Balancing the Ballots: Weighing the Freedom of Association with State Primary Election Regulations

I. Introduction

“Indeed, it is a central theme of our jurisprudence that the entire electorate . . . will benefit from robust competition in ideas and governmental policies that ‘is at the core of our electoral process and of the First Amendment freedoms.’”^[1]

Every year, hundreds of thousands of citizens partake in the election process,^[2] and primary elections play a critical role in the political process by narrowing down eligible candidates that voters can choose in a general election.^[3] However, states largely have discretion on how primary elections are run, impacting which voters can vote for a party’s nominee.^[4] As such, political parties have challenged various regulations on primary elections based upon First Amendment freedom of association concerns, as parties become concerned with which voters ultimately have a say in which party’s nominee advances to a general election.^[5]

In a critical case of primary election jurisprudence, California Democratic Party v. Jones, Justice Scalia, joined by Justice Thomas, found themselves on the opposite side from Justice Stevens in the Court’s opinion.^[6] Justice Scalia found the State’s asserted interest of increasing voter participation uncompelling, but Justice Stevens found the interest critical to democracy.^[7] Later, in the case of Clingman v. Beaver, Justice Thomas and Justice Stevens reached opposing conclusions by employing differing theories of democracy when evaluating the burdens on the political party’s freedom of association rights, which in turn determined the constitutionality of Oklahoma’s primary system.^[8] While Justice Thomas emphasized the need for efficiency in a two-party system, Justice Stevens emphasized the importance of encouraging voter deliberation and participation.^[9] Neither theory received a majority, muddying the theory of democracy needed to resolve such election challenges.^[10]

This Comment discusses how the Court should resolve future primary election regulation cases by using Justice Stevens’s theory of democracy, which prioritizes voter participation, to protect the foundation of our democracy. Part II discusses the implications of primary voting on a political party’s freedom of association by examining the legal foundation of such challenges. Part III discusses the history of litigation of primary election systems by reflecting on prior case law and the various theories of democracy employed by members of the Court. Part IV analyzes the differences between Justice Thomas and Justice Stevens’s theories of democracy by analyzing the evolution of each respective Justices’ theories over relevant case law. Part V discusses why Justice Stevens’s theory of democracy should prevail over Justice Thomas’s theory and rebuts potential criticisms. Lastly, Part VI concludes by summarizing the importance of employing Justice Stevens’s theory of democracy in light of current policy implications.

II. How Primaries Implicate Voter Association

Political parties allow like-minded individuals to organize and vote in a way that influences the outcomes of public policy and elections.^[11] Primary elections aim to select candidates who best represent the party’s views for the general election.^[12] For most of the nineteenth century, parties had no legal restrictions on how they operated.^[13] Thus, parties were commonly led by local elites who created their own nomination procedures for candidates.^[14] Such parties were left completely unregulated—there were no official ballots, candidates, or election processes.^[15] As one political scientist described, “[i]t was no more illegal to commit fraud in the party caucus or primary than it would be to do so in the election of officers of a drinking club.”^[16] Such abuses gave rise to public sentiment that the nomination procedures did not reasonably reflect the parties,^[17] leading to the adoption of the direct primary, where voters nominated the candidates for the political parties.^[18]

Adopting the direct primary reflected a progressive movement towards ensuring an honest government and strengthening democracy.^[19] Between the late nineteenth and early twentieth centuries, states began regulating the elections, nominating procedures, and issuing internal governance of the parties to prevent party elites from leveraging their influence over the electoral process.^[20] Today, all fifty states regulate and require political parties to utilize primary elections to nominate candidates for office.^[21]

All primary systems arguably infringe on the associational rights of those loyal to a political party because, at the very least, the party may not reject registered voters even if such voters are not loyal to the party.^[22] The First Amendment guarantees free speech, and therefore, the First Amendment protects the freedom of association because individuals and organizations have a right to associate with those who advance their ideas and beliefs.^[23] As such, political parties can define their membership through registered voters and nominate candidates to their political party.^[24] Primary systems include blanket, open, closed, and semi-closed primaries.^[25] While there are various ways to categorize primary systems, they can be generally divided between nonpartisan, partisan, and blanket elections.^[26]

