Supreme Court Challenge
Supreme Court Challenge |
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Parshall and Mattei suggest that case law based on the First and Fourteenth Amendments might constitute a basis for judicial intervention to reform the presidential nomination process. They begin by observing:
As our survey of the problem reveals, there is little incentive for Congress or national party organizations to redress the issue through the political process. The most productive venue for addressing the constitutional infirmities of front-loading may therefore be the Supreme Court. (Parshall and Mattei 2002, 1)
This premise is disputable. Although the many federal bills on reforming the presidential primary calendar have died in committee, the Republican Party very nearly adopted the Delaware Plan in 2000. The example of the Delaware Plan is cause for hope rather than despair, and suggests that a subsequent effort, given a more politically astute plan, might succeed.
If there is a federal role in the Constitution to regulate presidential primaries, it would be far preferable for Congress to act than for the issue to be left to judicial intervention based on the First and Fourteenth Amendments. However, the threat of judicial intervention might provide a useful incentive for Congressional or national party action. In any case, if the Supreme Court were to involve itself in this issue, it is hard to imagine that it would craft a specific remedy; rather, it is likely that it would declare the current process to be unconstitutional, provide general guidance as to what would be a constitutionally acceptable process, and leave the details for the political process to resolve.
Parshall and Mattei sum up the motivations of the various players in the presidential nomination process, and how their combined action results in the disenfranchisement of an entire class of voters, those whose states have refrained from joining the stampede to the front of the calendar:
Candidates gain “momentum” by winning or by beating the expectations set by pundits or pre-election polls; success in doing so will enhance the perceived viability of some candidates at the expense of other contenders who either fail to live up to expectations or lose a primary (caucus). Facing longer odds, negative media coverage and reluctance among potential contributors, some of these contenders choose to withdraw from the race well before the finish line.
States seek to maximize their media exposure, reap the economic advantages related to widespread coverage and hard-fought campaigns waged by all potential nominees, and increase influence on the outcome of the candidate selection process. These rewards are bestowed disproportionately to the states at the forefront of the schedule. Thus, Iowa and New Hampshire have been adamant about the preservation and protection of their unique lead-off spot in the calendar. In addition, as soon as it became clear that the first caucus and primary were much more than isolated local events, and that both deeply affected the development and/or result of the campaigns, other states have moved up the date of their primaries (caucuses) in an effort to retain or increase their leverage on the process.
National parties, as institutions, seek to achieve unity in support of their standard bearer; this goal requires a rapid conclusion of the selection process affording the party greater time to coalesce and rally behind the winner in preparation of the Fall campaign. (Parshall and Mattei 2002, 4-9)
This last statement, while true, is not entirely relevant. How long does a party need to coalesce and rally behind its standard-bearer? This healing of rifts after a battle for the nomination is relative rather than absolute. In times past, the lull between the summer national conventions and Labor Day were deemed sufficient. So long as both parties play by the same rules, i.e., operate under substantially the same schedule of primaries and caucuses, there is no advantage to either party. Thus neither party is currently advantaged by having the nomination decided in the first week of March, since both parties do so, and they would be just as well served by returning to a longer, more graduated primary schedule.
Parshall and Mattei set the stage for their legal arguments by observing:
A front-loaded election calendar imposes two distinct injuries on late-state voters: i) the winnowing of candidates leaves these voters with a constrained or diminished field from which to select, thereby depriving them of the opportunity to associate with like-minded voters in support of a shared candidate; and ii) party nominations are determined before these voters have cast their ballots, thus rendering their votes ineffective in this integral stage in the presidential election process. (Parshall and Mattei 2002, 11)
From here, the authors explore First Amendment implications:
A basis for the redress of the precise injuries created by front-loading may be found in the Supreme Court’s First Amendment jurisprudence. While the Court has not found a direct right to vote in the First Amendment, the Court has held that it protects “two different, although overlapping kinds of rights--the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasions, to cast their votes effectively. (Parshall and Mattei 2002, 11-12)
