Jacob Eisler

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The latter half of the twentieth century saw a dramatic transformation in the degree and quality of federal judicial oversight of the voting process. With the one-person, one-vote jurisprudence, the Supreme Court of the United States imposed a basic requirement of personal equality in district line-drawing. In the context of race, Gomillion v. Lightfoot became the beachhead in the premise that racial discrimination will not be tolerated in voting procedure. A few decades later, Davis v. Bandemer suggested that fair district line-drawing could require non-discrimination on the grounds of party identification. In each of these domains of court-led intervention, one constitutional right emerged as the linchpin: the Equal Protection Clause.

Given the importance of party primaries in the process of voting, it is not surprising that they have been a subject of federal judicial oversight. Nor is the timing of the Supreme Court’s entry into the area surprising; the topic was subject to broad judicial scrutiny shortly after its boldest entry into the realm of democratic design with Baker v. Carr. Yet the constitutional character of the intervention into primaries has deviated from the general trend in the oversight of voting process. As the modern jurisprudence of primary regulation has evolved over the past fifty years, the Supreme Court has come to focus almost exclusively on the right to associate as the activated constitutional interest. This has correlated with a focus on party integrity as the dominant locus of consideration. The Court’s current approach has reinforced the stranglehold that parties have on the political process, as well as neglected a sufficiently broad analysis of the question at hand: what conditions create desirable (or at least sufficiently viable) primaries? This question in turn hangs upon the need for primaries described above: to serve as an initial step that can effectively winnow the slate of candidates, such that the final ballot and the intermediate steps that precede it give all voters a fair choice.

This piece begins by establishing the historical drift towards domination by associational rights. It observes that early jurisprudence applied both equal protection and associational reasoning to the constitutional review of primary design, but in the 1980s associational rights emerged as the sole basis for review. The piece then explores the substantive consequences and pathologies of the Court’s reasoning. In particular the Court has come to protect parties, which are themselves well-entrenched quasi-public entities in scant need of judicial sympathy. It then culminates with the argument that a return to the (much-contested) principle underlying the entry into the political thicket itself, the Equal Protection Clause, provides a starting point for helpfully broadening and diversifying the interrogation of primary design. While far from a panacea (in particular because of the need to avoid judicial over-determination of democratic autonomy), renewed attentiveness to the Equal Protection Clause would push courts to consider the full breadth of possible legal interests invoked in primary design. The Article concludes by exploring the broader question of whether the Court best operates as another standard power player in political contestation (a role supported by the invocation of associational rights) or as a unique institution with a distinct capacity to transform the unfolding of politics.

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