Partisan systems include a closed primary system, a semi-closed primary system, and an open primary system.^[27] In a closed primary system, only party members who are otherwise eligible to vote are permitted to vote in a party’s primary elections.^[28] However, in a semi-closed primary system, unaffiliated eligible voters, such as independents, are permitted to vote in a party’s primary election if the party chooses to permit their voting.^[29] In an open primary system, all persons eligible to vote may choose the party in which they will vote regardless of party affiliation, though voters are restricted to participating in one party’s primary.^[30]

In a blanket system, each voter may choose a candidate for each office regardless of the candidate’s party affiliation.^[31] Meaning, a voter can select a Democrat nominee for Governor and a Republican nominee for Attorney General.^[32] The candidate with the most votes per office in each party moves on to the general election.^[33]

In a nonpartisan primary system, all qualified candidates appear on the same ballot regardless of party affiliation, and all voters, also independent of party, are entitled to vote.^[34] For example, the top two or top four candidates that receive the most significant number of votes move onto the general election and thus, do not serve legally as the party’s nominees.^[35]

III. Relevant History of Freedom of Association Challenges Against Primary Election Systems

As regulations increased, political parties began challenging the elections as infringing on associational rights.^[36] Under the Constitution, states have “broad power to prescribe the ‘[t]imes, [p]laces and [m]anner of holding [e]lections for [s]enators and [r]epresentatives,’” which includes state control over state office elections.^[37] Political parties have challenged state regulations on primary elections for themselves or the voting base.^[38]

Freedom of association challenges to election laws are governed by a two-tiered framework established in Timmons v. Twin Cities Area New Party.^[39] In determining whether the challenged regulation violates associational rights, the Court weighs the burden the regulation imposes on those rights against the State’s interest.^[40] If the regulation imposes a heavy burden, the regulation is evaluated under strict scrutiny and must be narrowly tailored to advance a compelling state interest.^[41] However, if the law imposes a lesser burden on one’s associational rights, a state’s important regulatory interests may be enough to justify “reasonable, nondiscriminatory restrictions.”^[42] The Court must evaluate the magnitude of the alleged injury to the plaintiff, then evaluate the state interests asserted to justify the burden placed on the parties, and consider whether the asserted interests justify the burden on the plaintiff’s rights.^[43]

A. Tashjian v. Republican Party of Connecticut (1986)^[44]

In one of the earliest cases of primary election regulation challenges, Tashjian v. Republican Party of Connecticut, the Supreme Court held that a state could not prohibit a political party from inviting independent voters to participate in its primary.^[45] The Republican Party wished to implement a semi-closed primary system and allow unaffiliated voters to vote in the Republican primary for the United States House of Representatives and Senate.^[46] However, the Party was barred by a Connecticut statute mandating a closed primary election system.^[47]

Under the first prong of the test established by Twin Cities Area New Party, the Court found that the statute severely burdened the rights of the Party’s members because the Republican Party had a right to broaden participation in support for their activities under the right of association.^[48] Thus, the Court applied strict scrutiny.^[49]

The Court rejected the State’s asserted interest that a closed primary was necessary to avoid voter confusion.^[50] Additionally, the Court rejected the State’s interests of preventing party raiding and protecting the responsibility of the party government.^[51] The Court concluded that the statute unconstitutionally burdened the Party’s associational rights.^[52] Justice Marshall authored the majority opinion, while Justice Stevens and Justice Scalia dissented.^[53]

B. California Democratic Party v. Jones (2000)^[54]

In California Democratic Party, California’s Democratic Party, Republican Party, Libertarian Party, and the Peace and Freedom Party filed a lawsuit against the State, claiming that a state statute requiring a partisan blanket primary violated their associational rights.^[55] The ballot listed every candidate regardless of party affiliation, allowing the voter to choose among them.^[56]

The Court ruled that this primary system severely harmed political parties’ associational rights by forcing the parties to associate with those who either refused to affiliate with the party or were affiliated with an opposing party, in an opinion authored by Justice Scalia.^[57]

Applying strict scrutiny, the Court found no compelling interest in maintaining the State’s primary system, shooting down seven of the State’s asserted compelling interests.^[58] Specifically, the Court noted that the State’s purpose of affording voters greater choices was inconsistent with the statute’s noticeable effect, which would reduce the scope of choices.^[59] Additionally, the Court reasoned that the State’s asserted interest in increasing voter participation would not have its intended effect because the increased participation would be driven by the majority.^[60] Because the Court found that the statute impermissibly burdened the plaintiffs’ rights, the Court struck it down as unconstitutional.^[61]

