something to them, a Democratic or a Libertarian ballot means something to them.

Justice Souter: Well, you may be right on that, in which case I take it your argument is, look, we're going to operate on the premise that an affiliation, even a last-minute one, is at least a bona fide affiliation and good enough.

Mr. Waters: I think we have to do that.

Justice Souter: And that's different from no affiliation.

Mr. Waters: I think we have to do that to distinguish a blanket primary from the open primary.

I mean, personally I would much prefer, as would the parties before you in this case, prefer to have a more significant gesture of affiliation, and California...

Justice Ginsburg: Suppose California had a nonpartisan blanket primary.

Suppose it said, we're not going to try to choose a party's candidate.

There isn't... there's not going to be that kind of primary.

It's going to be a nonpartisan primary.

Would you have any constitutional objection that you could make if Proposition 198 had been for a nonpartisan primary instead of a partisan primary?

Mr. Waters: I believe the constitutional issue which we're bringing to you today would not exist there, because I think in that case the State would not be commandeering the parties as a vehicle for... to blend the political ideologies together.

California indeed has a nonpartisan nominating system for the vast majority of races, those that are not for Congress, Senate, the Assembly, and State-wide, and there is, indeed, one State-wide office, the Superintendent of Public Construction, that is elected through a nonpartisan primary.

Justice Ginsburg: Does any State other than, we're told, Louisiana, have such a nonpartisan system for State-wide offices?

Mr. Waters: Not that I know of.

I believe the answer to that is no, although I will say that the evidence at trial did not explore that perhaps in great depth.

I mean, as petitioners... as plaintiffs we did not go into great depth in other States.

One thing about Louisiana, because Your Honor just brought it up, which I think is distinctive, I think Louisiana is a blend.

It presents yet another issue here, in that it is a nonpartisan primary there in the sense that only two... the two highest vote-getters go on to the general election.

However, party labels are used on the ballot there.

The candidates have their names followed by Democrat, Republican, or whatever.

I think that Louisiana might present a different issue, and that is the use of a party label in their race, but not the issue that is presented here.

Justice Souter: Are you... is it a consequence of your answer to Justice Ginsburg that a State really can do by way of ballot access, if it's clever enough, what it cannot do by way of a blanket primary scheme?

Mr. Waters: I don't understand the question, Your Honor.

Justice Souter: Let's assume that in a ballot access... that it had a ballot access law saying, we will let the top four vote-getters in the primary, without reference to party affiliation we'll let the top four vote-getters in the primary be on the ballot in the general election.

I take it your answer to Justice Ginsburg is that a State may do that.

Mr. Waters: It is indeed, sir.

Justice Souter: Okay.

Wouldn't the result in practice come out in effect to a series of choices which are more or less the equivalent of what the voters can do under the blanket primary scheme?

Mr. Waters: I think the result may or may not be similar to that.

I think that in the situation you're describing the difference... if California were to go toward a nonpartisan primary system there would be at first a significant difference.

First of all it's very... it's not... there would have to be some relatively easy means for people to get on the primary ballot, which is indeed the case now for California nonpartisan... or... yes, for California nonpartisan races.

I mean, there'd have to be some loosening up.

I mean, it's very hard for an Independent candidate in California to get on the general election ballot.

The whole system is designed to force people into the party system.

If they went nonpartisan, I assume that it would be... a result of that would also, there would have to be relatively easy access to getting on the primary ballot, and at that point I think each party would have the access... I think there might be access questions, but they'd have to have a way to get on there somehow.

Candidates have to get on the primary ballot.

What happens after that might present a whole range of issues, but the point is that those people, California would not in a sense be renting the parties, to use their names to promote false candidates.

I mean, that is not...

Justice Souter: So you... it boils down to two things.

The State cannot in effect allow a person to say, I am a Democrat, when there has been no act of affiliation and, number 2, we will assume that acts of affiliation are basically acts in good faith.

Mr. Waters: Yes, and on the first one it's not just that there's been no act of affiliation, that indeed, under Proposition 198 itself, when people register to vote they are invited to make an affiliation with another party.

It's just not no act of affiliation, but as the evidence in this case suggested, where Mervyn Field, the leading pollster in California testified before trial that his polls at that point suggested 30 percent of registered Republicans would cross over.

It's just that... it's not just the lack of affiliation.

These are actually voters who have signed the registration in another party.

Justice Ginsburg: Mr. Waters, maybe I misunderstood the Tashjian case, but I thought that the Republican position there was, we are not claiming that these Independents that we want to open our primary to are affiliating with our party.

We just want to appeal to them and extend our audience to people that we know consider themselves Independent.

I thought that was the argument that was made, not that they were in effect making an affiliation with the Republican Party.

Mr. Waters: Well, that's exactly right, Justice Ginsburg, and I think that's what makes Tashjian a much more difficult case from my side of the aisle than this case.

I mean, Tashjian was a right-of-association case, that it was indeed a case where the Republican Party wanted to open up and invite Independents to join in.

Justice Souter: But I... as I understand your position to be, the party can make its own decision about what affiliation is sufficient, or whether it requires an affiliation, and the party in Tashjian made one decision.

The parties here want to make a different one and, under the First Amendment, they have that choice.

Mr. Waters: That's correct.

Tashjian...

Justice Souter: Do I misunderstand you?

Mr. Waters: Tashjian... Tashjian is a slightly... I think there's two theories here.

