State ex rel. La Follette v. Democratic Party of U.S. of America

• Decision Date: 19 January 1980
• Docket Number: No. 79-1328-OA,79-1328-OA
• Citation: 287 N.W.2d 519,93 Wis.2d 473
• Parties: STATE of Wisconsin ex rel. Bronson C. LA FOLLETTE, Petitioner, v. DEMOCRATIC PARTY OF the UNITED STATES OF AMERICA, the Democratic National Committee and the Democratic Party of Wisconsin, Respondents.
• Court: Wisconsin Supreme Court

Page 519

287 N.W.2d 519

93 Wis.2d 473

STATE of Wisconsin ex rel. Bronson C. LA FOLLETTE, Petitioner, v. DEMOCRATIC PARTY OF the UNITED STATES OF AMERICA, the Democratic National Committee and the Democratic Party of Wisconsin, Respondents.

No. 79-1328-OA.

Supreme Court of Wisconsin.

Argued Nov. 19, 1979.

Decided Jan. 19, 1980.

Bronson C. La Follette, Atty. Gen., (argued), Charles D. Hoornstra, Nancy L. Arnold and F. Joseph Sensenbrenner, Jr., Asst. Attys. Gen., on brief.

Ronald D. Eastman (argued), Lynda S. Mounts, Richard S. Surrey and Cadwalader, Wickersham & Taft, Washington, D. C., on brief, for the Democratic Party of the United States of America and Democratic National Committee.

Robert H. Friebert (argued) and Friebert & Finerty, Milwaukee, on brief, for the Democratic Party of Wisconsin.

ABRAHAMSON, Justice.

On August 29, 1979, Attorney General Bronson C. La Follette filed a Petition for Leave to Commence an Original Action for Declaratory and Injunctive Relief in this court on behalf of the State of Wisconsin and the people of the state upon a request by the governor, pursuant to sec. 165.25, Stats. ¹ The named respondents, the Democratic Party of the United States of America (National Party), the Democratic National Committee (National Committee) ² and the Democratic Party of Wisconsin (State Party) joined the Attorney General in requesting this court to take original jurisdiction. On September 12, 1979, the court granted the petition for leave to commence an original action. On September 28, 1979, the parties filed a stipulation of facts along with exhibits; briefs were filed by all parties and oral argument was heard on November 19, 1979.

The sole source of conflict between the petitioner and respondents is that the Wisconsin presidential preference primary is an open primary: The Wisconsin statutes permit voters to participate in the presidential preference primary without requiring them to declare publicly their party preference. The National Party has stated that "the only Wisconsin delegation which will be seated (at the national convention) is one which complies with all of the National Party Rules including Rule 2A" ³ which requires that voters in the primary declare their preference for the Democratic Party and have that preference publicly recorded.

The Attorney General, joined by the State Party, argues that the Wisconsin law is constitutional and binding on the State and National Parties. The National Party maintains that the presidential preference primary (the open primary) permits non-Democratic voters to have a significant impact on the selection of a Democratic presidential candidate and that therefore the open primary violates its constitutionally guaranteed freedom to associate for political purposes. ⁴

In deciding the issue presented, this court is called upon to balance overlapping and to some extent conflicting rights and interests: that of the National Party and its adherents to associate for the advancement of political beliefs, including the nomination of candidates for political office; that of Wisconsin citizens to cast their votes in the primary election, a significant step in the process of electing the President of the United States; that of Wisconsin citizens not to have their association with a political party a matter of public record; that of the state to protect and preserve the integrity of the nominating process and to conduct the primary, and political party participation therein, in a fair and orderly manner.

There is no simple test readily applicable for balancing these rights and interests or for determining which election laws are valid and which are invidious. Not every limitation or incidental burden on the right to associate or on the right to vote is unconstitutional. A state can substantially affect these rights where there is a sufficiently important state interest. Deciding the validity of election laws is, as the United States Supreme Court has said, "very much a 'matter of degree,' . . . very much a matter of 'consider(ing) the facts and circumstances behind the law, the interests which the State claims to be protecting and the interests of those who are disadvantaged by the classification.' " Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1973).

For over seventy-five years this state has conducted primary elections in the belief that the primary wrests the control over the selection of candidates from party bosses, caucuses and conventions and puts the control where it belongs with the people of the state and that the open presidential preference primary (compared to a closed primary) increases the opportunity of the citizens of this state to participate at a critical stage of the process of electing a President.

