William H. Rehnquist: We will hear arguments next in No. 85-766, Julia H. Tashjian, Secretary of State of Connecticut, versus Republican Party of Connecticut, et al.-- Mr. Gerson, you may proceed when you are ready.
Elliot F. Gerson: Mr. Chief Justice, and may it please the Court, this case involves a conflict between Section 9-431 of the Connecticut General Statutes which requires that persons be enrolled members of a political party when they vote in that party's primary election, and a rule adopted by the Republican Party of the State of Connecticut that would, contrary to that state law, allow unaffiliated voters to vote in Republican primaries for United States Senate, United States House of Representatives, Governor, and certain other state executive offices. The rule would not, however, apply to other elective offices in the state, including state house and state senate. The issues in this appeal are whether this law, which sets voter qualifications in a major party state primary is unconstitutional simply because a state party adopts a conflicting rule, and whether the particular rule adopted by the appellee party in this case is itself violative of Article 1, Section 2, and the Seventeenth Amendment to the Constitution. When Connecticut enacted its primary electoral scheme, which has now been in effect for greater than 30 years, the legislature thoroughly debated the implications of the various electoral codes that had already been adopted in the various states. Connecticut, in fact, was one of the last states to adopt a primary. The legislature selected a system that recognized the important role played by major political parties in the electoral and governmental process. The legislature sought, while opening up the process to the party rank and file, to at the same time maintain party responsibility and accountability by limiting participation in primary voting to party members. The legislature thus struck a balance between a convention system and a wide open direct primary. Simply stated, the law in this case allows a candidate of a major party in Connecticut who obtains 20 percent of a roll call vote at a party convention to wage a primary in which all party members may participate. Connecticut law further provides for automatic and preferential ballot access for major parties. The primaries in Connecticut are financed by the state and its towns and administered by the state and its towns, and enrollment is a very simple process involving completion of a short form up to noon the last business day before the primary. The basic point--
William H. Rehnquist: When you say enrollment, is that synonymous with registration?
Elliot F. Gerson: --It is synonymous with participation in a party primary.
William H. Rehnquist: It is enrollment for the convention, not for primary voting?
Elliot F. Gerson: It is enrollment for purposes of the primary.
William H. Rehnquist: Does it differ in some way from what in other states would be called registration to vote in the primary?
Elliot F. Gerson: No, it does not. There is registration to vote as an elector in the general elections, but enrollment refers to enrollment in a party which allows one to participate in the party primary.
Sandra Day O'Connor: Oh, I see-- --You mean the person has to elect a party affiliation at that time in order to vote in the primary of that party.
Elliot F. Gerson: That's correct.
Sandra Day O'Connor: You have to say, I am a Republican and I want to vote in the Republican primary, for example.
Elliot F. Gerson: Justice O'Connor, a simple form simply requires statement of name and address and a desire to enroll in that party for purposes of that primary.
William H. Rehnquist: So under Connecticut terminology you register to vote in a general election but you enroll to vote in the primary?
Elliot F. Gerson: Yes, Mr. Chief Justice. Enrollment is enrollment in a party list which allows one to vote in a party primary.
William H. Rehnquist: Do you have to be already registered to vote in the general election to enroll and successfully vote in the primary?
Elliot F. Gerson: You have to be a registered voter to enroll in a party primary, Your Honor.
Byron R. White: If you have... to register to vote in the general election, may you say you are a Republican or a Democrat?
Elliot F. Gerson: You may be a Republican or a Democrat or unaffiliated voter.
Byron R. White: Or an independent. But your enrollment for the primary purposes does not change your designation in your registration.
Elliot F. Gerson: When you enroll in a primary you are then listed as a Republican or as a Democrat or as an unaffiliated voter for purposes of any other election unless one elects to disaffiliate from that party, which is also a very simple process.
Byron R. White: But if you have registered as a Republican for the general election, in the last election, then your registration is still good?
Elliot F. Gerson: That is correct, Your Honor.
Byron R. White: If you choose to vote in the Democratic primary it doesn't change that registration.
Elliot F. Gerson: That is correct, Justice White. The basic points I wish to discuss today may be simply stated. First, that this case does not involve the merely internal affairs of a private association, but rather the public electoral functions of a major political party, that the state has a real and substantial interest in assuring the accountability and responsibility of the major political parties in view of the party's major governmental and electoral roles, that the decision of the Court of Appeals and particularly the analysis and the test that it employs have profound implications for the electoral codes of Connecticut and all the other states, and we also wish to demonstrate in the particular context of the rule adopted in this state the significant administrative burdens that would be imposed on Connecticut's electoral officials if this rule were in fact implemented. Fourth, that there is no real showing of any injury to the constitutional right of appellees that this statute has caused. The state is merely regulating appellees' interaction with people who do not want to join them in membership. And finally, we will argue that the rule itself in this case is unconstitutional as violative of Article 1, Section 2 and the Seventeenth Amendment of the Constitution. First, we wish to stress that this case does not involve the merely internal affairs of a private association or a private debating society, but rather the public electoral function of a major political party. Major political parties dominate the electoral process, dominate the government. As a practical matter, the choices that voters will have as to who will govern them are made when the major parties nominate their candidates. Accordingly, people have a right to say through their elected representatives how those people are selected and what electoral system best promotes governmental goals.
Antonin Scalia: What if this weren't a major party. Are you arguing that we should regard this provision as different in its application to major and minor parties?
Elliot F. Gerson: Yes, Justice Scalla, this case would be a different case were a minor party or petitioning party involved.
Antonin Scalia: Now, does the law apply equivalently to minor parties?
Elliot F. Gerson: No, Your Honor, different laws apply to minor parties and petitioning parties.
Antonin Scalia: What is the test of minor?
Elliot F. Gerson: The test of a minor party is whether or not the candidate in a previous election has received 1 percent of the vote for that office. A minor party--
Antonin Scalia: That is not very major.
