Do the Parties or the People Own the Electoral Process?
Posted: 31 Jan 2001 Last revised: 24 Jul 2013
The editors of the University of Pennsylvania Law Review asked the author (as part of its Point/Counterpoint series) to comment, in light of the United States Supreme Court's recent decision in California Democratic Party v. Jones, 120 S.Ct. 2402 (2000), on the question: "Should courts protect political parties in the two-party system?" In Jones, the Supreme Court struck down as unconstitutional Proposition 198, a California voter initiative establishing a "blanket primary" that allowed voters, regardless of party affiliation, to vote for any party's candidate in a primary election.
The article argues that courts generally should not protect the two major political parties, the Democrats and Republicans, except from interference in each party's internal governance and from one party's attempt to gain partisan advantage over the other. On the other hand, courts should protect minor parties. In the specific context of Jones, the article contends that major parties should not have been allowed to block a voter initiative establishing a blanket primary but that minor parties probably should be constitutionally exempt from participating in it. In the course of the argument, the article explains why the blanket primary does not infringe upon the First Amendment associational rights of major political parties.
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