Transcript

MICHAEL CLINGMAN, SECRETARY, OKLAHOMA STATE ELECTION BOARD, ET AL., Petitioners v. ANDREA L. BEAVER, ET AL.

No. 04-37

January 19, 2005, Wednesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:02 a.m.

PROCEEDINGS

(11:02 a.m.)

JUSTICE STEVENS: We'll now hear argument in Clingman against Beaver.

Mr. Poe, as soon as you're ready, we'll hear from you.

ORAL ARGUMENT OF WELLON B. POE, JR. ON BEHALF OF THE PETITIONERS

WELLON B POE JR: Mr. Justice Stevens, and may it please the Court.

This case today involves a conflict between Oklahoma's semi-closed primary law and a rule adopted by the Libertarian Party of Oklahoma which, contrary to that State law, would allow the Libertarian Party to open its primary elections not just to independent voters, but also voters registered as members of other political parties.

The Oklahoma primary system simply requires that a person who is registered as a member of that party may only vote in that political party's primaries.

If the voter desires to vote in another party's primary, all that voter must do is, within a reasonable time before the elections, primary elections, approximately 7 to 8 weeks, is disaffiliate from that first party and then reaffiliate as a member of that second party, or if the parties so chose to allow independents, he may registered as an independent in order to vote in that primary.

JUSTICE O'CONNOR: Well, of course, I guess from the standpoint of the Libertarian Party, it's kind of a problem because a voter who wants to disaffiliate under Oklahoma law with their... their prior registration have to do it basically 8 weeks ahead, at which time they don't know if the Libertarian Party will even qualify for having a primary.

I mean, it just gives them a very impossibly short window.

If the time were reasonable, that might be a different picture, but isn't that kind of burdensome?

WELLON B POE JR: Well, Your Honor, the practicality of that matter is... is that generally the parties are notified 10 days [/] 2 weeks in advance of the registration deadline that they are being... if... being recognized as a political party.

Of course... and that's if that party has waited until the very last minute by statute in which to turn in their petitions and try to get recognized.

Of course, those petitions could be turned in earlier, which would allow them more time to do so.

But the practicality of the... of--

JUSTICE SCALIA: If they're turned in earlier, will they... will they be ruled on earlier?

WELLON B POE JR: --Yes, Your Honor.

The Oklahoma statute requires that the election board take a... has 30 days, a maximum of 30 days, in which to review the petitions, verify the number of signatures and the authenticity of those signatures, and then make a decision on whether to recognize or not recognize the political party.

JUSTICE BREYER: I guess there's a difference here between the interest of a small party and a large one.

A small party would like, if there is a deadline, to be as close to the election as possible so voters have a chance to get fed up with the two big parties.

[Laughter]

That's their chance.

A big party would like it to be further away because then they can plan how their election campaign is going to be.

Has any of this been litigated below?

WELLON B POE JR: No, Your Honor.

The... the only question that has really been litigated below is whether section 1-104, which is the semi-closed primary law, is burdensome on the association rights of the Libertarians.

JUSTICE KENNEDY: In line... in line with Justice Breyer's question, does the State of Oklahoma have an interest in insulating major parties from competition for members?

WELLON B POE JR: Not from insulating them from competition, Your Honor, but the State of Oklahoma does have... it has a closed primary system.

It has... it has an interest.

And this Court has found that interest, as recently as in Timmons, that it does have an interest in a stable political system, which may be a two-party system.

As long as--

JUSTICE KENNEDY: So you have a... the State has an interest in protecting major parties from losing their members and thereby weakening the two-party system by benefitting a third party.

I thought that's contrary to the whole thrust of our holding in cases such as Anderson and Celebreeze where third parties are entitled to special protection under the First Amendment.

WELLON B POE JR: --Well, Your Honor, since that time in Anderson and as Timmons and other cases cite, if the regulation is a neutral, nondiscriminatory regulation, then it is a proper regulation as far as it is applied to all the parties.

In regards to the requirement of registration, change of voter registration, all of those are applied equally across any... any party, whether it be the Libertarian Party, the Democratic Party, Republican Party, or any other party which may be recognized at that time in the State of Oklahoma.

And back to Justice Breyer's comments, the period of 7 to 8 weeks prior to a voting... to a primary election is actually a very short time as compared, for example, to Rosario which this Court--

JUSTICE KENNEDY: Well, even in presidential elections, most people don't get interested until 4 or 5 weeks before the election.

Everybody knows that.

WELLON B POE JR: --Well, Your Honor, we... this is not the presidential primaries of which we're talking about.

JUSTICE KENNEDY: Well, I'm saying even in a presidential primary.

If they're local races, it... it takes longer.

The public just tunes out until the last... last couple weeks.

WELLON B POE JR: Well, the statutes in this... or the sites or the... the elections themselves are close in time, and... and the statutes involving the petitioning have all been looked at as... as courts and have been found that this is a close enough connection to the time of the elections, that that time frame of petitioning and getting the requirements for... for petitions and the State recognizing the political party all fit comfortably within the confines of... of constitutionality.

JUSTICE GINSBURG: Mr. Poe, the... the district court in this case rejected all grounds except one.

It rejected the raiding and swamping.

It said that's what the Libertarians want to expose themselves to.

It's not for a State to be paternalistic to protect them against their own bad choices.

But it said this request is damaging to the majority parties, to the major parties, because it poaches on their members.

But there is not in this litigation any major party that's complaining about that.

So if that is the rationale that the district court went on, can this Court possibly oppose it when there is nobody, as far as we know... they haven't even come into this case at this level, filing a friend of the Court brief.

WELLON B POE JR: Yes, Your Honor.

This Court can find... first of all, that the local Democratic and Republican Parties were not named in... in the action, and as to why they were not in the action in lower courts I do not know.

But the State has its interests and has to protect those interests whether those parties are involved in litigation or not.