Elliot F. Gerson: --That's correct.
William H. Rehnquist: We will resume there at 1:00 o'clock, Mr. Gerson.
Elliot F. Gerson: Thank you.
William H. Rehnquist: You may resume, Mr. Gerson.
Elliot F. Gerson: Mr. Chief Justice, just to further elaborate on Justice Scalla's point about minor parties, as I stated, a party qualifies as a minor party by receiving 1 percent of the vote for an office, but remains a minor party generally until that party receives 20 percent of the vote in a gubernatorial election. The state in no way regulates the nominating process of those minor parties. As I was indicating before the recess, this case does not involve the merely internal affairs of a private association but the public electoral functions of major political parties. When a major party is participating in a state primary election it is performing a function that the state has delegated to it, and the state then adopts that party's choice by automatically and preferentially placing the nominee of that party on the general election ballot. The duties assigned to major parties do not become matters of private law simply because they are performed by a political party. In addition to the--
Sandra Day O'Connor: Mr. Gerson, do you concede that a political party does have a protected First Amendment right to define its own membership?
Elliot F. Gerson: --Justice O'Connor, it does have such a right to define its own membership, but membership in a political party is not equivalent to qualification for voting in a party primary. What is involved in this case is the state determination about who may participate in a state election. Membership relates to the internal affairs of a political party.
Sandra Day O'Connor: So you reject the concept that there is any First Amendment right at stake here at all?
Elliot F. Gerson: Your Honor, a party certainly has First Amendment associational rights with respect to its internal affairs. The party is free to determine whatever ideology it chooses, whatever platform it desires, but in this particular case the associational rights of the party are not implemented. The burden on the party here is at most an incidental one. They are desiring to affiliate with people who by their own voluntary choice are indicating they do not want to be members of that party, so the membership question in this case is not one that directly implicates those rights.
Sandra Day O'Connor: Well, but I guess the party is taking the position that they want to have the votes counted of people who are interested enough to at least cast their vote with the party in the selection of candidates. Is that a right protected by the First Amendment, do you suppose?
Elliot F. Gerson: No, Justice O'Connor, I don't think it is. To the degree it is, it certainly cannot supplant the state's major interests in regulating the electoral process. The state, aside from its electoral responsibilities, has a substantial interest in ensuring the accountability and responsibility of major political parties in light of their elective role. The state--
Sandra Day O'Connor: Well, if the Court were to determine there is some First Amendment right to be protected here, what standard or test do you think we would have to employ?
Elliot F. Gerson: --Justice O'Connor, in the context of a challenge to an election statute, a state statute such as this, the appropriate test would be that the state may adopt a neutral, nondiscriminatory restriction, and such a restriction is constitutional as long as the state has a reasonable regulatory interest with the burden being on the challenger. The test adopted by the Court of Appeals in the context of associational interests of private associations with their own membership really has no applicability to the public electoral function in this case. If it did, it would invalidate many election codes across the country. The test is implicit in cases of this Court such as Anderson against Celebreeze where this Court recognized that election codes inevitably affect the associational rights of political parties or candidates or voters to some degree, but nonetheless subjected the state statute to a much lower level of scrutiny, indicating that the state's regulatory interests are generally sufficient to override such associational claims. The issue in this case, unlike the way in which the Court of Appeals framed it, which was asserting that the state was arguing that closed primaries are to be preferred to open primaries, is not that at all, but it is rather who makes the choice as to whether a state's primarily electoral system will be an open system or a closed system or a blanket system or any other kind of system. That decision has implications for the public and for the polity at large. It is a decision that does not go only to the internal affairs of a political party. Indeed, the appellees concede, and in the Court of Appeals the Democratic Party of Connecticut stated in its brief that if the Republican Party in this case adopted this rule, that the Democratic Party would necessarily follow suit. The reasons that date back to Charles Evans Hughes' original recommendation that states adopt closed primaries, reflected also in the American Political Science Association Committee on Political Parties in 1950 advocated closed primaries, was not because those... that... Charles Evans Hughes or the APSA believed that closed primaries improved the internal operations of a political party, but rather that the implications of a closed system affect the state at large, and the state has a legitimate if not compelling interest in determining what kind of election scheme there is going to be.
William H. Rehnquist: What benefits, Mr. Gerson, did Charies Evans Hughes and the American Political Science Association think flowed from the closed primary?
Elliot F. Gerson: A number of them, Chief Justice Rehnquist. They believed that a closed primary is more compatible with a responsible party system, that a closed primary retains membership, the incentive for membership, and therefore is very important in leading to responsible and accountable elected officials. Without party membership, there is a much looser link between elected officials and voters. Again, though, it is important to state, and the legislative history in 1955 as well as in 1985 reflect the judgments of Connecticut legislators that the basic decision as to how the candidates of major parties are to be selected have implications far beyond that narrow party.
William H. Rehnquist: But in your general election you certainly want the votes of the people not unless they registered in the primary, so anyone who becomes an elected official is almost surely going to become the elected official by virtue of votes other than from members of the party.
Elliot F. Gerson: Absolutely, Justice Rehnquist, but then again, given the role of major parties in our states, there is an important interest in the state ensuring that a candidate of a political party is the representative of that party for a citizen or for a voter to be able to go to that party about the accountability of that particular elected official. The state has a legitimate interest in making these kinds of determinations. We are not in any way indicating that this is a decision that is appropriate for all states. Other states in light of their own interests may determine for different reasons that an open primary is preferable or a blanket primary is preferable, but the decisions have implications well beyond a party, and accordingly that decision should be made by a body that is accountable to all the people in a state and not a decision that is just made by a political party.
Byron R. White: When you... how do independents get on the ballot in Connecticut, or do they?
Elliot F. Gerson: An independent candidate can get on the ballot by--
Byron R. White: Petitioning?
Elliot F. Gerson: --petitioning.
Byron R. White: And he doesn't need to belong to a political party?
