Democratic Party of United States v. Wisconsin ex rel. La Follette – Oral Argument – December 08, 1980

Media for Democratic Party of United States v. Wisconsin ex rel. La Follette

Audio Transcription for Opinion Announcement – February 25, 1981 in Democratic Party of United States v. Wisconsin ex rel. La Follette

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Warren E. Burger:

We’ll hear argument next in Democratic Party of the United States v. La Follette.

Mr. Eastman, I think you may proceed when you are ready.

Ronald E. Eastman:

Mr. Chief Justice and may it please the Court:

The facts in the case, in this case, are relatively simple.

Under the Wisconsin Primary Election Statute, a voter may vote in the presidential preference primary of any party he or she chooses without regard for the voter’s affiliation or any declarations of support for the party.

The Democratic Party, in contrast, has for years believed that only democrats should participate in this process of selecting its candidates.

Over the years, since the party reform effort began in 1968, the party has developed a rule implementing that principle.

The rule provides that only publicly declared democrats may participate in the processes of selecting the democratic nominee.

And that is true whether those processes are a primary, a caucus or a convention system.

William H. Rehnquist:

Mr. Eastman, I take it we have to deal here with the Article II, Section 1 provision, each state shall appoint in such manner as the legislature thereof shall direct a number of electors equal to the whole number of senators and representatives to which the state may be entitled.

What if the Wisconsin legislature had simply provided that 13 or 14 people should be the electors to the electoral college in December, 1980, in Washington, in this particular election?

Ronald E. Eastman:

I think the… I don’t believe they could do that.

But I believe the–

William H. Rehnquist:

Well, why don’t you believe they could do that?

Ronald E. Eastman:

–Well I think, Mr. Justice Rehnquist, the question–

William H. Rehnquist:

It’s a–

Ronald E. Eastman:

–the question is not who the electors would be in the electoral college; the question is, who will be the delegates to the Democratic National Convention.

Now there’s a slight difference of opinion, or at least, difference of emphasis between the two Appellees, as to what exactly is the state’s authority to enact a statute regulating the primaries of major political parties; that is, that the process by which the delegates for the national convention are chosen.

But it may not be Article II.

William H. Rehnquist:

–The statute speaks in terms of appoint, not regulate the selection of… well, what if the state just decided to dispense with any sort of intervening elections or caucuses or anything else and said, we hereby appoint John Doe, Richard Roe, et cetera, as Wisconsin’s elector to the electoral college in December, 1980?

Ronald E. Eastman:

Well I had a sense that there are a number of decisions of this Court that would probably preclude that.

It might well be a denial of the federal right to vote–

Potter Stewart:

Well as far as the Constitution goes, the state could do precisely that, couldn’t it?

Ronald E. Eastman:

–I think as far as the Constitution’s literal language, that’s correct, Mr. Justice Stewart.

Potter Stewart:

And just sort of be completely oblivious to the Republican and Democratic conventions and to their nominees.

Ronald E. Eastman:

That might be possible, Mr. Justice Stewart.

I don’t think–

Potter Stewart:

As far as the Constitution goes.

Ronald E. Eastman:

–That’s correct.

Potter Stewart:

Because the state hasn’t done anything like that, has it?

Ronald E. Eastman:

Well I think that’s correct, absolutely.

It’s not the case here.

The fact of the matter is the state has enacted primary election statutes and whether it has done so pursuant to its Article II power or whether its enactment of primary statutes is pursuant to some other power, the fact of the matter is now that it’s legislated, it can only act within the confines of the Bill of Rights.

Warren E. Burger:

But for purposes of your case you can concede that the state could do what Mr. Justice Rehnquist has suggested.

But that they haven’t tried that route.

Ronald E. Eastman:

I thought I did, Mr. Chief Justice.

But I would be reluctant, almost as an academic matter, to concede that.

But it’s not relevant, I mean, that’s the point I was trying to make, the fact of the matter is the state has enacted primary election statutes.

The Supreme Court of Wisconsin has interpreted those primary election statutes, that primary election statute, as precluding the democratic party from seating delegates, any delegates other than those who comply with the primary election statute.