Justice Kennedy concurred with the judgment.^[62] Justice Stevens dissented, arguing to uphold California’s primary system.^[63] He noted that the case represents the states’ power to decide who may vote in an election conducted by the state, and such deference should be given.^[64] When discussing the right not to associate, Justice Stevens explained that the First Amendment should not include the right to exclude voters who are not affiliated with the party participating in its primary elections because such comprehensive rights could enable parties to utilize such power to advance racial positions.^[65] However, he explained that the right to not associate should be inapplicable to a state election because a state election is a public affair, distinguishable from a party’s power to convene a convention or caucus.^[66] Justice Stevens also argued in favor of more relaxed standards when a state regulation increases voter participation, compared to when a state limits voter participation.^[67]

When discussing the State’s asserted interests, Justice Stevens argued that California’s interests of increased voter choice and voter turnout were substantial.^[68] He found the Court’s rejection of the State’s interest in increasing voter participation “particularly regrettable,” as voter participation declines.^[69] Employing the principles of federalism, Justice Stevens argued that states should be free to make the democratic process more robust.^[70]

C. Clingman v. Beaver (2004)^[71]

In Clingman v. Beaver, the Supreme Court upheld a state law restricting a political party’s semi-closed primary to only its registered members and independent voters.^[72] The Libertarian Party of Oklahoma (LPO) requested authorization to open its primary to all voters regardless of party affiliation.^[73] According to Oklahoma law, a political party may limit its primary to registered party members and independent voters.^[74] After the Oklahoma State Election Board agreed to allow independent voters to vote in the LPO primary but not registered voters from other parties, the LPO and several Republican and Democratic voters filed a lawsuit alleging that the law unconstitutionally burdened their First Amendment rights.^[75]

The Supreme Court held that the semi-closed primary system was constitutional.^[76] Justice Thomas, writing for the Court, found that legitimate state interests justified any burden imposed by the semi-closed primary system.^[77] The Court reasoned that the Oklahoma statute imposed a less severe burden on voters than the statute in Tashjian because the statute did not require the voters to disclose their political party publicly.^[78] Therefore, the Court did not apply strict scrutiny review and, instead, applied rational basis.^[79] The Court reasoned that the statute withstood rational basis because the law preserved many “regulatory interests,” including preserving political parties as identifiable interest groups, enhancing party-building efforts, and guarding against party raiding.^[80]

In the portion of the opinion, which commanded only a plurality, Justice Thomas argued that the associational interests of the plaintiffs were minimal.^[81] Justice Thomas noted that the associational interests of the Democratic and Republican plaintiffs were minimal because he believed they did not have strong connections with the Libertarian Party at issue.^[82] After all, they were unwilling to disaffiliate from their parties to participate in the Libertarian Party’s primary.^[83] Additionally, Justice Thomas argued that voters faced a minimal burden under the statute because they could easily change their party affiliation to participate in the Libertarian Party’s primary.^[84] Lastly, Justice Thomas found that the burden on the Libertarian Party was slight because they could persuade voters to make a minimal effort to switch parties to vote in the Libertarian primary, which indicates that Justice Thomas viewed a change in party affiliation as a minor obstacle.^[85] Justice O’Connor concurred in part and in judgment.^[86]

Justice Stevens dissented, arguing that the statute imposed a heavy burden on the Libertarian Party’s associational rights and reasoning that the State had no interest in classifying voters by their political party.^[87] He explained that the State’s interests were speculative and found that the Court’s deference to preserving the two-party system had harmed participants of the political market.^[88] Justice Stevens further discussed how the decision diminished the value of an individual’s right to vote for a candidate of her choice.^[89] He wrote that it is the individual’s right to participate if a party invites and that such a right “far outweighs” any public interest in punishing registered members for acts of disloyalty.^[90] He clarified that the right to vote includes the right to vote in a primary election.^[91] Next, he discussed how the right to vote is the right to vote for a candidate of one’s choice.^[92] Justice Stevens asked courts to assess burdens based on the reality of the situation, not on “empty formalism,” stating that while voters do not have an absolute right to participate in whatever primary they desire, voters should not be denied participation in a primary that seeks their participation.^[93] Justice Stevens’s theory is reminiscent of the logic used in Tashjian, as that case contemplated the impact on voter deliberation.^[94]

