Proof of Claim 11 11 16 Edits

II.
Are parties private or public organizations? (streamline this section to 3 parts)

a. Strengths of private classification
Proponents of classifying parties as private organizations often begin with early legal history.
Before the Progressive Era brought issues of party regulations to bear, political parties were held in
common law to be more free than most groups from regulation of their internal procedures.1 Even
once party regulations became the object of judicial scrutiny in state courts for the first time, parties
were held to be associations, and judges emphasized that few powers are as important to an
association as control over who can join and participate in its activities.2 The courts strong recognition
of associative rights provided one early indicator of an established precedent to treat parties as private
organizations.
Though ultimately overturned,3 Grovey v. Townsend is worth mentioning as one of the Courts
first forays into regarding the legal status of parties as private. The Texas Democratic Party had voted to
restrict its membership to whites, and Grovey, an African-American, challenged the restriction on
Fourteenth and Fifteenth Amendment grounds. In a unanimous opinion, the Court ruled that the
Democratic Party is a voluntary political association entitled to determine the eligibility requirements
for membership and the subsequent right to vote in its primary.4 The Court argued that since primary
elections are administered by the parties and not the state, discrimination was not unconstitutional.5
The Court also sided with parties when confronted with a different type of exclusion in Ray v. Blair,
ruling that parties can refuse to select presidential electors who will not pledge to support the partys
nominee. In a 5-2 decision, the majority reasoned that the pledge requirement was a legitimate method
of ensuring loyalty to the party platform and leadership.6 It also introduced the popular argument that
parties must be able to protect themselves from intrusion by those with adverse political principles.7
As clarified in a later case, this protection was especially important because "[a]ny interference with the
freedom of a party is simultaneously an interference with the freedom of its adherents.8
Moreover, parties seem like private organizations in many respectscertainly more than they
seem like public agencies. In their simplest form, they are groups of people who gather together for the
advancement of their political beliefs and ideas.9 Just like other private organizations, they exercise
many of the rights available to individuals and collections of persons: They meet to discuss issues of
collective concern, they formulate policy programs, and in a literal sense they speak, print, assemble,
and petition for redress of grievances.10 And other interest groups (e.g., the NAACP) are generally free

1
John G. Kester, Constitutional Restrictions on Political Parties, 60 Va. L. Rev. 774 (1974).
Adam Winkler, Voters' Rights and Parties' Wrongs: Early Political Regulation in the State Courts, 1886-1915, 100
Colum. L. Rev. 889 (2000).
3
See summaries of Smith v. Allwright and Terry v. Adams in Section II.b.
4
Grovey v. Townsend, 295 U.S. 52 (1935).
5
Ibid., at 50.
6
Ray v. Blair, 343 U.S. 227 (1952).
7
Ibid., at 214.
8
Sweezy v. New Hampshire, 354 U.S. 234 (1957).
9
Brian Patrick Bronson, The California Open Primary Act Unconstitutionally Burdens Political Parties' Associational
Rights: California Democratic Party v. Jones, 39 Duq. L. Rev. 854 (2001).
10
Nathaniel Persily, Towards a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. Rev. 763 (2001).
2
Alyssa Nielsen 11/22/2016 10:17 AM

Deleted: to the extent that the party was
an association, the courts were concerned
primarily with individuals ability to join and
vote, and many judges ruled in favor of the
idea that

Deleted: of eligibility

Deleted: They

Deleted: a group

Deleted: , they are
to identify and limit their membership.11 Unlike government agencies, parties do not act on behalf of
any authority but their own, and they are afforded the same privileges of freedom that their individual
members are guaranteed by the Constitution. Additionally, the First Amendment seeks mostly to
protect political speech and association, the strengthening political parties constitutional right of
freedom of association.12
Furthermore, some scholars argue that, absent the protections afforded to private groups,
parties could not function effectively: Freedom from state interference in the organization of political
parties is a crucial element in preserving party leaders' ability to broker their influence and nominate
candidates that respond to the party's electoral coalition.13
Eu v. San Francisco County Democratic Central Committee highlights a relatively recent example
of the Court shielding the process of primary elections from regulations. In this case, a California law
banning party central committees from formally endorsing a candidate during the nomination stage of
elections was found to be unconstitutional. The Court ruled that the prohibition hamper[ed] the partys
ability to spread its message, [hamstrung] voters seeking to inform themselves, and burden[ed] the
core right to free political speech of the party.14 The primary election stage was identified as a
particularly important part of a partys ability to select a representative of its preferences.15 In addition
finding that preventing party action (e.g., an endorsement) during primary actions is unconstitutional
regulation, the Court has also recently rejected state attempts to compel party action. In Tashjian v.
Republican Party of Connecticut, the Court struck down a state law requiring closed primaries when the
Republican Party wanted to include independents. Even though the state can sometimes justify
regulation, the Court noted in this case primaries were a crucial juncture16 for associational rights and
the government interests in reducing administrative costs were insubstantial.17

