Clingman, Michael (Secy, Oklahoma State Election Board) v. Beaver, Andrea, et al. (05/23/2005)

Questions presented: (1) Whether Oklahoma's semi-closed primary election law, which allows a political party to invite non-affiliated voters but not voters registered with another political party to vote in its partisan primary, violates the 1st Amendment right of a political party and its members to associate? (2) Whether the decision in California Democratic Party v. Jones, 530 U.S. 567 (2000) requires that a state allow a political party, at its option, to open its political party primary election to any registered voter regardless of that voter's political affiliation? (3) Whether the 10th Circuit Court of Appeals erred in finding that the state of Oklahoma's restrictions constituted a severe burden on the right of association of the political party, thereby requiring the regulation to be narrowly tailored to meet a compelling state interest or whether the appropriate standard is the balancing test which has been applied in election cases before the Supreme Court?

BY BETSY JUDELSON & ALISON LAPP, MEDILL NEWS SERVICE

Several months before the 2000 election, the Libertarian Party of Oklahoma notified the state that it wanted to invite all voters – not just Libertarians, but also Republicans, Democrats, Reformers and Independents – to vote in its primary election.

The State Board of Elections said no.

Under Oklahoma law, a party can only invite its own members and – if it so chooses – registered Independents to vote in primary elections.

"Being Libertarians, we thought that not only should we be allowed to invite Independents, but – if we wanted to – we should invite anyone," said Steve Galpin, Chairman of the Oklahoma Libertarian Party.

With less than 500 registered voters, the Libertarian Party in Oklahoma was struggling to maintain a presence in the state. "Oklahoma has the most hostile ballot access law in the nation," explained Richard Winger, Editor of Ballot Access News and a consultant for the state party. Because of the strict requirements, every few years the party loses its official party status and the voter rolls are wiped clean, according to Winger.

"There are still a good number of people who don't know we exist," Galpin said.

But by inviting all voters to participate in their race, the Libertarians reasoned that they could raise awareness of the party, encourage people to get involved and select a more viable candidate for the general election.

Oklahoma has what is called a semi-closed primary. Voters register with a particular party and are permitted to vote solely for that party's candidates in the primary elections. Parties have the option of allowing Independents to participate.

Approximately half the states have systems similar to that of Oklahoma.

The Libertarians argued that this system violated their 1st Amendment freedoms of association and speech and that they should have the right to decide who selects their nominee.

"After all," Galpin stated, "it is our party."

Along with a group of sympathetic Republican and Democratic voters, they filed suit in federal court seeking emergency relief prior to the 2000 election.

The court denied their request.

Only Libertarians and Independents were permitted to vote in the 2000 Libertarian primary.

To ensure that future elections would be open, the party continued to challenge the law in court, arguing that it had a constitutional right to hold an open primary.

Nearly two years later, in December of 2002, a bench trial was held before Judge Stephen Friot in Oklahoma City.

Judge Friot ruled against the Libertarians, rejecting the party's claims that the law violated their 1st Amendment rights.

The burden on plaintiffs' constitutional rights was an acceptable "minimal burden," according to Friot.

The court reasoned that allowing registered Republicans and Democrats to vote in Libertarian races, instead of their own, might change the outcome of the other parties' races. As a result, the court concluded that the state's interest in "protecting the integrity of a political party and its selection process" outweighed the minor restriction imposed by the "politically neutral, nondiscriminatory, regulatory" measure.

The 10th Circuit Court of Appeals reversed, finding that the law violated the 1st Amendment.

Writing for a unanimous panel, Judge Carlos Lucero explained that the case falls "squarely between" two earlier Supreme Court cases – one which required states to allow parties the option of opening their primaries to independent voters and another which prohibited states from requiring parties to open their primaries to all voters.

"When read together, the clear and unavoidable implication of [these cases] is that a state generally may not restrict the ability of a political party to define the group of citizens that will choose its standard-bearer," Judge Lucero stated.

The right to choose a nominee is at the core of a party's 1st Amendment rights, Lucero explained. As a result, the trial court had erred in characterizing the law as a "minimal burden" and evaluating it under a lenient balancing test.

The measure should have been evaluated under a standard of review known as "strict scrutiny." Under that standard, a measure which burdens protected rights cannot survive unless it is "narrowly tailored to further a compelling state interest."

The state claimed it was trying to protect four interests – preventing voter confusion, easing administrative difficulties, protecting the Libertarians from the influence of other parties and preserving the "integrity of the election process."

The court quickly rejected the first three arguments before turning to the state's interest in the political process.

There is a footnote in a previous Supreme Court case which "counsels caution," Lucero explained. In the case, the Supreme Court had stated that a party that wanted to invite voters affiliated with another party to participate in their primary might threaten "other parties with …disorganization effects."

