We Should Only Let Democrats Choose Our Nominee

[JustinL]

118. when SCOTUS ruled on NY's requirement in 1973, all 3 of the solid liberals agreed that it was absurd

Justices Douglas, Brennan, and Marshall all joined Justice Powell's dissent in Rosario v Rockefeller, 410 U.S. 752. From pp. 768-770 (footnote omitted):

The inquiry thus becomes whether the instant statute, burdening as it does fundamental constitutional rights, can withstand the strict judicial scrutiny called for by our prior cases. The asserted state interest in this case is the prevention of party "raiding," which consists of the movement or "cross-over" by members of one party into another's primary to "defeat a candidate who is adverse to the interests they care to advance." The typical example is a member of one party deliberately entering another's primary to help nominate a weaker candidate, so that his own party's nominee might win more easily in the general election. A State does have an interest in preventing such behavior, lest

"the efficacy of the party system in the democratic process -- its usefulness in providing a unity of divergent factions in an alliance for power -- would be seriously impaired,"

Rosario v. Rockefeller, 458 F.2d 649, 652 (CA2). The court below held flatly that the state interest in deterring "raiding" was a "compelling" one. Ibid.

The matter, however, is not so easily resolved. The importance or significance of any such interest cannot be determined in a vacuum, but, rather, in the context of the means advanced by the State to protect it and the constitutionally sensitive activity it operates to impede. The state interest here is hardly substantial enough to sustain the presumption, upon which the statute appears to be based, that most persons who change or declare party affiliation nearer than eight to 11 months to a party primary do so with intent to raid that primary. Any such presumption assumes a willingness to manipulate the system which is not likely to be widespread.

Political parties in this country traditionally have been characterized by a fluidity and overlap of philosophy and membership. And citizens generally declare or alter party affiliation for reasons quite unconnected with any premeditated intention to disrupt or frustrate the plans of a party with which they are not in sympathy. Citizens customarily choose a party and vote in its primary simply because it presents candidates and issues more responsive to their immediate concerns and aspirations. Such candidates or issues often are not apparent eight to 11 months before a primary. That a citizen should be absolutely precluded so far in advance from voting in a party primary in response to a sympathetic candidate, a new or meaningful issue, or changing party philosophies in his State, runs contrary to the fundamental rights of personal choice and expression which voting in this country was designed to serve.

Whatever state interest exists for preventing cross-overs from one party to another is appreciably lessened where, as in the case of petitioners, there has been no previous affiliation with any political party. The danger of voters in sympathy with one party "raiding" another party is insubstantial where the voter has made no prior party commitment at all. Certainly, the danger falls short of the overriding state interest needed to justify denying petitioners, so far in advance, the right to declare an initial party affiliation and vote in the party primary of their choice.