JUSTICE GINSBURG: Well, when you... would you say that the rationale on which the district court rejected the Libertarian Party's claim was unsatisfactory?

WELLON B POE JR: No, Your Honor.

Under Monroe before this Court, I think the Court was looking to the potential, the possibility, of course.

And as to the fact pattern we had at the trial court, it was a very minor party wanting to... or effectively poach voters from the two major parties.

But you have to look at the entire statutory scheme and not just how it would apply.

It could be applied by the Democrats or the Republicans.

But also more importantly, in Monroe this Court clearly stated that a State does not have to wait until it sees actual damage to its political or electoral system to make reasonable decisions.

In fact, this Court says the States should have the foresight to make those reasonable determinations in an effort to prevent those... those potential evils from occurring if the likelihood of... of that is there.

And the district court made very--

JUSTICE SCALIA: Mr. Poe, I... I suppose... here I am.

WELLON B POE JR: --Excuse me, Justice Scalia.

JUSTICE SCALIA: I suppose that if... if I were the party chairman of the Republican or Democratic Party, I'm... I might have defended your... your State system if I had been named as a party, but if I were not named as a party, I'm not sure that I wouldn't... I wouldn't decline to come in as an amicus, even though I'm interested in the outcome simply because I don't want to alienate my Republican members by depriving them of the freedom, if they want to do it, to go vote.

You know, it makes you look sort of parsimonious, doesn't it, when you tell your Republican members, I don't want you to vote in the Libertarian primaries?

I... I don't think we can say that it doesn't hurt the Republican Party or the... or the Democratic Party simply because they hadn't filed an amicus brief.

WELLON B POE JR: I would agree, Your Honor.

I... I think the... the fact that they're not there... here the Court--

JUSTICE SCALIA: They are, after all, politicians, aren't they?

[Laughter]

WELLON B POE JR: --And they do like to keep their party members as happy as they can.

JUSTICE STEVENS: Mr. Poe, may I just focus in on exactly what the injury is?

Is the injury that they vote with the Libertarians or that they don't vote with their own party?

WELLON B POE JR: The... the injury is twofold, Your Honor.

And... and first, it is the fact that by them not voting in the primary to which they have associated... and that is registering as a Republican or a Democrat... if they go to the polling place and at the last minute decide to go and vote in the Libertarian Party primary, their decision not to vote in the Republican primaries, when candidates have been trying to... to use voter lists trying to get to their party members to vote--

JUSTICE STEVENS: But wouldn't it be precisely the same injury if they just didn't like the Republican candidate in that particular election, decided to stay home?

WELLON B POE JR: --Well, if they had already made the decision to stay home, then they would not be voting for the candidate, but they would also not be voting in another party's primary.

JUSTICE STEVENS: But how... how are they hurt by the fact that rather than staying home, they decide to cast a vote for a minority party candidate?

WELLON B POE JR: Well, the party is here because it has the... the possibility, for those who are not voting, of changing the elections of the candidates.

And I think also by--

JUSTICE STEVENS: Well, it's very unlikely if it's a party that is... gets the small vote that this party gets.

But you... no matter how small the vote is, you still find the injury to the major parties because they voted for the Libertarians or because they didn't vote at all?

WELLON B POE JR: --Well, because they voted either way of voting... or for voting in the Libertarians and... and not voting, they have changed and possibly have changed, especially when they went to the--

JUSTICE STEVENS: Is there any evidence on the question whether the... the support for the major party candidate is any smaller than it would have been if there had been no Libertarian Party at all?

WELLON B POE JR: --There... there's nothing in the record that supports any of that.

JUSTICE SOUTER: And... and a very similar question.

Is there anything in the record that indicates that those who would vote in the Libertarian primary are the stay-at-home Republicans or the Republicans who would otherwise have voted in the Republican primary?

WELLON B POE JR: There... there is nothing in the record.

There was no type of polling.

There was some... some expert testimony as to the potential reasons for people voting in a Libertarian primary such as purposeful intent to do harm to Libertarians or walking in intending to vote--

JUSTICE SOUTER: But that... I mean, the Libertarians are happy to have... take that risk.

WELLON B POE JR: --Yes.

JUSTICE SOUTER: It seems to me if we don't know whether the... the Republicans who are going to migrate to the primary are stay-at-homes or Republican voters, the State has no basis even to say whether in fact the harm it's trying to prevent is going to be affected one way or the other by its rule.

WELLON B POE JR: Well, I... I think, Your Honor, there... there is a context or... there is belief that it will harm.

And there's been no polling in this action, and there's no... there was only one other State that has a open... what we have termed in this litigation as a... a semi-open primary.

And there's no data that has effectively come out of their one primary that says why people are not voting, why they're voting in one primary or not or the effects of that.

I can give you--

JUSTICE SCALIA: Mr. Poe, I... I... why do you rely only upon the damage to the Republican and Democratic Parties?

I frankly don't care much about that, but I might care a whole lot about damage to... to Oklahoma's system of election.

Why do you allow party designations?

I suppose it is because you want people to know that there are candidates who are associated with particular political views.

And to allow a party to, in effect, come in and say, we don't have any particular political views, we... we just want to nominate, you know, whoever the most people want to nominate, that just destroys the whole purpose of... of your system of allowing people to run under a party label.

What's the use of a party label?

WELLON B POE JR: --And... and, Your Honor, we... we provided that information and those interests to... to the district court.

And those are interests the State has.

It is if a party is running as a party and if the State... there... there may be an interest in it.

I'm not sure--

JUSTICE SCALIA: It... if it's running as a party, it should run somebody who... who shares the views of the people in that party, which is somebody who is nominated by... by the people in that party, or at least those people, joined by others who are not affiliated with another party.

That seems to me to make a lot of sense.

And it seems to me to destroy that system if... if you say, hey, we're... you know, we... we're going to allow the Libertarian Party to say, you know, we don't have any real views.