So yes, I could concede that it’s simply not an issue.

William H. Rehnquist:

But certainly an act of the Wisconsin legislature that just named certain electors would likewise have all the objections to which you pose to the Wisconsin open primary law, would it not?

Ronald E. Eastman:

I don’t think it would, Mr. Justice Rehnquist, because it wouldn’t be dictating to the democratic party how it conducted its convention and which delegates it selected.

It may raise other issues and other problems, but it wouldn’t raise the issues in this case.

William H. Rehnquist:

It would be dictating to both parties, it would be dictating to both parties, in effect.

Ronald E. Eastman:

It wouldn’t be dictating how they selected their nominees because as far as Wisconsin’s nominees were selected… as far as the state of Wisconsin was concerned the nomination of the major parties would be irrelevant, under your hypothesis.

Harry A. Blackmun:

Mr. Eastman, how many states do you know have open primaries today?

Ronald E. Eastman:

There are only two, Mr. Justice Blackmun; the state of Wisconsin and the state of Michigan.

Now the state of Montana has come before the Court as an amicus and claimed that it has an open primary.

I must say I don’t read the statute that way, and they cited no authority that indicated that they do have an open primary.

They have an open primary but it’s not binding on the delegates.

And because of that, it’s really not… that the primary statute wouldn’t be affected by this case.

Harry A. Blackmun:

Well does your proposal… what does your proposal involve; someone declares his party affiliation as he comes into the polling place, is that sufficient?

Ronald E. Eastman:

That’s sufficient under the national rule.

The national rule, Rule 2(a), requires a public declaration of affiliation.

Harry A. Blackmun:

And then what do you do, hand him a democratic ballot, or a republican whatever-it-is that he declares?

Ronald E. Eastman:

The details of voting are left to the state party and to state law, and it varies from state to state.

In some states, the voter is handed a democratic ballot; in some states, he goes into the voting booth and makes his selection after having declared, after he made the declaration outside the voting booth.

Harry A. Blackmun:

So that he can’t cross over in the–

Ronald E. Eastman:

No.

Harry A. Blackmun:

–If it’s machine voting, he might cross over after he gets into the cubicle.

Ronald E. Eastman:

No.

The state party would have to make arrangements to ensure that he had made his declaration and voted–

Harry A. Blackmun:

And then… such as separate voting machines for each party?

Ronald E. Eastman:

–Separate voting machines or blocking off the republican and independent lines, or whatever third party–

Harry A. Blackmun:

As each voter comes in?

Ronald E. Eastman:

–That’s correct.

But again, the details of implementing the party rule are not dictated by the national party, those are left to the state–

Harry A. Blackmun:

No, but you’re making substantial detail.

I’ve lived through a couple of these things; my home state used to have an open primary.

I’m surprised you didn’t name it.

I thought they still did, but maybe not.

And, both machines and otherwise.

And it’s a lot simpler with an open primary than it is with a closed one.

Ronald E. Eastman:

–It’s simpler, but there are numerous states that have closed primaries.

29 states and the District of Columbia have closed primaries and–

Warren E. Burger:

Well that’s on the theory that the primary is a substitute for the party convention, historically, is it not?

Ronald E. Eastman:

–I think that’s generally the correct history–

Warren E. Burger:

Quasi-private or quasi-public.

It isn’t like an election in that sense.

Ronald E. Eastman:

–That’s correct, Mr. Chief Justice.

The end of the exercise is not the election of a public official, the end of the exercise is the selection of delegates to a national convention who are committed to vote for particular nominees.

John Paul Stevens:

Mr. Eastman, do you contend the Wisconsin statute is unconstitutional, or merely that the national party need not seat delegates selected pursuant to the Wisconsin statute?

Ronald E. Eastman:

Mr. Justice Stevens, I think the latter is closer to our position.

In other words,–

John Paul Stevens:

That’s what I understand it to be, and if so, is it a proper appeal?

Ronald E. Eastman:

–I think it’s a proper appeal because the Wisconsin statute, as applied by the Wisconsin Supreme Court and, I think, the Wisconsin Supreme Court’s order was faithful to the statute’s requirements, not an opinion, but the order.