For the reasons we set forth below, we conclude that the open primary does not impose an unconstitutional burden on the associational rights of the National Party. The National Party has not presented a factual basis to support its assertion that the open primary significantly differs from a primary in which public declaration of party preference is required with regard to permitting those who do not share the National Party's values or goals to influence the selection of the Democratic candidate. Nor do we view the open primary law as an unconstitutional burden on the National Party's right to govern its affairs through the national convention. We determine that Wisconsin has a compelling state interest in having a primary and in not requiring that voters publicly declare their party preference and have that preference publicly recorded. Accordingly, we hold that the Wisconsin open primary law violates neither the state nor the federal constitution. ⁵

We shall discuss in turn the Wisconsin election laws, the National Party's delegate selection rules and the conflict between the two; the historical background of the Wisconsin presidential preference vote and the relationship of the state and the political party in the candidate selection process; the National Party's claim that the open primary constitutes a substantial burden on its associational rights because non-Democratic voters significantly affect the selection of a Democratic Party candidate; and the state's compelling interest in its open primary law.

I.

We turn first to a brief discussion of the Wisconsin presidential preference vote, the National Party's delegate selection rules and the conflict between the two.

A.

The Wisconsin legislature has enacted a comprehensive set of laws governing the election of national, state and local officers. Title II, Chs. 5-12, Stats. The laws in issue in this case relate to the presidential preference vote at the spring election held on the first Tuesday in April in each year in which the electors for president and vice-president are to be elected. Secs. 5.02(21), 8.12(1) (intro.), Stats. The text of the applicable statutes are set forth in the appendix.

Through these statutory provisions, the legislature has detailed the exclusive manner for conducting a presidential preference primary in which "the voters of this state shall . . . be given an opportunity to express their preference for the person to be the presidential candidate Of their party." (Emphasis supplied.) Secs. 8.12, 5.62(1), (2), 5.60(8), 5.02(13), Stats. The manner by which the voters cast their votes for the candidate of their party is carefully prescribed by statute.

Where paper ballots are used, there is a separate presidential preference ballot for each party. Each voter is given the ballots of all parties participating in the presidential preference vote, and in the privacy of the voting booth, selects the ballot of the party of his choice, and indicates a choice for candidate on that ballot. Secs. 5.60(8), 10.02(3) (intro.), (a), (b) 2, 3, Stats. If the voter chooses not to vote for one of the candidates named on the ballot of his party, the voter may nominate another person by write-in vote or may vote against all the choices offered on the ballot of his party. Secs. 5.60(8) (intro.), (a), 10.02(3)(b) 3, Stats. The voter then detaches the chosen ballot from the remaining ballots and folds it so that its face is concealed and the printing and signatures or initials of the two ballot election clerks on the back of the ballot are visible. The voter folds the unmarked ballots in like manner. After leaving the voting booth, the voter delivers all the ballots to the voting inspectors; the one on which the voter has expressed a presidential preference is deposited in the ballot box, and the remaining ballots are deposited in the blank ballot box. Secs. 5.60(8)(d), 10.02(3)(a) and (f), Stats. Immediately after the canvass the inspectors destroy the ballots deposited in the blank ballot box. Sec. 5.60(8)(e), Stats.

Where voting machines are used, all candidates' names entitled to appear on the ballots appear on the machine. The voter can vote for candidates of only one party. The voter makes the party choice in the privacy of the voting booth. Secs. 5.37(1), (4), 10.02(3) (intro.), (a), (b) 2, 3 and (f), Stats.

In order to vote in the primary the Wisconsin voter is not required to declare publicly a party preference or to have that preference publicly recorded. Each voter makes a choice of party in the privacy of the voting booth. It is this facet of the Wisconsin law, the "private declaration" of party preference in the voting booth as compared with a public, recorded declaration that characterizes the Wisconsin presidential preference vote as an "open primary."

Wisconsin voters do not select Delegates to the National Party's national convention by means of the presidential preference primary. Delegates to the national convention are selected by the state party, not by the voters of the state. The Wisconsin statute explicitly states that "(t)he method of selecting the delegates or alternates shall be determined by the...