Campaign Laws head to Supreme Court and Libertarians engage

An attorney in Washington state posted materials that form the bulk of the posting below. Attribution in the comments.

The US Supreme Court accepted review of two cases of major significance to the Libertarian Party. One case is from New York and the other is from Washington State. Pundits are discussing these cases together because they appear as "bookends" to the fundamental issue of the relationship between the political parties and the states.

In the New York case the parties were virtual gatekeepers to who could appear on the general election ballot. In the Washington case the parties were excluded from the process, except to the extent their endorsements might mean something.

At stake are rights of political parties, of candidates and of voters. How does the concept of partisanship impact those respective rights?

Political parties want the right to decide not only who participates in their nomination processes, but also which candidates are entitled to claim affiliation with the party. Candidates want easy access to the ballot and the right to claim affiliation with any political party they choose. Voters want meaningful choices on the ballot that are not controlled by party bosses.

Wrapped up in these various claims are core constitutional principles of free speech, free association, due process and equal protection.

But what if the associational rights of political parties are at odds with the ballot access rights of candidates? New York State Board of Elections, v. Lopez-Torres, #06-766 is, in essence, a ballot access case in which Lopez-Torres convinced both the lower courts that the Republican Party had too much control over who could appear on the ballot. Link to the Second Circuit opinion in PDF.

Or, what if the associational rights of political parties are at odds with the free speech rights a candidate to declare his/her "preference" for a political party even if the party does not support the candidate? Washington v Washington State Republican Party, #06-713 involves Washington's attempt to replace Washington's "blanket primary" with a "top-two primary" that allowed any candidate to list a party "preference" on the ballot of what was otherwise a non-partisan primary. Link to the Ninth Circuit decision on that case.

And what if the associational rights of the political parties operate to limit the choices to the voters only to those "annointed" by the parties? At what point does a state have a "sufficiently weighty" interest in limiting the exclusionary rights of the political parties to ensure that the voters have a wide range of meaningful choices on the ballot? How does the state satisfy that interest without running the risk of overcrowding the ballot?

On a related matter, it is clear that a state can require political parties to settle their internal differences prior to the general election, by nominating conventions, caucuses or primaries. But can a state force any particular candidate selection format on the parties? Even more fundamentally, isn't ANY pre-election winnowing process for candidates an unauthorized "qualification" for federal office, upon the same rationale term-limit legislation was ruled to be unconstitutional 10 years ago?

So far, these issues are being discussed by the Ds and Rs, and within the academic election law community. Now it is starting to perk with the libertarian press and blogosphere.

It is certainly necessary to debate Iraq or health care from a libertarian perspective. But what does that mean if the the very identity and purpose of all political parties, including that of the Libertarian Party, is at risk?