Tashjian v. Republican Party of Conn.

479 U. S. 208

December 10, 1986

Connecticut had a law that party primary elections must be closed to all voters except party members. The Republican party did not like this, and wanted independents to have the ability to vote in Republican primaries as well. The party passed a resolution opening up the franchise in primaries for federal, and some state elections, and sued to get Connecticut’s law declared unconstitutional under First Amendment association rights.

In a 5-4 decision, Justice Marshall sided with the Republican Party. Marshall believed that a party had the right to determine for itself the body of voters that would choose its candidates, and found that none of Connecticut’s justifications for mandating closed primaries was especially important or impressive. But a problem still remained – the Republican Party did not want independents participating in primaries for the state legislature. The proposed rules of the Republicans arguably violated the elector qualifications clause of the Constitution, which says that the qualifications to be voters for the national legislature should be the same as the qualifications to be voters for the state legislature.

Marshall said that the elector qualifications clause only meant that the qualifications to vote for state legislature must be the bare minimum, and that states were free to enlarge the privilege of voting for national elections. In other words, the Constitution only meant that anyone who could vote in a state election must be able to vote in a national election. In support of this contention, Marshall looked at records of the Constitutional convention, and at the precedent Oregon v. Mitchell.

Scalia dissented, and he was joined by Rehnquist and O’Connor. He felt that the party’s association interests were not really that important, since it was trying to be associated with those who had deliberately chosen not to be associated with it. Thus, he felt the state law should be undisturbed. Stevens filed a dissent that Scalia joined. Stevens took issue with the elector qualifications clause holding. He argued that the qualifications must be absolutely identical for state and national legislative elections, and thus the Republican Party’s rules were unconstitutional. Looking at the aforementioned precedent and drafting history of the clause, he convincingly demolished Marshall’s reasoning. Seeing Stevens use originalism is a surreal experience, but he does it well.

The case has some interesting ironies. For one thing, Republicans last won a Senate election in Connecticut in 1982 – two years before the party demanded open primaries. Second, it’s interesting that all four dissenters were Republicans, and that most of the majority was Democrats. Finally, it’s always an irony when Stevens manages to file the best argued opinion.

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