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Republican Party v. Tashjian

August 8, 1985


Tashjian appeals from a judgment of the United States District Court for the District of Connecticut (Cabranes,J.) enjoining the enforcement of Section 9-431 of the Connecticut General Statutes. Affirmed.

Author: Kaufman

Before: KAUFMAN, OAKES, and CARDAMONE, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

Fascinated by the penchant of Americans to band together and gather strength from association, Alexis de Tocqueville wrote:

The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures, and of acting in common with them. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.

A. de Tocqueville, 2 Democracy in America 203 (Bradley, ed.1954).

It is this ability and propensity of our citizenry to unite and pursue desired goals that form the foundation of this nation stands as a testament to the efficacy of political organization.

The bundle of freedoms bestowed by the first amendment, often perceived as safeguarding the individual from the will of the group, also serves to protect the group against the tyranny of the state. Having just emerged from an impassioned struggle for independence, the framers appreciated that effective political change could best be achieved through collective activities, and further recognized that the right to associate for political purpose was a natural concomitant of the right to espouse political views.

If our system of government is to remain responsive to the will of the people--as it must--the untrammeled freedom to join together in pursuit of political goals must be secured against state intrusion, and our political organizations must retain the freedom to invite into their ranks those citizens with whom they wish to associate.

Mindful of these tenets, we are called upon today to reconcile the tension between a political party's right to self-determination and a state's interest in regulating primary elections. Specifically, we are faced with a challenge by the Republican Party of the State of Connecticut against a state law that prohibits individuals with whom the party members wish to associate from participating in the party's primary. The district court held that the state-mandated closed primary substantially interfered with Republican Party's right of political association by determining who is eligible to participate in the Party's candidate selection process. In addition, the court concluded that the interests proffered by Connecticut to support its state regulation were not compelling. For the reasons set forth below, we affirm the judgment of the district court.

Because the legal issues presented in this appeal are framed, to a large extent, by reference to political exigencies, we believe it would prove helpful to set forth the significant aspects of Connecticut's electoral scheme.


A. Connecticut's Primary Election System

Pursuant to Connecticut law, potential candidates for electoral office are divided into three categories: those representing "major parties," those of "minor parties," and independents (or "petitioning parties").*fn1 By virtue of its performance in past gubernatorial elections, the Republican Party is a major party. As such, its candidates are automatically accorded space on the general election ballot, while other candidates may have their names placed on the ballot only after fulfilling the petition requirements set forth in §§ 9-453u.*fn2 Conn. Gen. Stat. § 9-379.

In 1955, the Connecticut General Assembly enacted a "challenge" primary law, codified as Conn. Gen. Stat. §§ 9-372 et seq, which authorized each major party to select candidates to be nominated for electoral office. Part endorsements are made at state or district conventions, and only enrolled party members may vote to select those delegates who attend the convention. Id. §§ 9-387, 9-390, 9-407. If a candidate is not opposed at the convention, he becomes the party's nominee in the general election and no primary election is held. Id. §§ 9-408, 9-409. A candidate rejected by the convention, however, is eligible to challenge the endorsed candidate in a primary election if he had received on any roll call convention vote at least twenty percent of the votes of the delegates present and voting, and files a document with the Secretary of the State certifying that he has garnered the requisite vote total. Id. § 9-400. Party primaries are held at the expense of the State, and the primaries for all major political parties in Connecticut are held on the same day, during the same hours and at the same polling places. Separate voting machines are used for each party on primary day.

Mindful of these aspects of Connecticut's primary election apparatus, we turn to the voting eligibility requirements, which constitute the crux of the instant appeal. Section 9-431 of the Connecticut General Statutes provides, in pertinent part:

No person shall be permitted to vote at a primary of a party unless he is on the last-completed enrollment list of such party in the municipality or voting district...

