Clingman v. Beaver (04-37)


Oral argument: January 19, 2005
Appealed from: United States Court of Appeals, Tenth Circuit

The Libertarian Party of Oklahoma (LPO) requested that the Oklahoma State Election Board allow the LPO to invite members of all political parties to participate in its primary elections. Based on Oklahoma election law, which only allows a political party to invite members of its own party and independent voters to primaries, the Board refused. The LPO brought suit in Federal District Court seeking a declaration that the Oklahoma law is unconstitutional because it impermissibly burdens members of the party's freedoms of speech and assembly. The District Court found that the state's interest in political stability and the effect of allowing the LPO to invite registered members of other political groups on those other political groups outweighed the burden on the LPO's rights. The Tenth Circuit Court of Appeals reversed, ruling that the election law severely burdened the LPO's rights and that the state's interest was not sufficiently compelling to warrant such a burden.

The U.S. Supreme Court has previously found that state law, which prohibits political parties from inviting voters registered as independents to participate in primary elections was unconstitutional because it placed a severe burden on political parties' freedom to assemble. In 2000, the Libertarian Party of Oklahoma requested the State Election Board to allow it to invite registered members of other political parties to participate in its primaries, which Oklahoma law prohibits. The Supreme Court will now decide whether the Oklahoma law is within the constitutional scope of Oklahoma's constitutional power to regulate elections, or if it impermissibly burdens the party's rights to assemble and associate.

[Question(s) presented] | [Summary] | [Analysis]

Question(s) 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 but prevents a voter registered with another political party from voting in that primary - violates the First Amendment rights 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 registered voter's political affiliation.
  3. Whether the Tenth 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 this Court.

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Summary

The Libertarian party is a political "third party" with a platform promoting individual liberty and personal responsibility, a free-market economy of abundance and prosperity, and a foreign policy of non-intervention, peace, and free trade. See Official Web Site of the Libertarian Party, available at http://www.lp.org (as of Jan. 10, 2005). Since 1980, the Libertarian Party of Oklahoma (herein, the LPO) has put its party on the ballot in each presidential election. Additionally, the LPO has conducted electoral primaries for its party in 1980, 1996, and 2000. Beaver v. Clingman, No. CIV-00-1071-F (W. D. Okla. Jan. 24, 2003). Despite the LPO's intention to achieve political party status, Oklahoma only legally recognizes a political party when the group acquires petition signatures totaling five percent of the number of people who voted in the last general election during evenly numbered years. Okla. Stat. tit. 26, § 1-108. The LPO has consistently achieved political party status before elections, but in order to maintain that status, LPO nominees for Governor, Vice President or President must receive at least ten percent of total votes cast, which the LPO has never accomplished. Okla. Stat. tit. 26, § 1-109.

In pursuit of its political goals and to achieve political party status, the LPO informed the Secretary of the Oklahoma State Election Board, Lance Ward, of its intention to allow members of all political parties to vote in its primaries, which were to be conducted on August 22, 2000. Mr. Ward accepted the designation allowing voters registered as Independent or Libertarian Party to vote in the primary but disallowed participation by registered Republicans, Democrats, or Reform Party Members (the other three legally recognized political parties) pursuant to Okla. Stat. tit. 26, § 1-104, which allows only members of a political party and independent voters to participate in that party's primary elections. The LPO believes that by allowing members of all parties to vote in its primary elections, it would not only appeal to libertarian-minded voters registered in other parties, but also that ultimately such participation would help select a more competitive and representative candidate. Beaver v. Clingman, No. CIV-00-1071-F.

The LPO again requested permission in 2004 to allow members of all parties to vote in its primary elections, but the Secretary of the Election Board refused. Believing that the Oklahoma regime violated their First and Fourteenth Amendment rights to associate, members of the LPO, along with sympathetic members of other political parties, brought an action under 42 U.S.C. § 1983 in Federal District Court for the Western District of Oklahoma. This group sought a declaration that the Oklahoma election laws were unconstitutional and a permanent injunction prohibiting the State from enforcing such laws. The district court found that the state had an important interest in protecting political stability and that the Oklahoma election law did not seriously burden the LPO's freedom to associate. Beaver v. Clingman, No. CIV-00-1071-F. The court based its decision on expert testimony suggesting that at least 24% of the primary races in Oklahoma in 2000 were decided by 5% of the vote or less and that granting the relief sought by the LPO would likely alter the outcome of some of those races. Id.