Elliot F. Gerson: That is correct, Your Honor.
Byron R. White: He can get on the ballot and be voted for or against without ever being... belonging to a party?
Elliot F. Gerson: That is correct, Justice White. Again, the state is not attempting in any way to regulate the nominating process of independent candidates, petitioning candidates, or minor parties. It is because of the fundamental public electoral role and the important governmental role played by the major parties that the state has a legitimate interest if not a compelling interest in determining how that system shall operate, beyond the very decision as to what kind of system should be in place. If the decision as to what kind of elective system there is going to be is left to the political parties, the implications for the electoral administration in all the states are profound, which is undoubtedly one reason--
Sandra Day O'Connor: Mr. Gerson, I am still concerned about the extent to which there may be a First Amendment interest. In the Democratic Party case I guess the Court held that the inclusion of people unaffiliated with a political party may seriously distort its collective decisions and therefore it has a First Amendment associational right at stake. Now, isn't the converse true as well?
Elliot F. Gerson: --No, Justice O'Connor, I don't believe it is. The Democratic Party case involved the extraterritorial application of a state law on a national party. There was never any question in that case whether the State of Wisconsin could regulate its own state parties and its own state elective system, and similarly, that case relied on the Cousins case, where again this Court applied strict scrutiny in the context of an intrusion into the internal affairs of a political party. That is not what is involved in this case.
Sandra Day O'Connor: Well, certainly there is language in the opinion to the effect that Democratic Party implicitly assumes that freedom of association creates a presumption that it may participate in deciding who votes in a primary.
Elliot F. Gerson: Justice O'Connor, that is correct, and I think it is also one reason why this Court has repeatedly recognized in election cases that any election code is going to inevitably affect the associational interests or at least the asserted associational interests of a political party, and if the opinion of the Court of Appeals were adopted by this Court, political parties would essentially have a veto over matters that are now the sovereign responsibility of the state with respect to election regulation. The State of New York in its amicus brief on support of 16 states with radically differing kinds of primary election systems, closed primary and blanket, indicated that the Court of Appeals decision had the prospect of undoing 100 years of election law reform. Under the logic of that opinion the political primary, just as in this case, it is arguing that it is somehow opening the process, could just as easily close that process down. There would be nothing to stop the Republican Party or the Democratic Party or any other major party from saying to the State of Connecticut, we do not want a primary at all, we want simply a convention. Or we do not want a 20 percent rule in the challenge primary, we want--
William H. Rehnquist: Well, Mr. Gerson, I think perhaps your opponents might argue that if the parties were to take that drastic a position there might be much more serious administrative or regulatory consequences to the state. Here it was either the Second Circuit or the District Judge found that the administrative burden on the state from administering the kind of a primary that the Republican Party... would not be great. Do you question that finding?
Elliot F. Gerson: --The only thing in the record that relates to the administrative burden is the comment by... in the legislature by the elections attorney for the state that this system would be workable. There is nothing to indicate in any way that the system would not have enormous problems or be difficult or would be costly. I mean, counting ballots by hand would be workable. The point, though, is, regardless of the administrative burdens imposed by this particular rule, if parties could dictate what the qualifications are for voting in primaries elections, electoral regulation would become characterized as a form of regulation that a state engages in of perennial instability. Every party, every election could adopt different determinations as to who may vote in its primaries. It would be one thing, although the administrative burden would still be enormous, if what was involved really related only to the internal affairs of that political party, but when, as here, it goes to how the basic elective system is going to operate, which has implications well beyond the political party, it seems to us that such a burden clearly outweighs any putative associational interests in this case. And if I may just explore what the associational interests are in this case, the Court of Appeals initially indicates that the burden is indirect and that it affects the rights of the Republican Party to some limited extent, yet somehow transforms that indirect limited burden into a massive intrusion into their rights. Yet we would submit that by any reasonable standard the burden here is really no more than a minimal inconvenience to the party that is well within the state's Article 1, Section 4 authority to regulate the time, place, and manner of elections. The fact that voters take the very simple step of enrolling a day before hardly leaves the Republican Party of Connecticut powerless to attract voters to its cause, and we also have a difficult time understanding the nature of the interest. Absent a willingness to profess an interest in affiliation, where is the right? Without a commonality of interest, where is the association? This statute does no more than regulate the parties' interaction with people who do not want to be members of the party for purposes of voting. The state is not preventing unaffiliated voters from voting. There is no disenfranchisement involved in this--
William H. Rehnquist: But by hypothesis don't we have to assume that some people are going to vote in the open primary that didn't vote in the closed primary? Otherwise it is just much ado about nothing.
Elliot F. Gerson: --That's correct, Justice Rehnquist, but we would have to say it is just by hypothesis. There is no indication in this record that there are unaffiliated voters who are clamoring for participation in the Republican Parties in Connecticut. Quite the contrary.
Antonin Scalia: Well, the Republican Party thinks it is worth a lawsuit anyway.
Elliot F. Gerson: Absolutely, Justice Scalia.
Antonin Scalia: I mean, you have to believe that they think it is important.
Elliot F. Gerson: The state in no way is questioning the sincerity of the Republican Party's desire to open up its primaries. The state is merely asserting that the decision as to what kind of primary elective scheme a state is going to adopt is a decision that must be left to the elected representatives of all the people of the state, and not just the members of a particular political faction in the state. The implications--
Sandra Day O'Connor: Well, Mr. Gerson, it seems to me that you denigrate unnecessarily, perhaps, in your argument the strong interest that a political party may have in allowing independents in this case to vote in the primary because they are sufficiently aligned with the party to permit them to play a role in the party's decision-making process, and it would seem to me that that is an arguable position for the party to take.
Elliot F. Gerson: --Justice O'Connor--
Sandra Day O'Connor: Now, there may be countervailing state purposes here that can outweigh it, but I just wonder whether you aren't giving too little credence to the interests at stake.