In California Democratic Party, Justice Thomas and Justice Stevens found themselves on opposing ends of the opinion.^[95] However, their respective opinions did not discuss which theory of democracy the Court should employ.^[96] Instead, later in Clingman, the Justices discussed competing theories of democracies.^[97] The Court chose to apply a rational basis review because it found the primary election system less burdensome on the individuals than previously attempted election systems.^[98] However, the Court did not settle on a theory for resolving future cases, limiting Clingman’s precedential value.^[99] Justice Thomas, speaking for the plurality, and Justice Stevens for the dissent, applied differing theories of democracy.^[100] However, neither one garnered the majority.^[101]

IV. Analyzing the Differing Views Employed in

Primary Election Challenges

Resolving the theory of democracy the Court should apply when determining the constitutionality of primary election law challenges is critical. The Court must resolve which theory of democracy it applies, as the theory chosen will influence how the Court balances the right of association against state interests.^[102] The level of scrutiny depends heavily on how the Justices view the burden on political parties and which state interests the Court considers “compelling.” The implications of the theory of democracy directly impact the level of scrutiny the Court chooses to apply, therefore impacting which primary elections get struck down as a whole.

A. Justice Thomas’s Theory of Democracy

In Clingman, Justice Thomas writing for the Court, argued that the associational interests of voters and parties were minor, finding that Oklahoma’s interests justified any minor burden because the statute did not require voters to affiliate with a party to vote.^[103] The Court found that the State’s interests, including preserving political parties, enhancing parties’ electioneering, and guarding against party raiding, passed ordinary scrutiny.^[104]

In the portion of the opinion commanding only a plurality,^[105] Justice Thomas placed a particular value on party heuristics, where voters can comfortably and quickly vote on candidates that align with their party without intense assessment.^[106] Clingman threatened to blur party lines, thereby endangering party stability, which Justice Thomas believed was essential to maintaining the status quo and ensuring the government’s smooth functioning.^[107]

Justice Thomas emphasized the importance of allowing the parties to serve as “identifiable interest groups” and argued that the Libertarian Party’s proposition would blur the distinction between parties, thus making it difficult for voters to choose between the status quo or a readily identifiable alternative.^[108] Because of his belief, Justice Thomas valued the State’s interest in maintaining distinctive parties.^[109] Justice Thomas relied on the theory of competitive democracy, stressing the significance of providing voters with a clear distinction between two parties.^[110]

B. Justice Stevens’s Theory of Democracy

Throughout his term, Justice Stevens has shown a consistent concern for how civil society institutions,^[111] ranging from religious institutions to political parties, retain coercive power over individuals and how that power may increase factionalism.^[112] In earlier jurisprudence, Justice Stevens resisted strengthening party autonomy, as evidenced by a series of dissents from decisions that enhanced party control over primary elections.^[113]

Consolidating the Justices’ visions of democracy has proved to be the source of some difficulty in academic literature. Some scholars determined Justice Stevens found a home among Justices who believe democracy requires open competition, including partisanship.^[114] Others discussed Justice Stevens’s consistent siding with nonpartisanship^[115] in election law cases.^[116] However, in cases challenging political parties’ freedom of association, Justice Stevens favored competitive democracy, not necessarily fueled by partisanship, but rather by deliberation.^[117] Part of that deliberation, according to Justice Stevens, is supported by the flexibility of voters to associate and disassociate with political parties, which he feared the holding in Clingman would prevent.^[118]

In Clingman, Justice Stevens dissented, arguing that the primary law heavily burdened the party’s associational rights.^[119] He argued that Oklahoma’s interest in classifying voters and limiting elections in which a voter can participate was speculative or protected the parties in power.^[120] Instead, Justice Stevens argued that the Court, including Justice Thomas, harmed voters by giving “undue deference” to preserving the two-party system.^[121]

Justice Stevens did not value the State’s interest in maintaining clear distinctions between parties because he would rather prioritize voter deliberation over maintaining clear party lines.^[122] On the other hand, Justice Thomas valued maintaining distinctive parties, prioritizing it over the voters’ associational burdens.^[123]

