Republican Party of State of Conn. v. Tashjian, Civ. No. H 84-548 (JAC).

• Decision Date: 05 December 1984
• Docket Number: Civ. No. H 84-548 (JAC).
• Citation: 599 F. Supp. 1228
• Court: U.S. District Court — District of Connecticut
• Parties: REPUBLICAN PARTY OF the STATE OF CONNECTICUT, Lowell P. Weicker, Jr., Stewart B. McKinney, Nancy L. Johnson and Thomas J. D'Amore, Jr. v. Julia H. TASHJIAN, Secretary of the State of the State of Connecticut.

599 F. Supp. 1228

REPUBLICAN PARTY OF the STATE OF CONNECTICUT, Lowell P. Weicker, Jr., Stewart B. McKinney, Nancy L. Johnson and Thomas J. D'Amore, Jr. v. Julia H. TASHJIAN, Secretary of the State of the State of Connecticut.

Civ. No. H 84-548 (JAC).

United States District Court, D. Connecticut.

December 5, 1984.

Stanley A. Twardy, David S. Golub, Silver, Golub & Sandak, Stamford, Conn., Ralph G. Elliot, Tyler, Cooper & Alcorn, Hartford, Conn., for plaintiffs.

Joseph I. Lieberman, Elliot F. Gerson, Daniel R. Schaefer, Henry S. Cohn, Hartford, Conn., for defendant.

Martin B. Margulies, University of Bridgeport School of Law, Bridgeport, Conn., Martha Stone, Connecticut Civil Liberties Union Foundation, Hartford, Conn., Burt Neuborne, American Civil Liberties Union, New York City, for amici curiae American Civil Liberties Union and Connecticut Civil Liberties Union Foundation.¹

Stephen E. Gottlieb Albany Law School, Albany, N.Y., for amici curiae F. Christopher Arterton, James MacGregor Burns, Barbara Burrell, William Crotty, Roman B. Hedges and John S. Jackson, III.²

RULING ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

JOSÉ A. CABRANES, District Judge:

This case brings into dramatic conflict the power of states to regulate primary elections and the right of political parties to freedom of association under the First Amendment to the United States Constitution. The State of Connecticut has asserted a broad and discretionary claim to authority over the activities of political parties based on their integral involvement in the selection of candidates for public office. Plaintiffs acknowledge that political parties are not typical voluntary organizations immune from state regulation and constitutional strictures,³ but maintain that freedom of association would prove an empty guarantee if states were unrestrained in their ability to dictate eligibility requirements for participation in a party's candidate selection process.

The action challenges the validity of Connecticut's "closed primary law," Section 9-431 of the Connecticut General Statutes, which prohibits voters who are not enrolled in a political party from participating in primary elections.⁴ This is the first case to present the situation in which a political party challenges a closed primary law on First Amendment grounds. Plaintiffs are the Republican Party of the State of Connecticut, the Chairman of the Republican State Central Committee, Thomas J. D'Amore, Jr., and the Connecticut Republican Party's principal federal elected officials, United States Senator Lowell P. Weicker, Jr. and United States Representatives Stewart B. McKinney and Nancy L. Johnson. The defendant is Julia H. Tashjian, Secretary of the State of the State of Connecticut ("Connecticut" or "defendant"), who is responsible for administering the challenged statute. Plaintiffs allege that Section 9-431 infringes their First Amendment right to associate for the advancement of common political objectives. They seek to have this court declare the statute unconstitutional and enjoin its enforcement.

In 1976, the constitutionality of the very statute at issue in this case was challenged by unaffiliated voters who desired to participate in primary elections against the express wishes of political parties. See Nader v. Schaffer, 417 F.Supp. 837 (D.Conn.) (three-judge court), aff'd mem., 429 U.S. 989, 97 S.Ct. 516, 50 L.Ed.2d 602 (1976). The court in Nader held that Connecticut was justified in preventing these unwanted intruders from disrupting party primaries. In this case, the Connecticut Republican Party is no longer a willing beneficiary of the protections afforded by the state's closed primary law. The party now seeks to open its candidate selection process to unaffiliated voters. Accordingly, the concern with barring unwelcome "outsiders" that motivated the result in Nader is not present here.