Elliot F. Gerson: --Justice O'Connor, again, we agree that the Republican Party sincerely and conscientiously is arguing its position that it desires this affiliation that it is now not allowed by the state party, by the state law. Nonetheless, we would argue that there is nothing preventing the Republican Party of Connecticut from involving unaffiliated voters in many of its internal affairs, taking their--
Sandra Day O'Connor: Well, but they want them to be involved in the most important function of all, which is nominating candidates.
Elliot F. Gerson: --Justice O'Connor, precisely, but that most important function of all is a state function performed by a major political party. It is not a matter that goes just to the internal affairs of that political party. Mr. Chief Justice, I would like to reserve the rest of my time.
William H. Rehnquist: Thank you, Mr. Gerson. We will hear now from you, Mr. Golub.
David S. Golub: Mr. Chief Justice, and may it please the Court, there are two fundamental disagreements between the parties on the issues in this lawsuit, and one is involved with the questions that Justice O'Connor was just asking Mr. Gerson about the nature of the freedom of association issue in this case. And the state in its argument today has characterized it as one based on membership, that it is an attempt to force people who don't want to become members to participate without assuming the mantle of membership. That is not the freedom of association issue that we rely on solely. It is true we want them to participate. It is true that the Republican Party has adopted this rule in the ultimate hope that independent voters will become members of the party in the future. But the reason the rule is adopted goes beyond that. The reason the rule was adopted is because whether or not independent voters become members of the party, their numbers are so great in the State of Connecticut they outnumber the number of Republicans significantly. The present numbers are 700,000 Democrats, 600,000 independents, and 475,000 Republicans. Whether or not those independent voters become members of the party, their participation, whether through a formal affiliation or an informal affiliation in party affairs, their participation in supporting party candidates at an early stage, their participation in helping the party select candidates with enough popular support to win general elections by getting other independent support or even support from other groups, those kinds of feelings were what prompted the Republican Party to adopt this rule.
Antonin Scalia: Mr. Golub, you don't contest the... indeed, you welcome the action of the State of Connecticut in giving political parties a prominent role in their electoral process?
David S. Golub: That's right.
Antonin Scalia: I mean, political parties are folded into the electoral process. I mean, conceivably they could run it without political parties.
David S. Golub: Yes.
Antonin Scalia: Now, isn't it reasonable for the state once it has let political parties in to assure that they are functioning as political parties?
David S. Golub: Yes.
Antonin Scalia: What if the Republican Party decided that the way it wanted to have its candidates nominated to be sure of winning in a state that is overwhelmingly Democratic or independent is simply to endorse each year whatever candidate the Democratic Party endorses? All right? And the Republican Party by convention says we will endorse whatever party... whatever candidate the Democratic Party endorses. Would the state have to accept that?
David S. Golub: Well, I think--
Antonin Scalia: Doesn't that make the whole party system a charade?
David S. Golub: --I think that is the critical question in this case, because whether you take this case at the primary level, whether you take it at the convention level, whether you take it back to the town caucus level where no convention is necessary, the issue is what degree of involvement can the state have in the party's determination of the philosophy of its candidates.
Antonin Scalia: And what I am suggesting is, the only involvement it is asserting here is, all we want to be sure of is that this candidate is really the party's candidate, because we are running a party system, and what you, Republican Party, are telling us is that you don't want a party's candidate, you want whatever candidate the independent voters out there want because basically you want to win. Now, the state is saying that is not a party candidate. The only thing we are imposing upon you is that you be a party.
David S. Golub: Let me respond directly to that, because I think the state's authority to act is limited to ensuring a fair nominating system and a representative nominating system, and I say those two words because they are a little different. We have to back in history to how the state first developed the authority to even insist upon primaries. Before the 1900s it is well established there were no primaries. But the reason that states were allowed to say you must have a primary, whether it is a direct primary or a challenge primary, was because party bosses were preventing a fair and representative decision by the party and because corruption and fraud was preventing it.
Antonin Scalia: My first hypothetical, which you rejected, was fair and representative. All of the Republican Party unanimously in their convention say, we will nominate every year whatever candidate the Democratic Party nominates. You tell me that the State of Connecticut has to accept that and run its primary system on that basis?
David S. Golub: I do, and I say that knowing that it involves what seems on its face to be an incredible position, and I do that because the party's right to pick its candidate, pick its candidates, and the method of picking its candidates has to be paramount to the state's rights to insist that a candidate reflect a certain philosophy, and taking that a step further, if the--
Antonin Scalia: It isn't a matter of reflecting a philosophy. It is just a matter of insisting that the party not abdicate, that the party function as a party.
David S. Golub: --If the party wants to abdicate, if the party chooses to put up no nominee, if the party chooses, as the party does in New York from time to time--
Antonin Scalia: Then it should leave the primary system.
David S. Golub: --I am sorry?
Antonin Scalia: Then it should leave the primary system. The State of Connecticut is saying our primary system is for parties and we want candidates who are nominated by the party. If they don't want to nominate anyone, if they want to leave it up to another party or to independents, well, they can still participate in the election but not as a party.
David S. Golub: If the party in the State of... if any party in... if a major party in the State of Connecticut said at its convention, we unanimously endorse the Democratic candidate, the state would have no requirement of insisting upon a primary.
Antonin Scalia: That is not my hypothetical. My hypothetical is, we don't know who the Democratic candidate is going to be, but we will beforehand announce that we will endorse whoever the Democratic Party endorses.
David S. Golub: If the party decides that that is the best way for it to get into power, if the party decides that that is the best way for it to attain is goals, the party may be 100 percent wrong, the party may be adopting a self-destructive course, but it is not for the state to come and say we won't let you do that.
Antonin Scalia: I am not concerned about its being self-destructive. I am concerned about its being destructive of the whole purpose of a party primary system, which is what the state is trying to run.
