ARTICLE

Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws

NATHANIEL PERSILY* INTRODUCTION

The 2000 presidential election broke records in the amount of litigation it produced. The forty or so lawsuits filed during the Florida recount controversy,' while remarkable standing alone, also represented the finale to a year filled with election-related court cases. Well before the election, Ralph Nader filed several
lawsuits to gain access both to various states' ballots 2 and to the presidential

debates.3 In addition, the struggle for control of the Reform Party made its way into court when Pat Buchanan sued to be listed as the Reform Party's presidential candidate 4 and to gain access to the federal funds awarded to the party. 5 And before the set of general election candidates was finalized, Senator John McCain sued to gain access to the New York Republican presidential primary ballot.6 These cases spawned renewed interest in the law of elections and the political process, and further developed the precedent that defines the contours of the rights of political participation. The cases had a common cast of charactersvoters, candidates, political parties, and the state-and they seem to share a common judicial frustration with, and then acquiescence to, venturing forth into
* Assistant Professor, University of Pennsylvania Law School. This Article should be read in conjunction with Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REv. 750 (2001), a contemporaneous article written on a similar subject. A special thanks is owed to Cynthia Richman and Josh Liston for their patience and editorial skill in navigating this Article toward publication. 1. See, e.g., Bush v. Gore, 121 S. Ct. 525 (2000). For litigation materials relevant to the Florida election controversy, see http://election2000.stanford.edu (last visited Mar. 12, 2001). 2. Nader v. Blackwell, 230 F.3d 833 (6th Cir. 2000) (addressing ballot access in Ohio); Nader 2000 Primary Comm. v. Hazeltine, 226 F.3d 979 (8th Cir. 2000) (discussing ballot access case in South Dakota); Nader 2000 Primary Comm. v. Bartlett, 230 F.3d 1353 (4th Cir. 2000) (unpublished table decision) (addressing ballot access case in North Carolina). 3. Becker v. Fed. Election Comm'n, 230 F.3d 381, 383 (1st Cir. 2000) (seeking access to presidential debates); cf. Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000) (rejecting Pat Buchanan's claim to gain access to the debates). 4. Reform Party of Conn. v. Bysiewicz, 760 A.2d 1257 (Conn. 2000) (certifying Buchanan for Connecticut ballot); Buchanan v. Sec. of State, 616 N.W.2d 162 (Mich. 2000) (denying ballot access to Reform Party). 5. Fed. Election Comm'n, Sunshine Act Meeting, 65 Fed. Reg. 55,025, 56,908 (Sept. 20, 2000) (meeting to certify funds for Patrick Buchanan). 6. Molinari v. Powers, 82 F. Supp. 2d 57 (E.D.N.Y. 2000) (challenging 2000 New York Republican presidential primary ballot access laws). In the spirit of full disclosure, this author was part of McCain's legal team in Molinari.

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the "political thicket."'7 This new legal-political reality has sometimes forced courts to develop constitutional rules of decision on the fly because such cases must conform to the pace of the election calendar. It has also challenged analysts (with more time on their hands) to develop consistent theories to specify the proper relationship between these overlapping and constitutionally unanticipated legal actors. 8 Perhaps more than other election-related cases, the case law surrounding the
regulation of party primaries brings to the fore the difficult questions that the Constitution's silence on basic themes of political organization poses for courts and legal analysts. With no relevant textual provisions to provide guidance, such cases require courts to create, while they define, the constitutional rights enjoyed by parties, candidates, and voters. Identifying the rights (the freedom of expression or expressive association, the right to vote, the right to equal treatment) and rights-holders (parties, voters, candidates) with precision in these cases is a challenge for any court, as is the identification of state interests in regulating party primaries. Because primary elections often represent a joint endeavor between the state and the parties, with the party organizations crafting the rules for the primary itself, the state and the parties often share similar interests in the primary election system. Indeed, courts have difficulty disentangling state interests from party rights because catering to a party's autonomous, independent choices represents the chief justification for any primary election law. This Article explores the case law on the regulation of access to the primary ballot and seeks to provide guidance to practitioners and theorists grappling with the unique conceptual challenges that constitutional decisionmaking in this area presents. Part I of this Article sets forth the multifaceted constitutional conflict presented by challenges to primary ballot access laws. Because election laws are often the work of the parties-in-government, the line between the state

7. Colegrove v. Green, 328 U.S. 549, 555 (1946) (suggesting the judiciary stay out of the "political thicket" of redistricting). Compare id., and Baker v. Carr, 369 U.S. 186, 266 (1962) (Frankfurter, J., dissenting) (lamenting the Court's decision to venture into the "political thicket" of redistricting), with Bush v. Gore, 121 S.Ct. 525, 533 (2000) (per curiam) ("None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."). Indeed, the political thicket seems well trammeled these days. In addition to the 2000 election cases, a rising tide of litigation over the 2000 redistricting process, state laws regulating campaign finance, and regulations of political parties has flowed into the courts in the past year. See
generally SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUcruRE OF THE POLmCAL

PRocEss (Supp. 2001). 8. I describe parties, candidates, and voters as constitutionally unanticipated because they were not well specified in the original constitutional design and judicial resolution of these political questions is relatively recent. Political parties and primary elections, as we know them, were nonexistent at the time of the Founding. Despite many constitutional provisions and amendments that deal with voting and representation, no right to vote exists in the Constitution. Thus, voters and even candidates occupy an uncertain position in the constitutional regime.

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and the parties becomes blurred, and the rights of voters, candidates, and parties clash against each other on a shaky terrain of state action. Principles developed in other types of cases-for example, other freedom of association cases, general election ballot access cases, or party "autonomy" cases-fit only uncomfortably in this context. Part II of this Article analyzes the precedent on primary ballot access from the early filing fee cases to high-profile cases surrounding the candidacies of David Duke and John McCain. Part III addresses the central theoretical question involved in candidate challenges to primary ballot access regulations: To what degree should party organizations be able to control who can run in a primary election? The middle-range principles presented in that Part provide a partial answer that emphasizes the complicated and dependent relationship between the party and the state and the place of the primary in the particular electoral system. As emphasized in the Conclusion, the principles explored in this Article represent only the beginnings of a theory. With almost nothing written on this topic to provide direction, this Article takes a first crack at presenting the issues involved in regulation of the primary ballot and presents thought experiments to provoke further analysis and discussion. I.
CONSTITUTIONAL QUESTIONS POSED BY PRIMARY BALLOT ACCESS RESTRICTIONS

A typical case challenging a primary ballot access restriction proceeds along the following path. A state law, party rule, or some combination of the two keeps one or more candidates off the primary ballot. 9 The candidates and their supporters sue the state and party to place the candidates' names on the party's primary ballot. As with most constitutional cases brought in the election law area, the plaintiffs bring claims under the First and Fourteenth Amendments. The plaintiffs claim the law violates their First Amendment rights to express themselves on the ballot or to associate with the candidates of their choice.' In the alternative they often argue that the law discriminates against them and their favored candidates and thus violates the Equal Protection Clause. Discrimination against candidates also discriminates against the voters who support them" because a ballot access restriction necessarily favors those voters whose pre-

9. Because others have categorized and explained in detail the various methods states use to regulate access to the primary ballot, see, e.g., E. JOSHUA ROSENKRANZ, VOTER CHOICE '96: A 50-STATE REPORT CARD ON THE PRESIDENTIAL ELECTIONS (1996), I do not present a detailed discussion of the topic here. Most of the major types of primary ballot access barriers come out in the case law discussed infra Part II. Those major categories of ballot access requirements include: filing fees, petition and signature requirements, a vote of a certain percentage of a state's party convention, permission granted by the state party leaders or party leaders in the government, and, for presidential primaries, designation by an executive official, such as a secretary of state, that the candidate is a nationally recognized candidate or one eligible for federal matching funds. 10. Because most election laws challenged are state laws, these First Amendment rights are read into the "liberty" protected by the Fourteenth Amendment's Due Process Clause. See Molinari,82 F. Supp. 2d at 69; Rockefeller v. Powers, 917 F. Supp. 155, 164 (E.D.N.Y.), aff'd, 78 F.3d 44 (2d Cir. 1996). 11. See Bullock v. Carter, 405 U.S. 134, 143 (1972) (stating that the rights of candidates and voters "do not lend themselves to neat separation").

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ferred candidates appear on the ballot. Moreover, because voting is a fundamenas narrowly tailored tal right, distinctions made between voters must be justified 2 1 toward the achievement of compelling state interests. In response, the state, the party, or both defend the rules restricting access to the primary ballot, arguing they serve any number of state or party interests. As with general election ballot access regulations, the state may argue that the rules are necessary to protect the integrity of the ballot and avoid frivolous candidacies. Under this view, primary ballot access rules further political stability by making the election more manageable and less confusing. Use of a laundry-list ballot (like a butterfly ballot, perhaps) risks confusing voters and producing no clear winner. Although the party also has an interest in an orderly election, it may claim additional interests that would ordinarily be impermissible as state interests. Primary ballot access laws, for example, may further party interests in keeping some types of candidates off the ballot. The presence of some candidates, like David Duke, on the primary ballot may be an embarrassment to the party, or a bitterly contested primary may create serious fissures in the party's electoral coalition. These "party interests" not only emerge as justifications for the law, but also create a separate constitutional claim. The party argues that the ballot access law has a legitimate or compelling justification and that the party itself has a counterbalancing First Amendment associational right to structure the primary in any way that it wants. Thus posed, the case takes on the posture of a rights claim versus another rights claim, rather than a more traditional claim of rights versus state interests. The waters of the litigation sometimes become even muddier if the state claims an interest in protecting these party rights because it considers strong parties as providing various advantages to the democracy and electoral system. At that point, state interests and party rights, which normally appear on separate sides of litigation, fuse together such that a party's right to autonomy represents both a compelling justification for a law that curtails an individual candidate's right to run for office and an independent constitutional claim preventing either regulation by the state or penetration by an individual's lawsuit. These amorphous and competing claims of rights and interests provide a unique setting for primary ballot access litigation. The scope of the claimed rights, the set of permissible interests, and even the definition of the parties to the case are unclear. Resolving the constitutional conflict involved in a primary ballot access challenge therefore must begin with a definition of the "party" and the "state," followed by an explanation of which rights, if any, are affected by impediments to ballot access.
A. WHO IS THE PARTY?

Cases involving the regulation of party primaries often force courts to grapple
12. See Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 632 (1969); Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966).

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with the question: Who is the party? Such cases are inherently intraparty squabbles pitting one component of the party (voters and candidates) against another (usually the party organization).' 3 V.0. Key's tripartite classification scheme 14 is now familiar to lawyers. Key separated the party into (1) the party-in-the-electorate, made up of ordinary party members, (2) the party-in-thegovernment, which includes all elected and appointed officials sharing a given party affiliation, and (3) the party organization (or "professional political workers"), which includes all those who serve on party committees or perform the necessary tasks to enhance the party's electoral prospects.' 5 Despite the fact that most states have laws defining political parties, 16 a court will search the statutes and casebooks in vain for a clear articulation of exactly which particular personnel share in a political party's rights or obligations. Because a primary election represents the opportunity for the "party" to express itself by rallying behind a candidate, however, a court's ex ante determination as to which component of the party can speak for it in litigation can have the effect of determining the content of the party's expression in the primary. This question of who can speak for the party is not limited to primary ballot access cases. In almost any case involving a political party, members of the party will be on both sides of the lawsuit. The issue arises when a party organization challenges a state law that was passed either by the majority of the party's voters in an initiative' 7 or with the consent of the party-inthe-legislature.' 8 It also comes up whenever different components of

13. See generally Daniel Hays Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 TEx. L. REv. 1741, 1757, 1759-60 (1993) (arguing that judges ought to stay out of intraparty squabbles and explaining that "[u]nlike a chair, or a planet, or a baked potato, a political party is not something that occupies a particular place at a particular time or that can be discerned with the senses. ... [T]here is no simple way to describe what a party is, and the term 'party' can be and is used with greatly disparate referents.").
14. V.0. KEY, JR, POLITICS, PARTIES & PRESSURE GROUPS 163-65 (1964).

15. Id. The tripartite division is overly simplistic. It does not account for the division between national and state parties, the various parties-in-government (for example, the Senate party versus that in the House or the executive branch), or the many, often conflicting, facets of a party organization (for example, the Democratic National Committee, the Democratic Congressional Campaign Committee, and the presidential candidate's own campaign organization). 16. See, e.g., Haw. Rev. Stat. 11-61(a) (1993) ("A political party shall be an association of voters united for the purpose of promoting a common political end or carrying out a particular line of political policy and which maintains a general organization throughout the State, including a regularly constituted central committee and county committees in each county .... ). 17. See, e.g., Cal. Democratic Party v. Jones, 530 U.S. 567 (2000). In Jones, a majority of voters of each political party had voted in favor of a "blanket primary" initiative which would have allowed any voter, regardless of party affiliation, to vote in any party's primary for any office. Id. at 570. The party organizations objected, and the Court found that the blanket primary violated their First Amendment right of expressive association. Id. at 586. 18. See, e.g., Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214 (1989) (vindicating autonomy rights of party subdivision against state law passed with party approval); Tashjian v. Republican Party of Conn., 479 U.S. 208, 229 (1986) (striking down Connecticut's closed primary law, which prohibited nonparty members from voting in party primaries). Connecticut's closed primary law at issue in Tashjian was originally passed with the consent of both parties in the legislature. In fact, both

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the party are at war with each other: for example, when the national party and 9 state parties fight over qualifications for delegates at the national convention' or when a local party disagrees with a regulation or law advocated by the state party or party-in-the-legislature. 20 In theory (but not yet in practice), the question could come up in a campaign finance case in which a party organization challenges a limit on campaign contributions or expenditures that was passed with the consent of the party-in-the-legislature. In the context of a primary ballot access lawsuit, the court must determine the constitutional limits on the power of the party organization and the party-in-thelegislature to limit the choices available to the party-in-the-electorate. At the stage of preprimary litigation, no one knows whether the bulk of the membership of the party wants the names of additional candidates to appear on the primary ballot. Indeed, the precise question in the litigation is whether party members will even have the opportunity to express their candidate preferences. Thus, in the litigation, the party organization effectively takes the position of arguing that the "party" has a First Amendment right to prevent itself from expressing its preferences for particular candidates. Of course, the paternalism inherent in this position is obvious: The party organization is trying to protect the party-in-the-electorate from itself. As we will see, the courts that often side with the party organization conclude that the party "speaks" and "sues" through its official body regardless of whether the mass of party members disagree with its litigation position. The rights of candidates and their supporters, therefore, do not piggyback onto the associational and expression rights of their party. Rather, in order for candidate and voter rights to be vindicated, the party needs to be converted from a rights-bearing entity into an agent of the state. Only then can the rules governing its primary become subject to constitutional scrutiny.

parties went to court earlier to defend the constitutionality of the closed primary against a voterinitiated lawsuit. See Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.), aff'd, 429 U.S. 989 (1976). The lawsuit producing Tashjian grew out of the Republican Party's change of heart as to which type of primary system it preferred. Tashjian, 479 U.S. at 211. The Republicans in Tashjian wanted to allow independents to vote in their primary, but the Democrats, who controlled the legislature, refused to pass a law allowing for an open primary. Id. at 212. The Court sided with the Republicans, holding that the law infringed on their freedom to associate and determine the identity of their standard bearer. Id. at 216-17, 225. In Eu, the San Francisco County Democratic Party was at odds with the state party and party-in-thelegislature. The local party objected to a state law (passed with the state party's consent) that prohibited a party from endorsing a candidate in a primary and prescribed a certain organizational form for the party. Eu, 489 U.S. at 219. The Court found that the law violated the local party's freedom of expression and association. Id. at 229, 233. 19. See, e.g., Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981) (finding that the Democratic National Convention had the First Amendment right to refuse to seat delegates elected under a primary system legislated by the state of Wisconsin but prohibited by national party rules); Cousins v. Wigoda, 419 U.S. 477 (1975) (holding that Illinois state courts did not have the power to force the seating of delegates at a national party convention if those delegates were elected through procedures violating national party rules). 20. See supra note 18 (discussing Eu).