V. Why Justice Stevens’s Theory Should Prevail

Association is important to Justice Thomas’s conception of democracy because it gives voters clear and distinct choices.^[124] By contrast, traditional forms of association are less critical to Justice Stevens as “a marketplace for politics requires the flexibility to associate and dissociate at will.”^[125] Both Justices relied on a theory of democracy; however, Justice Stevens also relied on a theory that fosters deliberation, running counter to Justice Thomas.^[126] Justice Stevens found that democracy operates as a political market that encourages deliberation, and the competition of the marketplace of ideas should not be confined to a two-party system.^[127] Unlike Justice Thomas, Justice Stevens found little value in the State’s asserted interest in maintaining distinctive parties.^[128]

Justice Stevens’s theory should prevail as it is first, consistent with traditional notions of democracy in precedent, and second, critical to protecting democracy through voter participation moving forward.

A. Theory Remains Consistent with Precedent

First and most importantly, Justice Stevens’s theory is consistent with precedent, specifically with the theory of democracy employed by Justice Marshall in Tashjian.^[129] In Tashjian, Justice Marshall, speaking for the Court, envisioned a political landscape that prioritized voter association.^[130] When determining that the semi-closed primary system violated the political party members’ associational rights, Justice Marshall emphasized that members devote substantial portions of their lives to supporting the political party. In contrast, party affiliation serves as a mere element.^[131] The Court’s opinion on the political landscape runs contrary to Justice Thomas’s theory, which emphasizes the need for party affiliation.^[132] The Court in Tashjian also reasoned that because the statute at issue placed limits on the group of registered voters that a political party can invite to participate in selecting the party’s candidates, the State limited the Party’s associational rights at a “crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.”^[133] This strong emphasis on the burden of the party demonstrates how vital the associational rights of party members are meant to be in the balancing test.^[134]

Justice Stevens’s theory also falls within the spirit of the test established by the Court in Twin Cities Area New Party, where the Court specifically placed a high value on ensuring that any state-asserted interest was strong enough to justify the associational burden.^[135] This balancing test and the emphasis placed on ensuring the interests would justify the burden signals the Court’s opinion that a burden on associational interests is unfavorable.

Such a sentiment has also been observed in related election law cases. The Court has consistently recognized that political parties have a crucial right to select their leaders in prior jurisprudence.^[136] Additionally, the Court has recognized the importance of freedom of association with political parties, specifically for advancing ideas.^[137] Justice Stevens’s theory aligns with this previously established line of cases because his theory also seeks to promote association.

Not only is Justice Stevens’s theory consistent with precedent, but his theory is also consistent with the Framers’ intent in their conception of democracy. The Framers envisioned a democracy filled with robust discussion and fluid coalitions, and expressed dissatisfaction for a two-party system.^[138] As James Madison wrote in The Federalist No. 51, “[i]f a majority be united by a common interest, the rights of the minority will be insecure,” and as further discussed in The Federalist No. 10, a “well constructed Union” should be able to “break and control the violence of faction.”^[139] The Framers wished for a democracy with increased voter deliberation and freedom. However, it was not their goal to uphold a two-party system.^[140] With this in mind, the Court must consider the Framers’ intent when resolving cases in favor of upholding a two-party system which the Framers did not necessarily fight for.

B. Theory Upholds Long-Standing Democratic Principles

Despite the importance of primary elections to representation, an alarmingly small portion of voters exercise their right to vote in the primary election.^[141] Individuals feel disconnected from the voting process, making them unwilling to participate in elections.^[142] Justice Thomas’s approach inhibits eligible voters from participating in the voting process by limiting political parties’ ability to participate in primary elections.

At a time when voter participation is on the decline,^[143] the Court must uphold primary systems that encourage, not restrict, voter participation. Voter participation is crucial to the democracy the Framers intended to maintain.^[144] The principle of democracy requires a diverse electorate that is representative of the population’s demographic breakdown.^[145] By restricting voter participation, Justice Thomas’s theory of democracy has implications for our democracy that go against the Framers’ intent.

Additionally, the Court must consider the implications of a primary election system for all voters, including the uninformed. Justice Stevens’s theory of democracy encourages voters to deliberate more freely on candidates that closely align with their political beliefs. In Clingman, the third minor party wished to open their election to other registered party members to make their candidate more viable.^[146] Had they been allowed to pursue that objective, the political party would likely have increased voter participation. Likewise, registered voters of major political parties would more likely deliberate voting for a third-party candidate.