The Tenth Circuit Court of Appeals subsequently reversed the District Court. Beaver v. Clingman, 363 F.3d 1048, 1051 (2004). Specifically, the circuit court found that because the election law's burden on the LPO's freedom to associate was severe, the regulation must be narrowly tailored to meet a compelling state interest to be constitutional (a standard of review commonly referred to as strict scrutiny). Id. at 1048. The circuit court did not find that this regulation passed the strict scrutiny standard, and thus declared the Oklahoma election law to be unconstitutional. Id. at 1061. The defendant Election Board then petitioned the United States Supreme Court for a writ of certiorari, which that Court granted on September 28, 2004. Clingman v. Beaver, 125 S.Ct. 27 (2004).

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Analysis

The Libertarian Party often finds itself at the crossroads of the freedom to associate and states' interests in maintaining stability in their respective political processes. However, the US Constitution protects political groups in their freedom to assemble and associate. U.S. Const. amend. I. This case demonstrates the type of organization that the Constitution drafters intended to protect.

Constitutional rights have limits though. When a state enacts legislation or regulates the behavior of groups or individuals that restricts constitutional rights, such state action will not be automatically ruled unconstitutional. Depending on the type, nature, and severity of the burden on the constitutional right, the courts apply differing standards of review. Viewed alternatively, the courts are deciding which types of actions are constitutionally protected actions and which actions are within the constitutional scope of the state's (or whichever legislative or regulatory body) power to police or regulate. In this case, the United States Supreme Court will decide whether the Tenth Circuit Court was correct in finding that the Oklahoma law preventing the LPO from including members of other established political parties severely limited its constitutional rights to speech, assembly, and association. If the Court agrees that the burden was severe, then it will apply a strict scrutiny standard of review, which requires the limitation to be narrowly tailored to advance a compelling state interest.

Because this case is about the power to regulate electoral activity, it also concerns the appropriate balancing of power between democratic election of legislators and the judiciary. Richard H. Pildes, a Harvard Law School professor, recently addressed this topic: "[o]ver the last generation, issues concerning the design of democratic institutions and the central processes of democracy have increasingly become questions of constitutional law throughout the world." 118 Harv. L. Rev. 28  at 31. Some could view this transition as a victory for rights-based constraints on otherwise unbridled, mob-rule democracy. However, advocates of a more pure democracy likely believe that democratic processes should be utilized to set the rules of the process itself. Pildes cautions, "[u]nderstandings of rights or equality worked out in other domains of constitutional law often badly fit the sphere of democratic politics; indeed, the unreflective analogical transfer of rights and equality frameworks from other domains can seriously damage and distort the processes of politics." Id. at 40.

Other special interest groups should also be concerned with the outcome of this case. Small political organizations who might view an open primary system as a method of attracting new party members or creating a certain public image will likely hope that the Supreme Court will rule in favor of the LPO. Such a ruling would further expand their constitutional right to associate. The large and established political parties will likewise be interested in the result because of potential poaching of party members from the smaller parties. Additionally, the ruling will almost certainly affect local election boards and election law policy as well as the general electoral body by possibly expanding their options vis-a-via primaries and ultimately more viable parties in final elections.

First Issue:

Regardless of the level of scrutiny, the Court will have to balance between constitutional rights. The United States Constitution expressly grants legislators the power to regulate the "Times, Places, and Manner of holding Elections for Senators and Representatives." US Const. Art. I, § 4, cl. 1. However, the Constitution also protects "the right of the people peaceably to assemble." U.S. Const. amend. I. Furthermore, the Supreme Court has specifically stated that "freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to identify the people who constitute the association." Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 229, (1989).

The Supreme Court has delineated its approach to striking the correct balance. "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.'" Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (quoting Anderson v. Celebrezze, 460 U.S. 780, 793-94, (1983)). Before analyzing the burden of the Oklahoma statute on the associational rights of a political party or its members to associate, the Supreme Court will likely review California Democratic Party v. Jones, 530 U.S. 567 (2000) to decide whether that decision requires that states allow political parties to allow whomever they choose to vote in their primary elections which they have listed as the next issue.

Second Issue:

Jones held that California's electoral system, which required that every voter have an opportunity to vote in any primary of their choosing, unconstitutionally violated individual parties' associational right to exclude non-members from their primary elections. Id. More specifically, the Court ruled that California's law placed a severe burden on the freedom to associate, which requires that the law be narrowly tailored to advance a compelling state interest (strict scrutiny). Id. at 582. To be sure, a state law prohibiting political parties from inviting independent voters to vote in their primaries would also require strict scrutiny. Tashjian v. Republican Party of Conn., 479 U.S. 208, 225 (1986).