b. Weaknesses of private classification
The most obvious defect of a purely private classification of parties is that it allows for a range of
party behavior that would be broadly considered unacceptable. Indeed, much of the impetus for
Progressive reform initiatives was in response to the open corruption perpetuated by party bosses and
machines.18 For most of the 1800s, "[i]t was no more illegal to commit fraud in the party caucus or
primary than it would be to do so in the election of officers of a drinking club."19 Absent the current
regulations that under a private classification framework would be deemed First Amendment

11
Bronson, Ibid., 854.

Lowenstein, ibid., 1745-6.
13
Nathaniel Persily & Bruce E. Cain, The Legal Status of Political Parties: A Reassessment of Competing Paradigms,
100 Colum. L. Rev. 801 (2000).
14
Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989).
15
Ibid.
16
Tashjian v. Republican Party of Connecticut, 479 U.S. 208
17
Ibid., at 209.
18
Winkler, ibid., 875.
19
V.O. Key, Jr. Politics, Parties, and Pressure Groups 411 (1958).
12

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especially stro
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as private groups. They
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infringements, such corruption could feasibly return, dealing even more damage to the democratic
process than any limitations on parties could.
This danger to the erosion of democracy was starkly presented in the White Primary Cases, a
series of disputes before the Supreme Court in the first half of the 20th Century. In these cases, the Court
grappled with state and local party organizations in Texas that excluded African Americans on the basis
of freedom of association claims. Eventually, the Court found such exclusion to be unconstitutional,
clearly violating at least one part of the private classification framework. Grovey and its arguments were
completely overturned by two cases dealing with party membership. The first, Smith v. Allwright,
declared that the Texas Democratic Partys exclusion of blacks from their membership was a violation of
the Fifteenth Amendment. This, the Court argued, is because parties and primaries are part of the
machinery for choosing elected officials.20 Terry v. Adams confirmed the jurisprudence in Smith that
parties cannot be considered completely immune from oversight, noting that, even in an area
traditionally not controlled by the state, the government had sufficient warrant to intervene in order to
prevent discrimination in granting the right of a meaningful ballot.21

Finally, to classify parties as purely private also undermines all regulations that have been
allowed during the last century. Since the White Primary Cases, the Court has allowed greater state
regulation of the nomination process, even for reasons unrelated to discrimination. For example, in
Jenness v. Fortson, it was considered whether a state could establish a threshold of support (in this case
20 percent) before classifying a political group as a party that could be featured on the general
election ballot. In a unanimous decision, the Court ruled that a state could, emphatically stating that
there is surely an important State interest in requiring some preliminary showing of a significant
modicum of support before printing the name of a political organization's candidate on the ballotthe
interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at
the general election.22

More recently, the Court has even allowed states to eliminate certain options for primary
elections. In Burdick v. Takushi, a state law that did not allow for the possibility of write-in candidates
was upheld. The Court asserted that the Time, Places, and Manner clause of the Constitution proved
that states can choose how to regulate their own elections: Common sense, as well as constitutional
law, compels the conclusion that government must play an active role in structuring elections.23 The
majority reasoned that the state interest in mitigating unrestrained factionalism was sufficient to
intrude upon rights of political association in this case.24

c. Strengths of public classification

20
Smith v. Allwright, 321 U.S. 650 (1944).

Terry v. Adams, 345 U.S. 469 (1953).
22
Jenness v. Fortson, 403 U.S. at 442 (1971).
23
Burdick v. Takushi, 504 U.S. 433 (1992).
24
Ibid., at 429.
21

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Comment [1]: Perhaps a footnote here
could remind readers about the case.