We're just going to... we want to nominate somebody that most people like.

So let the Republicans come in, the Democrats come in.

The only thing we want is to win.

We don't really care.

WELLON B POE JR: --That... that is the premise, of course, of the voter registration.

And... and that goes back to another... an adverse effect on the State and the State's political system is this Court has recognized... it recognized it as recently as Jones and it has recognized in other cases... that there is a... a party labeling or a party identification that voters use in a general election.

And if the poaching of members have changed the... any of those party... those messages from that party, then the reliance is going to be misplaced by those party members when they go.

They go to vote for a Democrat.

They see the D or the R or the L.

And more importantly, in this case we're not talking just about the Libertarian Party, the effect of the Libertarian Party.

It could very well the effects on all of the political parties.

In fact, that effect could happen if the Democrats wanted to open theirs up and run that effect on the Libertarian Party.

Another reason, especially that is specific to Oklahoma, to help prevent party factionalism and party splintering.

In Oklahoma, when a new party is recognized, a... a potential candidate has the opportunity within 15 days of the party being recognized of changing his voter registration.

That can even be outside the parameters of section 4-119.

In that instance, there is the potential and I think the probability of this occurring is that... let's say there are four or five candidates who have announced for the Republican nomination if they want to get their nomination, and one of them decides I don't want to compete against those others.

A new party comes in.

He is excused from the 6-month disaffiliation requirement.

Within those 15 days, he can change to the Libertarian Party in hopes of getting that nomination, get the party support and the party structure.

By that happening, you then incur... by allowing this party-option primary, then that would promote party splintering, party factionalism.

And the manner of that individual going to the Libertarian Party the day of the election without any prior registration... those Republicans who may have supported him leave the Republican Party and start to choose that.

That's splintering that this Court has specifically said is not only a legitimate, important State interest but is also a compelling State interest to effect.

Poaching has the same effect as raiding.

It is a little different how it gets there, but it has the same effect.

And raiding has been determined to be even a compelling State interest in this Court.

I would like to reserve the rest of my time.

JUSTICE STEVENS: That's fine.

Mr. Schaerr.

ORAL ARGUMENT OF GENE C. SCHAERR ON BEHALF OF SOUTH DAKOTA, ET AL., AS AMICI CURIAE, SUPPORTING THE PETITIONERS

GENE C SCHAERR: Justice Stevens, and may it please the Court.

In the decision below, the Tenth Circuit stuck... struck down an election rule that has been adopted by nearly half the States pursuant to their authority under Article I, section 4 to prescribe the manner of holding elections.

In so doing, the Tenth Circuit in our view made three fundamental errors that I'd like to address briefly.

The first was the Tenth Circuit's per se approach to determining whether the alleged burdens here are severe.

That's an extremely important issue, of course, because to our knowledge, this Court has never invalidated a State election regulation under the First Amendment without first finding that the burden at issue was severe.

But instead of looking at that issue closely, the Tenth Circuit, at page 15 of its decision, simply assumed that a severe burden necessarily arises from any regulation that, quote, restricts the options of parties seeking to define the scope of their associational rights.

Now, one would have thought that it's for courts to determine the scope of a... of a party's associational rights rather than... than the party itself.

But in all events, that was the sum total of the Tenth Circuit's analysis on the... on the question of severe burden.

Now, the respondents cite that finding, but they... they make no attempt to defend that approach.

They argue instead that the burden here is severe because, at bottom, Oklahoma requires a Republican or Democrat, wishing to vote in the LPO primary, to... to disaffiliate from the party 2 months in advance.

But that burden is no more severe than others that this Court has found constitutionally acceptable.

The burden on voters, for example, is less severe than the burden this found... this Court found acceptable in Rosario, which was a... a requirement, as Mr. Poe mentioned, that voters, wishing to vote in a... in a party's primary, register as a member of that party some 8 to 11 months in advance.

The burden on the party is also less severe than a burden that this Court found acceptable in Burdick which is that a party wishing to qualify for a primary ballot gather the necessary signatures, in that case 1 percent of the voting population, 5 months before the primary.

It's 2 months here.

And it's also similar to a burden that all the members of this Court found acceptable in Burdick, which was... which was a requirement that a candidate wishing to run on a nonpartisan primary ballot collect the necessary signatures about 2 months before the primary.

And the message of these decisions... and I think it's fair to say the holding in Burdick... is that requiring participants in elections to take action a few months sooner or a few weeks sooner than they might prefer does not amount to a severe burden.

And that's the only real burden here.

The LPO has to--

JUSTICE O'CONNOR: Well, I guess the one other concern would be the timing in Oklahoma is such that the... the Republican or Democrat who wants to disaffiliate in order to vote with the Libertarians has to do so at a time before the State has decided whether to allow the Libertarian Party on the ballot.

So, you know, it probably isn't burdensome to... in principle, to have some disaffiliation requirement, but does the State have to allow enough time so that the decision can be made with knowledge of whether the Libertarians are going to be on the ballot?

GENE C SCHAERR: --Justice O'Connor, I... I think that's really up to the party.

And I... and I think that gets back to my point about Burdick.

Yes, there is a deadline and if the LPO--

JUSTICE O'CONNOR: It just seemed to me that it might be more burdensome on the voter in that situation.

GENE C SCHAERR: --Yes, I... I think that's true, but again, the burden on the voter depends on what the LPO does.

If the LPO marshals its resources, gets... gets its message out, determines who its candidates are going to be or who its potential candidates are going to be in advance of the filing deadline and in advance of the deadline for filing a petition to become a recognized party, then the voter will have ample time to make a decision.

It's really only if the LPO procrastinates that the voter is put in that position.

It's not really a function of the... of the State law.

JUSTICE SOUTER: Let me just ask you to look at the other side of the equation.

However we assess the burden, we're assessing it in relation to the State's interest.

What is your best statement of the State's interest here that you think is defensible?