David S. Golub: What the party has done in this case is open up its system to make it more representative. We recognize that the party is limited by the state's authority to ensure a representative nominating process or a fair and orderly representing... nominating process. And in a sense what your question really suggests is, supposing the party adopted a rule that eliminated a representative quality to its candidate selection process.
Antonin Scalia: No, this is thoroughly representative. All of the party members thoroughly vote that we want to abdicate, basically, we will endorse whoever the Democrats endorse.
David S. Golub: Well, our position--
Antonin Scalia: All I am saying is that maybe Connecticut has a right to ensure that it be, Number One, fair, Number Two, representative, and Number Three, a genuine party choice and not an abdication by the party.
David S. Golub: --Well, I certainly agree with Number One, fair, and Number Two, representative, and I respectfully have to maintain the position that if the party wants to abdicate or make a mistake, that is why we have voluntary private parties, so that other parties can grow up, so that other parties will develop, so that a majority of the people in the Republican Party who agree or don't agree with that particular course have the option of saying, okay, we will do that--
William H. Rehnquist: Well, Mr. Gerson, some of your answers suggest to me that one might fairly say that you are putting the cart before the horse. To me at any rate the horse would appear to be the general election where the state provides for the election of people who are going to hold public office in Connecticut, and the parties are more or less a means to that end. But some of your answers give me the impression that you think that these kind of election functions are kind of subordinate to the functioning of the party.
David S. Golub: --Well, I think that that is the second disagreement between the parties in this case, parties with a small p.> ["] And I think that what the state has asserted within the rubric of "public electoral function" is a right to impact not only on the fairness, the orderliness of the primary procedure, but on the decisions as to who can participate in the primary procedure. We agree that Article 1, Section 4 confers upon the state a right to regulate elections, and I think we also agree... this has not been articulated exactly this way, but that the granting of ballot access to the Republican Party gives the state a right to go beyond that back a step to before the general ballot is implemented to the nominating system. We don't agree that the state can do more than ensure a fair and representative party decision, and to that extent I am putting the cart before the horse. I wouldn't put it that way, of course.
William H. Rehnquist: You wouldn't agree that you were, but--
David S. Golub: Yes.
Thurgood Marshall: --Do you agree--
David S. Golub: I put the state's cart before my horse, or whatever it is. 0 [Generallaughter.]
Thurgood Marshall: --Mr. Gerson, do you agree that the primary is an integral part of the election?
David S. Golub: I agree that it is, and I agree that--
Thurgood Marshall: Well, then, the state has the same right over that that it has over the general election.
David S. Golub: --I don't agree with that.
Thurgood Marshall: Why not?
David S. Golub: I think we agree that for the purposes of state action determinations the primary is such an important... can be such an important part of a general election that the protections of the Fourteenth or Fifteenth Amendments apply, but we don't think that the state can bootstrap its way into saying, we have the right to regulate you, we force you or we require you to participate in a primary, and now that we require you to participate in a primary, since that is a "public electoral function", we can now insist upon your participating substantively in the primary with the members or the voters that we think are appropriate. I don't think anybody would say that the state could regulate the people who attend the convention or the people who attend the town committee caucuses.
Thurgood Marshall: Because the convention is not a primary.
David S. Golub: That's right, and we don't contend it is, but it is part of the same nominating system that--
Thurgood Marshall: What is there in a state primary that the state cannot regulate?
David S. Golub: --The state cannot regulate who may participate in the primary as the party wishes.
John Paul Stevens: May I ask if under your view the Republicans could invite 17-year-olds to vote?
David S. Golub: No.
John Paul Stevens: Why not?
David S. Golub: I think that the state has a right to establish minimum voter qualifications, which have traditionally included age and residency and other similar kinds of things.
John Paul Stevens: But if the theory, as Judge Kaufman explained it, part of it was to get the ideology of the party reaching out and getting other views that's necessary to vote to get, I don't know why that theory wouldn't apply to aliens and other unregistered voters.
David S. Golub: Well, I don't go as far as the Second Circuit opinion went in that regard.
John Paul Stevens: You don't go... anyway, you don't go that far.
David S. Golub: The rationale that I would use, and I think it is an important rationale for the argument I am advancing, is, going back to the representativeness of the decision, what the state has the right to insist upon is that whatever decision the party ultimately makes through its primary is a representative decision of the wishes of its members. If the members say, only members can participate, at that point the vote in the primary will be representative based upon the votes of the members in the primary.
William H. Rehnquist: Well, Mr. Golub, then you would say in a state like Wisconsin where the state mandates an open primary the Republican Party could come up and say, no, we want a closed primary, and the state could not impose an open primary on that party.
David S. Golub: I think that is a difficult question.
William H. Rehnquist: I do, too.
David S. Golub: Fortunately, it is not posed in this case. But I have an answer to it.
William H. Rehnquist: How does it differ from the question that is posed in this case?
David S. Golub: It differs in a fundamental respect. Our rule is supportive of opening up the system of participatory democracy. If the state--
William H. Rehnquist: What is so good about that, other than its appeal? 0 [Generallaughter.]
David S. Golub: --I have a flag in my pocket to wave. We think the state can make determinations about what is necessary to ensure the representative nature of its parties' decisions, and if a state such as Wisconsin said, in order to ensure a representative decision we have to have open primaries, we think that could be upheld as expanding rather than restricting the party functions. There is no case in this Court that has ever held that a state has the authority to restrict a party's attempt to expand associations, memberships, or participation in its processes. That includes the white primary cases, which of course dealt with the parties' attempts to exclude voters, in violation of the Fourteenth or Fifteenth Amendment. That includes the disaffiliation cases, Rosario and Cusper, which dealt with an individual's attempt outside the party to force his way into the party.
Byron R. White: Mr. Golub, if the state law said to each party, well, you may have an open primary for your party, or you may invite independents to vote and they may vote in your primary, but provided they do their enrolling the day before?
David S. Golub: Well, that is, to an extent, part of what is involved in this case.
Byron R. White: I know.
