479 U. S. 189
December 10, 1986
Ballot access in Washington state operated in the following fashion: minor parties would nominate a candidate by convention. Those candidates would be placed on a primary ballot along with all the Republican and Democratic candidates (Washington had a single primary, rather than separate party primaries). If a minor party candidate got at least 1% of the overall vote, it qualified for the ballot in the general election. In a primary for a 1983 special Senate election, the candidate of the Socialist Workers party fell short of the 1% threshold. The party sued, claiming a First Amendment right to be listed on the general election ballot.
Writing for a 7-2 majority, Justice White smacked the Socialist Workers down. It was established precedent that a state could require minor parties to show a “modicum of support” before obtaining a right to appear on a general election ballot. Washington’s primary scheme gave minor parties every opportunity to show such a modicum of support, and therefore the ballot access law was not unconstitutional. White also rejected the claim that a state needed to specifically prove a need for curbing the ballot access of minor parties.
Marshall dissented, and he was joined by (surprise, surprise!) Brennan. It was mostly a policy based dissent. Minor parties, he said, play an important role in elections by raising issues that would otherwise be ignored, and giving disaffected voters an outlet. He also noted that in practice, minor parties almost never survived the primary stage. Finally, Marshall thought that the state’s interest in preventing general election ballot overcrowding was facetious in light of how crowded the primary election ballot was.
I have to go with White on this one. States should have the right to draw the line somewhere, and 1% in a primary election sounds eminently reasonable to me. One final note – in the Senate election that gave rise to Munro, ultimate winner Dan Evans was a Republican of all things! It was a very different political era indeed.