Swamp v. Kennedy , 950 F.2d 383 ( 1991 )

KANNE, Circuit Judge.

George Swamp, John Hendrick and the political party of which they are members, the Labor-Farm Party/Partido Laborista-Agrario (collectively the “Labor-Farm Party”), challenge the constitutionality of Wisconsin’s statutory ban on “multiple party nominations,” which prohibits a candidate from being nominated by more than one party for the same office in the same election.¹ Members of the Labor-Farm Party sought to place the name of Douglas La Follette on that Party’s primary ballot for Secretary of State; however, nomination papers had previously been filed to place his name on the primary ballot of the Democratic Party. The Labor-Farm Party argues that the ban unconstitutionally infringes on its rights of free speech and association guaranteed by the First and Fourteenth Amendments of the United States Constitution.² The district court denied the Party’s motion for injunctive relief and motion for summary judgment, and dismissed the action. We affirm.

The Supreme Court recently reiterated the framework for assessing the constitutionality of a state election law in Eu v. San Francisco County Democratic Central Committee:

A State’s broad power to regulate the time, place, and manner of elections “does not extinguish the State’s responsibility to observe the limits established by the First Amendment rights of the State’s citizens.” Tashjian v. Republican Party of Connecticut, 479 U.S. [208], 217, 107 S.Ct. [544], 550 [93 L.Ed.2d 514 (1986) ]. To assess the constitutionality of a state election law, we first examine whether it burdens rights protected by the First and Fourteenth Amendments. If the challenged law burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest and is narrowly tailored to serve that interest.

489 U.S. 214, 222, 109 S.Ct. 1013, 1019-20, 103 L.Ed.2d 271 (1989) (other citations omitted).

It is well settled that partisan political organizations enjoy the freedom of association protected by the First and Fourteenth Amendments. Eu, 489 U.S. at 224, 109 S.Ct. at 1020. The Labor-Farm Party contends that the multiple party nomination ban burdens its associational rights in two ways.

First, the Party argues that the ban infringes upon party autonomy by restricting its ability to select candidates for electoral office. Although the freedom of association encompasses a political party’s decisions about the identity of, and the process for electing, its leaders, Id., 489 U.S. at 229, 109 S.Ct. at 1024, a party’s associational rights are not absolute and are necessarily subject to qualification if elections are to be run fairly and effectively. Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986). The ban prohibits a candidate from running in more than one party primary for the same office in the same election. Therefore, the right of party members to associate is only limited to the extent that they are prevented from placing on their primary ballot the name of a candidate who has previously been placed on the primary ballot of another party. The ban does not substantially burden the “availability of political opportunity,” Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974), because a party may nominate any candidate that the party can convince to be its candidate. Here, La Follette filed his own nomination papers as a candidate for Secretary of State in the Democratic primary and submitted an affidavit stating that he is a “lifelong Democrat.” The Labor-Farm Party has no right to associate with a candidate who has chosen to associate with another party.

Second, the Labor-Farm Party maintains that the ban is disproportionately burdensome on minority parties and limite competition. A burden that falls unequally on new or small political parties discriminates against those parties and voters whose political preferences lie outside the existing political parties. Anderson v. Celebrezze, 460 U.S. 780, 794-95, 103 S.Ct. 1564, 1572, 75 L.Ed.2d 547 (1983). Accordingly, the Labor-Farm Party asserts that, unlike major parties, minority parties cannot win state-wide elections on their own, without going into coalition with other parties. Therefore, the Party concludes that the ban has a disproportionate impact on the electoral success of third parties and burdens their efforts to compete, publicize their views, and widen their popular base of support. We disagree.

The Labor-Farm Party acknowledges that there is no competition among parties if parties choose the same candidate for an office, but asserts that by choosing a candidate already nominated by another party a minority party can gain strength overall, irrespective of any particular campaign. This argument cute against the Party’s position. Allowing minority parties to leech onto larger parties for support decreases real competition; forcing parties to chose their own candidates promotes competition.³ Cf. Hall v. Simcox, 766 F.2d 1171, 1176 (7th Cir.) (finding that a restriction on ballot access ratifies competition by keeping off the ballot those parties so lacking in electoral appeal that they contribute little to political diversity), cert. denied, 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 459 (1985).