GENE C SCHAERR: Well, I think... I think the State's interest is what the district court found it to be, and I think the... the district court actually found two interests, not just one.

It found an interest in avoiding poaching and an interest in promoting party loyalty along the lines that Justice Scalia mentioned earlier.

JUSTICE SOUTER: Do... do you think the... the poaching argument stands up on any... any empirical basis?

GENE C SCHAERR: I do.

And in fact, the... the district court at... at page 49--

JUSTICE SOUTER: May... let me just add quickly.

I... I realize, of course, there's going to be some movement of voters, but do we have any idea whether the voters who are moving are the ones who would otherwise have stayed at home anyway and done nothing, merely nominal Republicans as opposed to active Republicans?

GENE C SCHAERR: --Yes.

We... we do have an answer to that.

That is implicit, first of all, in the district court's finding that poaching would, in fact, made... make a difference in the... in the outcomes of the elections.

He... he made that finding very clearly on... on page 49--

JUSTICE SOUTER: Well, he found that the numbers are such that they could, but did he find... and I'm not sure of this.

Did he find that the actual people who migrated would otherwise have voted differently so that in fact it made a difference?

GENE C SCHAERR: --That is implicit in his finding.

He said the institution... this is again on page 49.

The institution of a party-option open primary format in Oklahoma, as sought by the plaintiffs, would likely affect the outcome of some primary elections.

That... implicit in that is the view that there... there would be some voting Republicans and voting Democrats that would be moving to the LPO, not just the nonvoting Democrats and Republicans.

Now--

JUSTICE GINSBURG: Was there a basis in the record for making that finding?

GENE C SCHAERR: --Yes.

Mr. Darcy's testimony, which I believe appears at... at page 63 of the joint appendix, in that... in that general area, anyway.

Now, poaching... poaching is a concern and... and a legitimate and important concern to the States for three important reasons.

I... I might mention that in Tashjian this Court mentioned in footnote 13 that a... that an open primary could have disorganization effects on the other parties, and poaching is one of those, as the district court found.

And... and it's a concern for three independent reasons.

First of all, the State has an interest in preventing poaching because that helps protect parties from spurned candidate candidacies which was one of the... the Court in Tashjian identified Storer and Rosario as examples of that.

And... and the... the semi-closed primary protects parties against that.

For example, if a candidate for the Democratic nomination felt that she wasn't getting enough support from the party leadership before the primary, she might form or join another party and then try to take... take her supporters with her into that other party.

And although Oklahoma allows the candidate to switch parties in that circumstance, the... the semi-closed primary and the 7-week period or 7 or 8-week period, standoff period, if you will... that period protects the party from having its voters poached as a result of a... of a spurned candidate joining another party.

The second reason that poaching is a significant concern is that... is that it can lead to efforts, strategic efforts by... by other parties to influence the outcome of another party's primary.

For example, suppose we're in California in 2002 a few days before the gubernatorial primaries there.

The Democrats have already decided that their incumbent, Governor Davis, will be nominated, so they're looking ahead to the general election.

And they see two possible Republican candidates, Reardon and Simon, to pull two names out of a hat.

And they conclude that... that they have a better chance of beating Simon than they have of beating Reardon.

Well, what can they do to affect the... the outcome of the Republican race?

One possibility, if the Republican primary is open, is to raid it by having some Democrat switch registration and go vote for Simon.

And of course, the Court has said repeatedly that States have an important interest in... in preventing that kind of behavior.

The other possibility is for the--

JUSTICE STEVENS: And that's not permitted in Oklahoma, is it?

That kind of behavior is not permitted in Oklahoma.

GENE C SCHAERR: --That's correct.

JUSTICE STEVENS: Yes.

GENE C SCHAERR: That's correct.

And the other possibility, though, is for the Democrats to open their primary and to lure some of the... some of the Reardon voters out of the Republican primary through targeted advertising or direct appeals from the candidate or something like that.

JUSTICE STEVENS: Well, neither of the major parties has done that in Oklahoma, has it?

GENE C SCHAERR: Not that I'm aware of, but... but it is... but it is a plausible concern that a legislature would have.

And as Justice Scalia said, these--

JUSTICE STEVENS: But the question is whether when a minor party like the Libertarians do it, is... is it going to have that effect.

GENE C SCHAERR: --Well, there... there's another scenario for... in the California example, for example.

Take... assume that the Democrats, instead of opening up their own primary to Republicans, they strike a deal with the Green Party such that the Green Party makes an effort to peel off the Reardon voters out of the Republican primary voting pool in California.

That--

JUSTICE STEVENS: But the cost of that deal would... they'd also run the risk the Democrats would... would migrate also if they made that deal.

GENE C SCHAERR: --It depends on how they ran... ran the campaign.

In all events, it's a... it's a plausible scenario and... and one that the State is entitled to respond to before it... before it actually happens.

Now, the... the third reason that poaching is a problem is that--

JUSTICE STEVENS: I apologize for taking your time with a question, but I'm afraid your time is up.

GENE C SCHAERR: --Thank you.

JUSTICE STEVENS: Yes.

Mr. Linger.

ORAL ARGUMENT OF JAMES C. LINGER ON BEHALF OF THE RESPONDENTS

JAMES C LINGER: Justice Stevens, may it please the Court.

The integrity of a political party should be defined by the political party and not by the State.

The State interest that they have asserted here and alleged is to prevent against draining, and draining the State has defined as the inverse of raiding.

Now, raiding, of course, is the State preventing and keeping out of a political party disloyal voters of another party coming in for a purpose to hurt that party.

Now, if draining is inverse raiding, then the State is saying that it has an interest in keeping in to a political party disloyal voters.

So the State is asserting and is at cross purposes that it has an interest to both keep out disloyal voters from a political party's primary and at the same time keep in disloyal voters.

JUSTICE BREYER: Why is that inconsistent?

