California Democratic Party v. Jones - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-401, California Democratic Party versus Jones will be announced by Justice Scalia.

Argument of Justice Scalia

Mr. Scalia: This case comes to us on writ of certiorari to the Court of Appeals for the Ninth Circuit.

One way that candidate’s republic office in California gain access to the general ballot is by winning the primary of a qualified political party.

In 1996 Proposition 198 changed the State’s partisan primary system from a closed primary in which only a political party’s members can vote on its nominees to what is called a blanket primary in which each voter’s ballot lists every candidate regardless of party affiliation and allows the voter to choose freely among them.

The candidate of each party who wins the most votes is that party’s nominee for the general election.

A blanket primary, it should be noted is different from an open primary in which although the voter need not be a member of the party in order to participate, he is permitted to vote for the candidates of only one party and cannot as in the blanket primary vote for the candidate of one party for one office and of other parties for other offices.

Our holding today deals only with the blanket primary.

Petitioners are the California Democratic Party, the California Republican Party, the Libertarian Party of California and the Peace and Freedom Party, each of which prohibits nonmembers from voting in their primaries.

They filed suit against respondants alleging inter alia that the blanket primary violated their First Amendment rights of political association.

The District Court held that the primary's burden on the petitioner’s association rights was not severe and was justified by substantial State interest, the Ninth Circuit affirmed.

In an opinion filed with a Clerk of Court today, we reverse.

It is true of course that States play a major role in structuring and monitoring the primary election process, but the procedures by which political parties select their nominees are not wholly public affairs that States may regulate freely.

To the contrary this Court has repeatedly held that States must act within limits imposed by the Constitution when regulating parties’ internal processes.

The First Amendment protects the freedom to join together to further common political beliefs, which presupposes the freedom to identify those who constitute the association and to limit the association to those people.

In no area is the political association’s right to exclude more important than in its candidate-selection process.

That process often determines the party’s position on significant public policy issues and it is the nominee who is the party’s ambassador charged with wining the general electorate over to the party’s views.

California’s blanket primary violates these principles.

Proposition 198 forces petitioners to adulterate their candidate-selection processes by opening them up to person wholly unaffiliated with the party, who may have wholly different views from those of the party faithful.

The evidence in this case demonstrates that under California’s blanket primary system the prospect of having a party’s nominee determined by adherence of an opposing party is far from remote.

Indeed it is a clear and present danger.

In 1997 survey of California voters, 37% of republicans said that they plan vote in the 1998 Democratic Gubernatorial Primary and 20% of democrats said that they plan to vote in the 1998 Republican United States Senate Primary and the impact upon minor parties such as the Libertarian Party and the Peace and Freedom Party is even greater.

In the first primary these parties conducted following California’s implementation of Proposition 198.

The total votes cast for party candidates in some races was more than double the total number of registered party members.

The effect of this system upon the party is not merely the occasional alternation of the identity of its nominee.

Even when the person favored by a majority of that party members prevails, he will have prevailed by taking somewhat different positions in order to appeal to non-party members and should he be elected, will continue to take somewhat different positions in order to be re-nominated.

In short Proposition 198 has the likely outcome indeed as respondents themselves admit the intended outcome of changing the party’s message.

Because there is no heavier burden on a political party’s associational freedom, Proposition 198 is unconstitutional unless it is narrowly tailored to serve a compelling State interest.

None of the respondents’ seven proffered State interest is compelling.

The first two producing elected officials who better represent the electorate and expanding candidate debate beyond the scope of partisan concerns are simply circumlocution for producing nominees and nominee positions more favored by the majority than those the parties would choose if left to their own devices.

That is nothing more than stark repudiation of freedom of political association.

The third asserted interest is assuring that so-called disenfranchised persons by which is meant independents and members of the minority party in “safe” districts.

Enjoy the right to an effective vote.

This is simply re-characterizing non-party member’s keen desire to participate in selection of the party’s nominee as disenfranchisement if the desire is not fulfilled.

We have said in an earlier case however that “A nonmembers desire to participate in the party’s affairs is overborne by the counter veiling and legitimate right of the party to determine its own membership qualifications.”

Although respondents remaining asserted interests namely promoting fairness affording voters greater choice, increasing voter participation and protecting privacy maybe compelling in some circumstances we hold that they are not in this case.

That determination is not be made in the abstract by asking whether fairness, privacy etcetera are highly significant values, but rather by asking whether the aspect of fairness, privacy etcetera addressed by the law at issue is highly significant and for all four of these asserted interest we find it not to be.

Finally, we observed that Proposition 198 is not being narrowly tailored means of furthering all of respondents asserted interests.

Respondents could protect each by resorting to a nonpartisan blanket primary.

Generally speaking, under such a system the State determines what qualifications it requires for a candidate to have place on the primary ballot, which may include nomination by a established parties and voter-petition requirements for independent candidates and then voters regardless of party affiliation may choose among these candidates, the top two vote getters or however many of the State prescribes then moving on to the general election.

This system has all the characteristics of partisan blanket primary, save the constitutionally crucial one, primary voters are not choosing a party’s nominee.

Justice Kennedy has filed a concurring opinion; Justice Stevens has filed the dissent in which Justice Ginsburg has joined as the part 1.