Front-loading virtually ensures a winnowing of candidates so that voters in the late states have a more limited range of choices. Although the Court has “never defined candidacy as a fundamental right, [it has] clearly recognize[d] that restrictions on candidacy impinge on the First Amendment rights of candidates and voters.” (Clements vs. Flashing 1982) Thus, if “[a] candidate serves as a rallying point for like-minded citizens,” (Anderson vs. Celebrezze 1983) front-loading impedes associative freedom by precluding affiliated voters from effectively associating in support of a candidate and/or political beliefs. Constituents for the same office are presented with disparate slates of candidates, with the discrepancies largely attributable to the arbitrary factor of scheduling. A candidate’s viability is determined in a limited number of contests in which only a fraction of the nation’s voters had the opportunity to cast their preferences. When candidates are forced to withdraw because of early losses, worse-than-expected performance and the related financial pressures, late voters are denied the chance to effectively combine their expressions of support with those of the early voters. The viability of a particular candidate, therefore, is not so much the product of all voters’ preferences as it is a function of which voters get to speak first and, given the dynamic nature of nominating campaigns, when. A front-loaded nominating process does not transmit the voice of all voters but rather amplifies the voices of a select few. The voters’ “voice” in the nominating process is the casting of a ballot in support of one’s candidate of choice. When the parties’ nominations are mathematically determined before late voters have had the opportunity to express their preferences, those voters have been silenced. (Parshall and Mattei 2002, 12-13)
Parshall’s and Mattei’s argument on the basis of the Fourteenth Amendment is more complex, tying together disparate bits of case law regarding the Due Process and Equal Protection clauses:
Congress’ regulatory authority over both congressional and presidential elections is essential to the preservation of national sovereignty (US vs. Classic 1941; Oregon vs. Mitchell 1970). This federal authority is not exclusive to Congress and no precedent precludes the courts from intervening in presidential election issues. On the contrary, there are prominent examples of judicial intervention in presidential election issues (Burroughs vs. US 1934; Oregon vs. Mitchell 1970; Buckley vs. Valeo 1976; Bush vs. Gore 2000; Parshall and Mattei 2002, 17).
Since electoral participation involves “rights so vital to the maintenance of democratic institutions,” (Schneider vs. State 1939) the Court has long ruled that state electoral regulations must conform to Equal Protection standards. Indeed, the Court has gone so far as to invalidate state exclusion of voters in state and local elections as a violation of federal Equal Protection. (Parshall and Mattei 2002, 18)
A challenge to front-loading based on the Equal Protection Clause may also be grounded in the argument that front-loading creates a “class” of voters--those residing in late states--to whom equal protection (of First Amendment rights) has been denied. “In decision after decision, the Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” (Dunn vs. Blumstein 1972) The reapportionment rulings requiring population parity in legislative districts rests squarely on this interpretation of the Equal Protection Clause (Gray vs. Sanders 1963; Reynolds vs. Simms 1964; Wesberry vs. Sanders 1964). Since voters are served by the president as a shared national office, extension of the one-person-one-vote doctrine would suggest that the denial of an effective vote in the nomination process based on the primary date of one’s state of residency is unconstitutional. (Parshall and Mattei 2002, 18-19)
Nevertheless, states and parties might make the claim that front-loading seeks to promote two-party stability by winnowing the field of candidates and reducing intra-party competition. As noted, national party organizations have an interest in identifying a presumptive nominee and insure a speedy resolution to the intra-party factionalism of the primaries. The Court, however, has held that interest in a strong and stable two-party system does not justify a party, acting through the state legislature, insulating itself from the competition created by third parties or minor/fringe candidates (Elrod vs. Burns 1976; Timmons vs. Twin Cities Area New Party 1997). And even where the Court upheld state interests in two-party stability it “did not suggest that a political party could invoke the powers of the state to assure monolithic control over its own members and supporters.” (Anderson vs. Celebrezze 1983) As such, states may not “enact election law to mitigate intraparty factionalism during a primary campaign” and “preserving party unity during a primary is not a compelling state interest....” (Eu vs. San Francisco County Democratic Central Committee 1989; Parshall and Mattei 2002, 24-25)
The authors propose a judicial remedy to a political problem. This approach is fraught with dangers. With the “presidential selection” of 2000 still fresh in the memory of the republic, the last thing anyone should want is for the Supreme Court to intervene once again in the nation’s political process. Were the Supreme Court to mandate a specific solution, such an intervention would only bear the imprimatur of a few un-elected magistrates rather than the mandate of the people, and thus would be unpopular and divisive. On the other hand, were the Court to restrain itself to ruling the present system unconstitutional, and refer the development of a specific solution to the political process, even then that process might face such time constraints that a solution would be hastily crafted and rushed through to implementation. The nightmare scenario would be that a legal case were initiated immediately after a presidential campaign, wended its way through the federal court system for several years, and culminated in a Supreme Court decision a few months before the beginning of the next presidential primary season. In this event, whatever replacement system were quickly concocted, the next president chosen by such a system would be widely viewed as illegitimate, especially if the new system were in turn the subject of a legal challenge. Faced with the prospect of the Supreme Court finding a role--any role--in reforming the presidential primary process, it behooves the nation that either Congress or the major political parties solve the problem to forestall the threat of judicial intervention.