Justice Thomas’s theory blocks out voters who find themselves unsure of their political party standing, and in turn, hurts minor political parties attempting to gain footing in the political landscape. A record share of Americans have unfavorable views of both the Democratic and Republican parties.^[147] In turn, over a third of Americans wish more political parties existed to choose from.^[148]

Most people have never been asked to register to vote to begin with,^[149] let alone asked whether they would like to change their party affiliation. Requiring voters to switch official party registration harms both the voters and the parties when a party does not feel like such a requirement is necessary. Placing emphasis on maintaining party lines, voters wishing to vote for a minor political party more in line with their beliefs would feel discouraged from participating in that minor political party. Voters would be more encouraged to find a party that aligns with their beliefs if they had more freedom to explore various political parties with little obstacle.^[150] And minor political parties would see increased voter turnout, making it more likely that their candidate advances to the general election.^[151]

C. Critiques Against Justice Stevens’s Theory

Potential critiques against Justice Stevens’s theory of democracy would be reminiscent of Justice Thomas’s opinions, including concerns for upholding the state’s constitutional right to regulate elections, concerns about voting manipulation, and ensuring distinct party lines. However, these critiques would fall flat when considering the purpose of democracy as the Court has repeatedly upheld.

1. Theory Impacts State Regulation. Opponents may argue that Justice Stevens’s theory would interfere with the states’ constitutional right to regulate parties, elections, and ballots to reduce disorder.^[152] State regulation aims to ensure that political parties run without corruption and in line with our principles of democracy. State regulation is critical, for example, in instances such as the corruption seen in pre-World War I.^[153] However, Justice Thomas’s approach expands state regulation beyond its initial purpose. Instead, Justice Thomas’s approach allows states to ultimately control the outcome of primary elections, which can run contrary to the political party’s desires. State regulations on elections are critical to upholding democracy but when taken too far, they can stifle it. However, Justice Stevens’s theory would not conflict with the state’s ability to regulate. Instead, the theory would emphasize the plaintiff’s associational interests in the balancing test employed by Twin Cities Area New Party. States would still be able to regulate elections to promote order as they see fit, and the interests of voters and parties would be given higher emphasis.

Opponents may also argue that employing Justice Stevens’s theory of democracy would force parties to associate with nonaffiliated voters.^[154] However, parties have little control over party membership, a prerequisite to becoming a candidate.^[155]

2. Theory Encourages Cross-Over Voting and Party Raiding. Opponents of Justice Stevens’s theory may raise concerns reminiscent of Justice Scalia’s majority opinion in California Democratic Party.^[156] Among those include the risks of party raiding and crossover-voter hijacking.^[157] However, those concerns were first determined to be unfounded in the State of California by primary election results.^[158] Those concerns remain irrelevant in light of current events.

Crossover voting occurs when voters vote for candidates in their opposing parties; for example, voters of the Republican party may vote for a candidate in the Democratic primary that would be most likely to lose.^[159] Specifically, in California a 1998 survey showed that voters rarely crossed party lines in an attempt to sabotage the other party.^[160] Opponents may also cite party raiding as a concern, although studies show party raiding occurs infrequently.^[161] In 2008, then-candidates Barack Obama and Hillary Clinton were relatively close in the contest for the Democratic party nomination.^[162] To create controversy, a group of Republicans created “Operation Chaos,” where Republicans would register as Democrats to vote for Clinton to minimize the gap between the candidates and cause controversy at the convention. Notably, the operation was unsuccessful.^[163]

Political parties are aware of the risks of opening elections beyond their voter base, including party raiding and cross-over voting. However, if a political party still chooses to open the nomination process to unaffiliated voters, it should be left free to do so. Political parties are equipped with the knowledge to decide best how to benefit their electorate—a core freedom they hold.