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B. STATE ACTION AND THE FUNCTION OF A PARTY PRIMARY

If party primaries were run by party officials with private funds in private places, then the party organization's argument for unconstrained power over the primary ballot would seem analogous to arguments made by leaders of other private groups who wish to control their organizations' leadership selection process. 2' State action, however, permeates today's major party primaries. State laws define political parties and specify the criteria for party membership and primary election candidacy. States also fund and run the primaries and confer a preferred status of automatic general election ballot access and ballot notation to the parties. Because of these state-conferred benefits, the role the major parties play in the larger electoral system, and the duopoly power they exercise in the 22 political system, the Democrats and Republicans are more like public utilities than like private associations. Thus, political parties often must operate within constitutional constraints that courts do not apply to other organizations.2 3 Elsewhere I go into greater depth explaining why today's major party primaries fulfill almost any test for state action.24 I also explain why a preoccupation with state action distracts courts from what should be the grounds for deciding cases involving party autonomy: namely, an honest assessment of the desirable functions (if any) that parties serve for the larger democracy and the need for constitutional protection of such functions. 2 5 Even if one were to become preoccupied with the state action question, however, all party functions would not appear equally state-like, nor would each aspect of a party's involvement with the primary election. A party's national convention, for example, might not

21. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (upholding right of Boy Scouts to exclude gay scoutmaster); Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (upholding right of Saint Patrick's Day parade organizers to exclude organization of gays and lesbians from marching with own banner in parade); N.Y. State Club Ass'n v. City of New York, 487 U.S. 1 (1988) (applying New York City Human Rights Law to private clubs); Bd. of Dir. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987) (upholding public accommodations law that prohibited gender discrimination); Roberts v. United States Jaycees, 468 U.S. 609 (1984) (same); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (upholding right of NAACP to keep membership lists private). 22. See LEON EPsTEIN, POLITICAL PARTIES IN THE AMERICAN MOLD 155-199 (1986) (comparing political parties to public utilities). 23. In the White Primary Cases, for example, the Court held that the Democratic Party of Texas could not limit its primary electorate based on race. See Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536 (1927); see also Morse v. Republican Party of Va., 517 U.S. 186 (1996) (providing five opinions that present the current Justices' interpretations of the White Primary Cases and holding that section 5 of the Voting Rights Act applies to decisions of a state party convention). For a more extensive discussion of the White Primary Cases, see ISSACHAROFF Er AL., supra note 7, at 79-95. 24. See Nathaniel Persily, Toward a FunctionalDefense of PoliticalParty Autonomy, 76 N.Y.U. L. REV. 750, 755-63 (2001). Because minor parties do not share in many of these state-conferred benefits, rarely play a role in crafting electoral rules, and adhere to ideological programs akin to interest groups or private associations, the argument for state action is much weaker when applied to minor-party primaries. See id. at 767-69. 25. See id. at 793 (emphasizing four party functions: expression, representation, competition, and governance).

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deserve the same type of state-action analysis as a party's execution and administration of a state primary ballot access law. Moreover, different primary election laws allow for a greater or lesser role for the political party: Some delegate state-like functions to the party organizations, others treat party organizations more like interest groups or private associations. Parties' unique institutional position as state actor-private association hybrids allows their primaries to fulfill several functions for the political and electoral system. The functions can be organized under at least three headings: participation, representation, and competition. While seemingly indispensable to a liberal conception of democracy, these values or functions do not have a textual home in the Constitution. As stated above, no right to vote exists in the Constitution, and as such, an individual does not have a constitutional right to participate or to be represented (even if certain institutions of government, such as the House of Representatives, imply such a right). Competition, while indispensable, is an inherently amorphous concept that presupposes both elections not required by the Constitution and a baseline criteria establishing when elections become meaningless due to lack of candidate choice.2 6 Despite the difficulty in defining these constitutional values or finding them a textual home, the Supreme Court in its election law jurisprudence has manufactured a right to vote that conceives of the franchise as serving these important functions.2 7 As we shall see, regulation of the primary ballot can implicate each separate function that the right to vote should serve. First, like general elections, party primaries exist as a major avenue for political participation. Our political system provides few opportunities for the average citizen to play a role in the workings of the democracy. Voting, both in the primary and in the general election, represents the principal opportunity for political participation for most Americans. Primaries have become an "integral part of the state's electoral machinery,, 28 and even when partisan gerrymanders do not convert primaries into de facto general elections, they provide an outlet for democratic action on a massive scale. Ballot access laws hinder this form of political participation by restricting the voters' opportunity to cast a ballot for
26. Compare Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 644-52 (1998) (arguing for shift of focus in cases of political regulation from a rights-based approach to an emphasis on background markets in partisan control), with Persily, supra note 24, at 794-805 (applying market paradigm to party primaries, but noting the impossibility of developing judicially manageable standards as to what constitutes sufficient competition), and Nathaniel Persily & Bruce E. Cain, The Legal Status of Political Parties: A Reassessment of Competing Paradigms, 100 COLUM. L. REV. 775, 788-91 (2000) (criticizing the markets paradigm). 27. Cf.Pamela S. Karlan, The Right to Vote: Some Pessimism About Formalism, 71 TEx. L. REV. 1705, 1707-08 (1993) (describing the right to vote as involving participation, aggregation, and governance). Although Karlan focuses on somewhat different conceptualizations of the right to vote, we both emphasize what might be called the supply and demand sides of voting. The right to vote, we both argue, gains its meaning both from the action taken by the individual in casting a ballot and from the way the government accounts for the electoral preferences once expressed. 28. United States v. Classic, 313 U.S. 299, 318 (1941).

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the candidate of their choice. Indeed, what distinguishes democratic participation from the participation reminiscent of elections conducted in Communist systems is the existence of some meaningful range of choices on the ballot for which a voter can express a preference. For this reason, what I call "participation" is what the courts consider voter "expression" or voter-candidate "association" in order to cram such voting rights into the First Amendment. 29 Voter participation begins when the voter enters the polling booth and picks up a ballot, but it ends when the voter expresses a personal preference. The value of this expression, at least to the voters, depends on their ability to express themselves for a candidate of their choice, not the choice of those who regulate the ballot. There may be good reasons to restrict the range of choice, as I point out later, but restricting voter choice naturally curtails voters' ability to express themselves as they wish. 30 To highlight the interaction between the mere casting of a ballot and the preference expressed through such participation, one might term this function "expressive participation." Second, like a leadership race for a Boy Scout troop or a Rotary Club, the primary election gives the membership the opportunity to select their representative. The primary appears, at times, like a large assembly of organization members, even if actual voting consists of a private, nondeliberative act. The nominees that emerge from the primary represent the party on the general election ballot, as their names stand alongside the party's name or trademark. Throughout the general election campaign the party's candidates spread a message implicitly validated by the party that nominated them. Primaries promote representation in two distinct senses. First, they allow party members to choose the person who will represent the party, thereby promoting its message and articulating its platform throughout the general election campaign. One might term this phenomenon "expressive representation" because the role of the representative is to speak, promote, and embody the party's ideological beliefs. Second, the primary indirectly fulfills our more typical and substantive conception of representation. The primary leads to the choice of the candidate who, if elected, will aid in the execution of the substantive policy proposals of the party's platform. Under this view, the primary exists as the first stage in a

29. While many other opinions of the Supreme Court and lower courts have protected voters' rights to expression and association impliedly through the First Amendment, this notion of an explicit First Amendment right to vote is, at the very least, a quite remarkable rhetorical device. For support for this interpretation, see ALEXANDER BICKEL, T-E SUPREME COURT AND THE IDEA OF PROGREsS 59-61 (1978); ALEXANDER MEIKLEJOHN, POLmCAL FREEDOM 39-40 (1960); Adam Winkler, Note, Expressive Voting, 68 N.Y.U. L. REV. 330, 339-40 (1993). 30. See Duke v. Cleland, 954 F.2d 1526, 1535 (11 th Cir. 1992) (Kravitch, J., dissenting) ("The right to vote embraces not only a voter's access to the ballot, but also his access to alternative viewpoints and positions presented on the ballot."); Smith v. Bd. of Election Comm'rs for Chi., 587 F Supp. 1136, 1146 (N.D. I11. 1984) ("[E]xcluding candidates from the ballot in an election restricts voters' freedom of association, since an election campaign both provides a forum for the expression of political viewpoints and focus for like-minded citizens... . Voters can express their political preferences only through candidates." (citation omitted)).

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group's quest to gain a "seat at the table" of government, or perhaps more literally, seats in the chamber of the legislature. The candidates emerging from the primary, should they win the general election, will be in a position of power to represent their party faction in the doling out of state largesse or the negotiation over government policy. In addition to implicating values of participation and representation, a primary election regime also affects the competitiveness of an electoral system. By affecting competition, I merely mean that the regulation of the primary can determine the probability for turnover in government, the number of candidates actively pursuing voter support, and the chance that challenges to incumbents will arise at some point in the electoral process. In jurisdictions where gerrymanders or one-party rule (as in the South for much of its history) convert the primary into the dispositive election, primary ballot access rules can act alone to determine whether voters will ever have a chance to choose among candidates wishing to run for office or whether those constructing the ballot access rules will make their choice for them. Such worst-case scenarios reveal the obvious potential for restrictive ballot access rules to undermine the competitive character of an electoral system. From such cases and the more general proposition that a greater number of candidates vying for office suggests greater competition, the casual observer may easily conclude that the more restrictive the primary ballot rules, the less competition in the electoral system. This more familiar, but inapplicable, model of economic competitiveness (in which consumers are almost always better served by the addition of another firm seeking to satisfy their demand) misunderstands the dynamics of electoral competition and ignores the interaction between the primary and the general election. Regardless of how one may define electoral competitiveness, at a minimum the feature that distinguishes competitive political markets from uncompetitive ones is the ability of elections to present contests to the voters in which the winners are not predetermined. 3 ' Competitiveness may mean much more than that, but if advantages garnered before the election (for example, by incumbency status or dramatic disparities in campaign resources or electoral prospects) convert the election into an anointing, most would describe such an electoral environment as uncompetitive. That primary ballot access laws can determine the level of electoral competitiveness by contracting or expanding the number of candidates capable of running for office remains an uncontroversial proposition. But without knowing the relevant political context it is far from clear which type of ballot access rules-more liberal or more restrictive onesleads to greater political competition. Consider a district in which either party's nominee has a real chance of winning, but for some reason (for example, the existence of an incumbent or popular primary candidate) only one party will

31. See Persily & Cain, supra note 26, at 788-91 (describing the political markets paradigm and pointing out the impossibility of describing an appropriatelevel of political competition).

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have a competitive primary election. The number of candidates allowed to run in such a primary could affect that party's chance of nominating a candidate who has a real chance of winning the election. When internecine warfare plagues only one party such that a nominee could emerge from the primary with the support of a mere faction,32 lowered hurdles to ballot access may prevent the creation of a competitive general election. Of course, other measures could help avert balkanization of a political party, but ballot access rules that confine voter choices represent one set of tools that party leaders (or even the state) can utilize to foster electoral competition. Furthermore, one cannot make abstract predictions regarding the pro- or anti-competitive effect of a given ballot access law without also knowing which voters are allowed to vote in the primary (for example, can Republicans cross over into the Democratic primary?), the partisan balance in the jurisdiction (for example, does one party have a lopsided advantage in the district that makes the other party's primary electorally irrelevant?), and the ease with which a candidate can run or even win as an independent in the general election (for example, to what degree does a candidate gain general election advantages by being a given party's nominee?). All of these factors and many more will determine whether a restrictive ballot access law or a more liberal one will best further political competition. As they regulate participation, representation, and competition in the electoral system, gatekeepers to the primary ballot channel voter preferences toward the achievement of predictable political goals. As such, the identity and political motivations of these gatekeepers will often determine the set of rules they prefer. A party leader seeking to diminish factionalism in his own party, to represent a particular set of interests, or to force prospective candidates to cater to the party organization before appealing to the party-in-the-electorate may prefer one type of ballot access rule. Whereas, a party that controls the state and seeks to craft a ballot access law that hobbles its opponents' competitive position may prefer another type of rule.33 The task confronting judges and constitutional theorists, therefore, is to arrive at a set of decision rules sensitive to the different actors and different motivations that can underlie a ballot access

32. See NELSON W. POLSBY, CONSEQUENCES OF PARTY REFORM 64-65 (1983) (describing presidential primaries as rewarding candidates' mobilization of factions rather than building of coalitions). 33. Just as one party faction can use primary ballot access rules to fence out another party faction, so too can one party use its power in government to craft laws that disadvantage the opponent party by causing it to nominate a less competitive candidate. For example, the "state" (meaning a party holding the reins of state power) could craft primary ballot access rules that force every party to let any candidate, regardless of party, run in every primary at the same time-what is known as a cross-filing system. Cf Storer v. Brown, 415 U.S. 724 (1974) (upholding ban on cross-filing). Under such a system, a party with a popular incumbent candidate may force the opposing party to let the candidate run in their primary. As a result the incumbent might win both parties' primaries, or at least wreak havoc in the opposing party's primary such that it nominates a much weaker candidate. See generally Brian J. Gaines & Wendy K. Tam Cho, Crossover Voting Before the Blanket: Primaries Versus Parties in CaliforniaHistory, in VOTING AT THE POLITICAL FAULT LINE: CALIFORNIA's EXPERIMENT WITH THE BLANKET PRIMARY (Bruce E. Cain & Elisabeth R. Gerber eds., forthcoming 2001) (describing the pro-incumbent bias of California's experiment with cross-filing).