David S. Golub: I want to clarify one answer that was given--
Byron R. White: What's wrong with that?
David S. Golub: --What we think is wrong with it is, it requires independent voters to make a public affiliation. In the context--
Byron R. White: Not any more. They don't have to... they don't have to do anything more than what they do on a... what the party wants them to do on Election Day.
David S. Golub: --No--
Byron R. White: I guess they enroll.
David S. Golub: --The answer that was given to you earlier on in this argument I don't think went far enough. Let me explain to you my understanding of the relevant statute. Statute 956 of the Connecticut General Statute says a person may enroll in a party, an unaffiliated voter may enroll in a party at any time. If he enrolls in a primary up until the day before... noon before the day of the... the day of a primary... I'm sorry, if he enrolls in a party up until noon before the day of a primary he may in addition to all of the other accoutrements of party membership vote in the primary.
Byron R. White: Yes.
David S. Golub: But he is a full member of the party.
Byron R. White: That isn't my hypothetical. I say he doesn't... they say independents may stay independents and vote in the Republican primary if they just enroll, just sign up the day before and say, I am going to vote in the primary.
David S. Golub: Well, we think that would be a least restrictive alternative that might be applicable if the Court finds that the state has other compelling interests. We say that--
Byron R. White: Well, I didn't ask... do you have a solid answer for that or not?
David S. Golub: --Yes. I am sorry. I didn't mean to avoid the question. Let me try--
Byron R. White: Well, would it be all right? Would it be alright for the state to say, go ahead and vote in the Republican primary as long as you just enroll the day before? You stay independent but you just let the party know or let us know also that you are going to vote.
David S. Golub: --Well, I have trouble with the word "enrolling" in that context. If it is only announcing--
Byron R. White: Use any other word you want, then.
David S. Golub: --Okay. If it is only announcing an intention to vote--
Byron R. White: Yes.
David S. Golub: --which could be for administrative reasons, to know how many machines to have--
Byron R. White: Yes.
David S. Golub: --I have no problem with that.
Byron R. White: You have no problems with that then?
David S. Golub: The problem in Connecticut is that there is a traditionally historical--
Byron R. White: So the real... the real problem then is what?
David S. Golub: --The problem is that the state is insisting on a public act of affiliation, leaving the independent status, joining the Republican Party as a condition of this association.
Byron R. White: Yes, but he isn't... in my example they are not insisting on that.
David S. Golub: Yes, I am sorry, but in the example--
Byron R. White: Yes, all right.
David S. Golub: --I mean, I think your example, if it was necessary to administer the open primary--
Byron R. White: Well, there's a law that says, go ahead and vote, but you have to sign up to do it.
David S. Golub: --Yes, as long as the state showed it was necessary for the administration of the primary I think that could be acceptable. What is not acceptable is forcing voters to give up their independent status, because they won't do it, because they haven't done it, whether it is because they are afraid of--
John Paul Stevens: Mr. Golub, all they have to do is publicly enroll. But even under your system wouldn't they have to publicly ask for a Republican ballot? And there are watchers at the polls. They have to identify themselves as participating in the primary even under what you want.
David S. Golub: --That's correct.
John Paul Stevens: It's the difference between publicly doing it that way and publicly signing an enrollment form the day before.
David S. Golub: I think that there is a major difference philosophically between affiliating with a party formally and going into a polling booth and saying, I need a Republican ballot, and I think that that is a difference not only... I mean, it is... I mean, there are--
Speaker: 0 xxx. 0 [Generallaughter.]
David S. Golub: --I, of course, am a registered Democrat, so-- 0 [Generallaughter.]
Antonin Scalia: The more you describe the difference, the less I like it, because you are saying that is it, people who really have no affiliation with the Republican Party at all, in fact, they are deep in their hearts Democrats, they can come in and they will cheerfully select the Republican candidate. Right?
David S. Golub: Well--
Antonin Scalia: My problem is that your notion of what it means for the state to assure that the selection by the party is a representative selection is a strange description of what is representative. For example, under the Federal doctrine that Congress has to make legislative judgments, we don't say that Congress is making the legislative judgment it has to. If it passes a law saying we have decided that the executive can do whatever it wants in this field, that would be invalid as a delegation of legislative authority. But you are telling me that this is not a delegation of the parties' responsibility to select its own candidate. If the party says, we have decided not who our candidate is, but we have decided that independents are going to select our candidate, that is not a representative selection by a party. It is an abdication of selection by the party. Or at least the state can reasonably view it that way.
David S. Golub: --I think the state... the state could view it that way if it wanted to, but I think it has no right, and this is where I fundamentally part with the state's analysis of the case. The state sees it as an interference with states' rights. We see it as the state attempting to assert authority in an area that it is not given authority by the Constitution. Article 1, Section 4 does permit the state... does authorize the state--
Antonin Scalia: You acknowledge that the state has the right to assure that the party selection be a representative selection, so all we are quibbling about is whether it constitutes a representative selection to say, I am not going to select, I am going to let somebody else select. You say that that constitutes a representative selection.
David S. Golub: --It may be that my definition of... I need to define my definition of representative, and let me define that so that my quibble can take on a more substantial status.
Antonin Scalia: All right.
David S. Golub: I think that representative in the context of the private rights of the association means that whatever decision is voted upon is voted upon with the... as a result of the approval of the majority of the party members, and if a majority of the party members say we are going to allow this kind of input, that is still a representative decision, and I do take it a step farther, going back to where I got--
Antonin Scalia: If you applied that to the doctrine of unconstitutional delegation, we would have a quite different system that we would be living under now. You wouldn't think that the Congress was exercising its responsibility to represent the people if it did something like that.
David S. Golub: --Well, that is the difference between a legislature and a political party. A political party could say, we are not going to nominate anybody this time. A political party could say, we are going to nominate somebody this time who we know is going to lose because in the future that race will help us. A political party could say, we want to build something now so that in the future we will be a different... a different number, or a different philosophy. The party has the right to do all that.
