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

Persily, Nathaniel A.

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 and to the presidential debates. 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 and to gain access to the federal funds awarded to the party. And before the set of general election candidates was finalized, Senator John Mc- Cain sued to gain access to the New York Republican presidential primary ballot. 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 characters—voters, candidates, political parties, and the state-and they seem to share a common judicial frustration with, and then acquiescence to, venturing forth into the "political thicket." 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. 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 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.


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November 14, 2011