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restriction. The case law that follows in the next Part explores the range of primary ballot access laws, their underlying motivations, and the various ways that judges have scrutinized them under the First and Fourteenth Amendments.
II. FROM FILING FEES TO DAVID DUKE TO JOHN MCCAIN: THE PRECEDENT FOR REGULATION OF CANDIDATE ACCESS TO THE PRIMARY BALLOT

It should be clear by now that primary ballot access cases are complicated by the ambiguous quasi-private, quasi-public character of a primary election, as well as the uncertain constitutional position and importance of the voter, candidate, and party rights at issue. These almost taxonomical problems have prevented courts from developing a coherent set of principles setting constitutional boundaries between state authority, party interests, and voter and candidate rights. In describing this confusion, the following discussion of the case law proceeds chronologically, but the cases also fall into neat conceptual categories. In the early primary ballot access cases, in which candidates challenged filing fees, the party appears as a disinterested observer to the litigation. The posture of the case is similar to the typical general election ballot access case in which the candidate argues that the state has set unconstitutionally discriminatory or excessively high barriers to gain a spot on the ballot. Contrast those cases with the next category, involving David Duke, in which the party interests appear at their apex, and the state has no interest in the litigation except for the importance it accords the party organizations' ability to exclude candidates with whom they disagree. The final set of cases, also the most recent, fall somewhere in the middle of a continuum between the poles of pure state and party interests. In two high profile challenges to the rules governing the New York Republican Party's presidential primary, Steve Forbes and John McCain successfully challenged primary ballot access laws proposed by the party organizations but codified in state law. In those cases, both of the state's major political parties used their legislative arms to pass into law (applicable for one election only) their preferred primary ballot access signature requirements. In both of those cases, the court found the hurdles to ballot access to constitute an undue burden on First Amendment rights of both candidates and their supporters.
A. WHEN THE PARTY HAS NO INTEREST: THE FILING FEES CASES

In the earliest cases challenging primary ballot access laws, the Supreme Court found the requirement of excessive filing fees to violate the Equal 35 the Court held 34 and Lubin v. Panish, Protection Clause. In Bullock v. Carter that such fees discriminated against poor candidates and their supporters, were not justified by a compelling state interest, and were poorly tailored to the

34. 405 U.S. 134 (1972). 35. 415 U.S. 709 (1974).

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achievement of the state's legitimate goals. In both cases, however, the candidate's quest for ballot access was not obstructed by any action of the party per se. Although the party was named in the litigation and played a role in the actual size of the fee, the party organization sat on the sidelines while the candidate battled the state's chosen method of limiting the primary candidate pool. The Court treated the filing fee for a primary election just like any other regulation of the political process creating a wealth classification, such as a poll tax. The filing fees cases thereby laid the groundwork for overlooking possible nuances between desirable constitutional rules for primaries and general elections. In Bullock, the Court established that primary ballot access rules constitute state action. 36 Citing the White Primary Cases37 and Gray v. Sanders, 3 8 the Court considered it uncontroversial that, when "the mechanism of [primary] elections is the creature of state legislative choice," the ballot access rules 39 constitute "'state action' within the meaning of the Fourteenth Amendment., Considering primary ballot access laws as much an action of the state as any other state statute, the Bullock Court framed the equal protection problem in the case in the following way: whether a state law that prevents potential candidates for public office from seeking the nomination of their party due to their inability to pay a portion of the cost of conducting the primary election is state action that unlawfully discriminates against the candidates so excluded or the voters who wish to support them. n0 Because the filing fee was a creature of state statute, the state action question was easily resolved despite the fact that the candidates needed to pay the fee to gain entry to an exclusively partisan affair. The State attempted to justify the filing fees by appealing to its administrative needs in conducting an election. Specifically, the State justified the filing fees as a reasonable measure to raise money to conduct the primary n l as well as a way to weed out frivolous candidacies. 4 2 For the Court, both reasons constituted "rational" bases for the statute, but a higher standard of review applied. 43

36. Bullock, 405 U.S. at 140. 37. See cases cited supra note 23. 38. 372 U.S. 368 (1963) (applying the one-person, one-vote rule to a primary election). 39. Bullock, 405 U.S. at 140. 40. Id. at 140-41. 41. The executive committee of the party conducting the primaries for district, county, or precinct offices determined the amount of the fee and collected it. The party committee determined the amount of the fee by estimating the total cost of the primary and dividing it up among the probable number of candidates. For large counties, the statute placed caps on the fees at a certain percentage of the office's annual salary. The plaintiffs in Bullock challenged fees ranging from $1,000 to $6,300 for various county offices. Id. at 137-38. 42. Id. at 144-45. 43. Id. at 145.

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4 Drawing on its decision in Harper v. Virginia Board of Elections, 4 in which the Court applied heightened scrutiny to strike down poll taxes, the Court found paying a fee for candidacy to be constitutionally equivalent to paying a fee for voting. In language now familiar to election law cases, the Court extended voters' rights to include the privilege of their favored candidate to a place on the ballot: "[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, ' 5 The Court then asked a familiar (and fatal) rhetorical correlative effect on voters."4 constitutional question: Was the filing fee necessary to achieve the State's objectives? 46 Of course, as with virtually all electoral regulations, it was not: The money could be raised from the state treasury,4 7 and frivolous candidacies could be eliminated through a petition requirement. 48 Because this particular ballot access requirement fell hardest on poor candidates and their supporters and the State could not justify it as reasonably necessary to fulfill its objectives, the Court concluded that the fee requirement violated the Equal Protection Clause. Lubin continued Bullock's tradition of applying general election ballot access rules to primary elections. The Court struck down a California statute that required small 49 filing fees ranging from $192 for state assembly to $982 for govemor. Drawing on Williams v. Rhodes,50 a rare case with sweeping language vindicating a minor party's rights to general election ballot access, the Lubin Court held that the "right to vote is 'heavily burdened' if that vote may be cast only for one of two candidates in a primary election at a time when other candidates are clamoring for a place on the ballot.' 5 1 Mere competition, therefore, was not enough to raise a ballot access law above the floor established by the Equal Protection Clause. The Court recognized a voter's right to a full range of choices among contenders. Regardless of how many candidates may appear on the general election ballot and regardless of the rationale underlying the primary ballot access requirement, the right to vote now included a right of maximal choice in a primary election.

44. 383 U.S. 663, 670 (1966).

45. Bullock, 405 U.S. at 142-43. The right to run for office, however, is as a practical matter less absolute than the right to vote. After all, at least in theory a state could manage a system in which everyone votes, but a system that allows everyone automatically to get on the ballot seems almost impossible to implement. Of course, abolition of the Australian ballot and a return to a voting system in which voters could write their individual choices or just deposit a party's ballot in the box represents the practical equivalent of a ballot of unlimited candidates. 46. See id. at 147-48. 47. Id. at 148-49 ("The financial burden for general elections is carried by all taxpayers and appellants have not demonstrated a valid basis for distinguishing between these two legitimate costs of the democratic process. It seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all of the voters in an attempt to distribute the influence without regard to wealth. Viewing the myriad governmental functions supported from general revenues, it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern."). 48. Id. at 147. 49. Lubin v. Panish, 415 U.S. 709, 710 (1974). 50. 393 U.S. 23 (1968). 51. Lubin, 415 U.S. at 716 (emphasis added) (quoting Williams v. Rhodes, 373 U.S. 23, 31 (1968)).

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Noticeably absent from both Bullock and Lubin, however, is any suggestion that party interests, wholly apart from state interests such as paying for a primary or eliminating frivolous candidacies, may justify the imposition of a filing fee. Therefore, the Court did not explore the constitutional questions involved when a party organization wants to restrict its ballot to certain candidates in order to make the party's nominee more competitive, eliminate factionalism, raise money specifically for the party, or use the primary as an opportunity to define the party's policy positions. The only issue in the filing fees cases was whether the state could provide some nondiscriminatory justification for the ballot access law, as it must do for any other law. For the Court, the use of state power (that is, codifying the filing fee in state law) to discriminate on the basis 52 of wealth in voting and running for office sufficed to trigger strict scrutiny. Were a political party to argue that the filing fee served its interests, then the case would convert into a battle between rights claims-the party's, the candidate's, and the voters'-rather than between rights and state interests. The next set of cases, in which the party attempts to discriminate against candidates for ideological reasons, typifies such a conflict.
B. THE DAVID DUKE PROBLEM

In most primary ballot access cases, the party organization plays an active role in justifying the exclusion of a certain candidate from its primary ballot. In the set of cases explored in this section, the excluded candidates usually come from ideological fringes of the party, and the party organization views their participation in the primary as somehow threatening or embarrassing. Unlike
the filing fees cases or some signature requirement cases, the party, rather than

the state, plays a central role in deciding the candidates' qualifications. Once
excluded, the candidates object to the exercise of discretion by party officials who denied them ballot access based on their ideology, and the candidates argue

that their exclusion violates their and their supporters' rights of expression and association. From the party's perspective, the forced inclusion of such an offensive candidate violates its own rights of expression and association: the right to disassociate with a candidate who does not ascribe to the party's views. I refer to this type of case as one confronting "the David Duke problem" because the cases adjudicating Duke's exclusion from the Republican primary
ballot bring the issue front and center.53

52. In later cases, lower courts have struck down filing fees when the state provides no alternative avenue onto the primary ballot. See, e.g., Brown v. N.C. State Bd. of Elections, 394 F. Supp. 359

(W.D.N.C. 1975); Harper v. Vance, 342 F. Supp. 136 (N.D. Ala. 1972).
53. David Duke brought several lawsuits to get on the 1992 Republican presidential primary ballot, some with rather complex procedural histories. In Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992) [hereinafter Cleland 1], the Eleventh Circuit affirmed the district court's denial of motion for a preliminary injunction Duke sought to get on the Georgia Republican primary ballot. In Duke v. Cleland, 5 F.3d 1399 (11 th Cir. 1993) [hereinafter Cleland II], which began to consider the merits of Duke's claim, the court vacated the district court's opinion, which found no state action, and remanded

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These types of cases raise two interrelated constitutional issues: (1) whether the application of ideological criteria as qualifications for primary ballot access violates the candidate and his supporters' First or Fourteenth Amendment rights, and (2) whether the Constitution provides any constraint on the vesting of discretionary authority over ballot access qualifications in party officials. On the first point, the First Amendment would normally bar the state's use of ideological criteria for the disbursement of government benefits (here, ballot access). In its patronage cases, 54 the Court has set a very high bar that the state must surmount in order to justify the hiring, firing, or termination of an independent contract of individuals because of their party affiliation or ideological beliefs. A state cannot fire a public school teacher for being a Democrat or Libertarian, for example. However, all would agree that the Constitution, to some extent, must 55 allow the state or a party to condition primary ballot access on ideology. Applying the patronage rule here would mean that Republicans have a constitutional right to run in the Democratic primary. The whole notion of the election of party nominees implies that party affiliation (at least) is a minimal requirement for participation as either a voter or candidate. But could the state or a party require more from its candidates? In one case with unique facts, Ray v.
for a better development of the record with regard to the State's interests in the primary ballot access law. Once the district court investigated the State's interests, describing them chiefly as interests in protecting the party's rights, it upheld the exclusion of Duke, and the Eleventh Circuit affirmed. See Duke v. Cleland, 884 F. Supp. 511 (N.D. Ga. 1995), aff'd sub nom. Duke v. Massey, 87 F.3d 1226 (1lth Cir. 1996). In separate litigation, another Eleventh Circuit panel reviewed an almost identical claim from Florida and came out with an opposite result, upholding Duke's right to appear on the presidential primary ballot. See Duke v. Smith, 13 F.3d 388 (1lth Cir. 1994). In yet another case, the U.S. District Court for Rhode Island agreed with this latter panel of the Eleventh Circuit. See Duke v. Connell, 790 F. Supp. 50 (D.R.I. 1992). I concentrate here on David Duke's lawsuits to gain access to the Republican ballot and save a more lengthy discussion of Lyndon LaRouche's most recent lawsuit for later in this Article. See infra text accompanying notes 128-35. In suits that raise analogous issues of a party excluding a candidate for ideological reasons, Lyndon LaRouche and his supporters have sued the Democratic Party on several occasions to gain access to its primary ballot and national convention. See LaRouche v. Fowler, 152 F.3d 974, 976 (D.C. Cir. 1998) (holding that the Democratic Party could exclude LaRouche delegates from the 1996 convention and describing his exclusion from many state primary ballots); Thompson v. Woodall, 637 F. Supp. 944, 946 (N.D. Ala. 1986) (upholding exclusion of LaRouche supporter from election for county Democratic Committee); LaRouche v. Hannah, 822 S.W.2d 632 (Tex. 1992) (finding state election official's decision to exclude LaRouche from ballot because he was an ex-felon unconstitutional). 54. See, e.g., O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717 (1996) ("Absent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression."); Bd. of County Comm'rs v. Umbehr, 518 U.S. 668 (1996) (finding that the First Amendment protects independent contractors from termination of their contracts in retaliation for criticism of the government); Rutan v. Republican Party of Ill., 497 U.S. 62 (1990) (prohibiting patronage in hiring, promotion, transfer, and recalls after layoffs); Branti v. Finkel, 445 U.S. 507, 518 (1980) (allowing patronage dismissals only when "party affiliation is an appropriate requirement for the effective performance of the public office involved"); Elrod v. Burns, 427 U.S. 347 (1976) (establishing First Amendment bar to patronage-based dismissals for low-level employees). 55. See Fowler, 152 E3d at 995 ("[V]iewpoint discrimination ... is the sine qua non of a political party.").