The ban also does not burden a minority party’s efforts to publicize its views or widen its base of support; it merely restricts a party from nominating another party’s candidate. A party can support a candidate previously nominated by another party if that candidate best represents its views or the party is free to choose any other candidate to express its views.

Even if the ban burdens the assoeia-tional rights of political parties, it is justified by compelling state interests. The district court recognized the legitimate interest of the State in assuring that the winner of an election is the choice of a majority or at least a plurality of the voters. Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 857, 31 L.Ed.2d 92 (1972). If a candidate appears on the primary ballots of more than one party but is defeated in all of the primaries in which he runs, his name will not be on the general ballot even though he may have received the majority of votes in the aggregate.

Avoiding voter confusion is also a compelling state interest. Bullock, 405 U.S. at 145, 92 S.Ct. at 857. By limiting the names on the ballot to those who have won the primaries, voters will be presented “with understandable choices and the winner in the general election with sufficient support to govern effectively.” Storer v. Brown, 415 U.S. 724, 735, 94 S.Ct. 1274, 1281, 39 L.Ed.2d 714 (1974). Without a ban on multiple party nominations, an unlimited number of minority parties could nominate the candidate of a major party for the same office, causing serious confusion for voters. Because the candidate would be presented by the different parties as representing the particular views and preferences of each party, it would be difficult for voters to distinguish between the parties.

Moreover, the State has a compelling interest in preserving the integrity of its election process. Eu, 489 U.S. at 231, 109 S.Ct. at 1024; Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 345, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972); Bullock, 405 U.S. at 145, 92 S.Ct. at 857. Toward that end, a State may enact laws that interfere with a party’s internal affairs when necessary to ensure that elections are fair and honest. Eu, 489 U.S. at 231, 109 S.Ct. at 1024 (citing Storer, 415 U.S. at 730, 94 S.Ct. at 1279).

Wisconsin has a legitimate interest in seeking to curtail “raiding,” whereby voters who are sympathetic with one party vote on the ballot of another party so as to influence or determine the results of that other party’s primary. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 219, 107 S.Ct. 544, 551, 93 L.Ed.2d 514 (1986); Rosario, 410 U.S. at 760, 93 S.Ct. at 1251; Bullock, 405 U.S. at 145, 92 S.Ct. at 857 (“[s]tate has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies”). For example, if multiple party nominations were permitted, the National Socialist Party could nominate a candidate who has been nominated by a major party and is adverse to the National Socialist Party’s interests in order to encourage voters opposing the National Socialist Party to defeat the candidate.

The ban also limits involuntary fusion of political parties. Maintaining a stable political system is a compelling state interest. Eu, 489 U.S. at 226, 109 S.Ct. at 1022. States may regulate elections to ensure that “some sort of order ... accompanies] the democratic process.” Storer, 415 U.S. at 730, 94 S.Ct. at 1279.

Wisconsin’s ban on multiple party nominations does not burden the associational rights of political parties and is justified by compelling state interests. The district court properly denied the Labor-Farm Party’s motion for injunctive relief and motion for summary judgment, and dismissed the action.

The judgment of the district court is Affirmed.

1 . Wisconsin Statute § 8.15(7) provides:

A candidate may not run in more than one party primary at the same time. No filing official may accept nomination papers for the same person in the same election for more than one party.

Wisconsin Statute § 8.03(1) provides further:

The name of any candidate who is nominated to the same office by more than one party ... shall appear under the party first nominating him or her....

2 . Although the relevant elections have occurred, the action is not moot because this issue is "capable of repetition, yet evading review.” Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249 n. 5, 36 L.Ed.2d 1 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998 n. 2, 31 L.Ed.2d 274 (1972); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969).

3 . The true motivation of the Labor-Farm Party in bringing this action may be to retain its “ballot status,” or ability to run candidates in state elections on a specifically designated party line. To retain this status, a party must earn a certain percentage of the vote in each election. By running a popular Democratic Party candidate, the Labor-Farm Party has an opportunity to garner this percentage.