Tashjian, if I could just speak colloquially, I think represents to people who practice in this field as a party sovereignty case.

It essentially... what it's distilled down to is that Tashjian stands for the proposition that parties have at least some rights to structure their own rules.

Justice O'Connor: Well, do you agree with that?

Mr. Waters: I do, indeed.

I do, indeed, but what I'm saying... I agree.

Yes, I do agree with Tashjian, and I think that what we're dealing with here is a weighing test, that... and... under Timmons, as this Court said, but under a weighing test the political association rights of parties have to be tested by what the real consequences are.

Justice Kennedy: So if the State required the Tashjian result, you would say that's unconstitutional?

Mr. Waters: I think one could very easily say that that's unconstitutional, Your Honor...

Justice Kennedy: I mean...

Mr. Waters: and then this Court would have to, or a court would have to go through the weighing process, but I mean, my point with Tashjian is, I think that the... one... the first element I think that under this Court's test that you have to measure is, is there a severe burden on the party's associational rights?

Whatever one can say about Tashjian, I think here, where every California voter, 15 million of them are invited to vote in every party's primary in each race with absolutely no right of affiliation, that is a very significant and, in fact, severe infringement on party rights.

Justice O'Connor: Mr. Waters, are you... suppose the Court were to agree with your position, are you seeking any kind of retroactive relief here?

Presumably the recent elections were conducted under this scheme that you're challenging.

Mr. Waters: We're... the answer's no, we're not seeking any kind of retroactive relief here, and we haven't asked for any in the complaint.

This was filed almost within 5 months after the election where this... where Proposition 198 was adopted.

There have been a number of races under this, and it is now clear that in a handful of them, and actually we don't know how many, that the blanket primary has changed the results of elections, but...

Justice Kennedy: Did...

Mr. Waters: this case itself will have no direct effect on those cases.

Justice Kennedy: Did you make any argument that this is so confusing that it's detrimental to the party?

Let me ask you this: there were some 22 or 23 different names listed in the presidential column in the recent primary

Mr. Waters: I think the argument we made is just... one of the arguments we made was the dilution of the ballot label, which might slough over to that, but I have to admit, Justice Kennedy, is that it did not dawn on me when I did the trial that there would be 23 names on the presidential primary ballot.

There were 23 contestants...

Justice Kennedy: How is the order of the names selected?

Mr. Waters: It's randomized.

Under California statute it's not by party, not by alphabetical order.

There's a randomization...

Justice Kennedy: So you can find a Libertarian, a Democrat, a Republican, and 10 spaces further down you can find another Republican, and 15 spaces further down you can find a...

Mr. Waters: Any conceivable pattern is possible, because it's totally random under statute.

Justice Kennedy: But you haven't argued that this confusion dilutes the party effectiveness?

Mr. Waters: Well, I would focus on the dilution more than the confusion, but I think that obviously one deliberate aspect of Proposition 198 was to invite people to cross over in each race and vote in other parties' primaries.

The record here is...

Justice Ginsburg: May I ask something that I don't understand as a matter of fact?

Say I'm looking under U.S. Representative on the 2000 ballot and it lists two Republicans, how are those candidates selected, the ones that do appear?

Mr. Waters: The ones who are on the...

Justice Ginsburg: Yes.

Mr. Waters: 2000 ballot for a partisan office?

Justice Ginsburg: Yes.

Mr. Waters: They are... they're self-selected.

The parties have no ability in California to vet the candidates who choose to run their primaries.

What happens is, let's take a Republican example.

If... let's just assume that I'm registered Republican.

I want to run for Congress as a Republican.

I have to be a registered Republican, and I have to not have been registered in any other party 12 months... well, actually, 24 months before the general election.

Then I take out nomination papers, and the number that comes to mind is... I pay a fee, and I have get, I believe 40 to 60 signatures.

I could be wrong about that, and then I will appear...

Justice Ginsburg: Must those signatures be all Republicans?

Mr. Waters: They would be...

Justice Ginsburg: In other words, when you petition to get on the ballot as a Republican, do the people that have to support you, could they be Democrats?

Could they be Independents?

Mr. Waters: I believe the answer to that is that they have to be members of the party whose nomination you are seeking.

Justice Breyer: If that's the case, then, do you... you agree, I take it, that given in the West there is a tradition of nonpartisan elections, so I guess the State could say, we're going to have a nonpartisan gubernatorial election.

Anybody can run, top two run-off.

You agree with that?

Mr. Waters: I do not see any constitutional limitation...

Justice Breyer: All right.

If that's so, then, picking up with what Justice Ginsburg said, why couldn't they say, that's the system we want, with one qualification.

We want the run-off to be between whoever calls himself a Republican and gets the most votes, versus whoever calls himself a Democrat and gets the most votes.

That's our system.

Now, we're not trying to strengthen the parties or weaken them.

They're out of it.

That's our system for selecting the Governor.

Mr. Waters: I think the use of the party label in that situation creates constitutional issues.

I think that...

Justice Breyer: Because?

Mr. Waters: Because... I think the question there... and I guess you're hypothesizing a Louisiana situation, as...

Justice Breyer: Well, I'm hypothesizing what could be California.

I mean, we're going to have the top person who calls himself a Republican run off against the top person who calls himself a Democrat.

Mr. Waters: I think if the system is structured so that the public perceives them as nominees of the parties whose labels they are using, I think there is a constitutional issue there.

Justice Breyer: So wouldn't the public begin to understand it after it was used once?