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5 6 the Blair, Supreme Court gave a qualified "yes." There, the Court upheld a party organization's decision to disqualify a candidate seeking to be a presidential elector because he refused to sign an oath pledging to support the eventual nominee of the Democratic convention. 57 Such loyalty oaths may not be ideological tests per se, but they add a candidate qualification that is not as neutral as, for example, a filing fee or petition requirement. In the case of David Duke, two panels of the Eleventh Circuit agreed that excluding him from the ballot based on his failure of the Republican Party's ideological litmus test was perfectly constitutional. "Duke has no right to associate with the Republican Party," the court held, "if the Republican Party has identified Duke as ideologically outside the party.",58 Of course, by "the Republican Party," the court meant the Republican Party leaders vested by statute with the power to regulate access to the ballot, not the larger party membership who, as a result of the leaders' decision, would never have the opportunity to express whether they considered Duke ideologically within the party. 59 Not only did the party have a right to exclude candidates such as Duke, according to the court, but the state also had a "compelling interest" in protecting parties' right to exclude.6 Party and state interests thus merged, as did First

56. 343 U.S. 214 (1952). 57. Blair contended that the party chairman, cloaked in state authority by the statute that vested him with the power to certify the names of candidates, violated the Twelfth Amendment to the Constitution because, in effect, he redefined or added a stage to the constitutional process of choosing the President and Vice-President. See Ray, 343 U.S. at 225-26; see also U.S. CoNsT. amend. XII (providing that the electors for President and Vice-President shall meet in their respective states and cast ballots for both of those offices, and that the results of the vote shall be signed, certified, and transmitted sealed to the President of the U.S. Senate). The case was not a hard one, principally because the Constitution did not explicitly prohibit the kind of oaths required here, but Justice Jackson's dissent posited a more progressive (anti-party machine) view of the Electoral College. In his opinion, the Constitution did not intend "[e]lectors, although often personally eminent, independent, and respectable, officially [to] bec[o]me voluntary party lackeys and intellectual nonentities." Ray, 343 U.S. at 232 (Jackson, J., dissenting). Jackson continued: [P]arty control entrenched by disenfranchisement and exclusion of nonconforming party members is a means which to my mind can not be justified by any end. In the interest of free government, we should foster the power and the will to be independent even on the part of those we may think to be independently wrong. Id. at 235. 58. Cleland 1, 954 E2d at 1531; see id. at 1532 ("[Tjhe Party's constitutionally protected right encompasses its decision to exclude Duke as a candidate ... because Duke's political beliefs are inconsistent with those of the Republican Party."); see also Massey, 87 F.3d at 1234 ("Duke does not have the right to associate with an 'unwilling partner."' (quoting Cleland 1, 954 F.2d at 1530)). 59. See Massey, 87 F.3d at 1235. 60. Id. at 1234. The Massachusetts Supreme Judicial Court upheld a different type of ballot access regulation for similar reasons in Langone v. Secretary of the Commonwealth, 446 N.E.2d 43, 50 (Mass. 1983). In that case, the Massachusetts Democratic Party required candidates to receive a vote from fifteen percent of the state convention, in addition to collecting signatures, to appear on the primary ballot for statewide office. The court found the State to "have a legitimate interest in protecting the constitutional rights of the Democratic party and its members to associate," an interest that was furthered by a requirement such as the one at issue which ensured that candidates on the ballot were "truly representative of the party." Id. at 50. The U.S. Supreme Court dismissed for want of jurisdiction

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Amendment rights with state interests (normally two concepts on different sides of the constitutional equation 61). In the constitutional balance, such interests overwhelmed the candidate's right to run for office and the voters' right to have their favored candidate's name on the ballot, rights the court considered trivial because Duke could run as an independent, third-party candidate, or write-in
candidate. 62

The courts that have taken a different view of the David Duke problem have concentrated on the vesting of "unfettered discretion" in party officials to exclude candidates at will. 6 3 Cloaking party kingmakers in unbounded state authority over access to the primary ballot, the argument goes, violates due process because the lack of standards translates into whimsical political discrimination. 64 As the district court adjudicating Duke's challenge to Rhode Island's primary ballot access laws explained, "This lack of standards permits the [Party] Chairman to discriminate against any candidate whose views he does 65 not approve ...while acting under the guise of a statutory mandate.", It is difficult to disentangle this notion of unfettered discretion from the idea of an ideological litmus test. Perhaps the transparency of the procedures used to
disqualify candidates and the existence of ex ante, as opposed to ad hoc, criteria are distinctions that make a constitutional difference (as I argue later in this
and denied certiorari to the appeal from that case. Bellotti v. Connolly, 460 U.S. 1057 (1983). Justice Stevens, joined by Justices Rehnquist and O'Connor, dissented from the denial of certiorari. They argued that none of the Court's cases had considered whether interests recognized by the Massachusetts court-namely, interests in representing and protecting the party-were sufficiently weighty to justify Langone's exclusion from the primary ballot. Incidentally, the Massachusetts Supreme Judicial Court prior to Langone had issued an advisory opinion making the remarkable suggestion that the Democrats' fifteen percent rule would supercede any state statute that liberalized primary ballot access requirements. See Opinion of the Justices, 434 N.E.2d 960 (Mass. 1982). 61. See Anderson v. Celebrezze, 460 U.S. 780, 803 n.30 (1983) ("Even though the drafting of election laws is no doubt largely the handiwork of the major parties in the state legislatures, it does not follow that the particular interests of the major parties can automatically be characterized as legitimate state interests."); Elrod v. Bums, 427 U.S. 347, 361 (1976) ("[C]are must be taken not to confuse the interest of partisan organizations with governmental interests."); Duke v. Smith, 13 F.3d 388, 393 (11th Cir. 1994) ("Party membership is no concern of the state."). 62. Massey, 87 F.3d at 1232-34; see also id. at 1234 ("Duke supporters do not have a First Amendment right to associate with him as a Republican Party presidential candidate."); Langone, 446 N.E.2d at 50 (emphasizing alternative route as independent candidate in upholding ballot access rule justified by party interests). 63. Smith, 13 F.3d at 395; Duke v. Connell, 790 F. Supp. 50, 54-55 (D.R.I. 1992) (striking down statute as unconstitutionally vague "because it provide[d] absolutely no standards for the State Party Chairman to follow"); cf Kay v. Mills, 490 F. Supp. 844, 846 (E.D. Ky. 1980) (striking down as unconstitutionally vague statute that gave the board of elections the power to place on the primary ballot names of "generally advocated and nationally recognized candidates of the political parties for the office of president of the United States"). But see LaRouche v. Kezer, 990 F.2d 36 (2d Cir. 1993) (upholding similar media test because state provided for petition gathering alternative); Kay v. Austin, 621 F.2d 809 (6th Cir. 1980) (upholding similar law that gave secretary of state the power to list candidates "generally advocated by the national news media to be potential presidential candidates"); LaRouche v. Sheehan, 591 F. Supp. 917 (D.Md.1984) (same). 64. Cf Bush v. Gore, 121 S.Ct. 525 (2000) (finding that lack of clear standards governing election recount violated fundamental fairness). 65. Connell, 790 F. Supp. at 55.

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Article). For the cases adjudicating David Duke's ballot access challenges, however, one will have difficulty reconciling why some state party committees have a near-absolute First Amendment right to exclude him from the ballot, while the discretion of others is cabined by Duke's and his supporters' own First Amendment rights to associate and express themselves in the primary election. Ideological litmus tests to filter the candidate pool raise the most difficult problems for First Amendment analysis of primary ballot access requirements. The court must balance the right of the party to define itself against the individual's right to run for office or vote for the candidate of her choice. These cases present the party organization in its most paternalistic role, deciding whether a candidate is sufficiently authentic to deserve the chance to appeal to the party membership. Although the courts often treat these cases as involving the parties right to disassociate from individuals that do not adhere to its views or are not "on message," these cases involve a decision by the party to exclude someone as a candidate, not from its membership. As further suggested in the next section, the primary election itself, not the ballot access requirement, serves as a sufficient filter of candidates out of touch with the larger party membership.
C. THE "MODERN" ERA:

CHALLENGES TO NEW YORK'S BYZANTINE BALLOT ACCESS LAWS

Thus far, this Article has examined cases in which the state plays the principal role in defending the ballot access restriction (filing fees cases) and others in which the party is chiefly responsible for the candidate exclusion (ideological litmus tests). In the most high profile primary ballot access cases of the last decade, however, the party-state relationship became particularly blurry as the New York Republican Party constructed nonideological "tests" in the form of petition requirements that had the effect of discriminating against candidates disfavored by the party establishment. Perhaps more than the others discussed, these cases revealed the need for a jurisprudence of primary ballot access distinctive from the constitutional rules used for general election ballot access cases. On December 22, 1999, Senator John McCain and his supporters filed a complaint in the U.S. District Court for the Eastern District of New York seeking a declaration that the ballot access laws governing the Republican Presidential primary constituted an undue burden on their First Amendment rights and an injunction to have McCain delegates placed on the ballot in all of New York's thirty-one congressional districts. 66 The named plaintiff in Molinari v. Powers67 was Staten Island Borough President, Guy Molinari, chairman of

66. Papers filed in Molinari v. Powers are available on the website of the Brennan Center for Justice at the NYU School of Law, http://www.brennancenter.org/programs/programs-demvoter.html (last visited Mar. 3, 2001). 67. 82 F. Supp. 2d 57 (E.D.N.Y. 2000).

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McCain's campaign in New York and one of only a handful of New York elected officials that openly supported McCain. Other plaintiffs included John McCain and voters pledged to support him, as well as Larry Rockefeller, who 68 was the named plaintiff in an earlier case, Rockefeller v. Powers, which McCain argued controlled the result in the subsequent case. The defendants in the case were the New York Republican State Committee, its chairman, and the various boards of elections throughout the state, along with their commissioners. 69 Rockefeller7 and Molinari7' invalidated two different ballot access signature requirements for the New York Republican presidential primary. In both cases, the court rejected almost out of hand any party interest in filtering out its disfavored candidates, let alone a state interest in giving the party the right to define its own membership. Applying the precedent involving general election ballot access laws, the New York courts, like those in Lubin and Bullock, found that the laws at issue imposed severe or "undue" burdens that were not justified by the state's interest in eliminating poorly supported candidates from the Republican primary ballot. The Rockefeller litigation 72 involved a challenge brought by Steve Forbes and his supporters to the ballot access law governing the 1996 Republican primary. The state legislature enacted, and the Governor signed, the ballot access law at issue (as with all New York presidential primary ballot access laws) about seven months before the date set for the March primary election, and the law was set to expire immediately and automatically after the primary. In other words, the parties (in the legislature) set the rules while the campaigns were underway and only a few months before candidates could begin getting signatures on their delegate petitions. Each party proposed its own primary ballot access rule, but the law was structured in such a way as to give each party committee the choice between option A (the option proposed

68. Rockefeller v. Powers, 917 F. Supp. 155, 164 (E.D.N.Y.) [hereinafter Rockefeller H], aff'd, 78 F.3d 44 (2d Cir. 1996) 69. The boards of elections are responsible for the printing of the ballots. The boards of New York City and Suffolk, Monroe, and Erie Counties enforce the ballot access laws and the printing of ballots in their jurisdictions. For the rest of New York, the State Board of Elections enforces the law and prints the ballots. 70. Rockefeller 11, 917 F. Supp. at 164. 71. 82 F. Supp. 2d 57 (E.D.N.Y. 2000). 72. The Rockefeller litigation actually produced four different opinions. In its first incarnation, Rockefeller v. Powers, 909 F. Supp. 863, 864 (E.D.N.Y. 1995) [hereinafter Rockefeller I], rev'd,74 F.3d 1367 (2d Cir. 1996), the district court found in favor of the plaintiffs on equal protection grounds, holding that the disparity between districts in the numbers of signatures required for ballot access violated the "one person, one vote" doctrine. The U.S. Court of Appeals for the Second Circuit reversed, 74 F.3d at 1383, but left open the possibility of a challenge under the First Amendment, which eventually was successful in the district court, Rockefeller 11, 917 F. Supp. at 164, and was affirmed on appeal, 78 F.3d at 45. The Rockefeller I opinion is significant for our purposes only because the court held that state primary ballot access laws (regardless of the fact that the parties proposed them) constituted state action. 909 F. Supp. at 866.

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by the Democrats) and option B (the option proposed by the Republicans). 73 The Republican option required each delegate slate pledged to the candidate to collect the signatures of 5% or 1,250 Republicans in each congressional district, whichever was less (amounting to a total of about 37,000 signatures). 74 The Democratic option required the collection of 0.5% or 1,000 signatures in each
congressional district. This collective burden imposed by the totality of the election law exceeded that permitted by the First Amendment, according to the court. What makes the Rockefeller case interesting is how the court determined the burden to be "undue" and why it rejected the interests proffered by the party and the State. In striking contrast to the court in Duke v. Massey, for example, the court here analogized Forbes's predicament to that of a third party trying to 76 attain general election ballot access: Although at the primary all candidates are members of the same party, they represent different political ideas and have different qualifications for national and party leadership .... In politics, one challenges establishments in primaries, not elections ... . If discriminatory requirements prevent "independent" candidates from obtaining the requisite number of signatures to place on the ballot delegates pledged to them, then the primary becomes little more than a 77 state-sponsored endorsement of the candidate of the party leadership. Once crossing that bridge-namely, the one connecting primary elections to the constitutional constraints on general elections-the Rockefeller court did not have far to go in declaring this particular collection of restrictions to be "undue" under the First Amendment. The court first emphasized the uniqueness of a

73. See Rockefeller II, 917 F Supp. at 164 ("What appear to be the options from which the parties may choose are in fact the choices they have already made."). 74. 1995 N.Y. Laws 586(2). The Republicans exercised this option-that is, they "chose" the process they proposed-on October 31, 1995, about four months before the primary election. 75. Id. 586(3). Those were the variable aspects of the presidential primary ballot access law, that is, the ones that change every four years. Other aspects of the electoral code-those that apply to all elections-exacerbated the burdens imposed by the parties' chosen signature thresholds. In New York, prospective primary candidates must gather all their signatures in a period of thirty-seven days that extends from just after Thanksgiving until just after New Years Day. A host of arcane requirements concerning the format of the petition and the signatures, as well as qualifications for signers and petition circulators (that is, both had to be registered Republicans in the congressional district and could not have signed another candidate's petitions) made the actual number of signatures needed to protect against technical challenges to petitions two to three times the legally required number. In a recent case, the petition circulator requirement, which applies even to nonpresidential elections, was declared unconstitutional. Lerman v. Bd. of Elections of N.Y., 232 F.3d 135 (2d Cir. 2000) (striking down a New York statute that required petition circulators to reside in the political subdivision in which the candidate was seeking office); see also Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000) (striking down a similar Illinois statute). 76. See Rockefeller 1, 909 F. Supp. at 868 ("In the context of a major party's primary, candidates who are independent of the party organization are, in many ways, analogous to third parties at the general election."). 77. Id. at 868-69. Although these quotations appear in Rockefeller 1, Rockefeller H emphasized the same logic. See Rockefeller I1,917 F. Supp. at 164.

