Election Laws

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

Even though states have broad authority to administer their elections, the Court has recognized the potential for state election laws to burden the associational rights of voters, candidates, and political parties.1 Whether an election law “governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself,” it “inevitably affects” an “individual’s right to vote and his right to associate with others for political ends.” 2 In evaluating whether such a law comports with the First Amendment, the Supreme Court has balanced the interests of the state in administering its elections with the burdens of the challenged requirement on individual rights.3

States may impose some restrictions on a candidate’s or party’s access to the ballot. For example, the Court held that a state may require political parties to “demonstrate a significant, measurable quantum of community support” in order to appear on a general election ballot.4 Such a requirement serves the state’s “vital interests” in preserving “the integrity of the electoral process” and “regulating the number of candidates on the ballot to avoid undue voter confusion.” 5 The Court also upheld, on similar grounds, a California election law prohibiting an individual from running as an independent candidate if that individual was defeated in another party’s primary during the same election cycle or had a registered affiliation with another political party within the preceding year.6

The Court has found other ballot-access requirements to unduly infringe the associational rights of candidates and voters.7 In 1974, the Court struck down an Indiana law forbidding a political party from appearing on an election ballot unless it filed an affidavit stating under oath that it did not advocate the overthrow of the government by force or violence.8 The Court held that the state could not condition access to the ballot on such a “loyalty oath,” because the First Amendment protects advocacy of violent overthrow as an “abstract doctrine.” 9 In another case, the Court held that an Ohio law requiring individuals to file a statement of candidacy for the presidency in March—well before the major parties’ primaries and the November general election—unconstitutionally burdened the associational rights of independent voters.10 In 1992, the Court reversed a state supreme court decision barring a new political party from appearing on the ballot under a particular name.11

The right of association generally protects a political party’s decisions about its internal structure and processes for choosing candidates for national office.12 According to the Court, “a State cannot justify regulating a party’s internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair.” 13 Several cases illustrate these principles. In Democratic Party of the United States v. Wisconsin, the Court held that while a state was free to allow non-Democrats to vote in its Democratic primary, it could not constitutionally compel the Democratic Party to seat the state’s delegates (who were bound by the primary results) at the party’s national convention.14 In Tashjian v. Republican Party, the Court held that a state could not prohibit the Republican Party from opening up its primary to independents.15 In California Democratic Party v. Jones, the Court held that California’s “blanket primary” violated political parties’ freedom of association because it “force[d] political parties to associate with—to have their nominees, and hence their positions, determined by—those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.” 16 Similarly, in upholding a Puerto Rico law authorizing an incumbent political party to fill an interim vacancy in a legislative seat held by that party, the Court ruled that the party did not need to open its election to nonmembers, analogizing the process to a party’s primary election.17

The Court is willing to let states restrict some individual political activity in order to protect the integrity and effectiveness of political associations. For example, the Court upheld a New York law requiring a voter to enroll as a party member at least thirty days before the general election each year in order to vote in the next primary for that party.18 The Court reasoned that the law was intended to prevent “party ‘raiding,’ whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary,” and that this was a “particularized legitimate purpose.” 19 In contrast, the Court found the anti-raiding rationale insufficient to sustain an Illinois law that prohibited an individual from voting in a primary election because she had voted in another party’s primary within the preceding twenty-three months.20 Unlike New York’s law, the Illinois law effectively “'lock[ed]’ voters into a pre-existing party affiliation from one primary to the next,” requiring them to “forgo voting in any primary for a period of almost two years” in order to “break the ‘lock.’” 21

Like election laws, government-imposed limits on contributions to political candidates or political organizations also can burden associational rights of candidates or organizations and their supporters.22 For example, the Court held that a local ordinance that imposed a $250 limit on “contributions to committees formed to support or oppose ballot measures” violated the freedom of association of the committees and their contributors.23 A key factor for the Court was that “an affluent person” could “spend without limit to advocate individual views on a ballot measure,” but the ordinance restricted only contributions “made in concert with one or more others in the exercise of the right of association.” 24

The Supreme Court commonly analyzes First Amendment challenges to contribution limits and related campaign finance laws in terms of the burdens they might place on both the freedoms of speech and association.25 These cases are discussed in the Freedom of Speech section of the First Amendment essay.26