John Paul Stevens:

I see.

Ronald E. Eastman:

I think that the statute as applied to the Democratic party is unconstitutional.

Warren E. Burger:

We will resume there at 1:00 o’clock, counsel.

Counsel, you may continue.

Ronald E. Eastman:

Mr. Chief Justice, and members of the Court:

The order of the Wisconsin Court effectively requires the party to seek delegates chosen in accordance with the open primary statute and in conflict with the party’s determination about who ought to participate in this process.

This is not a case, this is not a case where the statute, where the Wisconsin statute or the Court’s order says to the party, if you want to use our electoral machinery, our election machinery, you must permit… you must permit non-Democrats to participate in the primary process.

There is a case instead where the state is attempting to dictate to the party and to the party’s convention which delegates it has to seat.

William H. Rehnquist:

What do you think the Supreme Court of Wisconsin would have done had the national party failed to comply?

Would they have held the people in contempt?

Ronald E. Eastman:

I believe so.

The Wisconsin court order actually was a declaration.

The Attorney General of Wisconsin had already taken steps to obtain an injunction in New York where the convention was held, had that been necessary.

So yes, I think they would have probably held… the national party and the Democratic National Committee were respondents in the original action in the Wisconsin Supreme Court and I presume, would have been held in contempt had that… had the democratic party violated the order.

John Paul Stevens:

Mr. Eastman, may I pursue that subject a moment?

If this litigation had never been brought, I suppose the situation when the convention arrived would have been much as it was in fact, because the order was stayed, if I remember correctly.

Ronald E. Eastman:

That’s correct.

John Paul Stevens:

And the National Committee went ahead and seated the delegates anyway.

Ronald E. Eastman:

It did so, Justice Stevens.

John Paul Stevens:

Does the National Committee really have much interest in the issue?

I understand they want to be out, free of an order, compelling them to seat them.

But supposing the litigation had never been brought, presumably they would have just gone ahead and seated the delegates.

Ronald E. Eastman:

I don’t think that’s correct, Justice Stevens.

Had the litigation never been brought, I believe that the National Party would have run an alternate delegate selection system, or, hopefully with the cooperation of the state party, and a different slate of delegates would have been seated.

The National Party, at the time the stay was issued was unfortunately and regrettably not in a position to run an alternate delegate selection system, partly because there wasn’t sufficient time and partly because the DNC didn’t have the resources to do it.

John Paul Stevens:

Right, yes.

You don’t contend that there’s anything unconstitutional about the Wisconsin statute, do you?

Ronald E. Eastman:

It’s… we contend that the Wisconsin statute is unconstitutional–

John Paul Stevens:

Well, if you’re ordered to comply with it, suppose… if you’re ordered to comply with it, now we covered that before lunch, that’s unconstitutional under your view.

But supposing they just have a statute, say well we’re going to elect people in this fashion and the National Committee can take our delegates or leave them, as it chooses.

Ronald E. Eastman:

–There would be nothing unconstitutional about that sort of statute.

Byron R. White:

Well why… tell me why the case isn’t moot, then?

I thought your claim was that you wanted to be… the party wanted to be free from this kind of a statute.

Or from this state effort to throw primaries open to possible members of the other party.

Ronald E. Eastman:

The case is not moot, Justice White, because one, the Wisconsin order was not limited to the 1980 convention; the order has continuing effect and would continue to require the Democratic Party in the 1984 convention to seek delegates selected in accordance with the open primary.

Byron R. White:

I see.

Where is the order, Mr. Eastman, do you know?

Ronald E. Eastman:

Sir?

Potter Stewart:

Do you know where the order is, in the–

Ronald E. Eastman:

Yes, the order is in the appendix to the jurisdictional statement at page 42(a).

Potter Stewart:

–Thank you.

What color?

Ronald E. Eastman:

Blue, and thick; it’s the thick blue.

Potter Stewart:

42(a)?

Ronald E. Eastman:

Yes.

Potter Stewart:

But not over 30 pages.

Ronald E. Eastman:

It’s the appendix to the jurisdictional statement.