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presidential campaign: As opposed to state and local elections, presidential candidates must campaign throughout the nation and contend with more than fifty different ballot access laws. Thus, to make a state "not worth the effort" of a petition drive or a campaign, the state's ballot access laws need only be 7 8 When taking into account "substantially more burdensome than other states. the actual number of signatures needed to qualify for the ballot in each of the thirty-one congressional districts, New York's ballot access laws were perhaps the "most restrictive," at least twice the number required by second-place Indiana. Then, the court turned to Forbes's particular experience: He spent about $1 million solely on a petition drive, hired 320 petition circulators (who worked a total of 37,500 hours), and he still came up short (after challenges) in four districts. (Pat Buchanan, who allegedly ran a "grass roots" campaign, was able to get on the ballot in twelve districts.) After assessing the absolute burden imposed by the Republican rules, the court made an interesting and unprecedented logical move. It compared the Republican process of ballot access with the more lenient Democratic procedures. Given that the statute offered two options-either one of which a party could have chosen-how could the defendants argue that the more restrictive procedures were necessary to further the State's interests? Or as the court put it, the existence of the Democratic option "demonstrates that New York State has no compelling interest in a more restrictive rule than 0.5% per congressional district.",79 Given the fact that both options were equally suited to prevent party splintering or extreme factionalism, the only possible interest underlying the Republicans' choice, as the court saw it, was to advantage the Republican State Committee's favored nominee. That additional increment of power aggrandizement (or some might say, autonomy) for the party elite could not be fabricated into a state interest. Citing Anderson v. Celebrezze, a case in which the two incumbent parties allegedly constructed ballot access rules that disadvantaged independent candidates, the court rejected the argument that a party could use the state in order to "assure monolithic control over its own members and supporters" and denied that the "particular interests of the major parties can 80 automatically be characterized as legitimate state interests., For the court, the only relevant constitutional question for a party primary ballot access law was whether "a reasonably diligent independent candidate [could] be expected to satisfy the signature requirements, or will it be only rarely that [such a] candidate will succeed in getting on the ballot?' ' 8 Given the totality of the burdens the New York electoral law imposed on Steve Forbes and his supporters, Judge Edward R. Korman (and the Second Circuit panel that affirmed
78. Rockefeller 11, 917 F. Supp. at 160; see also Anderson v. Celebrezze, 460 U.S. 780, 795 (1983) ("[Iln a Presidential election a State's enforcement of more stringent ballot access requirements ... has an impact beyond its own borders."). 79. Rockefeller 11, 917 F. Supp. at 164. 80. Id. (quoting Anderson, 460 U.S. at 803 n.30). 81. Id. at 165 (quoting Storer v. Brown, 415 U.S. 724 (1974)).

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him in a short and rushed opinion) concluded that an "independent" candidate, even one with unlimited funds, could not surmount the legal hurdles to ballot access in the Republican primary.82 In striking down the Republican option, only the Democratic option remained, and Forbes had easily surmounted those signature thresholds. Filing their claim "as a related case' ' 83 to Rockefeller v. Powers, the plaintiffs in Molinari v. Powers argued that Forbes's successful challenge in 1996 served as a roadmap for John McCain's challenge to the ballot access requirements for the 2000 primary. The stumbling blocks on the road to vindication of McCain's and his supporters' First Amendment rights, however, were the new, more
lenient Republican rules for ballot access. For the 2000 primary, those rules required the candidates to collect 5,000 signatures statewide and the delegate slates to collect signatures from only 0.5% of the registered Republicans in each 84 district. At least as far as the statute was concerned, almost the same rules applied in the Democratic primary. Internal Democratic Party rules, however, made the practical impact of the law much less burdensome on Democratic primary candidates.85 These differences (and correlatively, the lack of any particular

82. Id. at 162. 83. See E.D.N.Y. R. 50.3, which provides: (a) "Related" Case Defined. A case is "related" to another for purposes of this guideline when, because of the similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of judicial resources is likely to result from assigning both cases to the same judge and magistrate judge. (b) Civil Cases. By way of illustration and not limitation, the following civil cases are "related"; when a case (A) relates to property involved in an earlier pending suit, or (B) involves the same factual issue or grows out of the same transaction as does a pending suit, or (C) involves the validity or infringement of a patent already in suit in a prior case. 84. See Act of June 29, 1999, 1999 N.Y. Laws 137 (expired 2000). Chapter 137 actually presented a choice between the lesser of 0.5% and 1,000 signatures, but 0.5% was the lesser for all thirty-one congressional districts. 85. The style of the Republican and Democratic ballots differed considerably, as did the procedures used to calculate the primary winner. These technical differences are quite complicated but essential to understanding the subtle advance in the law made by the Molinari court. The Republican ballot presented the names of three delegates and three alternate delegates, with the candidate name to whom they were pledged listed individually under the delegate's name (for example, "Joe Smith, pledged to John McCain"). However, voters could apportion their votes any way they wanted. For example, they could vote for one delegate pledged to George W. Bush and two delegates pledged to McCain. The three delegates receiving the greatest number of votes (regardless of the candidate to whom they were pledged) then were sent from that congressional district to the Republican convention. The Democrats' ballot and rules were more candidate-based and less focused on delegates than the Republicans'. The ballot presented a head-to-head challenge between Al Gore and Bill Bradley so voters could cast a ballot between the candidates and not just the delegates. Under the head-to-head race, however, each candidate listed five delegates and five alternate delegates. The voter was asked to choose any combination of five delegates, for example, one Bradley and four Gore delegates. The key to understanding the difference between this scheme and the Republican scheme was the way in which the votes were counted and the winner was chosen. On the crucial question of how many delegates a candidate earned per congressional district, the only election that mattered was the head-to-head race

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state interest to justify the more stringent Republican system) appeared to be the critical features that, once again, led to the invalidation of the Republican rules. However, in order to erase any doubt about the irrationality of New York's unparalleled, technical electoral regulations, the court went into exhaustive detail about the extent of the burden placed on candidates other than the one anointed by the Republican Party establishment. The court explained how Forbes in this election had to spend about $650,000 just on his petition gathering operation; how George W. Bush launched technical challenges to Forbes's and McCain's petitions, thus increasing the costs of ballot access and the number of signatures required; how difficult it was for the nonfavorite candidate to receive congressional district-specific walking lists of bona fide Republicans; and how the thirty-seven-day window period surrounding Christdifficult. 86 mas and the millennial New Year made signature gathering very Therefore, the dramatically lower signature requirements as compared to four years previous-indeed, signature requirements very much like those that constituted the "baseline" for the Rockefeller opinion--did not help the defendants' case all that much. The court took particular issue with the technical aspects of the electoral law-for example, the requirement that circulators must reside in the district in which they circulate petitions and the requirement that a signature could be disqualified if it listed the town rather than the city of residence of the signer (the town-city trap)-which made the precise number of signatures required by the law somewhat irrelevant to the constitutional analysis. In the record, moreover, was a damning memo from Party Chairman and Bush campaign director William Powers (the named defendant), urging Bush supporters to collect six times the legally required number to avoid post-petition challenges.8 7 (Ultimately, the Bush campaign collected about three or four times the

between Al Gore and Bill Bradley. Each candidate would gain a number of delegates proportionate to his vote total in the head-to-head race. In other words, if Al Gore received 60% of the vote and Bradley 40%, then Gore earned three delegates from that congressional district and Bradley two. (And if either candidate received 100% of the vote, then all five of his delegates would go from that district.) Why then have the delegates' names on the ballot along with an opportunity to vote individually for them? The reason is that the Democrats needed a process to decide exactly which delegates would represent that candidate at the convention. Thus, while the number of delegates earned in each congressional district was determined by the head-to-head race between the candidates, the identity of those delegates was determined by the separate, intra-candidate delegate race. What if a candidate failed to qualify delegates in a congressional district (that is, the delegate slate failed to collect the legally required number of signatures)? The effect on the candidate is nil-he could still replace delegates after the primary, the number of which would depend solely on the results of the head-to-head candidate race. This last aspect of the rules was key because, in effect, it made the collection of signatures for delegates meaningless. No Democratic candidate had an incentive to challenge the petitions submitted by his opponent because the candidate could just wait until after the primary election to fill in the delegate's name. See Molinari v. Powers, 82 F. Supp. 2d 57, 60 (E.D.N.Y. 2000). 86. Id. at 61-68. 87. Memorandum from William D. Powers to New York State Congressional District Coordinators, Bush for President, Re: Bush for President Designating Petition Drive 4 (1999) (on file with author) ("To ensure that Bush delegates get on the ballot in your congressional district, your goal is to collect six times the signatures required by the Election Law.")

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number required.) The judge thereby concluded that the entire scheme operated 88 to deprive McCain and his supporters of their "First Amendment right to vote" and that two particular aspects of the law (the town-city trap and the residency requirements for petition circulators) were unconstitutional by themselves. The decisive legal issue in Molinari v. Powers was, in reality, the identity of the plaintiff. The court (and the public for that matter) asked: If Senator John McCain-a candidate who agreed to accept federal matching funds and spending limits, the main challenger to Governor Bush, a leader in the polls in several states, and the victor in the New Hampshire primary-could not get on the ballot, then how could the laws possibly be constitutional? Why have a primary at all if the practical barriers to candidate entry can only be surmounted by the nominee already backed by the party establishment? Despite its profound reasonableness, this common sense approach to primary petition requirementsthe approach Judge Korman applied in both Rockefeller and Molinari-stands somewhat isolated in the case law on the legal regulation of nomination methods. To a large extent, McCain would have emerged from the case victorious regardless of the judge's decision. The courtroom provided a forum where the candidate could display quite openly the otherwise closeted efforts of the Republican establishment to thwart his candidacy. After McCain's stunning victory in the New Hampshire primary (three days before the Molinaridecision was issued), the Republican Party recognized that. As the Molinari opinion notes, the parties to the lawsuit stipulated that the electoral scheme in its totality imposed an undue burden on candidates' First Amendment rights and agreed that all candidates (Bush,8 9 McCain, Forbes, and Keyes) should be allowed on the ballot statewide. Judge Korman issued the opinion discussed here to explain why he "agree[d] with the stipulation of the parties." 90 Nothing about the politics of the case should diminish the significance of the legal victory and the precedent it set. For the first time, New York Republicans

88. Molinari,82 F. Supp. 2d at 68. 89. One ironic twist to the whole ballot access saga was that George W. Bush was kicked off the ballot in one congressional district for fraud. Clifford J. Levy, Bush Kept Off Ballot in South Bronx After Party Admits Fraud, N.Y. TIMES, Feb. 3, 2000, at B6. When Bush filed technical objections to Forbes's petitions (something he earlier promised he would not do), Forbes spent tens of thousands of dollars in just one weekend subpoenaing witnesses and gathering evidence to show the invalidity of Bush petitions. Id. The article above included a picture of a Bush petition that showed each name written in the same handwriting with the last name before the first (as if the signer were copying the names off the list of registered Republicans in the district). Id. 90. Molinari, 82 F. Supp. 2d at 71. Describing the outcome of the litigation as a settlement would be inaccurate. After McCain won the New Hampshire primary, Judge Korman called the parties into his chambers for discussions. After the meeting the parties stipulated that the law was unconstitutional and that all candidates should be let on the ballot. Judge Korman "accepted" and "agreed with" the stipulation of the parties, but issued an opinion specifically to declare certain aspects of the electoral scheme unconstitutional. The published opinion remains controlling precedent (at least for presidential primary elections) in New York. Every aspect of the ballot access struggle and the Molinari decision discussed here is a matter of public record.

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had a primary election that resembled those taking place in other states. Never before had a candidate who relied on federal matching funds (unlike Forbes in 1996) and who was not the party's chosen nominee (unlike Bush in 2000 and Dole in 1996) been able to attain a spot statewide on the New York Republican presidential primary ballot. The precedent it set ensures that in the future neither party will adopt rules any more restrictive than the other and that neither party can adopt the precise electoral scheme that this case established as imposing an undue burden. From the party organizations' perspectives, the decision threatens to homogenize primary ballot access rules and prevent each party from tailoring rules to serve its own particular ends. If one were to read Molinari in the light most unfavorable to political parties, one would conclude that no party's ballot access rules can be any more restrictive than any other's. If only neutral, nonpartisan state interests can be used to justify heightened ballot access requirements, then it is difficult to see how the state could justify both a restrictive and lenient ballot access regime operating for the same election. If this more antiparty view represents the correct reading, then constitutional scrutiny of primary ballot access rules does not differ markedly from the scrutiny brought to bear on general election ballot access rules. That analysis tends to limit itself to the mere inquiry of whether the ballot access law is necessary to prevent ballot overcrowding and avoid voter confusion. Another, more party-favorable reading of the Molinari opinion would limit itself to the facts of McCain's candidacy and the failure of the Republican Party to articulate any party interest in excluding a popular candidate from the ballot. No matter how they might have finessed it, the defendants in Molinari could not hide the principal justification for the ballot access law: It guaranteed that only the party establishment's favored nominee could get on the ballot statewide. Molinari rejects a definition of "party interest" limited to the interest of the party organization. It leaves open the possibility that the party could justify a ballot access restriction that serves the interests of the party-in-the-electorate. Such interests will not be identical for all parties in all electoral contests. As emphasized in the principles laid out in the next Part, different electoral and political contexts can determine both the legitimacy of a given party's interest and the constitutionality of a restrictive ballot access rule that supposedly furthers such an interest.
III.
GUIDING PRINCIPLES FOR THE ADJUDICATION OF PRIMARY BALLOT ACCESS CASES

The preceding tour through the primary ballot access cases reveals the formulaic approach most courts take to these controversies. Courts first characterize (implicitly or explicitly) the regulation of primary ballot access as either state action or private associational behavior. Once the state actor switch is turned on, courts often treat the restriction as if the candidate were an independent or minor party candidate seeking access to a general election ballot. Under those circumstances, the court weighs the "character and magnitude" of the

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state's interest against the severity of the law's intrusion on the candidate's and voters' rights. The state's interest could be the typical ones in ballot access cases-for example, protecting the integrity of the ballot, preventing ballot confusion-or they could be interests unique to primary elections, such as strengthening party organizations. When the courts treat primaries more like private intraparty affairs or pay greater attention to the impact of the given candidacy on unique party interests, however, the party organization's First Amendment associational interest (sometimes embodied in state statutes) tends to trump the rights of candidates and their supporters. In all the balancing of state versus party interests and individual rights, and in every reallocation of power within the party, few courts develop principles that can be more generally operationalized beyond the case at hand. What follows in this Part are some middle-range principles that may help provide guidance to courts and advocates in primary ballot access cases. These principles will not solve every such case, and in some cases, the principles, I admit, contradict each other. They represent points of departure for constitutional analysis, however, that differ markedly from the approach normally followed in these cases. Were these principles to be summed up into a terse argument it would be this: Courts should pay closer attention to the role of the primary ballot in regulating candidate access to political office. No primary ballot access restriction should be considered unconstitutional in isolation. Only when placed in the overall scheme of election regulation can the single component of primary ballot access be squared with the conflicting First and Fourteenth Amendment rights of parties, candidates, and voters.
A. THE CONSTITUTION DOES NOT REQUIRE EITHER STATES OR PARTIES TO CONDUCT PRIMARY ELECTIONS

We begin by returning to first principles. We know the Constitution does not require political parties or states to run nomination processes by primary election. As a matter of "text" or "original intent," states have near plenary authority to conduct and regulate elections. And parties, unmentioned in the Constitution and unanticipated at its founding, face no constitutional restrictions save for those that might be applicable to them if courts consider them state actors. Thus, because the Constitution provides almost no direction when it comes to both elections and political parties, party primary elections appear to exist several degrees of freedom away from explicit constitutional rules. As a constitutional matter, states barely need to conduct elections, let alone primaries. The Constitution entrusts states with the regulation of the "times, places, and manner of holding elections" for Congress, subject only to Congressional oversight, 9 ' and requires that voting qualifications for elections to the

