Timmons v. Twin Cities Area New Party (95-1608), 520 U.S. 351 (1997)
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[ Souter ]
[ Rehnquist ]
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No. 95-1608


on writ of certiorari to the united states court of appeals for the eighth circuit

[April 28, 1997]

Justice Stevens, with whom Justice Ginsburg joins, and with whom Justice Souter joins as to Parts 1 and II, dissenting.

In Minnesota, the Twin Cities Area New Party (Party), is a recognized minor political party entitled by state law to have the names of its candidates for public office appear on the state ballots. In April, 1994, Andy Dawkins was qualified to be a candidate for election to the Minnesota Legislature as the representative of House District 65A. With Dawkins's consent, the Party nominated him as its candidate for that office. In my opinion the Party and its members had a constitutional right to have their candidate's name appear on the ballot despite the fact that he was also the nominee of another party.

The Court's conclusion that the Minnesota statute prohibiting multiple party candidacies is constitutional rests on three dubious premises: (1) that the statute imposes only a minor burden on the Party's right to choose and to support the candidate of its choice; (2) that the statute significantly serves the State's asserted interests in avoiding ballot manipulation and factionalism; and (3) that, in any event, the interest in preserving the two party system justifies the imposition of the burden at issue in this case. I disagree with each of these premises.

The members of a recognized political party unquestionably have a constitutional right to select their nominees for public office and to communicate the identity of their nominees to the voting public. Both the right to choose and the right to advise voters of that choice are entitled to the highest respect.

The Minnesota statutes place a significant burden on both of those rights. The Court's recital of burdens that the statute does not inflict on the Party, ante, at 11-12, does nothing to minimize the severity of the burdens that it does impose. The fact that the Party may nominate its second choice surely does not diminish the significance of a restriction that denies it the right to have the name of its first choice appear on the ballot. Nor does the point that it may use some of its limited resources to publicize the fact that its first choice is the nominee of some other party provide an adequate substitute for the message that is conveyed to every person who actually votes when a party's nominees appear on the ballot.

As to the first point, the State contends that the fusion ban in fact limits by only a few candidates the range of individuals a party may nominate, and that the burden is therefore quite small. But the number of candidates removed from the Party's reach cannot be the determinative factor. The ban leaves the Party free to nominate any eligible candidate except the particular " `standard bearer who best represents the party's ideologies and preferences.' " Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 224 (1989).

The Party could perhaps choose to expend its resources supporting a candidate who was not in fact the best representative of its members' views. But a party's choice of a candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interest and support. [n.1] Political parties "exist to advance their members' shared political beliefs," and "in the context of particular elections, candidates are necessary to make the party's message known and effective, and vice versa." Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. ___, ___ (1996) (slip op., at 4) (Kennedy, J., dissenting). See also Anderson v. Celebrezze, 460 U.S. 780, 821 (1983) (Rehnquist, J., dissenting) ("Political parties have, or at least hope to have, a continuing existence, representing particular philosophies. Each party has an interest in finding the best candidate to advance its philosophy in each election").

The State next argues that--instead of nominating a second choice candidate--the Party could remove itself from the ballot altogether, and publicly endorse the candidate of another party. But the right to be on the election ballot is precisely what separates a political party from any other interest group. [n.2] The Court relies on the fact that the New Party remains free "to spread its message to all who will listen," ante, at 9, through fora other than the ballot. Given the limited resources available to most minor parties, and the less than universal interest in the messages of third parties, it is apparent that the Party's message will, in this manner, reach a much smaller audience than that composed of all voters who can read the ballot in the polling booth.

The majority rejects as unimportant the limits that the fusion ban may impose on the Party's ability to express its political views, ante, at 10-11, relying on our decision in Burdick v. Takushi, 504 U.S. 428, 445 (1992), in which we noted that "the purpose of casting, counting, and recording votes is to elect public officials, not to serve as a general forum for political expression." But in Burdick we concluded simply that an individual voter's interest in expressing his disapproval of the single candidate running for office in a particular election did not require the State to finance and provide a mechanism for tabulating write in votes. Our conclusion that the ballot is not principally a forum for the individual expression of political sentiment through the casting of a vote does not justify the conclusion that the ballot serves no expressive purpose for the parties who place candidates on the ballot. Indeed, the long recognized right to choose a " `standard bearer who best represents the party's ideologies and preferences,' " Eu, 489 U. S., at 224, is inescapably an expressive right. "To the extent that party labels provide a shorthand designation of the views of party candidates on matters of public concern, the identification of candidates with particular parties plays a role in the process by which voters inform themselves for the exercise of the franchise." Tashjian v. Republican Party of Conn., 479 U.S. 208, 220 (1986).