Harry A. Blackmun:

Mr. Eastman, isn’t it a little unseemly that the state party of your own party is on the other side of the counsel table here?

Ronald E. Eastman:

As you know, the Democratic Party is not always of one mind on many of the issues that it confronts.

Harry A. Blackmun:

I suppose that’s the only obvious answer you could give.

Not a monolith, in other words?

Ronald E. Eastman:

It is not a monolith, for good or for ill.

Harry A. Blackmun:

But it does demonstrate, that they are content with the Wisconsin statute and system?

Ronald E. Eastman:

The state party is content with the system.

The National Party, however, is a national association made up of the state parties of 50 states and recognized entities from other jurisdictions.

And that really goes, in a way, to the heart of the problem in this case named in Cousins v. Wigoda, and that is that the National Party wishes to have national standards that apply to its processes for selecting a nominee.

It has numerous standards.

Warren E. Burger:

Are they open to the risk that the National Convention might decline to seat the delegation that is so selected?

Ronald E. Eastman:

There is that risk, Mr. Chief Justice.

And it has happened on occasion.

But I assume you… there is the risk that the National Convention might refuse to abide by the rules that the National Party had set earlier for the selection of delegates.

I assume that’s your question, and indeed that happened in O’Brien v. Brown, in California.

But that’s a very rare case indeed.

We don’t anticipate it happening–

Warren E. Burger:

Wouldn’t it be rare for delegates not to be seated?

Ronald E. Eastman:

–It’s rare for delegates not to be seated when the selection process otherwise complied with all the National Party’s rules for selecting the delegates.

William H. Rehnquist:

Well, if you’re not attacking the statute on its face, so to speak, why isn’t this case moot?

Ronald E. Eastman:

The case is not moot because the Wisconsin Court’s order, which I think faithfully reflects the Wisconsin statute as applied to the Democratic party, continues to require the Democratic party to seat delegates from Wisconsin that are selected in part by non-Democrats.

Byron R. White:

Well it just says the presidential preference primary.

To the democratic national… you mean, that’s all the primaries from here on in?

Ronald E. Eastman:

I interpret that as being generic and in any event, as I said, the order itself is consistent with the Wisconsin statute which requires the National–

Byron R. White:

I don’t know why you don’t… I don’t know why you back off from saying your claim is that the statute, that the open primary is unconstitutional.

Ronald E. Eastman:

–I didn’t… if I appeared to back off it, I didn’t mean to, Mr. Justice White.

I think–

Byron R. White:

Well I thought you just said that except for this order there’s nothing wrong with an open primary statute.

Ronald E. Eastman:

–I hope I didn’t say that.

What I said was–

Byron R. White:

It was–

Ronald E. Eastman:

–there’s nothing wrong with an open primary statute as applied to another political party, specifically, for example, the Republican party which has no objection to a… an open primary.

Byron R. White:

–So you are saying this statute is unconstitutional in the face of a contrary party rule?

Ronald E. Eastman:

Exactly.

William H. Rehnquist:

Well why can’t the Democrats simply set up their own machinery for choosing delegates in Wisconsin and outside of the state system and in full compliance with the National Democratic standards and send them to the Democratic National committee, then?

Ronald E. Eastman:

Justice Rehnquist, the Wisconsin Court did not leave us that option.

The Wisconsin Court, effectively directs the party to seat delegates selected in accordance with the open primary and not by some other process.

Now the order stated as if it were a negative order, but the net effect of it is that it requires the parties to seat and–

Warren E. Burger:

And you said the Wisconsin… you say the Wisconsin Court has no jurisdiction whatever to tell the Democratic party what standard should be followed for seating delegates to its convention?

Or, and the state has no power?

Ronald E. Eastman:

–The state has no power, because when, if it tries to do so, it violates the parties’ First and Fourteenth Amendment rights.

Warren E. Burger:

It’s made the final order here, though.

It’s a court which has made the final order.

And yet you concede that the state legislature under the constitution can specify who the delegates to any… to who the electors may be.

That’s quite different.

Ronald E. Eastman:

I believe that’s quite different, Justice Rehnquist.

