On June 28, 2010, the U.S. Supreme Court issued an opinion in Christian Legal Society v Martinez, 08-1371. This is not an election law case. It was whether Hastings Law School could require recognized student organizations to admit all Hastings students as members. The Law School won the case 5-4.
Justice Samuel Alito wrote the dissent, which was also signed by Justices Clarence Thomas, Antonin Scalia, and Chief Justice John Roberts. It contains this paragraph, “Suppose that a hated student group at a state university has never been able to attract more than 10 members. Suppose that the university administration, for the purpose of preventing that group from using the school grounds for meetings, adopts a new rule under which the use of its facilities is restricted to groups with more than 25 members. Although this rule would be neutral on its face, its adoption for a discriminatory reason would be illegal.”
That scenario is a very good analogy for the ballot access laws of many states.
Very good analogy!
Would someone please explain this to me? I do not understand how the analogy fits the case.
With that being said, though, I have to say that I am more impressed with Justice Samuel Alito as time goes by. I loved his remark when he was the only justice to dissent on the animal cruelty videos case back in April of this year. According to the “Sacramento Bee” (4-21-10): “In a major First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.” The newspaper article further said: “Justice Samuel Alito dissented, saying the majority’s analysis was builit on ‘fanciful hypotheticals’ and would serve to protect ‘depraved entertainment.'”
I think you would have a hard time showing that there was a discriminatory reason, especially when the Justice Alito’s premise was that it was a new rule.
Perhaps if a party that is proscribed by law in California were to win a lawsuit, and then the legislature introduced a new standard for having a party preference appear on the Top 2 Open Primary ballot.
For the sake of argument, let’s assume that my interpretation of Proposition 14 is correct, and that if a voter is registered as preferring the SalmonYoga party, he may have that preference appear on the ballot if he were to seek office. And then there was a voter/candidate from a proscribed party. Then after winning a lawsuit, the legislature passed a law requiring X,000 registrants before a candidate could have his preference on the ballot. California would argue that it was non-discriminatory since it equally applied to the SalmonYoga party. But Alito would look at the motivation and overturn the statute.
If California were to pass a law that required a party that was preferred by a voter to manifest characteristics of a party (such as registration with the State, bylaws, officers, financial reporting, state convention, open meetings, etc., and perhaps a minimal size) then it might pass muster.
Justice Sandra Day O’Connor wrote in Clingman v Beaver in 2005, “Although the state has a role to play in regulating elections, it is not a wholly independent or neutral arbiter. Rather, the State is itself controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit…As such restrictions become more severe, and particularly where they have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition.” Justice Breyer co-signed that.
Just put non-major political party in the place of student group or group, and State in the place of university and state university, administration with General Assembly or Legislature, and replace facilities with access to the election ballot and you get something like this:
“Suppose that a hated non-major political party in a state has never been able to attract more than 10 members. Suppose that the state legislature, for the purpose of preventing that non-major political party from having access to the state’s election ballot, adopts a new rule under which the use of its election ballot is restricted to political parties with more than 25 members. Although this rule would be neutral on its face, its adoption for a discriminatory reason would be illegal.” (Jordon’s Paraphrase of the quote for Ballot Access use)
NOTE that this is only my paraphrase not Justice Alito’s quote.
#4 So Justice O’Connor had an increasing concern that incumbent political parties might be using their control of the legislature to enact laws that erect barriers to electoral competition.
The fact that they had the opportunity and the motive does not prove that they were culpable.
#6: Surely you’re not arguing that the two major parties– through their officeholders in government– have not erected barriers to competition from independents and small parties.
#7 If they did so, it was because they didn’t like competition, not that they didn’t like the competitors.
#8: There’s no “if” to it.
To Jim Riley (#8): Steve Rankin (#9) is correct; the two largest parties have done that over and over again.
Let me give you one example: In 1976, we (California) members of the Committee for a Constitutional Presidency/McCarthy ’76 were attempting to place Eugene J. McCarthy on the November ballot as an independent candidate for President of the United States. March Fong Eu, the Democratic Secretary of State for California at the time, did not get our petitions to us until quite some time after her office was legally required to do so. Then, the Secretary of State refused to extend our petitioning time. As a consequence of this blatantly unfair action, we did not obtain enough valid signatures and Gene McCarthy had to run as a write-in candidate in November. An interesting sidepiece is that McCarthy was pulling an unsoliticed 10% write-in vote during certain polling periods in California that year. Is there a connection? Of course there is. But hey, I just purchased Jesse Ventura’s “American Conspiracies” yesterday (I also own his first three books in hard bound edition) – so call me long-time paranoid if you wish.
Actually, I should have written Jesse Ventura’s (with Dick Russell) “American Conspiracies” …; it was not my intention to slight Mr. Russell.
I supposed you could make a case for a discriminatory intent for the 1% rule upheld in ‘SWP vs. Munro’. The Washington legislature added that provision in response to the success of the OWL party, which they thought was trivializing the political process. So arguably, Washington was directly trying to suppress the hated OWList movement.