Tashjian v. Republican Party, 479 U.S. 208 (1986)

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE O’CONNOR join, dissenting.

Both the right of free political association and the State’s authority to establish arrangements that assure fair and effective party participation in the election process are essential to democratic government. Our cases make it clear that the accommodation of these two vital interests does not lend itself to bright-line rules, but requires careful inquiry into the extent to which the one or the other interest is inordinately impaired under the facts of the particular case. See Anderson v. Celebrezze, 460 U.S. 780, 788-790 (1983); Storer v. Brown, 415 U.S. 724, 730 (1974). Even so, the conclusion reached on the individuated facts of one case sheds some measure of light upon the conclusion that will be reached on the individuated facts of the next. Since this is an area, moreover, in which the predictability of decisions is important, I think it worth noting that, for me, today’s decision already exceeds the permissible limit of First Amendment restrictions upon the States’ ordering of elections.

In my view, the Court’s opinion exaggerates the importance of the associational interest at issue, if indeed it does not see one where none exists. There is no question here of restricting the Republican Party’s ability to recruit and enroll Party members by offering them the ability to select Party candidates; Conn.Gen.Stat. § 9-56 (1985) permits an independent voter to join the Party as late as the day before the primary. Cf. Kusper v. Pontikes, 414 U.S. 51 (1973). Nor is there any question of restricting the ability of the Party’s members to select whatever candidate they desire. Appellees’ only complaint is that the Party cannot leave the selection of its candidate to persons who are not members of the Party, and are unwilling to become members. It seems to me fanciful to refer to this as an interest in freedom of association between the members of the Republican Party and the putative independent voters. The Connecticut voter who, while steadfastly refusing to register as a Republican, casts a vote in the Republican primary, forms no more meaningful an "association" with the Party than does the independent or the registered Democrat who responds to questions by a Republican Party pollster. If the concept of freedom of association is extended to such casual contacts, it ceases to be of any analytic use. See Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 130-131 (1981) (POWELL, J., dissenting) ("[Not] every conflict between state law and party rules concerning participation in the nomination process creates a burden on associational rights"; one must "look closely at the nature of the intrusion, in light of the nature of the association involved, to see whether we are presented with a real limitation on First Amendment freedoms").

The ability of the members of the Republican Party to select their own candidate, on the other hand, unquestionably implicates an associational freedom -- but it can hardly be thought that that freedom is unconstitutionally impaired here. The Party is entirely free to put forward, if it wishes, that candidate who has the highest degree of support among Party members and independents combined. The State is under no obligation, however, to let its party primary be used, instead of a party-funded opinion poll, as the means by which the party identifies the relative popularity of its potential candidates among independents. Nor is there any reason apparent to me why the State cannot insist that this decision to support what might be called the independents’ choice be taken by the party membership in a democratic fashion, rather than through a process that permits the members’ votes to be diluted -- and perhaps even absolutely outnumbered -- by the votes of outsiders.

The Court’s opinion characterizes this, disparagingly, as an attempt to "protec[t] the integrity of the Party against the Party itself." Ante at 224. There are two problems with this characterization. The first, and less important, is that it is not true. We have no way of knowing that a majority of the Party’s members is in favor of allowing ultimate selection of its candidates for federal and statewide office to be determined by persons outside the Party. That decision was not made by democratic ballot, but by the Party’s state convention -- which, for all we know, may have been dominated by officeholders and office seekers whose evaluation of the merits of assuring election of the Party’s candidates, vis-a-vis the merits of proposing candidates faithful to the Party’s political philosophy, diverged significantly from the views of the Party’s rank and file. I had always thought it was a major purpose of state-imposed party primary requirements to protect the general party membership against this sort of minority control. See Nader v. Schaffer, 417 F.Supp. 837, 843 (Conn.), summarily aff’d, 429 U.S. 989 (1976). Second and more important, however, even if it were the fact that the majority of the Party’s members wanted its candidates to be determined by outsiders, there is no reason why the State is bound to honor that desire -- any more than it would be bound to honor a party’s democratically expressed desire that its candidates henceforth be selected by convention rather than by primary, or by the party’s executive committee in a smoke-filled room. In other words, the validity of the state-imposed primary requirement itself, which we have hitherto considered "too plain for argument," American Party of Texas v. White, 415 U.S. 767, 781 (1974), presupposes that the State has the right "to protect the Party against the Party itself." Connecticut may lawfully require that significant elements of the democratic election process be democratic -- whether the Party wants that or not. It is beyond my understanding why the Republican Party’s delegation of its democratic choice to a Republican Convention can be proscribed, but its delegation of that choice to nonmembers of the Party cannot.

In the case before us, Connecticut has said no more than this: Just as the Republican Party may, if it wishes, nominate the candidate recommended by the Party’s executive committee, so long as its members select that candidate by name in a democratic vote; so also it may nominate the independents’ choice, so long as its members select him by name in a democratic vote. That seems to me plainly and entirely constitutional.

I respectfully dissent.