Colorado Libertarian Party v. Secretary of State

Justice QUINN

dissenting:

The predominant constitutional interest at stake in this case is not the interest of Robin Heid in obtaining access to the ballot. Although Heid’s interest in ballot access is not without significance, it clearly is secondary to the far more important associational interests of the members of the Colorado Libertarian Party in designating and selecting their candidate for a statewide office in accordance with the party’s own rules of governance. The majority, *1012emphasizing the need to maintain the integrity of Colorado’s ballot access system and to promote the stability of the state’s election process, maj. op. at 1004, unduly depreciates the constitutionally protected right of an organized political association to designate its nominee for elective office pursuant to internal party standards. Because I cannot square the majority’s resolution of this case with the elevated status due to the associational interests of members belonging to a bona fide political organization, I dissent.

I.

The facts are undisputed. On April 21, 1990, the Colorado Libertarian Party, in convention, nominated Robin Heid, who was a member of the party, as its candidate for Governor of Colorado. Under the Libertarian Party’s constitution and bylaws, a person can become a member either by registering as a Libertarian voter or by paying dues. Heid became a member of the Libertarian Party by paying dues, and he also was a registered member of the Republican Party.

Following his nomination for Governor, Heid submitted a petition to the Secretary of State for placement of his name on the November 1990 ballot. When Heid filed his petition, the Colorado Libertarian Party satisfied the criteria for a “qualified political organization” pursuant to rules promulgated by the Secretary of State. See rules 16-1 to 16-9, 8 C.C.R. 1505-1 (1984). Rule 16.1 defines a qualified political organization as “one which has placed on the ballot at a congressional vacancy or general election a candidate for district or state office and whose officers have filed under oath with the Secretary of State the required proof of organization and which continues to meet the requirements of 16.3 and 16.4.” The required proof of organization, as defined by Rule 16.2, must include the bylaws of the political organization, its method for selecting officers and delegates to political conventions, and its method of “selecting candidates planning to petition onto the state’s general election ballot,” as well as “the names, addresses, and telephone numbers of the officers or committee members of the organization.” Rule 16.3 requires a qualified political association to meet once a year, and Rule 16.4 requires the organization to place a candidate or candidates on the general election ballot every two years. The rules promulgated by the Secretary of State also include procedures for voter registration that permit an individual to register in a manner that reflects the voter’s affiliation with a qualified political organization. See Rule 16.5, 8 C.C.R. 1505-1 (1984). Rule 16.6 requires candidates “wishing to represent a qualified political organization on the general ballot to be placed in nomination by independent nominating petition pursuant to C.R.S. 1-4-801.”

Heid’s petition contained the requisite number of voter signatures for nomination of an independent candidate by petition. See § l-4-801(l)(b), IB C.R.S. (1990 Supp.) (petition for office of governor must contain signatures of 1,000 or more registered electors). In the case of an independent candidate seeking access to the ballot by petition, section 1 — 4—801(l)(i), IB C.R.S. (1980), states that “[n]o person shall be placed in nomination by petition unless the person ... was registered as unaffiliated, as shown on the books of the county clerk and recorder, for at least twelve months prior to the date of filing of the petition.” In contrast to the unaffiliation requirement applicable to the candidates of a qualified political organization, Colorado’s statutory scheme provides that in the case of candidates of a major political party,1 the major party’s certificate or designation of candidates shall certify that the candidate for a particular office “has been a member of said political party for the period of time required by rule of the candidate’s political party or by law if the party has no such rule.” § 1-4-601(2), IB C.R.S. (1990 Supp.).

*1013The Secretary of State rejected Heid’s petition because he had not complied with the one year statutory unaffiliation requirement of section 1 — 4—801(l)(i). After the Secretary of State rejected the petition, the Colorado Libertarian Party and Heid filed a petition in the Denver District Court seeking injunctive and declaratory relief on the basis that the unaffiliation requirement of section l-4-801(l)(i) violated their constitutional rights to freedom of association and to equal protection of the law under the United States and Colorado constitutions. The 'district court determined that the statute was constitutional and denied injunctive relief. This appeal followed.

II.

Partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments to the United States Constitution. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 224, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214, 107 S.Ct. 544, 548, 93 L.Ed.2d 514 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983). This same associational interest is protected by various provisions of the Colorado constitution. Colo. Const, art. II, § 5 (right to free and open elections and prohibition against interference with free exercise of right of suffrage); art. II, § 10 (freedom of speech); art. II, § 24 (right to peaceably assemble and petition government for redress of grievances); art. II, § 25 (protection against deprivation of liberty without due process of law). “Barring political parties from endorsing and opposing candidates not only burdens their freedom of speech but also infringes upon their freedom of association.” Eu, 489 U.S. at 224, 109 S.Ct. at 1021. This constitutionally protected associational interest applies not only to major political parties but also to minor political organizations which espouse a particular political ideology. Id. at 219, 109 S.Ct. at 1018.2

Because the right of a political organization’s nominee to ballot access is intertwined with the associational interests of the organization’s members, the legal standard for determining the validity of state restrictions on ballot access is not susceptible of mechanical application. Indeed, the determination is one in which few answers are written in black and white. Rather, the grays are dominant, and the shades are many.

A.

One line of cases, as noted by the majority, emphasizes the state’s interest in ensuring political stability by imposing restrictions on minor political candidates seeking access to the ballot in a general election. For example, in Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the Supreme Court considered a California statutory scheme which required an independent candidate to file nomination papers signed by voters not less than five percent in number of the entire vote cast in the preceding general election in the area for which the candidate seeks to run, and which also prohibited ballot access to an independent candidate if the candidate had a registered affiliation with a qualified political party within one year immediately preceding the primary election. The Court upheld the five-percent petition requirement on the basis that the independent candidacy route was “but a part of the candidate-nominating process, an alternative to being nominated in one of the direct party primaries.” Id. at 733, 94 S.Ct. at 1280. Addressing the statutory unaffiliation requirement, the Court concluded that it was “expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot,” and that the state’s interest in the stability of its political system was compelling and outweighed the interest which “the candidate and his *1014supporters may have in making a late rather than an early decision to seek independent ballot status.” Id. at 733, 736, 94 S.Ct. at 1280, 1282. It should be pointed out that Storer, in emphasizing the state’s interest in preserving political stability, gave but scant consideration to the associational interests of the independent candidate’s supporters and, in that respect, seems to be in considerable tension with other decisions of the Court.

Subsequent to Storer, the Supreme Court decided Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986), in which the Court upheld a Washington statutory requirement that a minor-party candidate for partisan statewide office receive at least one percent of all votes cast for that office in the state’s primary election as a condition for placement of the candidate’s name on the general election ballot. Because the Socialist Workers Party’s candidate for United States Senator received less than one percent of the total votes cast for the office of United States Senator in the state’s primary election, the candidate’s name was not placed on the general election ballot. The Supreme Court analyzed the Washington statute in light of the following two basic principles: first, that “[Restrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively,” 479 U.S. at 193, 107 S.Ct. at 536; and second, that states “may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the office.” Id. Assessing the impact of the Washington statute on the associational interests of the minor-party candidate’s supporters, the Court concluded that the statute was “more accommodating of First Amendment rights and values” than was the statute in Storer:

Here ... Washington virtually guarantees what the parties challenging the ... California election laws so vigorously sought — candidate access to a statewide ballot. This is a significant difference. Washington has chosen a vehicle by which minor-party candidates must demonstrate voter support that serves to promote the very First Amendment values that are threatened by overly burdensome ballot access restrictions. It can hardly be said that Washington’s voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election. It is true that voters must make choices as they vote at the primary, but there are no state-imposed obstacles impairing voters in the exercise of their choices. Washington simply has not substantially burdened the “availability of political opportunity.”

479 U.S. at 199, 107 S.Ct. at 539 (citation omitted).

In the instant case, neither Heid nor the Colorado Libertarian Party challenge Colorado’s right to require a candidate to demonstrate a modicum of support among potential voters in order to qualify for a place on the ballot in the general election. Indeed, it is undisputed that the Secretary of State denied Heid a place on the ballot not because he failed to demonstrate the requisite amount of voter support, but because he was not registered as unaffiliated for at least twelve months prior to the filing of the petition. Under these circumstances, Storer and Munro are meager authority for resolving the associational interests at issue here.3

B.

