By: Jonathan Barsky

This is the second of two posts raising potential constitutional flaws in California’s recently adopted “Top Two” primary system. This system allows the two candidates who receive the most votes, regardless of party affiliation, to advance to the general election in a wide array of state and federal races. This post will analyze a First Amendment objection rooted in the associational rights of political parties.

The Top Two primary system was not California’s first attempt at dramatically overhauling its elections process. In 2000, in California Democratic Party v. Jones, the Supreme Court struck down a partisan blanket primary that the state had instituted. Under that system, ballots would list every candidate for a particular party, a voter could choose from that list of options, and the candidate of each party who won the most votes would advance as that party’s nominee to the general election. Seven Justices held that California violated the associational rights of the parties that joined together to challenge the system because it allowed non-members to determine a party’s candidate for office. While primaries under the Top Two system are officially nonpartisan, it is not difficult to imagine a scenario in which voters not belonging to an established party nevertheless get to determine the candidate of the party. While the system on its face does not take partisan affiliation into account, there have been several instances of general election races involving two candidates who share a common party identification. As one recent example from this year’s midterms, exit polling in California’s Senate race showed that just over half of the voters who cast ballots in that race did not identify as Democrats, despite the fact that the two candidates on the ballot were both longtime Democratic politicians. In Jones, Justice Scalia’s majority opinion warned that “a single election in which the party nominee is selected by nonparty members could be enough to destroy the party” and found this to be an unacceptable infringement on a party’s associational rights. This risk is no less evident when the choice comes in the form of a nonpartisan general election that nevertheless looks exactly like a partisan primary, rather than the system challenged in Jones. Although it may be possible for a party to disclaim a winning candidate who professes to identify as a member of that party, under Jones’ logic, this situation itself could present a significant First Amendment burden as it could “color the parties’ message and interfere with the parties’ decisions as to the best means to promote that message.”

The Supreme Court’s decision in Washington State Grange v. Washington State Republican Party presents an additional barrier to a successful First Amendment challenge. By a similar 7-2 vote, the Supreme Court upheld the Washington primary system, which functions almost identically to the one currently used in California against a First Amendment challenge. Only two dissenting Justices, Scalia and Kennedy, neither of whom are currently serving on the Supreme Court, would have struck down the Washington system under Jones’ theory of associational rights. As Scalia pointed out – rightly, in my opinion – “an individual’s endorsement of a party shapes the voter’s view of what the party stands for, no less than the party’s endorsement of an individual shapes the voter’s view of what the individual stands for.” Forcing parties to accommodate these shifts is precisely the burden that Jones already deemed too high. Furthermore, the Washington case is distinguishable from California’s system, as the challenge to the Washington system came before it had actually been implemented. As a result, the majority was unable to conclude that there was a violation of associational rights without evidence stemming from observing the system in action. Chief Justice Roberts and Justice Alito likewise made clear in their concurring opinion that they found the factual record before the court insufficient to hold that the system was unconstitutional.

To California’s credit, it has taken some steps to address some of Justice Scalia’s concerns. The sample and general election ballots both include a disclaimer that party identification does not imply party endorsement. Furthermore, the sample ballot does include a list of party endorsements. However, this second piece of information is not present on the physical general election ballot, which is, as Justice Scalia noted, “the only document voters are guaranteed to see and the last thing they see before casting their vote.” In fact, as the challengers argued in a case that was ultimately not reviewed by the Supreme Court, “parties no longer have the right to place a candidate on the general election ballot for voter-nominated offices.” Even with the previously mentioned disclaimer, there is still the potential for confusion as to whether a party supports a candidate who happens to express identification with that party. However, there is an even more fundamental problem for California, assuming one concludes that there is a burden on associational rights. Several advocates have argued that this primary system will elect more moderate, and therefore more widely supported, candidates to political office; two examples are included here. Neither Jones nor Washington State Grange can be read as holding that such an interest would be considered compelling and that may contribute to the system being successfully challenged as a violation of the First Amendment’s protection of associational freedom.


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