Because I mean, you're... you're basically advocating that the Constitution requires Alaska's rule, and I thought that... we got briefs on that, I think, in... in the previous case and a lot of other parties thought Alaska's rule was not a wise rule, though that's up to Alaska.

But to think that the Constitution requires that is surprising.

The interest they assert is just the one you said--

JAMES C LINGER: And--

JUSTICE BREYER: --that the Republicans, in order to have their party work, have to be able to plan a campaign for a stable group of voters.

They have to know, roughly, who is in their party, let's say, a week before or 2 weeks before, some period of time before.

And that's the interest that Oklahoma is asserting.

It has nothing to do with you.

It has do with... and it has zero to do with you if you had a rule for minor parties, frankly.

But if you can't get a rule for minor parties, special, then you have to take it seriously I think.

JAMES C LINGER: --Most States--

JUSTICE BREYER: What's your answer?

What do you respond--

JAMES C LINGER: --Justice Breyer, most States have a rule for minor parties.

They don't treat, like Oklahoma does, you're either a party or you're a nothing.

JUSTICE BREYER: --The States do but to say that the Constitution... and I'm asking.

You see, I'm not... but I... if I could figure out how in the Constitution you had a special rule for minor parties, the interest that they're asserting has very little to do with it.

But I don't see how you can have a constitutional rule that would forbid... allow you to open and drain, but wouldn't allow the Dems to do the same as they've done in Alaska.

JAMES C LINGER: I think in... in Alaska, of course, right now there is a party option where all the parties but the Republicans have opened the primary.

They have a blanket primary.

The Republicans haven't and the Republicans, of course, in Alaska happen to be the dominant party.

There seems to be a pattern in these cases--

JUSTICE BREYER: Well, because they say... what they're thinking, I take it... I don't know what they're really thinking, but I imagine they could be thinking, no, we don't want to open our primary.

We'll run the risk that our voters go over and vote for the Dems and like it there and stay.

We'll run that risk, but we don't want them coming and raiding us.

We think that's the bigger risk.

JAMES C LINGER: --And... and that--

JUSTICE BREYER: And how can the Constitution tell them that they can't make that judgment?

That's what's bothering me.

JAMES C LINGER: --I don't think the... I think the Constitution... and the Court has recognized that it is legitimate to protect against raiding because we can all suppose how disloyal voters coming into a party could hurt it.

But how about disloyal voters leaving a party?

Because these voters that would come in and vote in the Libertarian--

JUSTICE BREYER: Go back to my interest, the one I asserted--

JAMES C LINGER: --Yes.

JUSTICE BREYER: --which isn't that.

It is the interest in the Republican Party in Alaska saying to itself we do not want our voters to go leave and vote for the Democrats because we want a stable body of people 3 or 4 weeks before the election for whom we can plan.

We don't want to open ours because we don't want the raiding.

We want to keep them--

JAMES C LINGER: And, Justice Breyer, that sort of First Amendment view of your voters shows that the party thinks that they own the voters.

We hear this language where the party is contributing voters or they're being poached or it's a donor party.

That shows a certain view of the party and what they--

JUSTICE BREYER: --No, no.

It's not an ownership, but you have a period of time.

So you focus on the period of time.

They're saying, of course, up to X period of time, they take their choice.

Is this a fake thing, a fake reason, the need to have a stable group of people for whom you plan your campaigns?

Now, is that a hoax or is it flimsy or is it serious?

What do you think?

JAMES C LINGER: --I... I think it is flimsy and I'll tell you why because I think paternalistically the State of Oklahoma is way off or the Republican Party, if they thought that way in Alaska, would be off.

If you really think about it, a party, particularly at the general election, wants its loyal voters to get to the poll.

Actually this would be a benefit to the Republican and Democratic Parties in Oklahoma or the Republican Party in Alaska because it allow them to find out which of their voters had voted in their primary and which had defected to another party.

When they're sending out mailers or doing phone banks or driving people to the polls, they're going to want to take their loyal voters.

So this will actually serve to help them to identify some of their voters who aren't loyal, and they won't want to bring them in.

So I'm saying that--

JUSTICE SCALIA: The... the State... the State of Oklahoma doesn't want your party raided.

And... and you say we don't care if we're raided.

Come raid us.

All we want to do is win.

It seems to me it... it... you cannot apply the... the maxim, volenti non fit injuria.

Oklahoma is saying to your party, you can't welcome raiding.

We don't want your party to be raided whether you like it or not because that's what a party system is.

We've set up these elections that... that have party primaries and party systems on the assumption that each party is going to have a certain... a certain belief, a certain philosophy, and to allow your candidate to be elected by everybody simply destroys that system.

Why is that... why is that so unreasonable that it's unconstitutional?

JAMES C LINGER: --Because it's... it's not practical on what happens.

As Justice O'Connor pointed out in her questions, there is such a limited time.

The Libertarians, as shown in the record in this case, have never and continually do not have the time to build up a voter pool.

They have their supporters spread out among a number of political affiliations because there's such a little amount of time that you can register as a Libertarian, unlike the vast majority of States.

I don't think anyone has ever accused the Libertarian Party of not having a set philosophy on what they stand for.

But the fact of the matter, this Court itself has expressed skepticism about whether even party raiding ever exists.

People don't go out generally to vote because they want to pick someone who's a bad candidate.

They want to vote for someone they feel proud of who expresses their views.

The people that the Libertarians would appeal to would be Republicans and Democrats who either weren't going to vote in their primary or those who were very Libertarian oriented or people who would be Libertarians if they had more opportunity under the law to register as Libertarians.

They're, in effect, marooned--

JUSTICE SCALIA: Weren't those--

JAMES C LINGER: --over these other affiliations.

JUSTICE SCALIA: --weren't those who would like to nominate the Libertarian candidate who would attract the most people from the other large party?

Right?

JAMES C LINGER: Who would they attract?