In this case, and presumably in most cases, the burden of a statute of this kind is imposed upon the members of a minor party, but its potential impact is much broader. Popular candidates like Andy Dawkins sometimes receive nation wide recognition. Fiorello LaGuardia, Earl Warren, Ronald Reagan, and Franklin D. Roosevelt, are names that come readily to mind as candidates whose reputations and political careers were enhanced because they appeared on election ballots as fusion candidates. See Note, Fusion and the Associational Rights of Minor Parties, 95 Colum. L. Rev. 683, 683 (1995). A statute that denied a political party the right to nominate any of those individuals for high office simply because he had already been nominated by another party would, in my opinion, place an intolerable burden on political expression and association.

Minnesota argues that the statutory restriction on the New Party's right to nominate the candidate of its choice is justified by the State's interests in avoiding voter confusion, preventing ballot clutter and manipulation, encouraging candidate competition, and minimizing intraparty factionalism. None of these rationales can support the fusion ban because the State has failed to explain how the ban actually serves the asserted interests.

I believe that the law significantly abridges First Amendment freedoms and that the State therefore must shoulder a correspondingly heavy burden of justification if the law is to survive judicial scrutiny. But even accepting the majority's view that the burdens imposed by the law are not weighty, the State's asserted interests must at least bear some plausible relationship to the burdens it places on political parties. See Anderson, 460 U. S., at ___. Although the Court today suggests that the State does not have to support its asserted justifications for the fusion ban with evidence that they have any empirical validity, ante, at 12, we have previously required more than a bare assertion that some particular state interest is served by a burdensome election requirement. See, e.g., Eu, 489 U. S., at 226 (rejecting California's argument that the State's endorsement ban protected political stability because the State "never adequately explain[ed] how banning parties from endorsing or opposing primary candidates advances that interest"); Anderson, 460 U. S., at 789 (evaluating a State's interests, we examine "the extent to which those interests make it necessary to burden the plaintiff's rights"); Norman v. Reed, 502 U.S. 279, 288-289 (1992) ("corresponding interest" must be "sufficiently weighty to justify the limitation"). [n.3]

While the State describes some imaginative theoretical sources of voter confusion that could result from fusion candidacies, in my judgment the argument that the burden on First Amendment interests is justified by this concern is meritless and severely underestimates the intelligence of the typical voter. [n.4] We have noted more than once that "[a] State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism." Eu, 489 U. S., at 228; Tashjian, 479 U. S., at 221; Anderson, 460 U. S., at 798.

The State's concern about ballot manipulation, readily accepted by the majority, is similarly farfetched. The possibility that members of the major parties will begin to create dozens of minor parties with detailed, issue oriented titles for the sole purpose of nominating candidates under those titles, see ante, at 13, is entirely hypothetical. The majority dismisses out of hand the Party's argument that the risk of this type of ballot manipulation and crowding is more easily averted by maintaining reasonably stringent requirements for the creation of minor parties. Ante, at 13-14. In fact, though, the Party's point merely illustrates the idea that a State can place some kinds--but not every kind--of limitation on the abilities of small parties to thrive. If the State wants to make it more difficult for any group to achieve the legal status of being a political party, it can do so within reason and still not run up against the First Amendment. "The State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates." Anderson, 460 U. S., at 788-789, n. 9. See also Jenness v. Fortson, 403 U.S. 431, 442 (1971). But once the State has established a standard for achieving party status, forbidding an acknowledged party from putting on the ballot its chosen candidate clearly frustrates core associational rights. [n.5]

The State argues that the fusion ban promotes political stability by preventing intraparty factionalism and party raiding. States do certainly have an interest in maintaining a stable political system. Eu, 489 U. S., at 226. But the State has not convincingly articulated how the fusion ban will prevent the factionalism it fears. Unlike the law at issue in Storer v. Brown, 415 U.S. 724 (1974), for example, this law would not prevent sore loser candidates from defecting with a disaffected segment of a major party and running as an opposition candidate for a newly formed minor party. Nor does this law, like those aimed at requiring parties to show a modicum of support in order to secure a place on the election ballot, prevent the formation of numerous small parties. Indeed, the activity banned by Minnesota's law is the formation of coalitions, not the division and dissension of "splintered parties and unrestrained factionalism," Id., at 736.

As for the State's argument that the fusion ban encourages candidate competition, this claim treats-candidates" as fungible goods, ignoring entirely each party's interest in nominating not just any candidate, but the candidate who best represents the party's views. Minnesota's fusion ban simply cannot be justified with reference to this or any of the above mentioned rationales. I turn, therefore, to what appears to be the true basis for the Court's holding--the interest in preserving the two party system.