William H. Rehnquist: Well, what if we affirm this judgment, and the Republican Party plan is therefore put into effect in Connecticut, but the Republicans still don't elect any candidates to statewide office, so the party at its next convention says, instead of having just our primary open to independents we want only independents in it, because we think Republican voters are skewing us away from where the electors are. 0 [Generallaughter.] Would that be all right?
David S. Golub: Well, at that point, going back to the issue of representativeness, the party votes are not... I mean, the party members have no longer a voice in the party primary system.
Antonin Scalia: We don't know that they have a majority vote under the present system. We don't know how many independents are going to come crowding in. The way you describe it there are a lot more independents out there than there are Republicans.
David S. Golub: Yes, but the party has determined that it wants the input from independents.
Antonin Scalia: They have determined under the Chief Justice's hypothetical, too. They have determined that they want the independents, just to be sure they are going to win, they want the independents to make the pick.
David S. Golub: The Chief Justice's hypothetical, though, eliminates any party participation at all in the primary, and I concede that the state has the right to require a primary.
Antonin Scalia: There has to be at least a minority participation of the political party--
David S. Golub: No.
Antonin Scalia: --in the selection of its nominee.
David S. Golub: I go farther than that, and I think that there is... there can be discrimination through dilution, and I think that the state has the right to make sure that there is no... that the party members have an equal right to participate in the primary. That is what... there is no claim here that the party is not allowing its members to participate in the primary, is not allowing its members a full vote in all of the party processes. The claim by the state is that the party can't elicit additional support from groups outside the party. And the reason we think that that is so fundamental is, if you have a minority party, and not just in Connecticut but in a democracy, the way a minority party displaces the ruling majority is by forming coalitions with other groups, whether it is formal coalition so that the party grows, whether it is an informal coalition of two groups that maintain their identity. Unless you allow the party to make its own decision about who it can associate with you can't displace the ruling majority.
Byron R. White: I suppose you would sustain a state law that said you can't cross over or that Republicans can't vote in a Democratic primary?
David S. Golub: I would sustain a state law that intruded upon the party's decision as to who can vote in its process. If the party said we don't want Democrats to vote here, only independents can vote--
Byron R. White: What if the party said, we don't care. Can the state still say Democrats can't vote in the Republican primary?
David S. Golub: --Well, I take the position that the state can't say that. I take the position that the... and I have to do that--
Byron R. White: I guess you have to. I guess you have to to in terms of your position.
David S. Golub: --to be consistent. That is not the issue before this Court right now, and I should say before I run out of my argument that whether or not this absolute position I am advocating here, and it is an absolute rule that I am advocating in a sense, the rule that in the absence of invidious discrimination a party's decisions about who it will participate with is absolute. Whether or not that rule is adopted by the Court there still was the inquiry performed by the two lower courts where there was an inquiry into the sufficiency of the reasons the state adopted under the familiar compelling state interest test that had been set forth by this Court. And I rely on that as an alternative basis wholly for the decisions below. But answering Justice White's question, my answer is, the party has the right to associate with independents. The party has the right to associate with Democrats. The party has the right to associate with any qualified voter, so long as it is not done to discriminate in violation of the Fourteenth or Fifteenth Amendments.
John Paul Stevens: Mr. Golub, I would like to ask you another, more basic question that we haven't touched on yet. You said earlier but I know it was in a different context, that the primary is part of the general election process, and if you make that assumption for purposes of reading Article 1, Section 2 of the Constitution, which I know you might not, accept, but just make it for a moment, is it not correct that the qualifications requisite for electors of the most numerous branch of the Connecticut legislature in the primary include party membership?
David S. Golub: All right.
John Paul Stevens: So if that is true, and if the primary is a part of the process, why doesn't the plain language of Article 1, Section 2 answer this case?
David S. Golub: All right. First of all, I don't agree that the word 1, Section 2 applies to primary elections.
John Paul Stevens: I understand that, yes.
David S. Golub: Okay. And that is set forth. And I think that this Court has held that that is the law also, because otherwise Oregon versus Mitchell was wrongly decided. In Oregon versus Mitchell the Court approved 18-year-old voting for Federal elections, Federal Senate and House elections, and 21-year-old voting in state representative elections. And if that language in Article 1, Section 2 means as you have just hypothesized to me, that decision couldn't stand, because that would be a different qualifications requisite for the electors. Our position is that if you are right... if the state is right that electors means primary elections as well, that the purposes of that were to ensure that there was no restriction of the right to vote in Federal elections, not just to require straight symmetry of the qualifications, and that is satisfied by a rule that expands the right to vote in Federal primary elections beyond that--
Thurgood Marshall: What about United States against Classic?
David S. Golub: --United States versus Classic said, as I read that decision, primaries are an integral part of the election system. Therefore, in order to protect the right to vote established in Article 1, Section 2, we must reach out and allow Federal control over primary elections. Classic did not say that Article 1, Section 2's reference to electors includes primary elections. What it said was, if we don't protect primaries from fraud and corruption, then the right to vote in that first phrase of Article 1, Section 2 has no... can be diluted. And that's what... if you compare Classic with Ray versus Blair, in Ray versus Blair a state... the Republican Party had--
Thurgood Marshall: I think Classic stands on its own. You don't have to compare it with anybody.
David S. Golub: --I am not asking the Court to impair the holding of Classic at all, but--
Thurgood Marshall: It said that the primary is an integral part of the election machinery, period.
David S. Golub: --And I agree with that, but I--
Thurgood Marshall: No qualifications at all.
