Voters' Rights and Parties' Wrongs: Early Political Party Regulation in the State Courts, 1886-1915

Abstract:     
Departing from the traditional focus on twentieth century federal electoral regulation and federal court decisions in election law, Adam Winkler examines the very first cases to decide the constitutionality of regulations governing political parties: those arising in the state courts from the 1880s to the 1910s. In these cases, which have escaped the notice of modern election law scholars, judges confronted the initial state regulations controlling the activities, nomination practices, membership rules, and internal governance mechanisms of political parties. Across the country, courts rejected the argument that political parties were private voluntary associations immune from state regulation on freedom of association grounds. Courts relied instead on a framework that melded an expansive understanding of the individual's right to vote, which included access to nomination practices and a say in party governance, with a profound fear of the corruption of party leaders, who were blamed for the chaos, violence, and fraud of late nineteenth century elections. Reforms were upheld to the extent they were perceived to advance these twin aims of expanding voters' rights and limiting parties' wrongs, regardless of the curtailment of party associational freedoms. Due to the widespread fear of party leaders' corrupting influence on elections, especially primaries and caucuses, the courts gave little weight to party claims of freedom of association. The impact of this history of the state court response to party and ballot reform on current electoral controversies -- such as two-party entrenchment -- and scholarly debates -- relating to the structure of political parties, the conservative character of Progressive era courts, and turn-of-the-century state-building is also assessed.

Number of Pages in PDF File: 29

Keywords: political parties, freedom of association, legal history, Progressive era

Accepted Paper Series