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Advocates for public classification of political parties can also point to judicial precedent as
evidence for historical backing of their position. Some state courts, tackling questions of party regulation
for the first time, focused on voters rights to an effective, meaningful, and useful ballot.25 These courts
rejected the classification of parties as mere voluntary organizations and insisted that parties could be
regulated insofar as the laws would assist, rather than hinder, the expression of the will of the people
and respect the rights of minorities.26 These holdings lend credence to the notion of political parties
being subject to public interference. The Court has even authorized regulation in cases involving
independent voters, candidates, and their relationships with parties. Storer v. Brown upheld a California
state law barring partisans from running as independents until they had been disaffiliated from their
party for at least a year. The majority noted that as a practical matter, there must be a substantial
regulation of elections if they are to be fair and honest,27 clearly labeling parties and their primaries as
part of that public process. They further observed that the state had an interest in making that particular
regulation in order to preserve the stability of its political system.28
The most obvious and frequently cited reason for considering parties as public entities is that
they fulfill public functions. Parties play an essential role in nominating candidates for elected office and
in developing policy platforms that are often translated into law. In effect, they have become an integral
stepping-stone in the democratic process for all citizens. In light of this, some scholars even go so far as
to suggest that party regulations should not be evaluated by their effect on party autonomy, but by their
influence in maintaining a proper level of competitiveness in the political market.29 In their view, party
regulation is only unconstitutional insofar as it would create an environment in which voters would not
be able to exercise meaningful, retrospective judgment about the performance of their
representatives.30
In United States v. Classic, substantial evidence showed corruption in the Louisiana primaries.
The Court had previously only favored state regulation of general elections, and the decision in this case
extended some power to primaries as well. The majority gave two central reasons for this expansion.
First, and most importantly, they found that parties (and their primaries) constituted an integral part of
the procedure for selecting popular representatives.31 This meant that unfairness in party processes
infringed on voters rights to have full and equal participation in the democratic process.32 This line of
reasoning has become one of the most central claims of proponents for treating parties as public
entities. Second, in contrast to the reasoning of Grovey, the Court found primary elections to be
administered by the state because of public funding and time, place, and manner restrictions.33

Finally, there is a practical argument in favor of public classification: it allows the people to have
a more direct voice in how platforms and nominees are selected. Echoing the sentiments of the
Progressive Era, this argument asserts that if it becomes necessary to choose between rules giving

25
Winkler, ibid., 874.

Ibid., 880.
27
Storer v. Brown, 415 U.S. 730 (1974).
28
Ibid., at 224.
29
Isaacharoff, ibid., 299.
30
Ibid., 309.
31
United States v. Classic, 313 U.S. 314 (1941).
32
Ibid.
33
Ibid., at 311.
26

Deleted: S
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Comment [2]: Is this your view? I worry
that the readers may get lost as to your
particular view in weeding through all the
scholars views and court rulings. Here might
be a good place to state how you view such an
argument.
Deleted: had been advanced of
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Deleted: finding
Comment [3]: Does this refer to the
clause?
power either to elected officials or to unaccountable and generally obscure party officials, it is better
for the political powerused in the pursuit of the public functions of elections and policy selectionsto
be in the hands of the former group.34

d. Weaknesses of public classification
Universally classifying parties as public organizations is, however, also problematic. In the first
place, it makes it difficult to distinguish them from normal government agencies, and they are not
government agencies.35 Moreover, considering parties to be fundamentally subject to government
control spawns endless possibilities of tyranny. If the state owns the parties, it owns the central channel
through which citizens convey their will democratically. Therefore, a public classification is intrinsically
incompatible with the need to assure that the party system maintains a basic autonomy from the state
so that the parties may serve as vehicles for expressing the public's needs and sentiments.36
Another critique of public classification is that the ends it purports to seek (healthy competition,
fair representation, etc.) are at best rarely achieved and at worst Machiavellian. Critics contend that
most party regulations have the primary purpose of disadvantaging political competitors and then only
incidentally result in achieving reform goals. 37 Even innocent party regulations can actively channel
what promises to be an ongoing party conflict in certain directions rather than others, perhaps
perpetuating conflict rather than helping resolve it.38 In addition, the ends of public classification may
also damage the needed ability of party leaders to ensure a cohesive effort to carry out the party
programs and to provide a strong, centralized point of resistance to unreasonable special interest
demands.39 If the public interests supposedly motivating public classification are thus thwarted, the
adoption of that standard is much less reasonable. In Rosario v. Rockefeller, the Court reiterated the
concern in Ray that parties must be given means to protect themselves from interference by malicious
non-members. The 5-member majority upheld a New York law requiring party registration at least eight
months before the primary election. They reasoned that parties ought to be able to prevent voters of
other parties entering their primaries in order to intentionally select a bad candidate that would then
lose in the general election.40
Finally, some have argued that public classification of parties rests on the false assumption that
a party is a discrete, definable entity. Parties are characterized by multiple layers, decentralization,
loose internal control, division among political classes, unclear standards of membership, interaction
with outside interests, and changes over time.41 All these make it very difficult to define or address them
in any specific way, which is what a public classification framework requires in order to regulate them.
Consequently, courts in party regulation cases are managing the political dynamics of conflict and