Even if the state had specified the electors, that does not mean that the state could nonetheless specify the delegates to the National Party’s convention because even if Wisconsin chose that scheme, the National Party would still hold a convention to produce a nominee to run for president, president of the entire United States, and those delegates, the delegates from Wisconsin would still reflect a set of rules for selecting delegates that was inconsistent with the party’s rule.

Warren E. Burger:

I think what your position must be, that the state of Wisconsin through its courts or legislature, has no more authority to tell the Democratic Party which delegates should be seated than it would with the Moose Lodge or the Knight’s of Columbus?

Ronald E. Eastman:

That’s correct, Mr. Chief Justice.

William H. Rehnquist:

Well but are you saying that the Democratic National Committee’s action in various aspects is not “state action”?

Ronald E. Eastman:

The question of whether and under what circumstances the Democratic parties’ action… state action is not presented by the case, Mr. Justice Rehnquist.

William H. Rehnquist:

In answer to the Chief Justice’s question, you say it’s just like the Moose Lodge or the Knights of Columbus, which clearly are private organizations.

Are you saying that the Democratic National Committee is a private organization in the same sense?

Ronald E. Eastman:

I think it is a private organization but this case is much different from the Moose Lodge case.

This is not a case where–

Potter Stewart:

The point is that the state can’t tell the Moose Lodge who to take as its members.

And that’s state action, and that was the Chief Justice’s question.

Ronald E. Eastman:

–That’s correct, that’s correct.

Yes, I understand that, Justice Stewart.

And that’s what I’m saying is that this is… that’s exactly… that’s our view.

Potter Stewart:

And we had a case here in this Court, one of the parties to whom which was Moose Lodge, but that’s quite different.

Ronald E. Eastman:

That’s right.

Potter Stewart:

The question there was whether the action of that organization was state action, that’s quite a different question.

In all of this, I think you ought to put a little caveat and take a look at U.S. against Classic, when you say how private primaries are.

Ronald E. Eastman:

That’s right, Justice Marshall.

This is not a case–

They’re always private.

Ronald E. Eastman:

–That’s right.

This is not a case that involves the question whether the parties rules violate an individual’s constitutional rights or whether the party is exercising some authority outside the confines of the Bill of Rights, that’s a different case, it’s not this one.

The case here is what the state’s power is with regard to the party, not what the party’s is with regard to some individual.

William H. Rehnquist:

Mr. Eastman, I think you… excuse me.

If a party is a purely private organization, then there are an awful lot of constitutional provisions that don’t apply to it and very few that do.

Ronald E. Eastman:

The question whether a National Political Party is purely a private institution is one that I do not think has to be answered here and it involves questions that this Court has not really answered in similar cases.

The question whether the party is purely private or in some sense it exercises state action simply isn’t presented, as it was not presented in Cousins v. Wigoda, and the Court and the concurrence, the majority… and the concurrence specifically noted that.

John Paul Stevens:

Mr. Eastman, I think you’ve answered a question I asked you in two different ways and I want to be sure I get your considered answer.

I understand your argument that the Wisconsin Supreme Court may not compel the National Party to accept the delegates elected pursuant to an open primary.

But assume that we vacated that judgment and just left the statute standing and then left the matter so that you could either take them or leave them, depending on your own rules.

John Paul Stevens:

Would you then have any objection to the constitutionality of the Wisconsin statute which says that if we’re going to elect delegates we’re going to do it with an open primary.

Ronald E. Eastman:

We would have no objection to a Wisconsin statute that did not bind the Democratic party to accept delegates selected–

John Paul Stevens:

So the statute is not unconstitutional on its face, but rather merely as applied to compelling to accept their people?

Ronald E. Eastman:

–Yes, Mr. Justice Stevens.

I’d like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Attorney General.

Bronson C. La Follette:

Mr. Chief Justice and members of the Court:

At the outset I want to make a correction on the factual circumstances concerning the Montana presidential primary.

This is contained in the amicus brief of the state of Montana and the state of Washington on page 3, I believe it is.