1: See Kusper v. Pontikes, 414 U.S. 51, 57 (1973) ( “[I]n exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections.” ).
2: Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
3: See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
4: Am. Party of Tex. v. White, 415 U.S. 767, 782 (1974); see also Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986) (reaffirming that this rule applies to minor-party and independent candidates); Jenness v. Fortson, 403 U.S. 431, 438 (1971) (upholding Georgia’s requirement that a prospective candidate who did not receive at least 20% of the votes in a primary election submit a nominating petition with the signatures of 5% of the eligible electorate in order to appear on the general election ballot); N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 204 (2008) (holding that a state “may similarly demand a minimum degree of support for candidate access to a primary ballot” ).
5: Am. Party of Tex., 415 U.S. at 782 n.14.
6: Storer v. Brown, 415 U.S. 724, 733 (1974).
7: See, e.g., Williams v. Rhodes, 393 U.S. 23, 31, 34 (1968) (reasoning that Ohio’s ballot access requirements gave “the two old, established parties a decided advantage over any new parties struggling for existence and thus place[d] substantially unequal burdens on both the right to vote and the right to associate” in violation of the Fourteenth Amendment’s Equal Protection Clause).
8: Communist Party of Ind. v. Whitcomb, 414 U.S. 441, 450 (1974).
9: Id. at 442, 450. See Amdt1.7.9.1 Loyalty Oaths to Amdt1.7.9.4 Pickering Balancing Test for Government Employee Speech.
10: Anderson v. Celebrezze, 460 U.S. 780, 806 (1983).
11: Norman v. Reed, 502 U.S. 279, 290 (1992) (reasoning that the state’s interest in “electoral order” did not justify the state supreme court’s “inhospitable reading” of the statutory requirements for a new party to access the ballot).
12: Tashjian v. Republican Party, 479 U.S. 208, 224 (1986). Cf. Marchioro v. Chaney, 442 U.S. 191, 199 (1979) (stating that “[t]here can be no complaint that the party’s right to govern itself has been substantially burdened by statute when the source of the complaint is the party’s own decision to confer critical authority” on a state committee).
13: Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 233 (1989); see also Cousins v. Wigoda, 419 U.S. 477, 491 (1975) (explaining that a state’s “interest in protecting the integrity of its electoral process” is not “compelling in the context of the selection of delegates to” a national party convention, given the national nature of the convention and the need for uniform standards).
14: 450 U.S. 107 (1981).
15: Tashjian, 479 U.S. at 225. But cf. Clingman v. Beaver, 544 U.S. 581, 587 (2005) (upholding an Oklahoma law barring parties from opening their primaries to voters other than registered party members and registered independents).
16: 530 U.S. 567, 577 (2000). Cf. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 458–59 (2008) (upholding a state law allowing voters to vote for any candidate appearing on a primary ballot listing candidates along with their “party preference,” because that law did not “on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates” ).
17: Rodriguez v. Popular Democratic Party, 457 U.S. 1, 14 (1982). Despite the Court’s solicitude for political parties’ rights to control their own procedures and organization, those associational rights may be constrained by other constitutional rights. See Morse v. Republican Party, 517 U.S. 186, 228 (1996) (plurality opinion) (stating that associational rights “could not justify a major political party’s decision to exclude eligible voters from the candidate selection process because of their race” because the Fifteenth Amendment “foreclose[s] such a possibility” ).
18: Rosario v. Rockefeller, 410 U.S. 752 (1973).
19: Id. at 760, 762.
20: Kusper v. Pontikes, 414 U.S. 51, 61 (1973).
21: Id. at 60–61.
22: See McCutcheon v. FEC, 572 U.S. 185, 204 (2014) (plurality opinion) (explaining how an “aggregate limit on how many candidates and committees an individual may support through contributions” limits an individual’s associational rights by potentially forcing him to “choose which of several policy concerns he will advance” (emphasis removed)).
23: Citizens Against Rent Control/Coal. for Fair Hous. v. Berkeley, 454 U.S. 290, 291, 300 (1981).
24: Id. at 296.
25: See id. at 300 (explaining that the “two rights overlap and blend; to limit the right of association places an impermissible restraint on the right of expression” ).
26: See Amdt1.7.11.1 Overview of Campaign Finance to Amdt1.7.11.6 Legislative Investigations.