34
Lowenstein, ibid., 1771.

36
Ibid.
37
Michael S. Kang, The Hydraulic and Politics of Party Regulation, 91 Iowa L. Rev. 133 (2006).
38
Ibid., 134.
39
40
Rosario v. Rockefeller 410 U.S. 760 (1973).
41
Elizabeth Garrett, Is the Party Over? The Court and the Political Process, U. of Chicago, Public Research Paper No.
29, 2-4 (2002).
35

Deleted: , however
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with the everyday recognition that parties
Deleted:
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Deleted: ]
Deleted: rivals,
Deleted: with achieving the reform goals
ostensibly underlying the effort in the first
place only being an incidental outcome.
Comment [4]: Perhaps a footnote to
remind readers about the case.
Deleted: raiding, or
cooperation among interested political actors, rather than acting upon a unitary political party.42 The
amorphous nature of parties renders it impossible for the public to address or even classify them
properly. This is a central reason why the Court ruled in Anderson v. Celebrezze that questions of party
regulation cannot be resolved by any litmus-paper test and must be handled on a case-by-case basis.43

e. Quasi-public: a moderating classification
Neither the public nor the private classification options alone provide a satisfactory standard for
defining the legal nature of political parties. Each has its uses in some spheres but is clearly problematic
in others. As such, the state of the law remains susceptible to varying, inconsistent legal decisions that
depend on ones conception of the party.44
WHAT DO WE EVEN MEAN WHEN WE SAY THE PARTY? THIS IS A PROBLEM. PARTY IN THE
THREE DIFFERENT PLACES AND ALL OF THE FUNCTIONS. Lowenstein 1764, VO Keys.
Realizing this, some have called for the rejection of the idea that we must distinguish between
public and private categorizations of parties:
We have seen that the distinction leads to perverse results, for it permits parties either to be
subject to constitutional rights or to bear them, but not both (at least with respect to any given
party activity) If we set the distinction aside momentarily, we are free simply to conclude
that parties bear constitutional rights and that they act unconstitutionally when they deprive
any group of citizens of the opportunity for political participation.46

Deleted: ,
Deleted: For instance, one who prefers
party organizations as the prime locus of
power in the party system will come out
differently on the topic of state regulation of
party primaries than one who believes the
power should be concentrated in the party-in45
the-government or party-in-the-electorate.
This moderating classification of parties as quasi-public organizations enables us to consider the

constitutionality of blanket primary reform on its own merits, rather than relying on one particular
school of jurisprudence at the expense of the other.

The quasi-public classification, though not delineated or defended in detail here,47 offers several
distinct advantages. First and foremost, instead of broadly painting parties as wholly public or private, it
allows us to first isolate the particular element of party organization or activity that is being regulated,
and second, determine whether that element is a private or a public function. Consequently, our
evaluation of the constitutionality of blanket primary elections can adopt a Render unto Caesar
approach that parses the constitutional rights that protect parties from those that enable the state to
regulate them on behalf of the rights of the people.48 It is under this framework that I proceed to assess
which constitutional test should be applied to blanket primaries.

42
Kang, ibid., 135.

Anderson v. Celebrezze, 460 U.S. 789 (1983).
44
Persily and Cain, ibid., 778.
46
Lowenstein, ibid., 1754, 1752
47
See my forthcoming Poli 420 class paper.
48
Do I need to cite the Bible?
43

Comment [5]: Im a little concerned that a
critic might point out that you went into detail
on the other two, but you then left your
recommended option without extensive
defense. I suggest either deleting the though
not phrase and just going straight into the
advantages.
Comment [6]: Is there a way that you can
emphasize this because it is the foundation of
how the quasi-public classification works, and
I fear in its brief mention it may be lost to the
readers? Perhaps, you could provide a
hypothetical outlining how it works?
Comment [7]: As to your question on citing
this, Chicago says no. This phrase is treated as
a maxim or proverb rather than a quoted
scripture.
III.
Which constitutional test should be used?

