|Rosario v. Rockefeller
[ Stewart ]
[ Powell ]
Rosario v. Rockefeller
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MR. JUSTICE POWELL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
It is important at the outset to place New York's cut-off date for party enrollment in perspective. It prevents prospective voters from registering for a party primary some eight months before a presidential primary and 11 months before a nonpresidential one. [n1] The Court recognizes, as it must, that the period between the enrollment and the primary election is a "lengthy" one. [n2] Indeed, no other State has imposed upon voters previously unaffiliated with any party restrictions which even approach in severity those of New York. [n3] And New York [p764] concedes that only one other State -- Kentucky -- has imposed as stringent a primary registration deadline on persons with prior party affiliations. [n4] Confronted with such a facially burdensome requirement, I find the Court's opinion unconvincing.
The right of all persons to vote, once the State has decided to make it available to some, becomes a basic one under the Constitution. Dunn v. Blumstein, 405 U.S. 330 (1972); Kramer v. Union School District, 395 U.S. 621 (1969); Carrington v. Rash, 380 U.S. 89 (1965). Self-expression through the public ballot equally with one's peers is the essence of a democratic society. Reynolds v. Sims, 377 U.S. 533 (1964). A citizen without a vote is to a large extent one without a voice in decisions which may profoundly affect him and his family. Whatever his disagreement may be with the judgments of public officials, the citizen should never be given just cause to think that he was denied an equal right to elect them.
Yet the Court today upholds a statute which imposes substantial and unnecessary restrictions on this right, as well as on the closely related right to associate with the party of one's choice. See Williams v. Rhodes, 393 U.S. 23 (1968); NAACP v. Alabama, 357 U.S. 449 (1958); United States v. Robel, 389 U.S. 258 (1967). The Court justifies this holding by placing the responsibility upon petitioners for their failure to enroll, as required by New York law, eight months prior to the presidential primary. We are told that petitioners "clearly could have registered and enrolled in the party of their choice" before the cut-off date and been eligible to vote in the primary, but, for undetermined reasons, "chose not to," and that their disenfranchisement resulted [p765] from "their own failure to take timely steps to effect their enrollment." [n5]
If the cut-off date were a less severe one, I could agree. Certainly, the State is justified in imposing a reasonable registration cut-off prior to any primary or general election, beyond which a citizen's failure to register may be presumed a negligent or willful act forfeiting his right to vote in a particular election. But it is difficult to perceive any persuasive basis for a registration or party enrollment deadline eight to 11 months prior to election. Failure to comply with such an extreme deadline can hardly be used to justify denial of a fundamental constitutional right. Numerous prior decisions impose on us the obligation to protect the continuing availability of the franchise for all citizens, not to sanction its prolonged deferment or deprivation. Ex parte Siebold, 100 U.S. 371 (1880); Nixon v. Herndon, 273 U.S. 536 (1927); Lane v. Wilson, 307 U.S. 268 (1939); Baker v. Carr, 369 U.S. 186 (1962); Gray v. Sanders, 372 U.S. 368 (1963); Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, supra; Carrington v. Rash, supra; Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Kramer v. Union School District, supra; Cipriano v. City of Houma, 395 U.S. 701 (1969); Evans v. Cornman, 398 U.S. 419 (1970); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Bullock v. Carter, 405 U.S. 134 (1972); Dunn v. Blumstein, supra.
The majority excuses the challenged statute because it does not "absolutely" disenfranchise petitioners or impose any absolute ban on their freedom of association. [n6] [p766] The State likewise contends this is "not a disenfranchising statute." [n7] The Court apparently views this statute as a mere "time deadline" on petitioners' enrollment that disadvantages no identifiable class and that postpones through the next primary, rather than denies altogether, petitioners' voting and associational rights. [n8] I cannot agree. Deferment of a right, especially one as sensitive and essential as the exercise of the first duty of citizenship, can be tantamount to its denial. And any statute which imposes for eight or 11 months an absolute freeze on party enrollment and the consequent right to vote totally disfranchises a class of persons who, for quite legitimate reasons, decide to register closer than eight months to the primary date and those who, for equally legitimate reasons, wish to choose or alter party affiliation. Our decisions, moreover, have never required [p767] a permanent ban on the exercise of voting and associational rights before a constitutional breach is incurred. Rather, they have uniformly recognized that any serious burden or infringement on such "constitutionally protected activity" is sufficient to establish a constitutional violation, Dunn v. Blumstein, supra, at 343; NAACP v. Button, 371 U.S. 415, 438 (1963); Reynolds v. Sims, supra, at 561-562.
