On September 30, 2011, the Second Circuit upheld New York state laws that make it illegal for non-members of a party to circulate a petition to place a candidate on the primary ballot of a party. Maslow v Board of Elections in the City of New York, 08-3075-cv. The decision is 3-0 and is only eleven pages long.

The Second Circuit considers the law necessary to protect political parties from unwanted interference from outsiders. The decision says on page 6, “The Supreme Court has emphasized — with increasing firmness — that the First Amendment guarantees a political party great leeway in governing its own affairs.” This statement is not entirely true. Two of the last three U.S. Supreme Court decisions involving political party freedom of association were defeats for political parties. In 2005, in Clingman v Beaver, the U.S. Supreme Court ruled 7-2 that parties do not have the right to open their primaries to all voters. And in March 2008, in Washington State v Washington State Republican Party, the Court ruled 7-2 that a top-two system, in which parties lose control of their names, does not violate freedom of association on its face (although the court said it may violate freedom of association as applied, and sent the case back to the lower court). On the other hand, in January 2008, the U.S. Supreme Court unanimously upheld the ability of political parties to control their own nomination process in New York State Board of Elections v Lopez Torres.

The Second Circuit also said the challenged law “imposes little or no burden on Plaintiffs’ First Amendment rights”, a statement which is contradicted by the U.S. Supreme Court rulings in Buckley v American Constitutional Law Foundation (which struck down a state law saying petitioners must be registered voters) and Meyer v Grant (which struck down a state law banning paying circulators). In both of those cases, the U.S. Supreme Court said restrictions on who may circulate petitions can only be justified by a compelling state interest.

The Second Circuit opinion was written by Judge Peter W. Hall, a Bush Jr. appointee, and signed by Judges Debra Ann Livingston, another Bush Jr. appointee, and Chester Stroud, a Clinton appointee. Judge Hall is also one of the two judges who upheld the discriminatory Connecticut public funding law. It is clear from the Second Circuit’s opinion that if any qualified political party in New York state passed a bylaw, saying the party is willing to let non-members circulate petitions to place a candidate on that party’s own primary ballot, that the state law, as applied to that party, would fall. Thanks to Bill Van Allen for the news about the decision.