David S. Golub: --I agree with that and I think it goes beyond that to say that because the right to vote is guaranteed by Article 1, Section 2, Federal control of the primaries is sanctioned under the aegis of Article 1, Section 2, but no one has ever said that all of the election provisions in the Constitution apply to primary elections. And if Article 1, Section 2 through Classic meant that there would have been... I mean, then Classic would have... then Ray versus Blair, which said that the loyalty pledge that violated the Twelfth Amendment of electors to the Electoral College, that Ray versus Blair would also have to be decided, and Ray versus Blair specifically addressed this issue about how far does Classic go and how far does Smith versus Allwright go, and what it said was, those cases indicate that if there is a secured right being violated, as there was in Smith versus Allwright, the secured right under the Fourteenth or Fifteenth Amendments--
Thurgood Marshall: Smith and Allwright and Classic were two different cases.
David S. Golub: --Yes. I agree to that also.
Thurgood Marshall: One was racial and the other was not.
David S. Golub: We are not asking this Court to adopt any rule that in any way impinges the law of Classic or Smith versus Allwright.
Thurgood Marshall: Please don't ask me to do it. 0 [Generallaughter.]
David S. Golub: I am not asking you to. I say that in all seriousness, because the position we have taken in our brief is that, first of all that they were properly and rightly decided, and second of all, they are the limits on what the party can do. Just as Smith versus Allwright said that a party cannot exclude on the basis of impermissible discrimination voters from a primary system, we say that's the limit. We can't exclude. What the state here is doing, and I say this respectfully, is using the white primary cases for the flip side, which they don't stand for. The white primary cases have never been held to say that the state has the right to prevent a party from expanding.
Speaker: But there again you call Classic a white primary.
David S. Golub: Not, I am saying Smith versus Allwright and Terry versus Adams--
Speaker: Okay.
David S. Golub: --on this point. The state is saying those cases allowed the Court to restrict a party's attempts to expand, and those cases said just the opposite. They said a party may not... it said the state may restrict a party's attempts to exclude. That goes back to, in a sense, where we started with the argument, that what the party is trying to do here is expand, and it is trying to do that in a manner which it believes is representative and which the state has not shown to be unrepresentative. I recognize that the state has discretion in making judgments, but in terms of deciding where it can interfere with a party's private affairs of candidate selection, I don't think that there is deference to the state's judgments when they interfere with what are fundamental associations of who and how people may participate in the candidate selection.
William H. Rehnquist: Thank you, Mr. Golub. Do you have anything further, Mr. Gerson? You have four minutes.
Elliot F. Gerson: Thank you, Mr. Chief Justice. I will be brief. I would first like to comment on Justice Stevens' question about Article 1, Section 2, which we believe does clearly invalidate the rule that the Republican Party would supplant the state statute with. Appellee referred to Oregon against Mitchell as somehow inconsistent with our position. The holding in Oregon against Mitchell relied on Congress's power under Article 1 to override a determination by the state. The pertinent opinion in Oregon against Mitchell that relates to the state's position here is Justice Stewart's opinion that was joined by Justice Blackmun and Chief Justice Burger which stated very clearly that the states are not free to prescribe qualifications for voters in Federal elections which differ from those prescribed for the more numerous branch. In this case the qualifications differ. Article 1, Section 2, and the Seventeenth Amendment invalidate it. If there is any point.
Speaker: How does it invalidate it?
Elliot F. Gerson: It invalidates it very simply because many voters in Republican primaries in Connecticut for Senate and House of Representatives would lack the qualifications for voting in Republican primaries for the Connecticut State House of Representatives. Electors without qualifications to vote in state primaries would have qualifications to vote in Federal primaries. The constitutional language of Article 1, Section 2 forbids just such a discrimination.
Speaker: So there would be a different problem if the Connecticut law applied to all offices?
Elliot F. Gerson: If the rule adopted by the Republican Party in this case applied to all--
Speaker: Yes.
Elliot F. Gerson: --Republican offices, then Article 1, Section 2 would not be invalidated. The reason it is invalidated is because it discriminates among offices, and that is a very good illustration of how constitutional protections begin to unravel when the sovereign authority of the state over primary elections is granted to political parties.
Speaker: Well, Mr. Gerson, If we were to agree with that submission I take it we wouldn't have to address the other questions.
Elliot F. Gerson: That is correct, Your Honor. The Republican Party rule itself would be unconstitutional and there would not be a dispute before you.
Speaker: How can a Republican Party rule be unconstitutional?
Elliot F. Gerson: Because the rule itself would apply in a state election. The Republican Party--
Speaker: What you are saying is, the state has the authority to foreclose the application of any rule?
Elliot F. Gerson: --Of an unconstitutional rule, if in fact that rule dictates--
Speaker: You are just insisting... you would just be insisting that there be... that people shouldn't... can't vote who are ineligible.
Elliot F. Gerson: --Yes, Justice White. The Republican Party rule--
Speaker: The Constitution, you think, requires that certain people be allowed to vote and certain people not be allowed to vote, and you are enforcing that rule?
Elliot F. Gerson: --Article 1, Section 2 says the qualifications shall be the same, and under the Republican Party rule if it could supplant the state statute they would not.
Speaker: Well, if the Republican Party just invited to their state convention independents and put in the primary anyone who got 20 percent, and decided only to... we are going to... we are not going to have... we won't need a primary, we are only going to... we are just going to put in the general election the person who gets the most votes at the state convention, may it do that?
Elliot F. Gerson: No, Justice White. If the state decides there is going to be a primary election, that is a--
Speaker: All right, they are just going to put up one candidate then, and we have a primary election. Everybody votes for one candidate.
Elliot F. Gerson: --I am not sure I understand the question, Justice White.
Byron R. White: Well, how do the Republicans choose the people who stand for election at the primary?
Elliot F. Gerson: By their party convention.
Speaker: Well, suppose they by their own rule just nominate one candidate.
Elliot F. Gerson: And if they did?
Byron R. White: And they also had independents sitting in their state convention.
Elliot F. Gerson: Under current Connecticut law they would not be able to have unaffiliated voters in their state convention, but that is not the issue before the Court.
Speaker: Okay.
William H. Rehnquist: Thank you, Mr. Gerson. The case is submitted.