Lucero concluded that under the circumstances the state had not established that there was an actual threat to the stability of the state.

"We acknowledge that the district court's hypothetical might come to fruition," Lucero stated. "To be sure, some election results might change . . . What is less clear, and what Oklahoma fails to demonstrate, is why a few changed outcomes in tightly contested primaries would undermine the integrity of the political process, or how somewhat altered election results would diminish Oklahoma's political stability.

"The fact that neither Utah nor Alaska has collapsed under the weight of its allegedly destabilizing primary system calls into question whether Oklahoma's interest in political stability is implicated under these circumstances," Lucero stated.

As a result, the court concluded that the law was unconstitutional.

If the decision stands, Columbia Law School Professor Richard Briffault speculates that it could drastically limit the ability of states to regulate primary elections. "It is going to be hard for any state to enforce any primary rules in the face of a disagreeing party," he said.

On Sept. 24, 2004, the U.S. Supreme Court agreed to hear the case.

During the Court's oral arguments on Jan. 19, 2005, the justices considered whether ruling in favor of the Libertarian Party would amount to establishing a 1st Amendment requirement that all primaries must be open – a finding they appeared reluctant to make.

The justices also sought to determine exactly what injury the state of Oklahoma would suffer should the Libertarian Party be allowed to hold open primaries.

Justice Anthony Kennedy expressed skepticism that Oklahoma actually had a compelling interest in regulating the structure of primaries for its smaller parties.

"Does the state of Oklahoma have an interest in insulating major parties from competition for members?" he asked Wellon Poe, who represented the state of Oklahoma. He added that earlier Supreme Court cases had given third parties special protection under the 1st Amendment.

Justice John Paul Stevens wondered whether major parties would feel the effect of a change in the Libertarian Party's primary system at all, since people who would vote in the Libertarian primary would likely be dissatisfied with their own party's candidates anyway.

"How are they hurt by the fact that rather than staying home, [voters] decide to cast a vote for a minority party candidate?" he asked Poe.

Poe replied that Oklahoma had an interest in preventing last minute party shifts that would disrupt other parties' abilities to use voter lists to get out their members.

It is also important that states with semi-closed primaries be able to prevent one party's voters from attempting to strategically influence the outcome of another party's primary, said Gene Schaerr, representing state of South Dakota as a friend-of-the-court. He presented the scenario of the Democratic Party sending Democrat voters to support the weaker candidate in a Republican primary, thus strengthening its own position for the general election.

The real danger of allowing open primaries is not to political parties, but to Oklahoma's system of election, Justice Antonin Scalia offered. That system allows voters to ascertain candidates' viewpoints by learning the platform of the party with which they are associated, he said.

"It seems to me to destroy that system if … we're going to allow the Libertarian Party to say, you know, ‘We don't have any real views,'" he said. "‘We want to nominate somebody that most people like. So let the Republicans come in, the Democrats come in. The only thing we want is to win.'"

Justice Sandra Day O'Connor worried that Oklahoma's current system may be too burdensome to voters who want to switch their party affiliations so as to vote in the Libertarian primary.

"The timing in Oklahoma is such that the Republican or Democrat who wants to disaffiliate in order to vote with the Libertarians has to do so at a time before the state has decided whether to allow the Libertarian Party on the ballot," she said.

Justice Stephen Breyer countered that the other political parties need to know which voters are registered with them for a distinct period of time before an election in order to plan their campaigns. He said some states made special accommodations for minority party primaries, but that he could not find a Constitutional rule that required them to do so.

When James Linger, counsel for the Libertarian Party of Oklahoma, said he was not asking for a broad ruling on whether all primaries must be open, but that he wanted legislatures to think about all possible situations when deciding on an system of elections, Justice David Souter quipped, "You want them to think, and you want to leave the door open to their making a distinction for these purposes between the major parties and the minor parties, and I can't think of anything more intrusive into the political process than that. Coming from a Libertarian, I get the sense that I must misunderstand you."

Scalia told Linger that it would be easier for him to find in favor of the Libertarian Party if it asked for a specific remedy, rather than requesting vague reforms to the system of primaries.

"What did you seek in this action?" he asked. "Did you seek just more time to register? I thought you sought to overturn the system entirely and, I mean, maybe you asked for too much."

On May 23, 2005, the Court by a vote of 6-3 held that Oklahoma's semiclosed primary system does not violate the 1st Amendment right to freely associate. Writing for the majority, Justice Clarence Thomas found that any burden the primary system imposes is minor and justified by legitimate state interests.

Justices Sandra Day O'Connor and Stephen Breyer agreed with most of the Court's reasoning, but wrote separately. Justices John Paul Stevens, Ruth Bader Ginsburg and David Souter dissented.

Attorneys :