Given the fact that the only basis for the Secretary of State’s denial of ballot access to Heid was the unaffiliation requirement, the controlling authority for this case can *1015be found in that line of cases which assess the validity of restrictions on minor-party candidates and political organizations by analyzing the effect of the restrictions on the assoeiational interests of the candidate’s or organization’s supporters. The Supreme Court’s decisions in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); and Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), are representative of this analytical tack. Analysis of the effects of statutory restrictions on the assoeiational interests of a minor-candidate’s supporters or a political organization’s members is appropriate, in my view, because an election campaign is an effective platform for the expression of views on the issues of the day and a political organization’s candidate serves as the standard bearer and a rallying point for persons joined together by reason of a similar political ideology.

In Anderson, 460 U.S. 780, 103 S.Ct. 1564, the Supreme Court considered whether an Ohio statutory restriction on ballot access for an independent candidate burdened the assoeiational interests of the candidate and his supporters. The statute in question required the independent candidate to file a statement of candidacy and a nominating petition in March in order to appear on the general ballot in November. The March filing date preceded the date at which major political parties were required to name their candidates. In invalidating the Ohio statute, the Court stated:

Constitutional challenges to specific provisions of a State’s election laws ... cannot be resolved by any “litmus-paper test” that will separate valid from invalid restrictions.... Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional .... The results of this evaluation will not be automatic; as we have recognized, there is “no substitute for the hard judgments that must be made.”

460 U.S. at 789-90, 103 S.Ct. at 1570 (citations and footnotes omitted). Application of this standard led the Court to conclude that the early filing date did not sufficiently advance the interests put forth by the state to justify such a significant restriction on the voters’ freedom of association.

Subsequent to Anderson, the Court more fully developed the assoeiational component of state restrictions on the governance of political organizations in Tashjian, 479 U.S. 208, 107 S.Ct. 544, and Eu, 489 U.S. 214, 109 S.Ct. 1013. Both cases concerned the assoeiational rights of political organizations and attempted to delineate the extent to which a state may interfere with the internal structure of the organization or with an activity integral to the association’s political goals. In Tashjian, the Court struck down a state statute which had the effect of overriding a Republican Party rule that permitted independent voters to vote in Republican primaries. In describing the burden placed on the Republican Party by the statute, the Court stated:

The statute here places limits upon the group of registered voters whom the Party may invite to participate in the “basic function” of selecting the Party’s candidates. The State thus limits the Party’s assoeiational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.

*1016479 U.S. at 215-16, 107 S.Ct. at 549. The Court further observed that if the state were “to provide that only Party members might be selected as the Party’s chosen nominees for public office, such a prohibition of potential association with nonmembers would clearly infringe upon the rights of the Party’s members under the First Amendment to organize with like-minded citizens in support of common political goals.” Id. at 215, 107 S.Ct. at 549. Tashjian stands for the principle that a state may enact laws “to prevent the disruption ... of political parties from without, and not, as in this case, to prevent the parties from taking internal steps affecting their own process for the selection of candidates.” 479 U.S. at 224, 107 S.Ct. at 553.

Subsequent to Tashjian, the Court in Eu, 489 U.S. 214, 109 S.Ct. 1013, invalidated California statutes that prohibited the official governing bodies of political parties from endorsing candidates in party primaries and that prescribed regulations for the internal organization of political parties. Reiterating the principle that a state statute that burdens the rights of political parties and their members can survive constitutional scrutiny “only if the State shows that it advances a compelling state interest ... and is narrowly tailored to serve that interest,” id. at 222, the Court outlined the scope of the associational interests of political organizations as follows:

Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, ... but also that a political party has a right to “ ‘identify the people who constitute the association,’ ”... and to select a “standard bearer who best represents the party’s ideologies and preferences .... ”
Depriving a political party of the power to endorse suffocates this right. The endorsement ban prevents parties from promoting candidates “at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community”_ Even though individual members of the state central committees and county central committees are free to issue endorsements, imposing limitations “on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association.”

489 U.S. at 224-25, 109 S.Ct. at 1021 (citations omitted).

Because the unaffiliation requirement utilized by the Secretary of State to deny ballot access to Heid directly implicated the associational interests of members of the Colorado Libertarian Party, I believe that the principles enunciated in Anderson, Tashjian, and Eu provide the analytical framework for resolving this case.

III.