Mr. Waters: I think...

Justice Breyer: And then you all said, you know, this isn't really a Republican.

It's just somebody out there who calls himself one, or a Democrat.

Mr. Waters: I think... I think that's an empirical question and I can't answer it right now, but I really think... I guess my general answer to that line of questioning is that I have no doubt that California, although none of the parties before you prefer it, I don't think there's any constitutional problem with California or any State adopting nonpartisan primary elections.

I mean, I just don't see it.

But having said that, once the party names come into the mix it changes things, and I think in California it is clearly true that the public didn't want to adopt a nonpartisan system.

It wasn't presented to them, and I think as a reality, and this is an empirical question, the people actually take very seriously voting for a Democrat or a Republican, or somebody else.

Chief Justice Rehnquist: What about a nonpartisan general election?

Could the State say, you know, we're just going to have a... we don't want any party identifications for the candidates for the general election?

Mr. Waters: I believe a State could constitutionally do that, Your Honor, and I believe... I'm not sure... I mean, there's 50 States, and one thing I've learned through this, that there are essentially 50 different variations of systems.

But I believe that Nebraska... I'm not sure that Nebraska uses labels on the general election ballot for its legislative offices, but in any event I believe that that would be constitutional, Your Honor, and it would be constitutional from our way of looking at it because the parties would not be in a position of having their name used by people who are in fact not supported by the members of the individual parties.

In that system, I'm sure that the parties would get their favorite candidates on somehow, and they would run outside of the system.

Chief Justice Rehnquist: Your case should be brought under the Lanham Act, then.

Unidentified Justice: [Laughter]

Justice Kennedy: Well, why isn't that true in this case?

Can't the parties, by pre-election endorsements, or pre-election criticism or disavowals, make their party position known?

Mr. Waters: Well, two answers to that.

First, the most significant endorsement is the nomination itself.

I mean, the parties are coerced here to put the nomination on candidates who will appear on the ballot as Libertarian.

It is indeed true that, due to a constitutional decision coming out of this Court, that parties can endorse whomever they like, but it would put the Libertarian in the party in the situation of having their own candidate, a Libertarian-anointed candidate on the ballot held out to the public as their representative, and then trying to get somebody else on.

Now, trying to get somebody else on, let me just say that the parties cannot get nominees on the ballot any other way.

I mean, there is no...

Justice Kennedy: Well, it would be their choice.

If there were two people that were qualified Libertarian, then the Libertarian Party wouldn't have to choose, but if there were one that really did not, in the party's view, represent the values and the programs of the party, then the party could say so.

Mr. Waters: The party... in the...

Justice Kennedy: In advance.

Could say, we...

Mr. Waters: During the primary elections, certainly, the party could say that, yes.

Justice Kennedy: Why doesn't that cure the problem that you're concerned with?

Mr. Waters: Because the problem with that is the universe of voters who are going to choose that nominee are not the Libertarian electorate.

It's the entire... it is 15 million voters in the State of California.

Justice Kennedy: But at least you can make known to the voters that you, the Libertarian Party in the hypothetical case, prefer this particular candidate.

Mr. Waters: That is indeed true.

I do not deny that, but I don't think that conforms with the Constitution, which this Court has said allows parties to choose standard-bearers of their own choice.

I mean, despite... even though the endorsement process could go on there, the candidate, the winner of that race would not be chosen by members of the Libertarian Party, and the Libertarian Party I think is a very good example to discuss here, because they are a very small party.

They... I mean, they do not have the wherewithal... I mean, if there's some kind of empirical justification required here, the Libertarian Party does not have the wherewithal to go out to 15 million voters in California and buy air time and say, Joe's a good Libertarian and Ed isn't.

Justice Breyer: You think that interest is so strong that it warrants throwing out... I mean, if it's valid as to the Republicans and Democrats, is it invalid as a whole because of the Libertarians?

Is there some way of splitting it?

I didn't see how.

Mr. Waters: No, I... I'm not aware of a way to split it, Your Honor.

I think it is... I think the Libertarians are a particularly dramatic example of what can happen, but I think each party in California is in the same position with Proposition 198.

Justice Stevens: Does the record show whether there's significant cross-over voting, or voting by members of a different party, for the minor parties like Libertarians?

I would assume most people who vote for a Libertarian candidate would be Libertarians.

I mean, do the Democrats try and jimmy up the libertarian nominee?

Mr. Waters: Before this case, I would have made the same assumption, Justice Stevens, and what the record shows is that there was an expert report provided by Richard Winger who, on the basis of historical voting patterns in California, he... at trial he testified that he believed in minor party primaries that the number of voters from outside the party would out-number the number of voters from inside the party.

Now, there are two lodgings before this Court which are not in the record, let me make that clear, but there are results from the 1998-2000 election, and in the 1998 election, an incident, three incidents which are in our opening brief, there are three incidents where... and in Libertarian primaries I think their Assembly races, the number of voters voting in those races was actually about two-and-a-half times the number of registered Libertarians in those districts.

Now, I don't know how many of the Libertarians actually voted, but my point is that the ratio is actually two-and-a-half to one, at the very least two and a half... the two-and-a-half being people who are not registered Libertarians nominating those Libertarian voters.

So I mean, one question Your Honor might ask is, why does that happen?

I mean, we could all speculate about it, but there's...