The majority does not identify the standard of scrutiny it applies to the New York statute. We are told only that the cut-off date is "not an arbitrary time limit unconnected to any important state goal"; [n9] that it is "tied to a particularized legitimate purpose, and is in no sense invidious or arbitrary." [n10] The Court does not explain why this formulation was chosen, what precedents support it, or how and in what contexts it is to be applied. Such nebulous promulgations are bound to leave the lower courts and state legislatures in doubt and confusion as to how we will approach future significant burdens on the right to vote and to associate freely with the party of one's choice.
The Court's formulation, though the terminology is somewhat stronger, resembles the traditional equal protection "rational basis" test. One may agree that the challenged cut-off date is rationally related to the legitimate interest of New York in preventing party "raiding." But this Court's prior decisions simply do not permit such an approach. Rather, they recognize that:
[T]he right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil [p768] and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.
Reynolds v. Sims, supra, at 561-562. See also Yick Wo v. Hopkins, 118 U.S. 356 (1886).
Voting in a party primary is as protected against state encroachment as voting in a general election. Bullock v. Carter, supra; Terry v. Adams, 345 U.S. 461 (1953); United States v. Classic, 313 U.S. 299 (1941). And the Court has said quite explicitly that,
if a challenged statute grants the right to vote to some citizens and denies the franchise to others, "the Court must determine whether the exclusions are necessary to promote a compelling state interest."
Dunn v. Blumstein, supra, at 337, quoting Kramer v. Union School District, supra, at 627 (emphasis added in Dunn). See also Cipriano v. City of Houma, supra, at 704; City of Phoenix v. Kolodziejski, supra, at 205, 209. Likewise, the Court has asserted that "the right of individuals to associate for the advancement of political beliefs" is "among our most precious freedoms," Williams v. Rhodes, 393 U.S. at 30, and must be carefully protected from state encroachment. NAACP v. Alabama, supra; Bates v. Little Rock, 361 U.S. 516 (1960); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963).
The inquiry thus becomes whether the instant statute, burdening as it does fundamental constitutional rights, can withstand the strict judicial scrutiny called for by our prior cases. The asserted state interest in this case is the prevention of party "raiding," which consists of the movement or "cross-over" by members of one party into another's primary to "defeat a candidate who is adverse to the interests they care to advance." [n11] The typical example is a member of one party deliberately entering [p769] another's primary to help nominate a weaker candidate, so that his own party's nominee might win more easily in the general election. A State does have an interest in preventing such behavior, lest
the efficacy of the party system in the democratic process -- its usefulness in providing a unity of divergent factions in an alliance for power -- would be seriously impaired,
Rosario v. Rockefeller, 458 F.2d 649, 652 (CA2). The court below held flatly that the state interest in deterring "raiding" was a "compelling" one. Ibid.
The matter, however, is not so easily resolved. The importance or significance of any such interest cannot be determined in a vacuum, but, rather, in the context of the means advanced by the State to protect it and the constitutionally sensitive activity it operates to impede. The state interest here is hardly substantial enough to sustain the presumption, upon which the statute appears to be based, that most persons who change or declare party affiliation nearer than eight to 11 months to a party primary do so with intent to raid that primary. Any such presumption assumes a willingness to manipulate the system which is not likely to be widespread.
Political parties in this country traditionally have been characterized by a fluidity and overlap of philosophy and membership. And citizens generally declare or alter party affiliation for reasons quite unconnected with any premeditated intention to disrupt or frustrate the plans of a party with which they are not in sympathy. Citizens customarily choose a party and vote in its primary simply because it presents candidates and issues more responsive to their immediate concerns and aspirations. Such candidates or issues often are not apparent eight to 11 months before a primary. That a citizen should be absolutely precluded so far in advance from voting in a party primary in response to a sympathetic candidate, a new or meaningful issue, or changing party philosophies in his State, runs contrary to the fundamental rights of [p770] personal choice and expression which voting in this country was designed to serve.
Whatever state interest exists for preventing cross-overs from one party to another is appreciably lessened where, as in the case of petitioners, there has been no previous affiliation with any political party. The danger of voters in sympathy with one party "raiding" another party is insubstantial where the voter has made no prior party commitment at all. Certainly, the danger falls short of the overriding state interest needed to justify denying petitioners, so far in advance, the right to declare an initial party affiliation and vote in the party primary of their choice.
In Dunn, supra, at 343, the Court emphasized that the State, in pursuing its legitimate interest,
cannot choose means which unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with "precision," NAACP v. Button, 371 U.S. 415, 438 (1963); United States v. Robel, 389 U.S. 258, 265 (1967), and must be "tailored" to serve their legitimate objectives. Shapiro v. Thompson, supra, at 631. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose "less drastic means." Shelton v. Tucker, 364 U.S. 479, 488 (1960).