They would attract Libertarian-oriented people who would be drawn by their philosophy because the Libertarian Party, as with most minor parties, is an ideological party.

They take positions oftentimes ignored by the major parties, and that is one of the reasons that--

JUSTICE SCALIA: No, but... but the candidate mostly to attract people from one of the major parties is the candidate that is... is more likely to water down the pure Libertarian message and be closer to the message of the Democratic Party or the Republican Party.

And... and--

JAMES C LINGER: --If you can tell--

JUSTICE SCALIA: --people who come into your primary may want to elect such a candidate so that the Libertarian Party will be strengthened and draw votes away from the other majority--

JAMES C LINGER: --Of course, this Court, I think, has recognized that raiding is not a legitimate concern for the State that overcomes a party that would open up.

And that's what the district court so held.

We go into the inverse of draining and talk about the effect it would have on the Republicans and Democratic Parties.

I think the... the district court said several times in its opinion that the results would be highly speculative.

But I say that the results would probably be to the benefit because it would ensure major parties that they got a nominee who was picked by loyal supporters of the party, and what would be drained off would be disloyal supporters who would rather be doing something else.

And that, of course, is the essence of competition.

We should not be worrying about protecting the major parties from competition for ideals.

This is--

JUSTICE GINSBURG: Do I understand your brief to say that this constitutional rule that you are seeking would be just for the minority party?

I think you said in your brief it doesn't follow like the night the day that because the Libertarians must be allowed to do this by the Constitution, therefore the Democrats and Republicans must also have the option to invite anyone into their primaries.

JAMES C LINGER: --The finding of the Tenth Circuit was, of course, that it applied to these plaintiffs under these particular facts.

And I think that's one thing to remember, how cautious and conservative this Court and the First Circuit in Cool Moose were.

They didn't make a broad-based rule, and I don't interpret this decision and I don't interpret the teaching of this Court in footnote 13 in Tashjian is that we should come down and make some bright line rule that's always going to say we have to have a party-option open primary or not.

We need to look at the factors.

I think there are very few States that this would even apply to because, as we know, 21 States don't even have political party registration.

JUSTICE SCALIA: --What facts?

We... we have to evaluate it on the basis of each election?

What is a State legislator supposed to do when he votes for a... an election system?

He's going to flip a coin trying to figure out what the fact situation will be when this... when this system finally gets before a court?

Surely that... that can't be the test.

JAMES C LINGER: I do... I do ask that the State legislatures think about what they're doing.

And as I demonstrated--

JUSTICE SOUTER: Okay.

But you... you want them to think and you want to leave the door open to their making a distinction for these purposes between the major parties and the minor parties, and I can't think of anything more intrusive into the political process than that.

Coming from a Libertarian, I... I get a sense that I must misunderstand you, but I don't know where it is.

[Laughter]

JAMES C LINGER: --I'm saying that I... I don't... I don't think courts should ever go out and look for cases in advance.

We look at the case that is--

JUSTICE SOUTER: No, but we are... we have got to look around the corner.

JAMES C LINGER: --about the effects.

JUSTICE SOUTER: And... and if you're issuing the invitation to come up with a different rule for Republicans and Democrats and Libertarians, I think you're asking for trouble and we would be asking for trouble if we accepted that invitation.

JAMES C LINGER: No.

I'm... and as I said before, I think the political party should be the one that defines its integrity--

JUSTICE BREYER: Then... then if you say that... I want you to just respond in detail to the questions that I think Justice Scalia and Justice Souter were asking, as I understand it, putting it dramatically, that if you win this case, Alaska's system becomes the Constitution of the United States.

Now, that I know you think is not so, and I want to know why.

JAMES C LINGER: --Because, number one, first, let's eliminate the 21 States that do not have political party registration.

They would not... in fact, the... the problem that we're worried about here, draining, and... and the problem is going to happen simply because people in those States, like President Bush's Texas, are free from election to election to go to any primary they want--

JUSTICE SCALIA: That's the same as election system... that's the same as Alaska's system.

Right?

I mean, it boils down to the same thing.

It boils down to an open primary, doesn't it?

JAMES C LINGER: --Justice Scalia, I respectfully disagree because Alaska, unlike Texas, has political party registration.

Also, they have a party option.

And most States that have political party registration, in fact, have a sort of two-tier system where they recognize it would be discriminatory to treat major parties and small political parties the same.

Most of them like, for example, the amici States here of New Mexico, Maryland, they have political conventions for their... they recognize that that is something that shouldn't be applied to the smaller parties.

But Oklahoma, of course, mandates primaries.

The Libertarians of Oklahoma are forced to have primaries.

They're forced to live under what is the most restrictive ballot access and ballot retention laws, which limits the amount of time they could be on the ballot.

The voter registration laws, as was cited in the record of this case, as the trial judge found, of the 29 States that have political party registration, essentially 26 of them have... they have free and open registration.

There are very few that limit things across the board like Oklahoma does, and that's what makes this case unique.

And I think the footnote 13 in Tashjian talked about looking at the particular facts and circumstances.

I think this case gives the Court an opportunity to fully expand on that footnote, the full footnote, of course, as I cited in the brief for the respondents, and that is to say that all these are factors when you're analyzing any State.

Is... does it have political party registration?

Does it mandate primaries for even the little parties?

How much time is available to change your registration as new parties come up?

The New... State of New Hampshire, of course, has found a way to deal with this problem, which Oklahoma hasn't, which is that they allow new parties that are just recognized.

Where many voters didn't have the opportunity to register in that party, they have an open primary.

That's one way to deal with it.

But the point is Oklahoma didn't even think about that.

As we pointed out in our brief, the sore loser provision where you have to be affiliated with a party for 6 months... the legislature... when the first time the Libertarians got on the ballot 25 years ago, they didn't even realize that there was no way you could be affiliated with a party for 6 months because you couldn't register with it.