Justice Stevens: Does it indicate, for example, the particularly well-known Libertarian... I mean, Michael Jordan running on the Libertarian ticket, or something like that?

Mr. Waters: I think... none of them were particularly well-known, Your Honor, but I think the fact of the matter... what the Libertarians testified about at trial is, if they have the only female nominee in a race where there are eight males, some percentage of the electorate will vote for the female.

If they have the only Hispanic nominee with an Hispanic name in a race where they're the only Hispanic, then there will be this flooding effect, so...

Justice Ginsburg: Mr. Waters...

Mr. Waters: Yes, ma'am.

Justice Ginsburg: Does the party have the choice of opting out of this whole system, picking its candidate whatever way it likes, and then petitioning to put that candidate on the ballot for the general election?

Mr. Waters: No, it does not, Your Honor.

California law dating back from 19... well, before 1908, the whole goal of California law was to bring the parties within the system to democratize them.

The only way that a party could go off the ballot, it would be to... take the Democratic Party.

The only way it would get off the ballot is if no State-wide candidate got more than 2 percent of the vote at the previous election, and their registration fell below 1 percent of the total registration in the State, but there's absolutely no way that a political party itself, volitionally, can check out of the primary process.

Justice Ginsburg: So it has to be...

Mr. Waters: The whole process is there to bring them in.

I mean, that's the whole structure.

I'd like to...

Justice O'Connor: I guess we upheld the right of a State to direct that primary... parties have to have a primary election rather than a caucus to select candidates.

I mean, that's a concept we've accepted, apparently.

Mr. Waters: I believe, reading this Court's opinions, that yes, indeed, you have.

Justice O'Connor: And yet that's a tremendously intrusive burden on a political party's rights as well, isn't it?

Mr. Waters: We agree with that, Your Honor.

We agree that in the... California, the United States is distinctive, and that there are many significant intrusions on party associational rights.

We think this case presents the question whether there is any limit to what the State can do vis-a-vis associational rights.

If I could, I would like to reserve any time I have left.

Chief Justice Rehnquist: Very well, Mr. Waters.

Mr. Waters: Thank you.

Argument of Thomas F. Gede

Chief Justice Rehnquist: Mr. Gede, we'll hear from you.

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

After 30 years of declining voter turn-out in primary elections, California voters have acted to allow millions of additional voters to fully participate in the primary election, and the results have been dramatic, with the highest voter turn-out in 16 years in the last gubernatorial primary, the highest in 20 years in this year's presidential primary.

The voters acted in their own interest to increase that voter participation and turn-out, give them...

Justice Kennedy: Is the fundamental assumption of the amendment that it's for the voters to tell the Republican Party or the Democratic Party what those parties should stand for?

Mr. Gede: No.

The fundamental assumption is, the election belongs to the voters.

It belongs to the individuals who...

Justice Kennedy: Well, I'm not sure how that's different from the postulate I suggested.

Mr. Gede: I'm not sure I understand the question, your Honor...

Justice Kennedy: Why isn't the theory of this law that it's for the voters to tell the Republican Party what it should stand for in the State of California?

Mr. Gede: Well, that is precisely what the open primary does.

It allows the voters to decide in the primary election...

Justice O'Connor: To decide the message of the particular party.

Mr. Gede: Well, Prop 198 is...

Justice O'Connor: And I just wonder whether that's valid.

I mean, the very essence of the party's First Amendment right is to define its own message and send out its own candidate.

It doesn't have to be more representative if it doesn't want to be, does it?

I mean, this is a remarkable proposition you're putting forward.

Mr. Gede: No, Your Honor.

Justice O'Connor, what's remarkable here is that the voters decided to treat the primary election as an election.

It is where they decide to vote on the candidates that go to office and represent them in the Statehouse, or the Governor...

Justice Scalia: Well, you could, have an open nonpartisan primary and decide that only the first five people on that nine... nonpartisan primary will automatically go on the general election ballot, but that's not what you've done.

You haven't let the people select who are going to be the candidates among whom they will choose.

You've let the people select who the Republican Party nominee is going to be and who the Democratic Party nominee is going to be, rather than letting Republicans select it and Democrats select it.

Mr. Gede: That's correct.

Justice Scalia: That's quite different.

Mr. Gede: That's correct, Justice Scalia.

What we're allowing voters to do is select their candidates for office.

The nominees belong...

Justice Scalia: No, not select their candidates.

You're allowing them to select the Republican Party's candidates, whether they're Republicans or not.

Mr. Gede: The candidates carry...

Justice Scalia: You could achieve what you're after if you're saying what we want to do is let the people select who the candidates for office should be.

You could achieve that, not by forcing the Republicans to accept the candidate that the Republicans don't want.

You could achieve it by simply having a nonpartisan primary.

Let the voters select who the five most popular people are and they'll get on the ballot.

Wouldn't that achieve the same thing as you're doing here?

Mr. Gede: Certainly, Justice Scalia.

If you have a nonpartisan ballot, it is a lesser burden on the parties than any other form of primary here, but in answering both Justice O'Connor and Justice Ginsburg, or Justice Ginsburg's questions about whether an open primary is any different than a blanket primary here, in reality what you're talking about is 23 States of the Union don't even have a requirement of voter affiliation.

An individual voter can walk into the poll and say, I think I'll be a Republican today, or I think I'll be a Democrat today.

There's no requirement, in most of these States that have open primaries, any differently than a blanket primary State to affiliate right on the spot and have some sort of act that says, I'm a Republican.