The Court indicates that placing the enrollment deadline before the preceding general election serves well the state interest in discouraging party "raiding." [n12] This fails to address the critical question of whether that interest may be protected adequately by less severe measures. [p771] A foreshortening of the challenged period in this case would not leave the party structure of New York helpless and vulnerable to "raiding" activities. Other States, with varied and complex party systems, have maintained them successfully without the advanced enrollment deadline imposed by New York.
Partisan political activities do not constantly engage the attention of large numbers of Americans, especially as party labels and loyalties tend to be less persuasive than issues and the qualities of individual candidates. The crossover in registration from one party to another is most often impelled by motives quite unrelated to a desire to raid or distort a party's primary. To the extent that deliberate raiding occurs, it is usually the result of organized effort which depends for its success upon some relatively immediate concern or interest of the voters. This type of effort is more likely to occur as a primary date draws near. If New York were to adopt a more reasonable enrollment deadline, say 30 to 60 days, the period most vulnerable to raiding activity would be protected. More importantly, a less drastic enrollment deadline than the eight or 11 months now imposed by New York would make the franchise and opportunities for legitimate party participation available to those who constitutionally have the right to exercise them. [n13]
1. October 2, 1971, was the last day on which petitioners' enrollment could have been effective. June 20, 1972, was the date of New York's presidential primary. Thus, the deadline was actually some eight and one-half months before the primary. In nonpresidential years, the cut-off runs from early October until the following September.
2. Ante at 760.
3. The State does not dispute this point. See Tr. of Oral Arg. 34.
Massachusetts, Illinois, New Jersey, Texas, and Ohio permit previously unaffiliated voters to declare their initial party affiliation immediately prior to voting in the primary of their choice. See Mass.Gen.Laws Ann., c. 53, §§ 37, 38 (Supp. 1973); Ill.Rev.Stat., c. 46, §§ 5-30, 7-43, 7-45 (1971); N.J.Stat.Ann. § 19: 23-45 (1964); Tex. Election Code, Art. 13.01a (Supp. 1972-1973); Ohio Rev.Code Ann. § 3513.19 (1960).
California and Pennsylvania permit previously unaffiliated voters to declare an initial party preference up to the close of registration immediately preceding the primary. Calif.Elections Code §§ 22, 203, 311-312 (1961) (registration closes in California 53 days before a primary); Pa.Stat.Ann., Tit. 25, §§ 623-17, 951-16 (1963 and Supp. 1972-1973) (registration closes in Pennsylvania 50 days before a primary).
Michigan permits any registered voter to participate in the primary of his choice. Mich.Comp.Laws §§ 168.570, 168.575 to 168.576, Mich.Stat.Ann. §§ 6.1570, 6.1575-6.1576 (1972). See Brief for Petitioners 32-33.
4. Tr. of Oral Arg. 34.
5. Ante at 757, 758. See also ante at 762, where the Court refers to § 186 as merely imposing "a legitimate time limitation on their [petitioners'] enrollment, which they chose to disregard."
6. See ante at 757:
Section 186 of New York's Election Law, however, is quite different. It did not absolutely disenfranchise the class to which the petitioners belong -- newly registered voters who were eligible to enroll in a party before the previous general election. Rather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary.
Similarly, at 758:
For the same reason, we reject the petitioners' argument that § 186 violated their First and Fourteenth Amendment right of free association with the political party of their choice. Since they could have enrolled in a party in time to participate in the June, 1972, primary, § 186 did not constitute a ban on their freedom of association, but merely a time limitation on when they had to act in order to participate in their chosen party's next primary.
And at 762:
New York did not prohibit the petitioners from voting in the 1972 primary election or from associating with the political party of their choice. It merely imposed a legitimate time limitation on their enrollment, which they chose to disregard.
In all these instances, the majority seeks to distinguish a "time limitation" from an absolute disenfranchisement of petitioners or an absolute ban on their associational rights.
7. Tr. of Oral Arg. 35.
8. Ante at 757 and n. 6, supra.
9. Ante at 760.
10. Ante at 762.
11. Tr.of Or Arg. 29.
12. Ante at 761.
13. Petitioners also suggest other "less drastic" means of protecting the State's interest: greater reliance on the summary disenrollment procedures of § 332 of the State's election law and loyalty oaths, restrictive party affiliation rules optional for those parties who wish them, limitation of the statute's operation to persons with preexisting party affiliations, and criminal sanctions for fraudulent participation in the electoral process. Tr. of Oral Arg. 13-21. I make no judgment either on the efficacy of these alternatives in protecting the State's interest or on their potential infringement of constitutionally protected rights. Their presence, however, points to the range and variety of other experimental techniques available for New York to consider.