To enroll in a political party, a person must execute an application for enrollment form, requiring him to state his name, address, desired party affiliation, previous party affiliations within the past six months and the date on which he applied to remove his name from the membership list of the political party with which he was previously affiliated. Party enrollment lists are a matter of public record, Id. § 9-55, and Connecticut does not require lists of unaffiliated voter to be available at the polls on primary day. Connecticut Public Act 84-118, which became effective on January 1, 1985, allows an unaffiliated voter to participate in a party's primary election if he enrolls in that party prior to twelve o'clock noon on the last business day before the primary. Id. §§ 9-56, 9-57. Finally, a voter enrolled in a party may at any time apply to have his name removed from that party's enrollment list, and to transfer to the enrollment list of another party. He may not, however, vote in any primary for six months following the date of his application for transfer. Id. § 9-59.

B. The Republican Party's Challenge to Section 9-431

The Connecticut Republican Party (the "Party") is comprised of individuals who associate for the common advancement of political beliefs and ideas. Its ultimate goal, as stated in the preamble to its Constitution,*fn3 is to "seek out, designate, and secure the election of qualified candidates for public office at the Federal, State and Local levels of government," who will implement its policies, philosophies and programs. Correlative to this objective, the Party seeks to nominate those candidates who enjoy the broadest spectrum of popular support and, therefore, appear most likely to obtain electoral success at the polls.

In recent years, however, the Republican Party has been thwarted in its quest for electoral success. A contributing factor to its repeated November failures may be that there are far more registered Democrats than Republicans in Connecticut. Recent party registration figures underscore the magnitude of the disparity. At the time this action was commenced,*fn4 Connecticut had 659,268 registered Democrats, 425,695 registered Republicans, and 532,723 registered but unaffiliated voters.

Animated by the Democratic Party's statistical hegemony, and keenly aware of Connecticut's untapped reservoir of unaffiliated voters, the Republican Party's State Central Committee in August 1983 established a subcommittee to study the party's existing rules, and devise a strategy to improve the Party's chances for future electoral success. After analyzing the Party's electoral phight, the subcommittee concluded that allowing unaffiliated voters to participate in Rupublican Party primaries would increase the Party's chances of winning general elections, ensure the nomination of candidates with greater bipartisan support, broaden the involvement of unaffiliated voters in the electoral process and strengthen the two-party system. To measure the support of this proposal among the Party's rank and file, State Republican Chairman Thomas D'Amore called a state party convention to consider, inter alia, "proposed changes [in party rules] to allow unaffiliated voters to vote in Republican Party candidate selection primaries."

On January 14, 1984, delegates to the State Republican convention approved an amendment to the party rules permitting unaffiliated individuals to vote in Republican Party primaries for the offices of United States Senator, United States Representative, Governor and the gubernatorial "underticket."*fn5 Specifically, the Party rule provided:

Any elector enrolled as a member of the Republican Party and any elector not enrolled as a member of a party shall be eligible to vote in primaries for nomination of candidates for the offices of United States Senator, United States Representative, Governor, Lieutenant Governor, Secretary of the State, Attorney General, Comptroller and Treasurer.

Because the Party Rule was in direct conflict with Section 9-431, which prohibits unaffiliated voters from voting in any party primary, Republican legislators sought to amend Section 9-431 during the 1984 session of the Connecticut General Assembly. To this end, in February 1984 State Representative Mae Schmidle introduced Bill No. 5525 (the "Schmidle Bill"), which provided in relevant part:

EXCEPT WHERE PROVIDED OTHERWISE BY STATE PARTY RULES, no person shall be permitted to vote at a primary of a party unless he is on the last-completed enrollment list of such party in the municipality or voting district...

The Schmidle Bill was referred to the Committee on Governmental Administration and Elections, where debate focused on the practical difficulties that would accompany implementation of the provisions of the Bill. On February 28, 1984, Albert Lenge, Director and Elections Attorney in the Office of the Secretary of the State, appeared before the Committee and testified that implementation of the Party Rule would be "workable." Despite Lenge's testimony, the Schmidle bill fell prey to fierce Democratic opposition in the General Assembly*fn6

Undaunted by the demise of the Schmidle Bill, Republican legislators sought alternate means to implement the Party Rule. Specifically, they drafted two amendments to Bill No 5105, "An Act Concerning the Time Limit for Enrollment of Unaffiliated Voters." The amendments provided that :

Where state party rules so provide, an elector whose names does not appear on any enrollment list shall be entitled to vote in a primary conducted by such party for nomination for election to the office of governor, lieutenant governor, secretary of the state, treasurer, comptroller, attorney general, senator or representative.