The candidate carries the ballot.

Justice Scalia: Well, you have to be a Republican that day anyway, and you cannot vote for non-Republican candidates.

By making that commitment, at least you're excluding yourself from voting for candidates for other parties, right, which is not the case in California.

Mr. Gede: That is correct.

Justice Scalia: You can determine the Republican Party nominee for one office and the Democratic Party nominee for another office.

Mr. Gede: That's correct, because it's as if each race is a separate...

Justice Scalia: Yes.

Mr. Gede: individual ballot.

Justice Scalia: So there is absolutely no commitment to a particular party, not even for the day.

Mr. Gede: That's correct, but...

Justice Scalia: Which there is in the other primaries.

Mr. Gede: Not in any open primary in which they don't even have to indicate what their preference is or what their affiliation is.

Justice Kennedy: What is the State's interest in allowing an ever-changing galaxy of voters in a particular election to tell the party who its representatives must be, quite without respect to the voter's own party affiliation?

What's the State's interest?

Mr. Gede: The State's interest is what the voters themselves expressed they wanted.

A majority of voters, including the rank and file of the Republicans and Democrats, impressive majorities of Republicans and Democrats, and probably minor party voters as well, all said, we want greater choice on the ballot.

We want greater turn-out.

1.5 million Independent voters now have the opportunity to vote in the primary election.

It's... it necessarily increases the base and the appeal...

Justice Kennedy: Well, that seems to me almost circular.

You're saying that it's constitutional because the voters want it, but that's not usually an adequate description of a State interest when the State is regulating or interfering or restricting associational rights.

Mr. Gede: I'm sorry if I misstated...

Justice Kennedy: Just because all the people want to restrict associational rights, that seems to me an insufficient State interest.

Mr. Gede: The interest is, indeed, compelling.

the interest is to provide a broader base for the candidates to appeal to.

The voters get greater choice.

They bring in 1.5 million additional, independent voters.

They get more competitive elections as a result.

There's a greater representativeness among those candidates in the elected officials and, in answering Justice O'Connor's question, that is not saying on any basis of ideology or viewpoint.

It's simply... it's just civics.

The more people you have voting, the more representative the candidates are going to be.

Justice Souter: Although your criterion may not be an ideological criterion, my understanding, and you tell me if I'm wrong, is that the virtues that you extol are inseparable from a feature that seems to go with the system, and that is, more centrist candidates, so that it seems to me inseparable from what you claim are its virtues, that there is a change in content of the political message of the people who are being selected.

Mr. Gede: No, Justice Souter, I don't believe that's correct.

The voters knew instinctively that bringing in more voters, including all of the Independents in California, the fastest-growing bloc of voters, was that they were going to get candidates that were more representative of their points of view.

That doesn't necessarily mean that it pulls it to the middle.

What's...

Justice Souter: That's...

Mr. Gede: What's...

Justice Souter: Regardless of where it pulls it, it pulls it in the direction of, in effect, an imposed content modification.

Mr. Gede: No, Your Honor, I disagree.

There's no content to this at all.

What's representative in San Francisco is not going to be what's representative in Orange County.

It simply means that more voters that get to...

Justice Souter: Well, I'm not suggesting that there's anything in the statute that determines what the content will be.

Mr. Gede: That's right.

Justice Souter: But the statute, it seems to me, is inseparable from a regime in which the popular choice of voters will determine the content of the message attributed to a given political party.

Mr. Gede: I don't think that's right, Justice Souter.

I think all the more that's happening is Independent voters, and voters are stepping forward and indicating their choice for the office.

The political parties are not private, autonomous organizations.

Justice Scalia: Well, why not?

I mean, what about the party that does not want to be representative?

It thinks the country's going in the wrong direction.

It knows the majority wants to go that way, but it wants to send out a message, a clarion call to call the country back to the right road, and it wants to select a candidate who will do that, and your system says, ah no, we'll have massive participation, so the majority will come in and say, ah, we like the road we're going on.

Is that what the democratic system is supposed to produce?

Mr. Gede: Justice Scalia, there is nothing constitutionally suspect about the majority... majoritarian rule here.

The greater number of voters...

Justice Scalia: I don't mind majoritarian rule at the point of election, but at the point of campaigning, and of trying to persuade the people, you're saying you cannot even have a party candidate who wants to go in the wrong direction.

The majority will decide what's the right direction.

Mr. Gede: That's right.

This is an election...

Justice Scalia: We won't even debate about going in the other direction, because we'll be sure to select candidates who agree with the majority.

Mr. Gede: Well, Justice Scalia, this is the election that belongs to the voters in which the first cut, when candidates are narrowed, these candidates will be their elected representatives in the Statehouse, or for Governor.

Justice O'Connor: Well, this is the precise time when the party ought to be able to make its own selection for the spokesperson to run in the general election, to articulate the stand and the views that the party wants the voters to have a chance to hear.

That's precisely the point at which the associational interest of the party is at its zenith, and for the State to come in and say no, you have to be more representative here, is simply to change the message, and I think if the... do you acknowledge that the party has any associational right?

Mr. Gede: Absolutely.

Justice O'Connor: You do?

Mr. Gede: Yes, Justice...

Justice O'Connor: Protected by the First Amendment?

Mr. Gede: Yes, Justice O'Connor.

Justice O'Connor: What's left, if this can stand?