And the law and the workings of all these registration laws in Oklahoma, because they are so restrictive, prevent the Libertarian Party to get in the position that the major parties have because they simply can't get their people registered and stay registered with the Libertarian Party because they're constantly being purged and they're... the people are frustrated.

JUSTICE BREYER: Would there be a way... suppose, for hypothetical purposes, the Court were to say... you got a ruling that said there is no rule in the Constitution that forbids a State, as a general matter, to forbid this cross registration, this jumping, for a reasonable time.

But a reasonable time has to take into account the interests of minor as well as major parties.

Now are you foreclosed because of the circumstances of this case from litigating whether 8 weeks is a reasonable time and whether the disjunct between the period where you become a party and that 8 weeks is unreasonable in the circumstances or other specific things that you say work to the disadvantage of the Libertarians?

JAMES C LINGER: I think that's something reasonable, but in this case it is unreasonable because you simply don't have the opportunity to register.

Remember this--

JUSTICE GINSBURG: I thought your case was you want to appeal to people who don't want to register as Libertarians and don't even want to be independent.

You want to appeal to people who are and want to be members of the Republican or Democratic Party but have Libertarian leanings, but they don't want to give up their party affiliation.

JAMES C LINGER: --That... that is part of the appeal.

There are obviously some people simply because of family tradition or it may help them with their job or because the Libertarians are controversial, some people may want to keep it quiet and don't formally affiliate other than they might wish to vote.

But our appeal and request was not simply those people but to many people, the vast majority of Oklahomans who never vote--

JUSTICE SCALIA: The last category could... could register as independents.

I mean, if they're ashamed of... of the L word, they... they could just register as independents.

Right?

JAMES C LINGER: --A person can do that, yes.

And, of course, independents are growing.

I think, as you know--

JUSTICE GINSBURG: Yes, but that you could do right now, and you say that's not enough.

We want people who are members of other parties and don't want to change their party affiliation.

JAMES C LINGER: --We would like... first, when you have competition in ideals and in politics, it's always a continuing process, and they're hoping to win all these people over.

They don't want these people to stay in other political parties, but they are opening it up because they have such a limited period of time in Oklahoma when people can formally affiliate with the Libertarian Party or, for that matter, any newly recognized party.

Think of it this way.

When counsel was talking about the Rosario case where you... the... the State was allowed to have 8 to 11 months and the Court found that was acceptable to change your registration or the older case of Kusper v. Pontikes where the Court found that 23 months in... in advance to change your affiliation was too much, in Oklahoma, whether it's 23 months before the newly affiliate party gets recognized or 8 to 11 months, you can't register with that party.

So if it was unreasonable in Kusper v. Pontikes but was reasonable in Rosario, the point is under either of those time periods, in Oklahoma you can't register with a newly recognized political party.

So how can that be reasonable?

The Libertarians do not have the opportunity.

Newly recognized parties under Oklahoma law do not have the opportunity to get their people in in time, to the extent they could, as demonstrated in the record by States of similar population like Kansas and Arizona and, as I noted in the brief, Oregon where there are substantially more--

JUSTICE SCALIA: What did... what did you seek in this action?

What did you seek in this action?

Did... did you seek just more time to... to register?

I... I thought you... you sought to overturn the... the system entirely and... I mean, maybe you asked for too much.

JAMES C LINGER: --As... as to the Libertarians, we asked that we have a party-option open primary, which I think is acceptable, and it's what New Hampshire does.

JUSTICE SCALIA: So more... more time might be... might be a good idea, but that wouldn't satisfy your... your complaint here.

JAMES C LINGER: If you go... if you go--

JUSTICE SCALIA: Your... your complaint is no matter how much time you're given--

JAMES C LINGER: --The... the legislature... if... if the law is overturned and the Tenth Circuit is affirmed, the legislature might go back in then and address the problem and they might come up with some solution as they did back in 1980 when it became apparent to them that they had set up a system where Libertarian candidates couldn't be candidates for State office because they couldn't be affiliated with a party with 6... for 6 months.

They made the change that is set forth in the statute that allows 15 days after the party is recognized.

It might very well be that a possibility the legislature could pursue that could solve this problem, a problem created by the State of Oklahoma, would be to allow a period of time after a party is recognized for voters, not just candidates, but for people who just want to vote in the primary to change.

That might be one solution.

Or it might be, as in the State of New Hampshire, where they allow that if it's a newly recognized party and we recognize that all these people in the State never had the opportunity to register in this party, then they will have an open primary there.

So I don't think there's one solution for this problem, and I think when the law, hopefully, is held to be unconstitutional as it applies to Libertarians, then the Oklahoma legislature can come in and perhaps remedy the situation then.

Now, this... this case is one in which there are some other factors that have to be considered, and that is the importance that is put on First Amendment rights to political association.

The State of Oklahoma, contrary to the brief of the petitioners, has not been overburdened with minor political parties.

It is a State in which only in presidential elections, by petitioning, have parties even been able to gain ballot status.

The State has also a very severe... the trial judge in this case found that the retention requirement of 10 percent for every general election for the top of the ticket was very difficult.

The finding was that the registration here was among... very limited and among the most difficult.

And finally, the State has imposed, I think unwisely, primaries on these small political parties.

But other than the Libertarians and the Reform Party, there have been no other minor parties on the Oklahoma ballot.

In this situation, we have to say to ourselves, as the trial judge in fact commented on, is whether or not the law is simply the result of the concerns of the major parties.

I do not think that the State legislature in Oklahoma went out of its way to try to interfere with the rights of Libertarians.

I just think that they never really considered them, and that is why this Court has said on a number of occasions that when the rights of independent voters and small parties are impacted by legislation, that this Court should exercise more strict and careful scrutiny there because--

JUSTICE GINSBURG: But how does that square with Timmons where this Court turned away a party that says, we've got this candidate and she's running on a major party ticket and she's happy to be on ours too?