The majority acknowledges that the one year unaffiliation requirement imposes a significant burden on the constitutionally protected associational interests of members of the Colorado Libertarian Party. Maj. op. at 1002. With that observation I certainly agree. The majority further identifies the governmental interests underlying the one year unaffiliation requirement as “the state’s compelling interest in ‘maintaining the integrity’ of its ballot access system” and promoting the overall stability of the state’s election process. Maj. op. at 1004. I have no disagreement with the compelling nature of these interests. Where I part company with the majority is in its assessment of the primacy of these interests over the constitutionally protected associational interests of members of the Colorado Libertarian Party and in the majority’s apparent assumption that the one-year unaffiliation requirement is narrowly tailored to effectuate the identified state interests.

The majority concludes that the one year unaffiliation requirement “does not exclude CLP candidates from the ballot,” but merely discourages political candidates prompted by short range political goals and prevents the practice of “diverting votes that might go to another political party or organization.” Maj. op. at 1004-1005. The underlying assumption of the majority’s analysis seems to be that so long as a *1017political organization is afforded the opportunity to place some candidates on the ballot, its associational interests are adequately protected. This analysis, in my view, misses the significance of the nature of a political organization’s associational interests. Freedom of association for the members of a political organization means the right of the organization to select as its own standard bearer that person who will best represent the organization’s ideologies and preferences. Eu, 489 U.S. at 224, 109 S.Ct. at 1021.

I have no quarrel with the majority’s suggestion that the state has a valid interest in seeking to curtail the practice of “raiding.” See maj. op. at 1004. “Raiding” occurs when “voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary.” Tashjian, 479 U.S. at 219, 107 S.Ct. at 551 (quoting Rosario v. Rockefeller, 410 U.S. 752, 760, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973)). Party raiding, however, while a legitimate concern in party primaries, is not implicated in a general election where voters can vote for whichever candidate they desire. Anderson, 460 U.S. at 801-02 n. 29,103 S.Ct. at 1577 n. 29.

Although the interests identified by the majority — namely, maintaining the integrity of the ballot access system and promoting the overall stability of the state’s election process, maj. op. at 1004 — may properly be characterized as compelling. I am at a loss to understand how the one year unaffiliation requirement is narrowly tailored to effectuate those interests or why less burdensome restrictions could not further those same interests. Since Heid is legitimately a member of the Libertarian Party, there is no risk of voter confusion in placing his name on the ballot. As the Supreme Court observed in Anderson, individual voters are well able to inform themselves about campaign issues and candidates. 460 U.S. at 797, 103 S.Ct. at 1574.

The integrity of the ballot access system can certainly be protected by alternative measures less drastic than preventing a political organization from designating its own standard bearer in accordance with its own rules of governance. Preventing a defeated primary candidate from running as the candidate of another party in the general election or prohibiting a candidate from running on more than one ticket would certainly serve the state interests identified by the majority. Moreover, if the state’s interests in maintaining the integrity of the ballot access system and promoting the stability of the election process are not jeopardized by the statutory requirement that a major political party’s candidate need only satisfy the party’s membership rule in order to qualify for ballot access, § 1-4-601(2), IB C.R.S. (1990 Supp.), I fail to see how the state can justify the one-year unaffiliation requirement for the nominee of a bona fide political organization when the nominee, as here, fully satisfies the membership requirements of the organization. Clearly, a much shorter period of unaffiliation would adequately serve the state’s interests and at the same time would effectively accommodate the associational interests of the members of a recognized political organization.

I would reverse the judgment of the district court and declare the one year unaffil-iation requirement violative of the constitutional right to freedom of political association guaranteed to members of the Colorado Libertarian Party by the United States and Colorado Constitutions.

. A major political party is defined as any political organization which cast for its candidate for governor at least ten percent of the total votes cast at the last preceding gubernatorial election, § 1-1-104(18), IB C.R.S. (1980).

. The plaintiffs in Eu were various county central committees of the Democratic and Republican Parties, the state central committee of the Libertarian Party, members of various state and county central committees, and other groups and individuals active in partisan politics in California. 489 U.S. at 219, 109 S.Ct. at 1018.

. In a fashion similar to Storer, the federal district court’s opinion in Thournir v. Meyer, 708 F.Supp. 1183 (D.Colo.1989), aff'd on other grounds, 909 F.2d 408 (10th Cir.1990), focuses exclusively on the state's interest in regulating ballot access of the independent candidate and does not address the associational interests of the candidate’s supporters. I therefore find the majority’s reliance on Thoumir as equally misplaced as its reliance on Storer.