Mr. Gede: What this Court has done in Timmons is established a balancing test that looks at those important and legitimate First Amendment interests of the political parties and balances them against the legitimate interests of the State.

In this case, it's the voters, the voters themselves.

This isn't a classic case of the State trenching on...

Justice O'Connor: Well, tell me what would remain after your so-called balancing test of a party's right at all.

Mr. Gede: It has the right to do just what Justice Kennedy suggested, call for and endorse before the primary or at any point whatsoever, an endorsement of the central committee, or whatever the current party leadership chooses to do, but the voters are themselves participating in the election process.

Justice O'Connor: You mean you say the answer is to let the party tell the voters before the primary election which candidate they support?

Mr. Gede: Certainly.

Under you... this Court has already said the party is free to...

Justice O'Connor: Oh, but normally parties use primary elections to let the registered voters in that party tell the party what candidate the party members select.

Mr. Gede: Well, in this case you have the voters themselves, many of whom are party members, many of whom are Independents who want the opportunity to participate in that narrowing process.

The election in their view belongs to them.

When they voted on Prop 198 they knew that closed primaries were not working in California.

They were contributing to lower voter turnout, alienation, gridlock.

They knew instinctively that...

Justice Scalia: Acne, oh, all sorts of things.

Unidentified Justice: [Laughter]

Mr. Gede: Well, it was...

Justice Scalia: Gridlock?

I mean, God, the traffic problems in L.A. are attributable to this thing, too?

Unidentified Justice: [Laughter]

Mr. Gede: What they knew... what they knew, Justice Scalia, was that it was contributing to excessive partisanship, and partisan strife, and that has contributed to alienation and has... and it has resulted in 30 years of decreased participation in voter turn-out.

Chief Justice Rehnquist: But what if a party takes the position that we think legislative gridlock is good, because there are too many laws on the books already?

Isn't that party going to be at least partially deterred by this system?

Mr. Gede: I think this... I think Prop 198, by making the elected representatives more representative of the voters in their district will mean that the... that those who do go to the Statehouse are going to be clearly more accountable to the voters.

The voters want their elected officials to be accountable.

Justice Scalia: I don't want to be representative, says this party.

I do not want to be representative.

They're all going in the wrong direction.

What is that party supposed to do?

Mr. Gede: Well, if it's...

Justice Scalia: The State is saying, you will be representative, but I don't want to be representative.

I want to get off in a new direction.

You can't do it?

Mr. Gede: Justice Scalia, I don't understand what is undemocratic about...

Justice Scalia: It's very democratic.

It's wonderfully democratic, but usually we let parties put up candidates, and we exercise the democratic rights in the election, but you're saying parties can't even put up candidates.

We're going to extend democracy one step earlier and not even let any parties put up people whom the majority doesn't like.

That doesn't... you know, that's...

Mr. Gede: Well...

Justice Scalia: democracy carried to an extreme, to the tyranny of the majority.

Mr. Gede: Justice Scalia, just... Judge Levy below balanced the interest and looked at what kind of burdens are put on the political parties by any cross-over voting and found those burdens not to be severe.

He had expert testimony based on the solid experience in the State of Washington and the State of Alaska, political scientists and experts who came to the court and said, well, this is what the burden is, and the burden was found to be minor.

The burden was found not to be significant to the degree that it was severe.

Chief Justice Rehnquist: What... how... what did they say the burden was, albeit they said it was minor?

Mr. Gede: The principal burden that I think Judge Levy found was significant was that it would have a dampening effect on the disciplining by the party, the party officials, the party leadership, on those legislators who go off with a charter, with a more representative charter to, say, the Statehouse, and he said that that is a burden.

It is significant.

This is a balancing that this court has applied, but it is not a severe burden.

It has a dampening effect.

Justice Ginsburg: Well, is there any indication that the nominees that have emerged from this blanket primary are different from the nominees that would emerge if you had a closed party primary?

Mr. Gede: I'm not sure I...

Justice Ginsburg: The people who appear on this ballot...

Mr. Gede: Right.

Justice Ginsburg: Let's say, Republican, Democrat, is there any indication that they would have been... that the winners would have been different if California still had the closed primary?

Mr. Gede: I don't know the answer to that question.

There will be races that will be determined by cross-over vote, whether cross-over...

Justice Kennedy: Wasn't the objective of having different candidates prevail in the primary the precise justification for this statute...

Mr. Gede: Yes.

Justice Kennedy: for this constitutional amendment?

Mr. Gede: Yes.

The voters expected and anticipated cross-over votes would make a difference.

Independents and even people from the other party voting for a candidate at their first choice, they're voting for the candidate that they want.

Justice Kennedy: The whole purpose was... of the constitutional amendment is to nominate different people than would have been nominated otherwise.

Mr. Gede: Potentially.

The court found that generally it only affected the margin of outcome, and not the outcome itself, but that shouldn't make any constitutional difference, because the voters are voting for the candidates they want to go on to office, and the burden on the parties was not severe, and the interests here were compelling, getting more people to the polls.

Those ballots also have nonpartisan races, judicial confirmations, bond issues, all kinds of things on them.

We have a solid and important and compelling interest in bringing more...

Justice Breyer: What is your response to what I'm now thinking of as the Lanham Act problem?

That is, when they come to the final election they're labeled Republican, and Democrat, and that suggests that they're the candidates that the parties might support, and they aren't.

They're just someone who happens to call himself a Republican who gets more votes than anyone else who calls himself a Republican, et cetera.