And the Court there said the State can legitimately eliminate... limit the candidate to one party affiliation.

So if it can limit the candidate to one party affiliation, why not the voter?

JAMES C LINGER: --Because that was a candidacy right, what the candidate was going to do, and in that particular case, this Court noted that the candidate of the Democratic-Farmer-Labor Party had a choice.

That candidate could have choosen to be the candidate of the new party or that he could stay, as he did, with the Democratic-Farmer-Labor Party.

We don't have the choice here.

They wanted to have him be the candidate of both parties at the same time.

We recognize that the State may properly limit each voter to a single nominating act, to a single vote, and we're not asking that.

We're not asking that the State not be allowed to set reasonable times to let them know about what we're going to do.

But in Timmons... and I think Timmons is what led the district court astray here was what was not recognized was that there was a choice allowed in Timmons, and there's not a choice here.

If... if this had been in Oklahoma, in... in that regard, there would have been no way for... there's no way for a voter who's in the Republican or Democratic Parties who wants to vote in the Libertarian Party because of the unreasonable deadlines to change and because of the lack of opportunity, there's no way that they can register.

So they don't have the choice to register as a Libertarian, as the candidate of the Democratic-Farmer-Labor Party did in Timmons, to change if he wanted to.

He chose to stay in the major party.

But that is one significant difference with Timmons.

And also, of course, I couldn't... I would also want to mention that Minnesota is a State that has no political party registration.

So once again, the problem and issues we're confronted with here could not occur in Minnesota.

But I think that's significant.

And there was... there was nothing on any voter that would have kept them from being able to vote for that particular candidate in the general election.

They were going to be... he was going to be on the ballot in the general election.

In this case, the voters that don't have the choice that that candidate did in Timmons, they are not going to be able to express their opinion on a party that they would like to express an opinion in in their primary.

And I think that is a very important distinction.

I think that oftentimes in the standard that the court uses, that there is a difference, sometimes depending on which particular judge writes the decision on how a standard is explained.

But in this case, it is, as the Tenth Circuit said and as the district court recognized, something that lies between this Court's decision in Tashjian and this Court's decision in California Democratic Party v. Jones.

But in both those cases, the Court recognized and called for exacting scrutiny when a law was impacting a party's choice as to how it wishes to choose its nominees.

I do not think that the rationale come up by mistake.

This thing about draining, taking... keeping the disloyal voters in the Republican and Democratic Party and not letting them come over, whether they wouldn't have voted at all, or whether they didn't have the chance to register as Libertarians, or whether they simply are inspired by the particular candidates, I don't think in that situation that that is either a compelling interest by the State and I certainly don't think it is rational.

And in fact, as far as being paternalistic, I think the State is totally wrong there because I think this would actually benefit the major parties.

But I am saying to you that this is limited, under the Tenth Circuit's decision, to the facts in Oklahoma.

And in other States, what the States can say there, if it comes up, is what is a difference between us and Oklahoma on ballot access and ballot retention, on voter registration laws, on requirements.

Do we allow, like a number of the amici States, to have our minor parties select by political party convention?

But all of this--

JUSTICE SCALIA: --What are the mici States?

You said this a couple... what are mici States?

Mici States did you say?

JAMES C LINGER: --The amici, amicus--

JUSTICE SCALIA: Oh, the--

JAMES C LINGER: --amici.

JUSTICE SCALIA: --Okay.

I thought you were saying mici.

JAMES C LINGER: Amici.

Okay.

In any event, we ask that the Court, when it fully considers this, under the particular facts and circumstances in this case and the record, that the Court will affirm the decision of the United States Court of Appeals for the Tenth Circuit.

JUSTICE STEVENS: Thank you, Mr. Linger.

Mr. Poe, you have about 3 minutes.

REBUTTAL ARGUMENT OF WELLON B. POE, JR. ON BEHALF OF THE PETITIONERS

WELLON B POE JR: I will try and be brief, Your Honor.

The important thing to remember, in regards to most of respondents' argument today and in their brief, is that the events and the hurdles they are challenging now were... have never been raised at any time prior to this briefing and this hearing.

The district court did not make findings as to the difficulty of the ballot access or the ballot qualifications.

He merely set forth what those were.

The Tenth Circuit never even addressed anything in regards to ballot access or ballot qualifications and in relation to the need to open up a primary.

And in the complaint, at the joint appendix page 22, the specific relief sought by the respondents is to have section 1-104, which is the semi-closed primary section... have it declared unconstitutional.

There's no mention of any other relief sought.

No other section, the election primary scheme, or anything else mentioned in their complaint.

It's never been raised before and it's never been addressed by any court and... and should not be addressed by this Court at this point in time.

There are no findings for this Court to rely on to review the allegations that have been made today.

Where the district court... or where the Tenth Circuit did err specifically is they found, as a matter of fact or as a matter of law, based on Jones and Tashjian, that any infringement upon a party's ability to associate is a compelling... must... is subject to strict scrutiny and requires a compelling State interest.

Jones specifically says that is not the case.

Tashjian implies that that is not the case.

And the cases since Tashjian's time say a compelling State interest is not always the appropriate test.

You look to the injury and then you look to the burdens.

In this case, the appropriate burden... or the appropriate injury is not severe.

They are reasonable restrictions placed on Oklahoma to maintain the integrity of its political system and its election system.

With that, the restrictions on... in the Oklahoma statutes are reasonable restrictions that govern and control and support important State interests.

For that reason, the Tenth Circuit was incorrect.

The district court was correct in its analysis, and we would ask that this Court reverse that decision and find that those statutes are constitutional.

Thank you.

JUSTICE STEVENS: Thank you, Mr. Poe.

The case is submitted.

Unidentified Justice: The honorable court is adjourned until Monday next at ten o'clock.

(Whereupon, at 12:00 p.m., the case in the above-entitled matter was submitted.)