91. U.S. CoNsT. art. I, 4 ("The Times, Place and Manner of Holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.").

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House of Representatives and to the Senate be the same as those for the most numerous branch of the state legislature.92 Because state legislatures can choose the manner of appointing electors to the Electoral College, 9 3 no "elections" for President are constitutionally required. Moreover, save for the requirement that "the United States shall guarantee to every State ...a Republican Form of Government," the Constitution does not require any elections for state offices at all. Of course, once the state grants the franchise, specific constitutional amend94 95 96 ments prevent it from discriminating on the basis of race, 94 sex, age, or the payment of a poll tax,97 and, as noted above, the Court has applied strict scrutiny under the Equal Protection Clause for any other discrimination among individuals in the right to vote.98 Apart from these caveats, however, the Constitution leaves it to the states (and, to a certain extent, Congress) to decide whether to have an election and what rules will govern it. The only provision in the Constitution specifically mentioning primaries is the Twenty-fourth Amendment, which provides: "The right of citizens of the United States to vote in any primary or other election for [President, VicePresident, Senator, or Representative] shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." 99 Congress and the states passed the Twenty-Fourth Amendment to eliminate the poll tax as a means of disenfranchising the poor, particularly AfricanAmericans throughout the South.' 0 0 As the White Primary Cases revealed, restrictions on participation in primary elections (particularly when those elections were dispositive in selecting the eventual general election victor) could just as easily result in complete disenfranchisement as could regulations of the general election. Despite the specific prohibition on poll taxes for primaries, however, states remain free to structure their electoral system so that it does not include a party primary at all. Assuming they even decide to conduct a two-stage electoral

I ("The Electors in each State shall have the Qualifications requisite 92. U.S. CONST. art. I, 2, cl. for Electors of the most numerous Branch of the State Legislature."); U.S. CONST.amend. XVII ("The electors [for the U.S. Senate] in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."). 2 ("Each State shall appoint, in such Manner as the Legislature 93. U.S. CONST. art. H, 1, cl. thereof may direct, a Number of Electors .... 94. U.S. CONST. amend. XV. 95. U.S. CONST. amend. XIX. 96. U.S. CONST. amend. XXVI. 97. U.S. CONST. amend. XXIV. 98. See, e.g., Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627-28 (1969); Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966). 99. U.S. CONST. amend. XXIV (emphasis added). 100. See James E. Alt, The Impact of the Voting Rights Act on Black and White Voter Registration in the South, in Quiet Revolution in the South: The Impact of the Voting Rights Act 1965-1990, at 351, 356 (Chandler Davidson & Bernard Grofman eds., 1994) (describing poll tax used in Southern states).

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process, states can employ caucuses, conventions, nonpartisan primaries, 10 1 or any number of other methods to filter out candidates for the general election ballot. And given that the Constitution does not require the states to conduct party primaries, surely the parties are not constitutionally required to conduct them. Party action invites constitutional scrutiny, if ever, only when the party cloaks itself in state power and thus takes on the constitutional obligations of a state actor. Good arguments can be made, of course, that the major political parties have earned themselves state actor status as a result of their privileged 0 2 position in the electoral system.1 But if states need not conduct primary elections, parties as state actors (let alone private associations) need not do so either. Indeed, for the first hundred years of the American party system,

nominations by primary were the exception, not the rule. 10 3 Certainly, the nomination methods chosen most proximate to the creation of the Constitution were not unconstitutional, and should states choose to turn back the clock, nothing in the Constitution's text or amendments would stand in the way. This first principle may seem so obvious that it does not need to be stated. But if the Constitution does not require a state or party to conduct a primary, why then does the Constitution provide restrictions on how the primary, once created, should be conducted? Should not the greater power to eliminate a primary election include the lesser power to enact a restrictive one? These questions cut to the heart of the issues surrounding state power in regulating political participation and highlight the Court's ever-present need to depart from the Constitution's text to develop rules of decision in election-related cases. Although states enjoy near absolute authority in their decisions whether to create democracy, once they do so, they invite constitutional scrutiny over every aspect of the system they enact. Thus, primary elections, while not constitutionally required, must abide by certain constitutional rules once the state (or party as state actor) makes them part of the selection process for representatives. The question then becomes what constitutional rules are triggered by the creation of a party primary as a candidate nomination process,'4

101. Nonpartisan primary elections give no special role to parties. Used for all elections in Louisiana and for state legislative elections in Nebraska, such a system creates a first-stage election in which all candidates, regardless of party, run against each other in the primary. The top two vote-getters then advance to the general election; they could be of the same party or of different parties. See Persily, supra note 24, at 811-14 (describing the nonpartisan primary). 102. See id. at 754-63.
103. See generally JOHN H. ALDRICH, WHY PARTIES? THE ORIGIN AND TRANSFORMATION OF POLITICAL

68-156 (1995) (describing evolution of early party system). 104. Although not explored here, the question beneath the surface of all these cases is whether a party organization has a constitutional right to object to state laws mandating the use of the primary as the sole means of nominating candidates. In other words, does a party have the constitutional right to nominate its candidates by caucus or some other nonprimary method such that a state primary requirement is unconstitutional as applied to an objecting party. The Supreme Court has assumed the answer is "no." Cal. Democratic Party v. Jones, 530 U.S. 567, 572 (2000) ("We have considered it 'too plain for argument,' for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion."
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B. A PARTY'S RIGHT TO DEFINE ITS MEMBERSHIP DOES NOT INCLUDE THE POWER TO LIMIT MEMBERS' RIGHTS TO RUN IN THE PRIMARY

Although the Supreme Court has implicitly upheld the right of the state to require primary elections, the Court has also established a party's nearly unconditional First Amendment right to define which voters may participate in a primary.'0 5 With the

possible exception of race- or gender-based discrimination, a party organization can exclude from its primary or include in its primary whichever voters it wants. This
right to define the contours of the party association, however, does not necessarily include the right of the party organization to regulate those members' access to the ballot as candidates. Regulations of party membership and regulations of primary candidates raise different constitutional issues.

(quoting Am. Party of Tex. v. White, 415 U.S. 767, 781 (1974))). The full quote from American Party of Texas reads: "It is too plain for argument, and it is not contested here, that the State may limit each political party to one candidate for each office on the ballot and may insist that intraparty competition be settled before the general election by primary election or by party convention." 415 U.S. at 781. Other courts have specifically upheld the requirement of a primary. See, e.g., Lightfoot v. Eu, 964 F.2d 865, 873 (9th Cir. 1992) (upholding application of state's primary requirement to minor party and holding that "the State's interest in enhancing the democratic character of the election process overrides whatever interest the Party has in designing its own rules for nominating candidates"). Lightfoot gave broad power to states in determining the mechanism of their nomination process, even suggesting that states could forbid parties from conducting their selection process through primaries. See id. at 873 n.2 ("Our holding should not be read to imply that a state could not demonstrate a compelling interest in requiring political parties to nominate candidates via convention. A state might conclude, for instance, that nominating conventions produce more qualified candidates than do primaries and as a consequence produce better government."); see also id. at 873 ("Turning the entire electoral apparatus over to political parties would pose as great a threat to the integrity of our system of government as would the state's unprincipled meddling in the political process."). But see Republican Party of Ark. v. Faulkner County, 49 F3d 1289 (8th Cir. 1995) (striking down law that both required primary elections and required that parties pay for them); Ferency v. Austin, 493 F. Supp. 683, 693-94 (W.D. Mich. 1980) (allowing Democratic Party to opt out of mandatory Michigan presidential primary and nominate delegates through caucus). For state court decisions upholding laws mandating primary elections, see Adam Winkler, Voters' Rights and Parties' Wrongs: Early Political Regulation in the State Courts, 1886-1915, 100 COLUM. L. REv. 873, 876-91 (2000). Elsewhere I have questioned whether the Supreme Court's assumption is correct. See Persily, supra note 24, at 815 n.231. If a party so wishes to nominate its candidates by a caucus, by some other more deliberative method, or even through decisions made by party leaders in smoky back rooms, the values of competition and representation furthered by a party's definition of the boundaries of its association are equally present in the mode it chooses to select its nominees. Protecting party autonomy over its nomination method does not hinder the state's ability to bring as many people into the nominating process as possible, however. A state can always extract parties from the formal process of nomination by eliminating partisan primaries altogether and adopting a nonpartisan primary or a general election plus a run-off. See id. at 811-15. (describing nonpartisan primary as a safe harbor for the state). Such systems allow for full participation by the electorate throughout the candidate selection process without the state hijacking the party's process of nomination. The existence of alternative means to guarantee full voter participation throughout the electoral process eliminates any necessity for the state to mandate a particular form of nomination process. Even if parties have a constitutional right to object to a primary, however, once parties choose or acquiesce to a state-imposed primary, constitutional restrictions on the parties power over their nomination processes kick in. 105. See Cal. Democratic Party, 530 U.S. at 586 (upholding party's right to exclude nonmembers from its primary); Tashjian v. Republican Party of Conn., 479 U.S. 208, 210-11 (1986) (recognizing right of party to include Independents in its primary).

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Describing both classes of cases merely as "party autonomy cases" ignores critical distinctions between the role of the party in each setting. In a dispute over its right to limit the primary electorate, the party attempts to define itself, to specify who can join, and to develop criteria for what the party is. Once the association is defined, however, a different set of justifications must be marshaled to accord party leaders the absolute power to determine the rules of election for organizational representatives. The central question in the ballot access cases is whether the party organization has a constitutional right to protect the party-in-the-electorate (as the organization has defined it) from itself. Does the party organization, for example, have the right to decide that David Duke, despite his Republican membership, is disqualified from appearing on the Republican ballot even if a majority of Republican voters would prefer to have him there? More generally, once a party sets its qualifications to vote in the party primary, can it then limit the pool of candidates only to "authentic" party members? And if a party organization has the right to limit which members can appear on the ballot, does it need to advise the membership of these additional candidate qualifications before the primary or can it just wait to see who wants to run and then later decide the authenticity of their party membership? These are very difficult questions. The easy way out (which is not necessarily wrong) would be to establish a constitutional principle that a party organization has an absolute right to regulate its membership, but no right to limit which members can compete for the party's nomination. In other words, the party organization would have the right to define the party-in-the-electorate, but it must leave to the party-in-the-electorate the power to choose which member should be the party's standard bearer in the general election. Under such a regime, the party can prevent unsavory characters like David Duke from becoming candidates, but it must do so by excluding them from the party, not by erecting barriers to candidacy. Moreover, this exclusion from the party-in-theelectorate must occur before the party knows the member will be running for office. Otherwise, the party could merely develop ad hoc membership qualifications once it sees the possible primary candidate pool. (For example, once David Duke announces his candidacy, the party organization could then develop a "no former Klan leader" rule for party membership.) Under such a regime, the party is not forced to associate with a candidate who does not share its beliefs; it simply must apply the same test to party candidates that it applies to party members. Conversely, the candidate does not have the right to associate with an "unwilling partner," but once becoming a partner in the organization he will have the right to enjoy all the privileges of membership. But why should a party not be able to loosen qualifications for membership while tightening them for primary candidates? Given our particularly cavalier, modem conception of party membership in which a voter becomes a member merely by checking off a box on a voter registration card, would it not be preferable to accord the party organization the power to limit the candidate pool rather than to require from each of its members an adherence to certain

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principles? Even were the most Orwellian notion of ideological litmus tests for party membership a desirable alternative, how could a party organization enforce a party member's later failure of such tests? (For example, if David Duke becomes a Republican Party member and then becomes an adherent to Nazi ideology, what would he need to do or say to lose party membership?) How else but by excluding a member from becoming a candidate will a party both realize that a member has gone beyond the bounds of the party's permissible ideological range and be able to enforce some sanction against the party member? In the end, perhaps the way to resolve both the party's need to define itself and the individual's right to run for office 10 6 is to force the party organization to develop its criteria for candidacy well before the primary campaign begins. If the party organization adds qualifications to candidacy different than those required for membership, it must do so behind a veil of ignorance as to which party members may be running for nomination. Once the rules are specified, then a prospective candidate can decide whether he is qualified to run in the primary or must exit the party in order to run for office. This idea of "prior notice" is firmly entrenched in the due process case law 10 7 and underlies our constitutional prohibitions against ex post facto laws and bills of attainder.'0 8 A candidate and voters simply need to know the rules of the game before the game begins.10 9 Granting to party leaders or the state the power to erect ad hoc primary ballot access rules at any point during the campaign effectively translates into an absolute right to exclude candidates based on the whim of party leaders. Indeed, one of the most offensive aspects of New York's scheme that excluded John McCain from the ballot was that the regulations were chosen about five months before the primary election (when the party leaders knew the candidate pool) and expired the day after the primary election (so new rules would need to be enacted for the next election). Similarly, in David Duke's case, he discovered that the Republican Party, which had never before questioned the authenticity of his membership, became an "unwilling partner" once he decided to run for office. Allowing parties to regulate their membership and to specify, in advance, criteria for candidacy strikes a balance between the party's First Amendment

106. Meaning the right of voters to vote for the candidate of their choice. 107. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 255 (1970) (declaring that state cannot "terminate public assistance payments ... without affording ... the opportunity for an evidentiary hearing prior to termination"); Twining v. New Jersey, 211 U.S. 78, 110-11 (1908) ("Due process requires ... that there shall be notice and opportunity for hearing ... . [T]hese two fundamental conditions ... seem to be universally prescribed in all systems of law established by civilized countries."). 108. See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 10-1 to 10-6 (2d ed. 1988) (describing the importance of governmental reliability and regularity embodied in the Ex Post Facto, Bill of Attainder, and Due Process Clauses). 109. Cf Bush v. Gore, 121 S. Ct. 525, 538-39 (2000) (Rehnquist, C.J., concurring) (finding that the Florida Supreme Court's departure from previously prescribed legislative rules for election recounts violated U.S. CONST. art. II, 1, cl. 2).

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right to define itself and the candidate's and voters' First Amendment rights of association and expression through the primary ballot. By itself, this principle might achieve very little. A party could still erect insurmountable barriers to ballot access, albeit giving candidates appropriate notice. As the next principle emphasizes, the constitutionality of a primary ballot access regulation not only depends on rules for party membership and the timing of the regulation's enactment, but also on the place of the primary in the entire electoral scheme.
C. THE CONSTITUTIONALITY OF A PRIMARY BALLOT ACCESS REGULATION DEPENDS ON
THE IMPORTANCE OF THE PRIMARY AS A BARRIER TO ACCESS

TO THE GENERAL ELECTION BALLOT

As with most election laws, the constitutionality of a given primary ballot access restriction depends on context.1 1 Often lost in the Court's balancing of rights and interests,"' however, is any description of the critical features of a given electoral scheme that may weigh in favor of or against constitutionality. For primary ballot access laws, one critical feature that may tip the constitutional scales is the place of the primary in the overall electoral scheme. Specifically, the function of the primary as an exclusive means of access to the general election ballot may often determine whether the primary ballot access law infringes the rights of a candidate or her supporters. Albert Hirschman's concepts of "exit" and "voice" are useful in understanding this argument. 112 Hischman explained that individuals are able to influence 3 organizations either by working within them (voice) or by opting out (exit).'" In theory, a candidate also has two options when it comes to achieving political influence: (1) exercising voice in the party by attempting to mobilize support from within the party and capture the nomination, or (2) opting out of the party and running as an independent in the general election. The rules of access to both parts of the electoral system are relevant to the constitutionality of either.