Before addressing the merits of preserving the two party system as a justification for Minnesota's fusion ban, I should note that, in my view, it is impermissible for the Court to consider this rationale. Minnesota did not argue in its briefs that the preservation of the two party system supported the fusion ban, and indeed, when pressed at oral argument on the matter, the State expressly rejected this rationale. Tr. of Oral Arg. 26. Our opinions have been explicit in their willingness to consider only the particular interests put forward by a State to support laws that impose any sort of burden on First Amendment rights. See Anderson, 460 U. S., at 789 (the Court will "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule"); id. at 817 (Rehnquist, J., dissenting) (state laws that burden First Amendment rights are upheld when they are " `tied to a particularized legitimate purpose,' ") (quoting Rosario v. Rockefeller, 410 U.S. 752, 762 (1973)); Burdick,,504 U. S., at 434.

Even if the State had put forward this interest to support its laws, it would not be sufficient to justify the fusion ban. In most States, perhaps in all, there are two and only two major political parties. It is not surprising, therefore, that most States have enacted election laws that impose burdens on the development and growth of third parties. The law at issue in this case is undeniably such a law. The fact that the law was both intended to disadvantage minor parties and has had that effect is a matter that should weigh against, rather than in favor of, its constitutionality. [n.6]

Our jurisprudence in this area reflects a certain tension: on the one hand, we have been clear that political stability is an important state interest and that incidental burdens on the formation of minor parties are reasonable to protect that interest, see Storer, 415 U. S., at 736; on the other, we have struck down state elections laws specifically because they give "the two old, established parties a decided advantage over any new parties struggling for existence," Williams v. Rhodes, 393 U.S. 23, 31 (1968). [n.7] Between these boundaries, we have acknowledged that there is "no litmus paper test for separating those restrictions that are valid from those that are invidious . . . The rule is not self executing and is no substitute for the hard judgments that must be made." Storer, 415 U. S., at 730.

Nothing in the Constitution prohibits the States from maintaining single member districts with winner take all voting arrangements. And these elements of an election system do make it significantly more difficult for third parties to thrive. But these laws are different in two respects from the fusion bans at issue here. First, the method by which they hamper third party development is not one that impinges on the associational rights of those third parties; minor parties remain free to nominate candidates of their choice, and to rally support for those candidates. The small parties' relatively limited likelihood of ultimate success on election day does not deprive them of the right to try. Second, the establishment of single member districts correlates directly with the States' interests in political stability. Systems of proportional representation, for example, may tend toward factionalism and fragile coalitions that diminish legislative effectiveness. In the context of fusion candidacies, the risks to political stability are extremely attenuated. [n.8] Of course, the reason minor parties so ardently support fusion politics is because it allows the parties to build up a greater base of support, as potential minor party members realize that a vote for the smaller party candidate is not necessarily a "wasted" vote. Eventually, a minor party might gather sufficient strength that--were its members so inclined--it could successfully run a candidate not endorsed by any major party, and legislative coalition building will be made more difficult by the presence of third party legislators. But the risks to political stability in that scenario are speculative at best. [n.9]

In some respects, the fusion candidacy is the best marriage of the virtues of the minor party challenge to entrenched viewpoints [n.10] and the political stability that the two party system provides. The fusion candidacy does not threaten to divide the legislature and create significant risks of factionalism, which is the principal risk proponents of the two party system point to. But it does provide a means by which voters with viewpoints not adequately represented by the platforms of the two major parties can indicate to a particular candidate that--in addition to his support for the major party views--he should be responsive to the views of the minor party whose support for him was demonstrated where political parties demonstrate support--on the ballot.

The strength of the two party system--and of each of its major components--is the product of the power of the ideas, the traditions, the candidates, and the voters that constitute the parties. [n.11] It demeans the strength of the two party system to assume that the major parties need to rely on laws that discriminate against independent voters and minor parties in order to preserve their positions of power. [n.12] Indeed, it is a central theme of our jurisprudence that the entire electorate, which necessarily includes the members of the major parties, will benefit from robust competition in ideas and governmental policies that " `is at the core of our electoral process and of the First Amendment freedoms.' " See Anderson, 460 U. S., at 802.

In my opinion legislation that would otherwise be unconstitutional because it burdens First Amendment interests and discriminates against minor political parties cannot survive simply because it benefits the two major parties. Accordingly, I respectfully dissent.


1 The burden on the Party's right to nominate its first choice candidate, by limiting the Party's ability to convey through its nominee what the Party represents, risks impinging on another core element of any political party's associational rights--the right to "broaden the base of public participation in and support for its activities." Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 (1986). The Court of Appeals relied substantially on this right in concluding that the fusion ban impermissibly burdened the New Party, but its focus was somewhat different. See Twin Cities Area New Party v. McKenna, 73 F. 3d 196, 199 (CA8 1996). A fusion ban burdens the right of a minor party to broaden its base of support because of the political reality that the dominance of the major parties frequently makes a vote for a minor party or independent candidate a "wasted" vote. When minor parties can nominate a candidate also nominated by a major party, they are able to present their members with an opportunity to cast a vote for a candidate who will actually be elected. Although this aspect of a party's effort to broaden support is distinct from the ability to nominate the candidate who best represents the party's views, it is important to note that the party's right to broaden the base of its support is burdened in both ways by the fusion ban.