On January 14, 1984, the delegates to the state convention of the Connecticut Republican Party approved an amendment to the party rules permitting unaffiliated voters to join with enrolled Republicans in voting for candidates for the offices of United States Senator, United States Representative, Governor and the gubernatorial "underticket" in primary elections.⁵ The amendment would not affect voter qualifications in other Republican Party primary elections, including those for seats in the Connecticut Senate and House of Representatives; enrollment in the party would continue to be a requirement for voting in those primaries. The amended party rule is in direct conflict with Section 9-431.

Because Section 9-431 substantially interferes with plaintiffs' associational rights, it is subject to strict judicial scrutiny. The statute can thus be upheld only if it is necessary to advance compelling state interests and if it advances those interests in the manner least restrictive of the ability of the Republican Party to structure its candidate selection process in the way it deems appropriate.⁶

In the circumstances of this case, the purposes purportedly served by Section 9-431 — the prevention of raiding, the avoidance of voter confusion, and the preservation of the two-party system — are not compelling state interests justifying the substantial burden that the statute imposes on the exercise of plaintiffs' right of political association. Accordingly, Section 9-431 constitutes an impermissible infringement on First Amendment rights and it cannot be applied to prevent the Republican Party from including unaffiliated voters in certain of its primaries.

The court today holds not that participation by unaffiliated voters in party primaries is constitutionally required, but that a party's decision to permit unaffiliated voters to participate in its primaries is constitutionally protected.

Discussion

Although the memoranda filed by the parties are lengthy, this is not a particularly complex case. The principal issues are relatively straightforward. They are, first, whether the dictates of Article I, section 2 of the Constitution and the Seventeenth Amendment (defining voter eligibility in elections for the federal House of Representatives and Senate, respectively) are applicable to primary elections; second, whether Article I, section 2 and the Seventeenth Amendment require that eligibility to vote in congressional elections be "absolutely symmetrical" to eligibility to vote in state legislative elections; third, whether Article I, section 4 (vesting in states the power to regulate the time, place, and manner of holding congressional elections) grants states virtually unreviewable power to regulate the conduct of primaries; fourth, whether the challenged statute constitutes so insubstantial an imposition on the right of association that courts need not strictly scrutinize the statute under the First and Fourteenth Amendments; and fifth, whether the interests proffered by Connecticut in support of its closed primary law are legitimate and sufficient to outweigh the burden that the statute imposes on plaintiffs' right of political association. The court will address each of these questions in turn.

I. Political Parties and State Action

Article I, section 2, clause 1 of the United States Constitution provides:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

The Seventeenth Amendment employs virtually identical language to delineate the class of persons eligible to vote in elections for United States Senator.⁷

Connecticut maintains that the Republican Party rule at issue in this litigation violates these constitutional provisions by permitting unaffiliated voters to participate in primaries for congressional offices while denying them a similar opportunity to vote in primaries for seats in the Connecticut General Assembly. Putting aside for the moment Connecticut's dubious interpretation of the relevant constitutional provisions, it is not apparent that Article I, section 2 and the Seventeenth Amendment have any application to primary elections whatsoever. Connecticut uncritically asserts that "the activities of a political party constitute state action" and thus that "there can be no question" that Article I, section 2 applies to primaries. Defendant's Reply to Plaintiffs' Memorandum Dated June 27, 1984 in Opposition to Motion to Dismiss (filed July 9, 1984) ("Defendant's Reply Memorandum") at 4. This conclusion rests on the selective use of passages from Supreme Court decisions, the reliance on dicta in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), and an unwarranted extension of the so-called White Primary Cases.⁸

The White Primary Cases, in which the Supreme Court overturned a series of increasingly subtle tactics employed to exclude blacks from participating in the Texas Democratic Party's candidate selection process, do not stand for the proposition that all actions of political parties constitute state action without regard to the surrounding circumstances. See O'Brien v. Brown, 409 U.S. 1, 4 n. 1, 92 S.Ct. 2718, 2720 n. 1, 34 L.Ed.2d 1 (1972); Kester, Constitutional Restrictions on Political Parties, 60 Va.L.Rev. 735, 756-760 (1974); see also Ripon Society v. National Republican Party, 525 F.2d 567, 598-600 (D.C. Cir.1975) (Tamm, J., concurring), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). The White Primary Cases concerned discrimination against members of a suspect class. They thus reflect the principle that, in cases of invidious discrimination, a lesser degree of state involvement in private conduct is sufficient to trigger constitutional scrutiny. See, e.g., Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17, 23, 27 n. 16 (2d Cir.1979).⁹ No discrimination against a ...