110. See Storer v. Brown, 415 U.S. 724, 730 (1974) ("[N]o litmus-paper test ... separat[es] those restrictions that are valid from those that are invidious ... . The rule is not self-executing and is no substitute for the hard judgments that must be made."); see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997); Anderson v. Celebrezze, 460 U.S. 780, 789-90 (1983); Dunn v. Blumstein, 405 U.S. 330, 335 (1972); Williams v. Rhodes, 393 U.S. 23, 30 (1968). Rather than applying rigid tiers of scrutiny, the Court will often apply a balancing test that "consider[s] the character and magnitude of the asserted injury to the [individual's] rights," "the precise interests put forward by the State as justifications for the burden imposed by its rule," and then "the extent to which those interests make it necessary to burden the plaintiff's rights." Tashjian, 479 U.S. at 213-14 (quoting Anderson, 460 U.S. at 789). 111. See, e.g., Timmons, 520 U.S. at 358 ("Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." (internal quotation marks and citations omitted)). 112. See ALBERT 0. HIRSCHMAN, Exrr, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 4-5 (1970); Persily & Cain, supra note 26, at 796-98 (applying Hirschman's concepts to party system). 113. See HIRSCHMAN, supra note 112, at 4-5.

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Ballot access rules governing the general election have a hydraulic relationship with ballot access rules governing the primary. The higher the barriers are for entry onto the primary ballot, the lower they must be for entry into the general election. Conceived in this way, the Constitution, either in the First Amendment or the Equal Protection Clause, does not imply a right to vote in a primary election per se. Although the right to cast a ballot for one's candidate of choice may necessarily flow from the right to vote, each voter may not have the right to the same choice at each stage of the electoral process. As discussed earlier, were such the case, Republican candidates would have a constitutional right to run in the Democratic Party's primary. To find unconstitutional infringements on the right to vote and implicitly on the right to run for office, courts must take a holistic approach to the interaction of the primary and general election ballots. The contraction and expansion of rights in one sphere at the expense or benefit of another seems intuitively obvious, but so far remains untied to the reigning constitutional doctrine. 14 To justify this principle as a guide to judicial decisionmaking, one must develop a more complete theory of the rights at issue in a primary ballot access case. As emphasized earlier, the right to appear on a primary ballot implicates a bundle of expressive and instrumental values: expressive participation, representation, and competition. Laws regulating primary ballot access can inhibit participation by preventing the expression of a voter's preference and obstructing a unique form of ballot-related association that occurs between the candidate and his supporters in the primary voting booth. At the same time, such restrictions implicate the instrumental considerations embodied in the right to vote: They prevent candidates and the groups of voters that support them from attaining representation and the power that goes along with it. In a very real sense, primary ballot access restrictions, like general election restrictions, can structure the government and decide the character of the representation. For the First Amendment values implicated by primary ballot access restrictions-what the courts call "voter expression"' 15 and "voter-candidate association," but what I have termed "expressive participation"-the constitutional injury depends on whether the primary remains the only real opportunity to cast a ballot for a candidate. If one considers the vote devoid of its instrumental content, the particular location of the expression that takes place (that is, in the

114. As noted earlier, some courts have mentioned the existence of the independent candidate route as bearing on the severity of the rights deprivation caused by a primary ballot access rule. See, e.g., Duke v. Massey, 87 F.3d 1226, 1234 (11th Cir. 1996); Langone v. Sec'y of the Commonwealth, 446 N.E.2d 43, 50 (Mass. 1983); see also LaRouche v. Fowler, 152 F. 3d 974, 993-94 (D.C. Cir. 1998) (applying same logic to a decision of a party convention to reject a certain candidate's delegates). 115. One may also conclude that candidate expression is implicated by a ballot access restriction. Although the voter expresses a preference for the candidate, preventing the appearance of a candidate's name prevents that candidate from broadcasting her name on the public ballot. Ballots must be limited by necessity to a manageable set of names, but if one considers the ballot some kind of public forum, then the decision to allow some names to appear but not others must be justified by compelling state interests.

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primary election or the general election) ought not make much of a difference. If all candidates have the right to appear on the general election ballot, for example, what right of expression does a restrictive primary ballot access rule 16 infringe? The voters' right to two opportunities to express their preference? The party members' right to associate with the candidate in the primary, in addition to the general election? Perhaps one may argue that the state's creation of the primary sets the primary apart as an independent forum in which a qualitatively different kind of speech, participation, and association occurs (that is, between party members and their favored candidate in a context that is uniquely partisan).' 17 But in the abstract, it is difficult to see how a restrictive primary ballot access law operates, by itself, to prevent the voter-candidate association and the expression of a candidate preference. Indeed, in terms of the potential for expressive participation, a lower hurdle to general election ballot access allows for expression and association by the greatest number of possible supporters-party members and nonmembers alike. If the primary remains the sole opportunity for such expressive participation and association, however, then the constitutional injury caused by a primary ballot access law equals that caused by a more restrictive ballot regime more generally. In other words, a combination of "restrictive primary ballot access law" plus "primary as sole avenue for general election ballot access" should lead to the greatest constitutional scrutiny for the primary ballot access law. When it is the only opportunity for polling-booth expressive participation and association, the primary election becomes the climactic First Amendment moment in the electoral process. The state's privileging of the primary, therefore, moves constitutional scrutiny forward in the electoral process: What once may have been an insignificant opportunity for First Amendment activity becomes the critical stage for voter expression and codification of an association. An analysis that concentrates on the instrumental function of the primary ballot as regulating electoral competition and providing for legislative representation leads to the same result. Severed from its expressive and associative components, the "right" to appear on the primary ballot, to the degree it exists at all, derives from the importance of the primary as an avenue toward gaining elective office. If the route to the general election ballot (and consequently elective office) passes only through the party primary, then the value of a voter's participation in the electoral process depends on a primary ballot with sufficient choices so that it provides an opportunity for the voter to cast a meaningful and effective vote. The meaning of the vote, in this context, derives from its power to determine winners and losers of elections, as opposed to allowing for voting booth expression and association, which are functions wholly unrelated to the

116. Only under the best of circumstances will the voter get the opportunity to express herself twice: when the preferred candidate actually wins the primary election. 117. I should note, however, that most states allow some or all nonparty members to vote in party primaries. See Persily, supra note 24, at 784-86.

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probability that the preferred candidate may actually win. Therefore, when the primary provides the only meaningful opportunity for voters to "make a difference" in electing a candidate of their choice, primary ballot access restrictions can act to "disenfranchise" voters-that is, to prevent them from exercising the small share of political power contained in a vote for their preferred candidate. Because the instrumental value of the right to vote depends on the ability of the vote to effect change, the more dispositive the primary is in effecting such change, the greater the danger that a restrictive primary ballot access law violates the constitutional right to vote. When the primary represents the only means of general election ballot access, the need for heightened constitutional scrutiny for restrictive primary ballot access rules-based on either the expressive participatory or instrumental components of the right to vote-appears obvious. Conversely, if no barriers to access exist for the general election ballot, then the constitutional injury that a primary ballot access law inflicts appears quite slight. But these extreme cases do not occur. States almost always provide some means (usually a petition signature requirement) for circumventing the primary to gain a place on the general election ballot as an independent candidate. 1 8 The constitutional question, as I have presented it here, asks whether the barrier to general election ballot access is sufficiently high to demand additional scrutiny of the primary ballot. Some kind of balancing (or as I might call it, "calibration") is inevitable. The greater the general election privileges conferred by the state on the party's nominee, the more protective of candidate and voter rights should we read the Constitution as being in the realm of primary ballot access. The most relevant state-conferred privilege on the party's nominee is automatic general election ballot access, but others, such as state funding for party nominees in the general election or preferred ballot position, would also translate into greater constitutional scrutiny of primary ballot access laws. As the state and party together create a two-stage election system that favors party nominees, they open up the first step in that system-the nomination process-to greater constitutional scrutiny.
D. PRESIDENTIAL PRIMARIES ARE DIFFERENT

Hirschman's concepts of exit and voice seem straightforward when it comes to nonpresidential elections because the candidate is able to take two routes toward the same goal: a place on the general election ballot. In presidential elections, however, the hydraulics of general election and primary access rules become more complicated because the primary season involves over fifty different elections or caucuses. John McCain, for example, could not opt out of the New York Republican primary in order to run as an independent just on New York's presidential general election ballot. The only chance for him to run
118. See generally ROSENKRANZ, supra note 9 (describing states' ballot access laws for presidential races).

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in New York while attempting to exercise his and his supporters' "voice," let alone to win the nomination, was to appear on the Republican primary ballot. Both the national, federalized character of the election and the unique institutional position of a primary that selects delegates to a nominating convention (as opposed to candidates for office) require that courts use a different mode of analysis for presidential primary ballot restrictions. As Molinari and Rockefeller suggest, a state can act through its primary ballot access laws to manipulate a candidate's national campaign. The costs of ballot access in one state can prevent the launching of an effective campaign in many others. To grapple with the complex question of the constitutional boundaries of a state party's right to hold the national convention "hostage," one must decide how to apportion discretion among four actors: the national party, the state party, the state, and the courts (which serve to vindicate the rights of a candidate and voters). Once again, the discretion each actor "deserves" under the Constitution will depend, in part, on how much discretion each other actor can exercise. The object of First Amendment analysis in this context is to strike a balance between (1) the party's ability to craft electoral rules to fulfill "party interests" and (2) the individual's right to run for the presidency and the right of supporters to have an opportunity to express their support for the candidate of their choice. In a presidential nomination, the national party has the last word. Courts have rightly recognized the national party's plenary authority to decide the qualifications of delegates and whether to seat them.' 1 9 Such qualifications can take many forms, one of which can be the means used to elect a delegate. Thus, if the national party specifies, for example, that delegates must be elected by congressional district, it could choose to reject the delegate slate from a state that elects its delegates at-large. 120 Moreover, if the national party wishes to grant complete discretion to local party officials to name the delegates, it could do that as well. Let us not forget that many different types of people can be (and are) delegates to a national party convention, some of whom are not elected in the presidential primary or caucuses. 21 Representation to the convention from each state is often not based solely on population, but on additional factors such as whether the state went for the party's nominee in the last general election or whether the party controls the governorship.

119. See Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (i981); Cousins v. Wigoda, 419 U.S. 477 (1975). 120. Cf DemocraticParty of the United States, 450 U.S. at 109, 126 (upholding Democratic Party's rejection of a slate of delegates from Wisconsin because that state allowed Republicans to vote in the Democratic primary). 121. For example, the Democratic Party uses "superdelegates," which are elected officials such as congressmen and governors who exercise voting power equal to that of a delegate elected from a state. See RHODES COOK, RACE FOR THE PRESIDENCY: WINNING THE 2000 NOMINATION, at viii (2000) ("Democrats ... have a bloc of nearly 800 unpledged delegates (known as 'superdelegates') who are reserved seats by virtue of their ... elected positions."). See generally NELSON POLSBY, CONSEQUENCES OF PARTY REFORM (1983) (describing the array of changes for the Democratic convention arising from the 1972 McGovern-Fraser reforms).

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Saying that the national convention has the last word does not mean it ought to, of course. But while I have been critical of the application of the freedom of expressive association to party activities in other spheres, 2 2 according that right to party conventions makes perfect sense. The party convention represents the purest expression of the "party as organization": It creates the party's platform, it brings together partisans from all levels of government, speeches made at the convention serve to define the party in the national media, and of course, the convention nominates the party's candidates for Vice-President and President. What a party means and stands for are determined at a convention. The right to determine representation at the convention, just like the right to determine who can lead a Boy Scout troop 123 or march in a Saint Patrick's Day parade,' 24 will determine the party's message. In many respects, the choice of delegates is even more central to a party's freedom of association than are the membership decisions of these other organizations. Delegates to the party convention are there specifically to express themselves. They cast votes for candidates and platform proposals. For the week that they convene, they engage in pure acts of speech and association. State or federal laws that alter the delegate selection process, mandated by the national 2party, infringe on the party's constitutional 5 1 expression. and association right of When it comes to a presidential election the rights of a state party derive from its place in the national party's scheme. This does not mean that the state parties have no rights; it means that the national party grants them their rights in the process of delegate selection to a convention that determines the party's presidential nominee. Of course, those rights could be absolute (for example, "select delegates any damn way you please"), but they also could be strictly limited, even extending to the possibility of not allowing any delegate representation from one or more states. Given that national parties have vested considerable discretion and freedom in state parties, however, what happens when the exercise of that discretion conflicts with state law? Once again, the party ultimately has the last word, because the national party can decide to fulfill the wishes of the local party with regard to the seating of delegates. In other words, if a state party organization wants to select its delegates by committee (as is allowed by the national rules)

122. See Persily, supra note 24, at 763-66 (urging functional rather than freedom-of-association analysis for adjudicating party fights). 123. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (upholding First Amendment right of Boy Scouts to exclude gay scoutmaster). 124. Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (upholding First Amendment right of Saint Patrick's Day parade organizers to exclude organization of gay marchers from parade). 125. See LaRouche v. Fowler, 152 E3d 974, 995 (D.C. Cir. 1998) ("[I]t is the purpose of a party convention to decide on [a particular political] viewpoint, in part deciding which candidate will bear its standard: the liberal or the conservative, the free trader or the protectionist, the internationalist or the isolationist."); cf Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214 (1989) (striking down state law banning party endorsements of candidates).

