Political Association.

The major expansion of the right of as-sociation has occurred in the area of political rights. “There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’ protected by the First and Fourteenth Amendments. The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.”640 Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes641 has passed on numerous state restrictions that limit the ability of individuals or groups to join one or the other of the major parties or to form and join an independent political party to further political, social, and economic goals.642 Of course, the right is not absolute. The Court has recognized that there must be substantial state regulation of the election process, which will necessarily burden the individual’s right to vote and to join with others for political purposes. The validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the governmental interests and the means of implementing those interests.643 Many restrictions upon political association have survived this sometimes-exacting standard of review, in large measure upon the basis of some of the governmental interests having been found compelling.644

If people have a First Amendment right to associate with others to form a political party, then it follows that “[a] political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform. These rights are circumscribed, however, when the State gives a party a role in the election process—as . . . by giving certain parties the right to have their candidates appear on the general-election ballot. Then, for example, the party’s racially discriminatory action may become state action that violates the Fifteenth Amendment. And then also the State acquires a legitimate governmental interest in assuring the fairness of the party’s nominating process, enabling it to prescribe what that process must be.”645

A political party’s First Amendment right to limit its membership as it wishes does not render invalid a state statute that allows a candidate to designate his party preference on a ballot, even when the candidate “is unaffiliated with, or even repugnant to, the party” he designates.646 This is because the statute in question “never refers to the candidates as nominees of any party, nor does it treat them as such”; it merely allows them to indicate their party preference.647 The Court acknowledged that “it is possible that voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties,” but “whether voters will be confused by the party-preference designations will depend in significant part on the form of the ballot.”648 If the form of the ballot used in a particular election is such as to confuse voters, then an as-applied challenge to the statute may be appropriate, but a facial challenge, the Court held, is not.649

A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a non-policymaking, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations,650 the Court subsequently held that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”651 The Court thus abandoned the concept of policymaking, confidential positions, noting that some such positions would nonetheless be protected, whereas some people filling positions not reached by the description would not be.652 The Court’s opinion makes it difficult to evaluate the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois653 held that restrictions on patronage apply not only to dismissal or its substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low-level public employees. In 1996, the Court extended Elrod and Branti to protect independent government contractors.654

The protected right of association enables a political party to assert against some state regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary election, although legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in an election limited to those voters who affiliated with the party.655

Provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political organizations, including the maintenance by such organizations of records of everyone contributing more than $10 and the reporting by individuals and groups that are not candidates or political committees who contribute or expend more than $100 a year for the purpose of advocating the election or defeat of an identified candidate, were sustained.656 “[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. . . . We long have recognized the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. . . . We have required that the subordinating interests of the State must survive exacting scrutiny. We have also insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed.”657 The governmental interests effectuated by these requirements—providing the electorate with information, deterring corruption and the appearance of corruption, and gathering data necessary to detect violations—were found to be of sufficient magnitude to be validated even though they might incidentally deter some persons from contributing.658 A claim that contributions to minor parties and independents should have a blanket exemption from disclosure was rejected inasmuch as an injury was highly speculative; but any such party making a showing of a reasonable probability that compelled disclosure of contributors’ names would subject them to threats or reprisals could obtain an exemption from the courts.659 The Buckley Court also narrowly construed the requirement of reporting independent contributions and expenditures in order to avoid constitutional problems.660


Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973) (citation omitted). back
393 U.S. 23 (1968). back
E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time deadline for enrollment in party in order to vote in next primary); Kusper v. Pontikes, 414 U.S. 51 (1973) (barring voter from party primary if he voted in another party’s primary within preceding 23 months); American Party of Texas v. White, 415 U.S. 767 (1974) (ballot access restriction); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (number of signatures to get party on ballot); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1981) (limit on contributions to associations formed to support or oppose referendum measure); Clements v. Fashing, 457 U.S. 957 (1982) (resign-to-run law). back
Williams v. Rhodes, 393 U.S. 23, 30–31 (1968); Bullock v. Carter, 405 U.S. 134, 142–143 (1972); Storer v. Brown, 415 U.S. 724, 730 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979). back
Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974), the Court found “compelling” the state interest in achieving stability through promotion of the two-party system, and upheld a bar on any independent candidate who had been affiliated with any other party within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31–32 (1968) (casting doubt on state interest in promoting Republican and Democratic voters). The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller, 410 U.S. 752 (1973), but not to justify requiring one to forgo one election before changing parties. Kusper v. Pontikes, 414 U.S. 51 (1973). See also Civil Serv. Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973) (efficient operation of government justifies limits on employee political activity); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (permitting political party to designate replacement in office vacated by elected incumbent of that party serves valid governmental interests). Storer v. Brown was distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983), holding invalid a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November ballot; state interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters. See also Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state interests are insubstantial in imposing “closed primary” under which a political party is prohibited from allowing independents to vote in its primaries); California Democratic Party v. Jones, 530 U.S. 567, 577 (2000) (requirement of a “blanket” primary, in which all registered voters, regardless of political affiliation, may participate, unconstitutionally “forces political parties to associate with—to have their nominees, and hence their positions, determined by—those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.”); Clingman v. Beaver, 544 U.S. 581 (2005) (Oklahoma statute that allowed only registered members of a political party, and registered independents, to vote in the party’s primary does not violate freedom of association; Oklahoma’s “semiclosed primary system” distinguished from Connecticut’s closed primary that the Court struck down in Tashjian). back
New York State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 797–98 (2008) (citations omitted). In Lopez Torres, the Court upheld a state statute that required political parties to select judicial candidates at a convention of delegates chosen by party members in a primary election, rather than to select candidates in direct primary elections. The statute was challenged by party members who had not been selected and who claimed “that the convention process that follows the delegate election does not give them a realistic chance to secure the party’s nomination.” Id. at 799. The Court rejected their challenge, holding that, although a state may require “party-candidate selection through processes more favorable to insurgents, such as primaries,” id. at 799, the Constitution does not demand that a state do so. “Party conventions, with their attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an accepted manner of selecting party candidates.” Id. at 799. The plaintiffs had an associational right to join the party but not to have a certain degree of influence in the party. Id. at 798. back
Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1189 (2008). This was a 7-to-2 decision written by Justice Thomas, with Justices Scalia and Kennedy dissenting. back
128 S. Ct. at 1192. back
128 S. Ct. at 1193. The Court saw “simply no basis to presume that a well-informed electorate will interpret a candidate’s party preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate.” Id. back
A ballot could avoid confusion by, for example, “includ[ing] prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party.” 128 S. Ct. at 1194. Justice Scalia, joined by Justice Kennedy in dissent, wrote that “[a]n individual’s endorsement of a party shapes the voter’s view of what the party stands for,” and that it is “quite impossible for the ballot to satisfy a reasonable voter that the candidate is ‘not associated’ with the party for which he has expressed a preference.” Id. at 1200. back
Elrod v. Burns, 427 U.S. 347 (1976). The limited concurrence of Justices Stewart and Blackmun provided the qualification for an otherwise expansive plurality opinion. Id. at 374. back
Branti v. Finkel, 445 U.S. 507, 518 (1980). On the same page, the Court refers to a position in which “party membership was essential to the discharge of the employee’s governmental responsibilities.” (Emphasis added.) A great gulf separates “appropriate” from “essential,” so that much depends on whether the Court was using the two words interchangeably or whether the stronger word was meant to characterize the position noted and not to particularize the standard. back
Justice Powell’s dissents in both cases contain lengthy treatments of and defenses of the patronage system as a glue strengthening necessary political parties. 445 U.S. at 520. back
497 U.S. 62 (1990). Rutan was a 5–4 decision, with Justice Brennan writing the Court’s opinion. The four dissenters indicated, in an opinion by Justice Scalia, that they would not only rule differently in Rutan, but that they would also overrule Elrod and Branti. back
O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (allegation that city removed petitioner’s company from list of those offered towing business on a rotating basis, in retaliation for petitioner’s refusal to contribute to mayor’s campaign, and for his support of mayor’s opponent, states a cause of action under the First Amendment); Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996) (termination or non-renewal of a public contract in retaliation for the contractor’s speech on a matter of public concern can violate the First Amendment). back
Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981). See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party rules, not state law, governed which delegation from state would be seated at national convention; national party had protected associational right to sit delegates it chose). back
Buckley v. Valeo, 424 U.S. 1, 60–84 (1976). back
424 U.S. at 64 (footnote citations omitted). back
424 U.S. at 66–68. back
424 U.S. at 68–74. Such a showing, based on past governmental and private hostility and harassment, was made in Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87 (1982). back
424 U.S. at 74–84. back