Mr. Gede: Justice Breyer, that's no different in a closed primary in California than under a blanket or an open.

It's a self-selecting system.

Anybody can run for office and say I'm a Republican and get their name on the ballot, and then it's up to the party, if the party...

Justice Breyer: All right.

I see.

Mr. Gede: organization doesn't like that candidate...

Justice Breyer: I have one other question, a slightly different topic.

I'd like to hear what you have to say about what I think of as the Libertarian Party problem.

Mr. Gede: Sure.

Justice Breyer: I mean, perhaps it's just a side issue, but on the other hand it's important to them, so what... they're saying that they, as I take it, can find themselves with a candidate for Governor who may just reflect random factors, nothing to do with the Libertarian philosophy.

Do you know...

Mr. Gede: Certainly.

Justice Breyer: Have I said enough to point you...

Mr. Gede: Certainly.

Justice Breyer: at what I'm worried about?

What are we supposed to do about that, because none of your compelling interests, et cetera, deal with the burden that it imposes upon them.

Mr. Gede: The burden is no different for them than it is for a major party.

If their interest is in getting somebody elected to office, what burden is it for them... this is an opportunity for them.

They get more support.

They have a platform for greater visibility.

They have the opportunity to appeal to a broader constituency.

Justice Breyer: But as they see it, rather than, say, as you see it... as they see it, as I understand it, they say, here we have a party that's committed to an ideal, and if we can stay committed to it, we will, in fact, eventually persuade people.

But we cannot stay committed to that ideal when, because of random considerations, basically, we find ourselves saddled with a gubernatorial candidate who may not even share that ideal, and all of the compelling reasons you've given really have nothing to do with us, say the small parties.

Mr. Gede: Justice Breyer, the small parties are getting the votes of people who sincerely want that candidate.

If that candidate wins in the election as a nominee of the Libertarian Party, that candidate won precisely because that candidate attracted the votes to it, people who now, whether it's a marginal affiliation or not, decide, you know, I'm really a Libertarian when it comes to that office, and I want that candidate for office.

And so what's the burden there?

It's neither a burden on their desire to expand their base and become... and eventually win, which is one of their goals, nor is it even a burden on their expressive rights, their willingness to... their desire to get their message across.

If they're solely there for an expressive purpose, then why are they doing that at public expense on a public ballot?

The elections are not solely for expression.

Ballots aren't fora for expression.

They're to get people elected to office.

Justice Scalia: Right.

We should just drive out all those parties that don't stand much of a chance.

I mean, I don't know why you even let the 2-percent parties in.

They're just there to try to disseminate their ideas.

Mr. Gede: Well, Justice Scalia, there's nothing wrong with that, either.

I mean, clearly on both campaigns and in elections there are elements of expression and there are elements of, importantly, getting officials elected to office, but ballots...

Justice Scalia: Mr. Gede...

Mr. Gede: Yes, sir.

Justice Scalia: what do you do with Tashjian?

Bear in mind, I dissented in Tashjian because I thought the State could tell a party, without affecting its associational interests, you have to have a closed primary, but if that is unconstitutional, as we said, because that somehow interferes too much with a party's associational rights, how could it possibly not interfere even more with a party's associational rights to say, you cannot have a closed primary?

Mr. Gede: Because, Justice Scalia, this case is not like Tashjian.

There, one party was in power and actually ganged up on another power, and your powerful dissent went to the State's power to protect the party in that particular situation.

This isn't that.

This is where this... the voters have decided they want to open up all of the... this is all of the parties, all of the voters, every demographic subgroup, majorities all across the board say, we want the chance to vote in our primary election, in the first cut of the election, for those who are going to go off and represent us, and...

Justice Breyer: And this case would be different if, in fact, a Democratic legislature had imposed exactly the same requirement over the objection of the Republicans but not the Democrats?

Mr. Gede: I think that would fall squarely under Tashjian and would be unconstitutional.

Justice Breyer: Tashjian doesn't say it looks to factors like that.

Mr. Gede: Well, it doesn't say it expressly, but if you look at Tashjian I think it... it's... what it's doing is, it's employing the same test...

Justice Scalia: You were so persuaded by my dissent you say that's the only conceivable explanation of the...

Unidentified Justice: [Laughter]

Justice Scalia: is that right?

Mr. Gede: It is a slightly different situation, Justice Scalia, and this Court basically used the test that eventually emerged in Timmons.

It derived from Burdick, it derived from Anderson v. Celebrezze, and you look to those burdens and see whether those burdens could be justified or outweighed by any State interest.

Justice Kennedy: I want to make sure I understand.

The First Amendment operates differently if the statute is imposed by a legislature than by a referendum?

Mr. Gede: No, I don't think that makes any difference here, but what is different here is that, where the voters acted in their own First Amendment interest you don't have the classic case of the State trenching upon the First Amendment rights of the party.

You have the First Amendment interests of the voters competing with the First Amendment interests of the political parties, and when those two sets of First Amendment interests are in equipoise, as the NYU Brennan Center amicus brief put it, they really shouldn't be disturbed.

They are First Amendment interests that are shared by all, and...

Justice Breyer: Well, I had thought perhaps that Tashjian was a case where the justification fell in the legislature saying, we will tell you who really is the Republican Party, while here the legislature is saying, we're not so interested, frankly.

We concede that this is weakening the parties, and we're doing it for other reasons.

Mr. Gede: Yes, Justice...