On April 11, 1984, both amendments were defeated decisively in the House, and the increasingly partisan tenor of this issue was manifest in the recorded vote.*fn7 One week later, a similar partisan struggle ensued on the floor of the Connecticut Senate. There, all twenty-three Senate Democrats voted against an amendment incorporating the provisions of the Schmidle Bill; all thirteen Republicans voted in support.

C. The District Court Proceedings

Frustrated in its efforts to implement the Party Rule through legislation, the Republican Party turned its attention to the judiciary. On May 10, 1984, the Republican Party of the State of Connecticut*fn8 filed a complaint in the United States District Court for the District of Connecticut, seeking to enjoin the enforcement of Section 9-431 of the Connecticut General Statutes as unconstitutional.

The Party asserted that Section 9-431 substantially infringed its first amendment right to associate for the advancement of common political objectives. Accordingly, it maintained that the statute could be upheld only if it was necessary to advance compelling state interests and only if it advanced those interests in the manner least restrictive of the ability of the Republican Party to structure its candidate selection process as it deems appropriate. In response, the State of Connecticut claimed that Section 9-431 only incidentally burdened the Republican Party's right of political association and that the statute advanced legitimate state interests. In addition, Connecticut contended that the proposed Party Rule violated Article I, section 2, clause 1 of, and the seventeenth amendment to, the United States Constitution by permitting unaffiliated voters to participate in primary elections for congressional offices, while denying them, an opportunity to vote in primary elections for seats in the State legislature.

On July 13, 1984, the Republican Party moved for summary judgment pursuant to Fed. R. Civ.P. 56. Two days later, Connecticut moved to dismiss the Republican Party's complaint, pursuant to Fed. R. Civ. P. 12(b)(6).*fn9 After examining the Joint Statement of Facts and Joint Submission of Documents prepared by the parties, reviewing the extensive materials submitted by the amici curiae*fn10 and conducting an evidentiary hearing, Judge Cabranes denied both motions, finding a number of disputed factual issues. The parties then conducted further discovery and prepared a Supplemental Joint Statement of Facts, which was submitted to the district court on July 24. That same day, Connecticut renewed its motion to dismiss, and on the following day, the Republican Party again moved for summary judgment.

On December 5, 1984, Judge Cabranes granted the Republican Party's motion for summary judgment, and denied Connecticut's motion to dismiss. The court concluded that Section 9-431 "substantially impinges" on the Republican Party's first amendment right of political association by allowing the Connecticut legislature to "substitute its judgment for that of the party on ...the question of who is and (who) is not sufficiently allied in interest with the party to warrant inclusion in its candidate selection process." Subjecting Section 9-431 to "strict judicial scrutiny," the district court found that the interests proffered by Connecticut to support its mandated closed primary --avoiding voter confusion, preventing raiding, and preserving the integrity of the electoral process --were not compelling

In addition, Judge Cabranes concluded that Republican Party Rule did not violate Article I, section 2, clause 1 or the seventeenth amendment of the United States Constitution. Those provisions were intended to "dissuad[e] states from capriciously restricting the franchise in congressional elections." The district court found that the Party Rule would "open [] the political process by including greater numbers of voters in congressional primaries" and would further "the democratic values underlying Article I, section 2."

Accordingly, Judge Cabranes permanently enjoined enforcement of Section 9-431 "as applied to the Republican Party Rule." The State of Connecticut timely filed a notice of appeal.


Before addressing the principal issues raised by this appeal, we dispose of the State's claim that the Party Rule is foreclosed by Article I, § 2 of, and the seventeenth amendment to, the United States Constitution. The Party Rule permits unaffiliated voters to participate in primaries for United States Representatives and Senators, while denying them the corresponding opportunity to vote in primaries for state representatives. According to the State, Article I, § 2 and the seventeenth amendment require "absolute symmetry" between federal and state voter eligibility requirements--as applied to primary elections --within a particular ...

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