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but the state law requires a presidential primary, the state party can appeal to the national organization to seat its preferred slate of delegates. 12 6 Or to take another example, if the state party only wants candidates who can receive a certain level of support (for example, signatures amounting to five percent of the party members in a district) to have a ballot position, the party has a political process (which does not involve appealing to the courts) to get around a lower threshold imposed by state law. The state party can appeal to the national party instead of the courts to enforce its wishes at the convention. Because the party organization has the final say, no constitutional principle of party autonomy can justify the organization's use of state law in such a way as to squelch the expressive participation of a candidate's supporters. The presidential primary election, as described above, can be the only opportunity for certain candidates to run for election from a given state, and it will likely be the only chance for a candidate's supporters to "voice" their support. Admittedly, by granting power to the national party to determine qualifications of convention delegates and overrule the voters' decisions, the voters' right of expressive participation through the state's presidential primary may amount to naught in terms of affecting the election of the given candidate. While depleted of its instrumental significance, however, the right to vote for one's candidate of choice in the primary retains its importance as a pure act of expression. The national party will decide whether to count your primary vote, but it will be forced by the First Amendment to hear it. Of course, the expression of support in the primary may be so loud that the convention will be forced to register the expression by admitting a proportionate delegation. As the plaintiffs in Molinari claimed, the expression of a preference (regardless of its impact on winning delegates) can have instrumental significance in affecting the election in other states. 12 7 To take a hypothetical example, it would have made no difference if the New Hampshire Republican Party decided to send only Bush delegates to the national convention after the primary; McCain still would have catapulted to principal challenger status based on his popular vote victory. Thus, the candidate's supporters' expression affects public opinion in the way other types of political speech do: by endorsing a candidate and, in effect, urging others (where it might matter) to follow course. The U.S. Court of Appeals for the D.C. Circuit came close to adopting this view in a case involving Lyndon LaRouche's 1996 presidential quest-a case

126. See Cousins v. Wigoda, 419 U.S. 477, 483 (1975) (upholding power of national party convention to reject delegates elected through procedures violating national party rules). 127. Indeed, nonbinding preference primaries or "beauty contests," used by many states, allow a presidential candidate to demonstrate voter support while leaving the ultimate decision over how delegates will vote at the convention to party leaders. See Emmett H. Buell, Jr., The Changing Face of the New Hampshire Primary, in IN PURSUIT OF ThE WHITE HOUSE 2000: How WE CHOOSE OUR PRESIDENTIAL NOMINEES 87, 93 (William G. Mayer ed., 2000).

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that exhibited what may be called the Democratic version of the David Duke 28 the court upheld the right problem. In LaRouche v. Fowler,1 of the Democratic National Committee (DNC) to exclude LaRouche's duly elected delegates from the convention. The court found that LaRouche's right to representation at the national convention was overborne by the party's First Amendment right to set candidate and delegate qualifications. The rules for the 1996 Democratic Convention specified the qualifications for a Democratic presidential candidate: [A] Democratic candidate for President must be registered to vote, must be a declared Democrat, and must, as determined by the Chairman of the Democratic National Committee, have established a bona fide record of public service, accomplishment, public writings and/or public statements affirmatively demonstrating that he or she has the interests, welfare and success of the Democratic Party of the United States at heart and will participate in the 129 Convention in good faith. After LaRouche qualified for the ballot in several states but before any primary election had been held, the Chairman of the DNC determined that he was "not a bona fide Democrat" according to the rule above. He based this determination on LaRouche's "expressed political beliefs, including beliefs which are explicitly racist and anti-Semitic, and otherwise utterly contrary to the fundamental
beliefs ... of the Democratic Party and ...on his past activities including

exploitation of and defrauding contributors and voters." 130 The Chairman thereby instructed the state parties that LaRouche should not be considered a qualified presidential candidate, that they should not allocate delegate positions to LaRouche, that they should disregard any votes cast for him, and that he would 13 1 not be entitled to have his name placed in nomination at the convention. After LaRouche earned his place on the ballot and received sufficient votes to earn delegates in Virginia and Louisiana, the respective state party chairpersons followed the DNC Chairman's orders and ruled those delegates would not be part of the states' delegations to the national convention. Following the logic urged here, the court found in favor of the Democratic Party. Recognizing that the case presented a situation in which the "First Amendment weighs on both sides of the balance,"' 132 but in which the "associa' 33 the court tional rights of the Democratic National Party are at their zenith,"' upheld the national party's First Amendment right "not only to defin[e] itself,

128. 152 F.3d 974 (1998). 129. Id. at 976 (quoting Rule 11 (K) of the 1996 Democratic National Convention). 130. Id. (quoting Letter from DNC Chairman Donald L. Fowler to Chairpersons of All State Democratic Party Organizations (Jan. 5, 1996)). 131. Id. 132. Id. at 994. 133. Id. at 996.

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34 The legitimacy but also to determin[e] how to define itself." 1 of the election of the LaRouche delegates in each state was irrelevant to the question of delegate seating at the convention. The state parties granted LaRouche the right to appear on the primary ballot, and his supporters took advantage of the opportunity to express themselves and associate with the candidate of their choice. When it came to the serious business of the convention, however, the party itself, acting through its rules and Chairman, found LaRouche's delegates to be unqualified. 135 Moreover, the party specified LaRouche's disqualification before the primaries began, thereby placing him on notice that his supporters would have the right to express their support on the primary ballot, but that such a vote would be drained of much of its instrumental significance at the convention. The balance struck by the court (and urged here) protected the voter's right of expression, the candidate's right to a place on the ballot, and the national party's right to define itself by enforcing the rules of its convention.
E. THE STATE AND THE PARTY HAVE DIFFERENT CONSTITUTIONALLY PERMISSIBLE
INTERESTS IN A PRIMARY BALLOT ACCESS LAW

As the preceding discussion and the description of the cases involving David Duke should illustrate, the interests of the state and rights of a political party become blurred in the context of a primary ballot access challenge. The line between state interests and party rights is not clearly drawn when the state and party are in cahoots as in most primary ballot access cases. Some advocates of strong party rights might analogize the parties to General Motors: what's good for them is good for America (as well as a particular state). Indeed, the Supreme Court's frequent emphasis on the importance of a strong two-party party system1 36 encourages lower courts to fall into the trap of categorizing party interests as state interests.' 37 Conversely, party opponents may argue that parties' state actor status deprives them of their right to any special claims against candidates save for those which a politically neutral state actor could justify. The case law provides few consistent answers to resolve this quandary. The jurisprudence in this area is hampered by an unwillingness or lack of opportunity for judges to delineate which interests are party interests and which

134. Id. at 997; see also id. at 996 ("The party's ability to define who is a 'bona fide Democrat' is nothing less than the Party's ability to define itself."). 135. Id. at 990. 136. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997) ("The Constitution permits the Minnesota Legislature to decide that political stability is served through a healthy two-party system."); Rutan v. Republican Party of Ill., 497 U.S. 62, 107 (1990) (Scalia, J., dissenting) ("The stabilizing effects of such a [two-party] system are obvious."); Davis v. Bandemer, 478 U.S. 109, 144-45 (1986) (O'Connor, J., concurring) ("There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government."); Anderson v. Celebrezze, 460 U.S. 780, 803 (1983) (citing Storer v. Brown, 415 U.S. 724, 735-36 (1974)). 137. See supra note 60 and accompanying text (describing cases upholding state's interest in preserving party rights).

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interests are state interests.1 38 What follows is only the beginning of a theory of legitimate state and party interests in primary ballot access laws. State interests in a primary ballot access law do not differ from those relevant for a general election. As the Court has described them, those interests include avoiding frivolous candidacies, maintaining the integrity and manageability of the ballot, and avoiding electoral confusion. 139 Such interests flow from the state's need to avoid a laundry-list ballot that makes it difficult for voters to find the name of their preferred candidate and that risks failing to produce a clear winner because of the multitude of names that appear. The state's constitutionally permissible role in regulating the primary ballot is to protect it as a means of democratic choice, not to produce any particular outcome. Any ideological regime the state sponsors through its ballot access laws undermines the basic values of the First Amendment. The parties, on the other hand, have a radically different set of interests that require a somewhat different mode of constitutional analysis. The primary is for them the procedure used to select their "standard bearer"' 140 and to nominate a competitive candidate for the general election. Those who control access to the primary ballot have the power to skew the party's choice in a particular direction. A variety of interests (not all constitutionally permissible ones, perhaps) underlie these many strategies parties might adopt to better represent the party and to make it more competitive. A party's interests in regulating the primary ballot are explicitly factional and anti-state. Assuming alternative routes of access to the general election ballot exist, the primary is not a public-spirited enterprise and the primary ballot is not a public forum. The party primary exists to further the interests of a subset of the electorate-not the electorate itself. A party's interests in the primary, by definition, are ones not shared with the state or the mass electorate. Defining the range of permissible party interests and setting rules on how the Constitution should treat them represent very difficult tasks, however. As should be clear from Molinari, describing the party's interests first requires an identification of who the party is. The different components of the party often have different interests in the primary election. The party organization, as in New York, will often prefer a primary ballot biased toward the nomination of candidates beholden to the party organization. The party-in-theelectorate or its different components may prefer a broader range of candidates that speak to the diverse ideological positions of the mass party membership. Party stalwarts may view the candidate's position on the abortion issue as a litmus test, for example, whereas dissenting pro-choice or pro-life party mem138. The Court in Fowler at least recognized that while a state cannot discriminate based on viewpoint, a political party, by definition and necessity, must do so in its nominating decisions. Fowler, 152 F.3d at 995. 139. See Timmons, 520 U.S. at 364; Anderson, 460 U.S. at 788-89; Jenness v. Fortson, 403 U.S. 431, 442 (1971). 140. Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 224 (1989).

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bers would like to see a diverse candidate pool that allows for the possibility that the candidate most favored by the party membership may adhere to a different position than that advocated by the party establishment. Of course, the interests of the different components of the party do not always diverge. Both the party-in-the-electorate and the party organization presumably want to nominate a candidate who will win the general election, for example. As difficult as it may be to identify the party's interest, the party organization, rather than the party-in-the-electorate, inevitably represents "the party" in court when the constitutionality of its ballot access rules is challenged. Once in litigation, the party organization argues that a ballot access law serves its interests in limiting the primary field to candidates that are well supported by the party membership or that the law helps further other essential party functions. The candidate and her supporters, who as party members feel equally qualified to define the party's interests, rebut the organization's claimed interests by challenging their accuracy and legitimacy and questioning whether the laws at issue are tailored toward serving the interests of the party or just those of the The party organization's argument that the candidate is party organization. not supported by the party membership runs into a logical difficulty. To be sure, the party (like the state) can require a showing of a requisite "modicum of support"' 14 2 to avoid a confusing primary ballot with an unmanageable list of names. But the primary election, not the ballot access requirement, serves as the principal means of estimating the candidate's support: A candidate who is not well-supported will lose the primary. The party's interest in preventing unsupported candidates from running on the ballot, therefore, must be linked to some other value furthered by limiting the candidate field. Merely arguing that the candidate has insufficient support to win the primary cannot possibly be enough. To defend a restrictive primary ballot access law a party organization could articulate one of several party functions that winnowing the candidate field may perform. These functions fall under the general rubric of ensuring that the eventual nominee is representative of the party and competitive as a general election candidate. As a baseline principle of representativeness, the party clearly has a constitutionally cognizable interest in limiting the candidate pool to party members (for example, only Republicans can run in the Republican primary). The potential nomination of a candidate unwilling even to make the minimal commitment of party membership jeopardizes the primary's critical function of choosing an adequate "standard bearer" for the party. 143 But beyond

141. See, e.g., Duke v. Massey, 87 F.3d 1226, 1235 (11th Cir. 1996) (rejecting Duke's argument that upholding his exclusion by the party committee actually undermined party interests because the party was then unable to express its support for him). 142. See Munro v. Socialist Workers Party, 479 U.S. 189, 193-94 (1986); Jenness, 403 U.S. at 442. 143. Even this minimal requirement, however, demonstrates the disjuncture between state and party interests as the discussion of the patronage cases suggests. See supra note 54 and accompanying text. This seemingly easy case of excluding nonpartisans as candidates from another party's ballot is actually more difficult than it first appears. If we agree that the primary election, rather than the ballot access

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party membership and a demonstration that the candidate is not frivolous is there any other legitimate requirement for ballot access that a party can articulate? Just because the primary election itself, rather than the ballot access law, exists as the chief means of measuring candidate support does not mean that a restrictive primary ballot access law does not also help to produce a nominee representative of the party-in-the-electorate. For example, it seems perfectly reasonable-and well within the party's protected sphere of autonomy under the First Amendment-for a party to desire to limit its primary in such a way so as to produce a nominee favored by a majority, rather than a plurality, of the party-in-the-electorate. A fractured primary could produce a candidate representative of only a small fraction of the party and with the lowest chance of winning the general election. Thus, perhaps a party organization could employ ballot access rules that lead not just to a manageable ballot, but to ones with a high likelihood of producing a nominee favored by the majority of the party-inthe-electorate. How far a party should be able to take this justification will vary from case to case, but the party has a legitimate interest in limiting the field to candidates with a reasonable opportunity of winning the primary and excluding candidates whose presence on the ballot will merely distort the collectively expressed preference of the party-in-the-electorate. Indeed, using primary ballot access laws to help produce a majority winner serves interests in both representation and competitiveness. A candidate nominated by a small party faction not only misrepresents the party, but the candidate also likely has less appeal to the broader electorate. Fringe candidacies, such as David Duke's, could be limited based on such ideologically neutral requirements, whereas laws that actually further such interests would not prevent challenges by popular candidates, like John McCain, who have a real chance of capturing the nomination. A party's legitimate interests in a ballot access restriction are not limited to representation and competitiveness, of course. Over time one would hope that courts could develop a jurisprudence that isolates permissible and impermissible party interests. Trapped by a rhetoric of party rights and state interests, the courts have yet to develop such a jurisprudence. As more David Dukes and John McCains challenge their parties' establishments, however, the courts may begin to do so either by accident or by design.
CONCLUSION

Primary ballot access cases raise some of the most complicated issues
requirement, is the principal means of measuring candidate support, why should the Democrats be able to exclude from their primary a Republican candidate that may be most popular with the Democratic party-in-the-electorate? The answer is that the party organization, at some level, must have a constitutional right to exert a paternalistic influence over the party-in-the-electorate. The primary is not merely the means used for expression of the party's candidate preference; it is also an endeavor that helps strengthen the party association over time. Restricting the primary ballot to party members allows the party to maintain a consistent, representative message and places a premium on party membership.

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surrounding the legal regulation of the political process. Drawing bright constitutional lines to demarcate the rights and legitimate interests of each player in the litigation is an impossible task. Candidates, voters, parties, and the state can easily trade sides in the litigation-with each qualified to defend or attack a barrier to primary ballot access. Each of the actors has rights against all others, as well as other constitutionally cognizable interests to which courts often pay great attention. Given these peculiarities and uncertainties inherent in primary ballot access cases, the constitutionality of any given regulation cannot be assessed in the abstract. The position of the primary in the overall electoral scheme, the type of office for which the primary is nominating candidates, and the nature of the state or party interests used to justify the law will all bear on whether a given set of rules violates voter or candidate rights. Because the current case law is hampered by uncomfortable analogies to general election ballot access cases or other party autonomy or freedom of association cases, much work remains to be done in constructing a coherent jurisprudence of primary ballot access. Although several of the ideas expressed in this Article must be tagged thought experiments given the treacherous directions toward which they might lead, I hope they provide a starting point for such a discussion.