Justice Breyer: You haven't accepted that, so I'm prepared to jettison my...

Unidentified Justice: [Laughter]

Mr. Gede: The voters here spoke to it, and the... and...

Justice Kennedy: So you say the legislature doesn't represent the will of the people.

Mr. Gede: No.

The legislature...

Justice Kennedy: You say that as the Attorney General of the State of California, the legislature can't represent the will of the people?

Mr. Gede: No.

The legislature clearly can represent the will of the people, particularly when it is representative of their views.

Justice Kennedy: Yes, but you're telling me that the results should be different, depending on whether there's a legislative... whether there's a statutory or constitutional amendment.

Mr. Gede: No.

I'm sorry if it came out wrong, but I believe that it should not make any constitutional difference whether this was passed by initiative or by the legis...

Justice Kennedy: So, then, all of the arguments in the briefs that the people of the State of California selected this are irrelevant?

Mr. Gede: No, Your Honor.

I thought the hypothetical was, if one party in power imposed a restriction on the other party...

Justice Scalia: There's always one party in power.

I don't know any legislature that isn't...

Mr. Gede: Right.

Justice Scalia: a majority of one party or majority of the other party, so if it gets to a legislature it's always going to have to be imposed by one party, I assume.

Mr. Gede: Yes, Your Honor, but the hypothetical from Justice Breyer, if I understood it correctly, was that the restriction would be on just one party.

In this case, it opens up and expands and permits all parties, all voters to participate in the primary election.

It's not a burden on one party or the other.

It is nondiscriminatory.

Justice Scalia: Well, Tashjian was nondiscriminatory.

It was imposed on all sides, right?

Mr. Gede: Well, yes, Your Honor...

Justice Scalia: But there you say it was imposed by one party, namely the party that controlled the legislature, right?

Mr. Gede: Justice Scalia, the effect of the legislative decision in Tashjian was to hobble the other party.

The other party wanted to expand its base of membership, it wanted to attract the Independents, and the party in power in the legislature was saying, you can't do that.

Justice Scalia: Couldn't the party that wants to expand, as you think these parties do, couldn't it conduct a public opinion poll?

Is there any reason why the majority of citizens has to use the primary for that purpose?

Mr. Gede: Well, the primary, Justice Scalia, is, as this Court has said, an important first cut, integral part of the electoral process in which people elect their candidates to office, and they become Governor, and they become their legislative representatives, and they become their Members of Congress.

Why are we allowing the party tail to wag the dog?

This is about elections, and this is about the voters having the right to elect the candidates for office.

Chief Justice Rehnquist: But suppose the voters, or the legislature says, there are some parties that are so far out we're just going to outlaw them?

I mean, surely they couldn't do that.

Mr. Gede: Again, this Court has provided a... provided a construct in which to examine that in the test that it has in Timmons, and it may be that the State won't have compelling enough interests to overcome whatever burdens would be placed on parties in the...

Chief Justice Rehnquist: Well, it's certainly a rather severe burden to be outlawed, I would think.

Mr. Gede: It may well be, and...

Chief Justice Rehnquist: A fatal burden.

Unidentified Justice: [Laughter]

Mr. Gede: A court would look...

Justice Stevens: May I ask...

Mr. Gede: A court would look at that under the test that this Court has provided.

Justice Stevens: May I ask a stupid question?

I'm trying to find out the source of the Constitution, you know, both sides, and Article I section 4 says that the times and places and manners of holding elections and so forth shall be prescribed in each State by the legislature thereof.

Is it permissible for a ballot initiative like that to replace the legislature?

Mr. Gede: Yes.

In California the initiative is... the initiative power is a legislative power, and...

Justice Stevens: But the people who wanted...

Mr. Gede: the courts of...

Justice Stevens: are not the legislature, are they, within the meaning of that provision?

Mr. Gede: Well, I don't know the full answer to that question, if the legislature means the legislative power, or if it means the body in which the elected representatives sit.

I don't have an answer beyond that.

Justice Stevens: Were the Framers aware of initiative and referenda?

Mr. Gede: No, of course, not, to my knowledge.

I don't know that they were...

Justice Stevens: They weren't aware of political parties, either, I don't suppose.

Mr. Gede: That's correct, also.

I mean, there were no political parties, and people came to the polls and elected the candidates they wanted for office.

In sum, if I may, if this Court were to accept the petitioner's argument that just allowing outsiders in were to severely burden the party to the degree that it's unconstitutional, this total party autonomy approach, it would in California, as Professor Eugene Lee has pointed out, decrease voter turn-out again, it would increase alienation with the parties and the party leadership, something that's already there, it would increase the Independents getting a larger registration, and it frankly would weaken the two-party system.

More importantly, as Justice O'Connor asked earlier, it would jeopardize all of the open primaries across the country, and primaries that allow same-day registration and States that don't even require recordation, or allow people to maintain their party affiliation in private.

Ultimately, the thrust of that argument is down the slippery slope that even primaries themselves could not stand up against that argument of total party autonomy.

Thank you, Your Honor.

Rebuttal of George Waters

Chief Justice Rehnquist: Thank you, Mr. Gede.

Mr. Waters, you have 2 minutes remaining.

Mr. Waters: Mr. Chief Justice, I have nothing to add to my previous argument.

I'd be delighted to answer any questions from the Court.

Chief Justice Rehnquist: The case is submitted.

Mr. Waters: Thank you, Your Honor.