3. Theory Blurs Party Lines. Critics may also express similar concerns to Justice Thomas—that the political party system plays an essential role in democracy’s functioning.^[164] The Court found that “splintered parties and unrestrained factionalism” may significantly damage the government.^[165] One may argue that Justice Stevens’s disregard for state interests in maintaining political parties may lead to widespread voter confusion and damage to the democratic system.^[166]

Party labels can play a role in which voters inform themselves of certain parties. However, the Court has recognized that party affiliation is only an element of party participation.^[167] Justice Stevens’s theory of democracy does not automatically discount concerns about maintaining party lines.^[168] Instead, the theory would require the states to provide additional interests before regulating primary elections, often against the political parties’ will.^[169] Political parties remain a fundamental aspect of our democracy. However, constraining voters to fall along political party lines unnecessarily stifles discussion and competition that is critical to the functioning of a healthy democracy.

4. Theories’ Conflict Resolved After Washington State Grange. Scholars may also argue that the Court resolved the theory of democracy under Washington State Grange v. Washington State Republican Party because both Justices, Thomas and Stevens, sided with the majority in a primary election regulation challenge under the freedom of association.^[170] In Washington State Grange, the Court held that Washington’s “top two” primary, which allowed the top two candidates to progress to the general election, regardless of the candidate’s political party, did not violate the parties’ freedom of association on its face.^[171]

Washington’s system, effective December 2004,^[172] allows candidates affiliated with any political party to appear on the same primary ballot.^[173] To participate in the primary, candidates declare their party “preference.”^[174] Voters affiliated with any party may select any candidate on the ballot, regardless of the candidate’s party preference.^[175] The candidates who receive the top two highest total votes advance to the general election, regardless of whether the candidates are affiliated with the same party.^[176] Immediately after implementation, the Washington State Republican Party filed suit challenging the law.^[177]

Writing for the Court, Justice Thomas emphasized that “a party’s right to exclude is central to its freedom of association.”^[178] The Court rejected respondents’ arguments because they did not depend on a facial requirement of the primary system but merely on the chance that voters would not understand the significance of party preference designation.^[179] The Court found that, as the State asserted, there were ways to print the party preference designation to clarify that the candidate was not affiliated with the party.^[180] Because the Court found that the statute did not severely burden the Party on its face, the Court did not analyze whether the State’s asserted interests were compelling.^[181] Therefore, the Court held that the statute did not facially violate the Party’s freedom of association.^[182] Justice Scalia and Justice Kennedy dissented, and Chief Justice Roberts and Justice Alito concurred.^[183] Notably, Justice Thomas authored, and Justice Stevens joined the majority opinion.^[184]

Despite Justice Stevens and Justice Thomas joining the majority, Washington State Grange does not reconcile the two theories of democracy adopted by Clingman.^[185] Washington State Grange employed an analysis largely impacted by the fact that the Republican Party chose to litigate a facial versus an as-applied challenge.^[186] The Justices had not determined whether the State’s asserted interests were compelling enough to satisfy strict scrutiny.^[187] Therefore, Washington State Grange did not reconcile the two theories of democracy.

Justice Thomas and Justice Stevens’ conflicting theories of democracy play a significant role in upholding state regulations of political party systems. Justice Stevens’s theory of democracy, which encourages voter deliberation, is consistent with precedent, the Framers’ intent, and the functioning of our democracy as a whole.

VI. Conclusion

The Court has a long-recognized responsibility to uphold the nation’s principles of democracy, first established by the Framers. In Clingman, the Court failed to reach an opinion on the theory of democracy when determining if voters’ associational interests were considered “severely burdened,” as established by Twin Cities New Area Party.^[188] Justice Thomas placed minimal emphasis on the associational burden on the political party and its members and emphasized the importance of maintaining party borders.^[189] Justice Stevens found the associational interests burdensome enough to warrant striking down the semi-closed primary as unconstitutional under strict scrutiny.^[190] The conflict lays on the emphasis the Justices place on voters’ associational rights burdens in primary election cases, evident throughout relevant jurisprudence. ^[191]

The Supreme Court must resolve this issue in favor of Justice Stevens’s theory of democracy. The Court must emphasize protecting voters’ associational rights so that voters are not discouraged to participate in elections moving forward. Additionally, the Court’s precedent and an analysis of the Framers’ intent strongly favor voters’ rights in election law cases.

At a time when the foundation of the country’s democracy is threatened by low voter turnout and voter apathy,^[192] the Court must resolve future cases with a higher emphasis on parties’ and voters’ associational burdens to protect the country’s traditional notions of democracy and maintain a healthy, motivated electorate.

Areeba Amer