Unlike Tashjian, Id., this case deals with a prohibition on inviting registered members of different parties to participate in electoral primaries. If the Supreme Court finds that Jones requires all states to give political parties discretion to choose whom they will invite, the Court will not need to measure the burden on the LPO or the level of scrutiny to apply. It will simply find that because the Oklahoma law prevents the LPO from deciding for itself who to invite to their primaries, that it violates the LPO's freedom to assemble and is thus unconstitutional.

It is unlikely that the Supreme Court will find that Jones requires states to allow political parties the option of inviting whoever they choose to their electoral primaries. The Jones decision was based on the idea that preventing parties from excluding members of the opposite party too severely burdens the party's right to select their own standard bearer. Jones, 530 U.S. at 575. While related, a state's limitation of whom the party may invite to vote in the primary does not concern their right to select their own candidates. Jones does define a limit to the state's power to regulate primary elections, but without more from the Court, it is unlikely that Jones prohibits more than a state's power to require parties to allow members of all parties to vote in their primary elections.

Third Issue:

Without deriving a blanket restriction on state regulation from Jones, the Supreme Court, consistent with Timmons, will likely find that the Tenth Circuit Court of Appeals was incorrect in finding that the burden placed on the LPO's rights by the Oklahoma law was severe. The Tenth Circuit opinion suggested as a rule 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." Beaver, 363 F.3d at 1057. However, the application of strict scrutiny derives from the nature of the burden on the rights of the organization or individual that result from the state's power to regulate electoral activity, not categorical applications of those rights. The Tenth Circuit rule follows from the idea that because the Court found the freedom of association to trump the state's power to regulate electoral activity in two cases, Tashijan and Jones, and since those cases concerned the group's ability to select who will choose their standard bearer then the freedom to associate will trump in all cases in that category. If the law in this case, however, presents less of a burden on associational rights than the other two, that logic clearly leads to error. Additionally, if the Supreme Court wished to impose such a rule, footnote 14 of the Tashjian opinion is rendered meaningless. Tashjian, 479 U.S. at 224.

The Court will likely find that the burden here was less severe for several reasons. Consider the burden placed on political groups by other laws and regulations, which have been found to be less burdensome and thus require only important government purposes including the very requirement to conduct a primary itself. American Party of Texas v. White, 415 U.S. 767, 781 (1974). Additionally, the burden on the party is lessened by the fact that the restriction in this case applies equally and fairly to all political groups. See, e.g., Anderson, 460 U.S. at 793-94. However, it could be reasonably argued that such a rule has a much more negative impact on small, growing political groups, such as the LPO, who wish to invite members of major parties to participate in their primaries as a proselytizing device.

This case is most similar to Tashijan, because both address state action restricting who a party may include in their primaries. Tashjian, 479 U.S. at 210-211. The law at issue in this case is, by definition, less burdensome than the law that the Tashijan court found to be unconstitutional because Oklahoma clearly allowed parties to include independent voters in the primaries. Okla. Stat. tit. 26, § 1-104. Also, Tashijan was affirmed by only a 5-4 majority in 1986 and all four of the dissenting justices are still on the Court. Tashjian, 479 U.S. at 209. Interestingly, footnote 13 of the Tashijan opinion states

Our holding today does not establish that state regulation of primary voting qualifications may never withstand challenge by a political party or its membership. A party seeking, for example, to open its primary to all voters, including members of other parties, would raise a different combination of considerations. Under such circumstances, the effect of one party's broadening of participation would threaten other parties.

Tashjian, 479 U.S. at 224. This case is exactly the type therein described.

In conclusion, the Supreme Court will likely agree with the district court that the Oklahoma law in this case is a permissible extension of the state's power to regulate electoral activity, which does not severely burden the LPO's rights to associate. Because the state's interest in promoting fair and transparent electoral procedures is strong, even perhaps compelling in the appropriate circumstance, it will likely outweigh the less-than-severe burden on the LPO. Another possibility is that the Supreme Court will agree with the Tenth Circuit, but find that under strict scrutiny it survives. The Court has rarely found any law or regulation, which infringes a fundamental constitutional right, to pass muster under strict scrutiny. However, if the state can show that the law is narrowly tailored and the Court agrees that the interest here is compelling, the Court will rule that the Oklahoma law is constitutional.

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