2 We have recognized that "[t]here is no evidence that an endorsement issued by an official party organization carries more weight than one issued by a newspaper or a labor union." Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 228, n. 18 (1989). Given this reality, I cannot agree with the majority's implicit equation of the right to endorse with the right to nominate.

3 In any event, the parade of horribles that the majority appears to believe might visit Minnesota should fusion candidacies be allowed is fantastical, given the evidence from New York's experience with fusion. See Brief for Conservative Party of New York et al. as Amici Curiae 20-25. Thus, the evidence that actually is available diminishes, rather than strengthens, Minnesota's claims. The majority asserts, ante, at 17, n. 12, that California's cross filing system, in place during the first half of this century, provides a compelling counter example. But cross filing, which "allowed candidates to file in the primary of any or all parties without specifying party affiliation," D. Mazmanian, Third Parties in Presidential Elections 132-133 (1974) (hereinafter Mazmanian), is simply not the same as fusion politics, and the problems suffered in California do not provide empirical support for Minnesota's position.

4 See Brief for Petitioners 41-43; see also ante, at 13.

5 A second "ballot manipulation" argument accepted by the majority is that minor parties will attempt to "capitalize on the popularity of another party's candidate, rather than on their own appeal to the voters, in order to secure access to the ballot." Ante, at 14. What the majority appears unwilling to accept is that Andy Dawkins was the New Party's chosen candidate. The Party was not trying to capitalize on his status as someone else's candidate, but to identify him as their own choice.

6 Indeed, "[a] burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment." Anderson v. Celebrezze, 460 U.S. 780, 793-794, (1983). I do not think it is irrelevant that when antifusion laws were passed by States all over the Nation in the latter part of the 1800's, these laws, characterized by the majority as "reforms" ante, at 4, were passed by "the parties in power in state legislatures . . . to squelch the threat posed by the opposition's combined voting force." McKenna, 73 F. 3d, at 198. See Argersinger, "A Place on the Ballot": Fusion Politics and Antifusion Laws, 85 Am. Hist. Rev. 287, 302-306 (1980). Although the State is not required now to justify its laws with exclusive reference to the original purpose behind their passage, Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 70-71 (1983), this history does provide some indication of the kind of burden the States themselves believed they were imposing on the smaller parties' effective association.

7 In Anderson the State argued that its interest in political stability justified the early filing deadline for presidential candidates at issue in the case. We recognized that the "asserted interest in political stability amounts to a desire to protect existing political parties from competition," and rejected that interest. 460 U. S., at 801-802.

8 Even in a system that allows fusion, a candidate for election must assemble majority support, so the State's concern cannot logically be about risks to political stability in the particular election in which the fusion candidate is running.

9 In fact, Minnesota's expressed concern that fusion candidacies would stifle political diversity because minor parties would not put additional names on the ballot seems directly contradictory to the majority's imposed interest in the stable two party system. The tension between the Court's rationale for its decision and the State's actually articulated interests is one of the reasons I do not believe the Court can legitimately consider interests not relied on by the State, especially in a context where the burden imposed and the interest justifying it must have some relationship.

10 "[A]s an outlet for frustration, often as a creative force and a sort of conscience, as an ideological governor to keep major parties from speeding off into an abyss of mindlessness, and even just as a technique for strengthening a group's bargaining position for the future, the minor party would have to be invented if it did not come into existence regularly enough." A. Bickel, Reform and Continuity 80 (1971); see also S. Rosenstone, R. Behr, & E. Lazarus, Third Parties in America: Citizen Response to Major Party Failure 4-9 (1984).

11 The Court of Appeals recognized that fusion politics could have an important role in preserving this value when it struck down the fusion ban. "[R]ather than jeopardizing the integrity of the election system, consensual multiple party nomination may invigorate it by fostering more competition, participation, and representation in American politics." McKenna, 73 F. 3d, at 199.

12 The experience in New York with fusion politics provides considerable evidence that neither political stability nor the ultimate strength of the two major parties is truly risked by the existence of successful minor parties. More generally, "the presence of one or even two significant third parties has not led to a proliferation of parties, nor to the destruction of basic democratic institutions." Mazmanian 69; see also The Supreme Court, 1982 Term--Independent Candidates and Minority Parties, 97 Harv. L. Rev. 1, 162 (1983) ("American political stability does not depend on a two party oligopoly. . . . [H]istorical experience in this country demonstrate[s] that minor parties and independent candidacies are compatible with long term political stability. Moreover, there is no reason to believe that eliminating restrictions on political minorities would change the basic structure of the two party system in this country").