a. Timmons guidelines for level of scrutiny
[transition?] The first step in evaluating the Jones decision is determining whether it employed the
correct constitutional test. I argue that it did not. The selection of a constitutional test and its
accompanying level of scrutiny is crucial to the final rulingindeed, it is often tantamount to it.49 A
government action that could easily pass a loose constitutional test could certainly fail a stricter one. As
a result, the Court has developed guidelines that can direct judges to the appropriate level of scrutiny.50

Fortunately, the Court has outlined the procedural steps for selecting a constitutional test in
cases of party regulation:
Regulations imposing severe burdens must be narrowly tailored and advance a compelling state
interest. Lesser burdens, however, trigger less exacting review, and a State's important
regulatory interests will usually be enough to justify reasonable, nondiscriminatory
restrictions.51
In short, the stringency of the scrutiny applied to party regulation is primarily a function of the weight of
the burden imposed upon the party. Once that weight is determined, it must be balanced against the
strength of the states interests balancing the burden, and the necessity of the burden to achieve those
interests.

The three options:

b. Reasons to prefer Anderson

The inevitable inconsistency that this standard produces is showcased in the Supreme Courts decision
in California Democratic Party v. Jones. In a holding that favored the private classification viewpoint, the
court held that the particular type of primary in question was unconstitutional because it could alter the
candidates nominated and the positions they would take. 52 However, that sweeping standard would
seemingly invalidate the entire nationwide system of primaries and caucuses because the very fact that
political parties hold primaries for the nomination of candidates is a product of state compulsion under
laws dating back to the turn of the last century... [and compelling] nomination-by-primary itself

49
See, e.g., Reed v. Town of Gilbert, Arizona, 576 U.S. ___ (2015) (Breyer, J., concurring).
See, e.g., [other examples of tests for tests]
51
footnote placement? Timmons v. Twin Cities Area New Party, 520 U.S. 251 (1997).
52
California Democratic Party v. Jones, 520 U.S. 579-80 (2000).
50
incontestably alters both the candidate mix and the political messages that emerge from the political
parties.53

IV.
Does blanket primary reform pass the constitutional test?

a. Character and magnitude of asserted injury

b. Interests put forward by the state

c. Relation between state interests and burden

d. Precision of regulation

Jones: https://supreme.justia.com/cases/federal/us/530/567/case.html
Timmons: https://supreme.justia.com/cases/federal/us/520/351/case.html
Burdick: https://supreme.justia.com/cases/federal/us/504/428/case.html
http://heinonline.org/HOL/Page?handle=hein.journals/tlr71&div=61&g_sent=1&collection=journals
https://www.jstor.org/stable/1072214?seq=1 - page_scan_tab_contents
http://heinonline.org/HOL/Page?handle=hein.journals/duqu39&div=36&g_sent=1&collection=journals

53
Samuel Isaacharoff, Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan
Competition, 101 Colum. L Rev. 275-6 (2001).

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II.

Are parties private or public organizations? (streamline this section to 3 parts)

Alyssa Nielsen 11/22/2016 10:17 AM

Alyssa Nielsen 11/22/2016 10:21 AM

Alyssa Nielsen 11/22/2016 10:22 AM

Alyssa Nielsen 11/22/2016 10:23 AM

Alyssa Nielsen 11/22/2016 10:24 AM

Bronson, Ibid., 854.

Alyssa Nielsen 11/22/2016 10:26 AM

Smith v. Allwright, 321 U.S. 650 (1944).

Alyssa Nielsen 11/22/2016 10:38 AM

Alyssa Nielsen 11/22/2016 10:40 AM

Alyssa Nielsen 11/22/2016 10:41 AM

Winkler, ibid., 874.

Alyssa Nielsen 11/22/2016 10:45 AM

Alyssa Nielsen 11/22/2016 10:56 AM

Lowenstein, ibid., 1771.

Alyssa Nielsen 11/23/2016 9:52 AM

Alyssa Nielsen 11/23/2016 10:09 AM

This moderating classification of parties as quasi-public organizations enables us to consider the

Kang, ibid., 135.

Alyssa Nielsen 11/23/2016 10:17 AM

Which constitutional test should be used?

Does blanket primary reform pass the constitutional test?

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