There, the procedure for the Montana primary is set forth and under Montana law, each political party has the right to choose its method for selection of delegates and under that law in 1980, the democratic party of Montana chose to select its delegates through the open primary.

And as stated there, that’s a policy which also violates the rules of the Democratic National Committee.

So Wisconsin is not the only court… excuse me, the only state that has… is subject to the rule of… in conflict with state law in this case.

I will address the impact of the party rule upon the state electoral and political process.

Wisconsin voter surveys indicate that the largest class of party identifiers in Wisconsin as well as in most states of the country identify themselves as political independents.

At stake here is the impact of the rule upon independents, Republicans, minor party adherents and others who value their privacy.

What are their rights under the party rule?

There are absolutely none.

On the other hand under the authority of Article II, Section 1, Wisconsin law recognizes and protects their rights to participate in the candidate selection process leading to the election of the highest office in the land.

And it protects those rights to participate in a free and open manner without a declaration of party loyalty as a condition of exercising the basic right of all, which this Court has held to be the root of all basic rights, the right to vote.

What are the interests that the Wisconsin open primary serves?

It’s important to note that the direct primary, Wisconsin being the first state to enact such a law in 1905, was a reform effort to cleanse the political process, which up to that time had been dominated by special interests who controlled the selection of candidates through the political caucuses.

These privacy interests are eloquently stated by the amicus brief of Washington and Montana, and the brief of Editor Maraniss, I won’t go into them here.

This interest broadly serves the expansion of the franchise, it encourages I voting, and it works.

Wisconsin has been in the top three of voter participation turnout in the presidential elections in this past decade.

Warren E. Burger:

Primaries and general election, both?

Bronson C. La Follette:

That is correct, Your Honor.

No case thus far decided by this Court has struck down a law which expanded the franchise to too many people and there is no reasonable justification by the Appellant to do so now.

Our system–

John Paul Stevens:

Mr. La Follette, could I ask you just one sort of basic question?

John Paul Stevens:

Assuming we agree completely with you that it’s perfectly proper for the state to have an open primary form of election and that all the reasons you advance are valid, what is there in the Constitution that requires the National Convention to accept delegates elected in a manner that doesn’t comply with their rules?

Bronson C. La Follette:

–This Court has recognized that states asserting authority under Article II of the Constitution have… are… have wide interests in regulating the conduct of primary elections and determining the qualification of voters in order to protect the integrity of the electoral process; Storer v. Brown, and most recently, Marchioro, are relevant on this point.

And of course we must remember, and I think it’s important to distinguish, the types of political activities that a party engages in.

Number one, it’s obviously a most important process, we call the public function.

And that is the gathering together of individuals in a political convention to select one of the two candidates who ultimately will become President of the United States.

This process, we contend, is part of an overall electoral process which states–

Potter Stewart:

It’s no part of the constitutional electoral process?

Bronson C. La Follette:

–It is no part of the constitutional electoral process.

The party also gathers together in convention to conduct many other kinds of activities.

It writes a platform, it establishes rules, it does many things that govern the internal or intra-party affairs of the convention.

And we contend that this distinction must be given great weight by this Court in permitting states to establish voter qualifications for citizens within their borders.

Warren E. Burger:

Has it been known, Mr. Attorney General, or at least has it been thought and said that sometimes the opposing political party will enter the primary if an open primary is available, for purposes of confusing and embarrassing the opposition?

Bronson C. La Follette:

Your Honor, the record which has been stipulated here contains all of the relevant studies and scholarly articles which relate to that question and they all conclude that there is no evidence of raiding in this case.

And in fact, their own document, the Winograd Commission, concludes that whether or not the Wisconsin law has experienced raiding is speculative, merely speculation.

Warren E. Burger:

But what you’re saying then, is that the Democratic National Convention meeting off in Memphis, Tennessee or in New York cannot have a different view of the matter?

Bronson C. La Follette:

Not when important constitutional concerns that are properly arrested for the authority of the state.

Warren E. Burger:

What is the constitutional concern in a primary?

Bronson C. La Follette:

To maintain the integrity of the electoral process, Marchioro said, recognized that the important role that the parties play in the selection of national and state candidates grants significant authority in the states to regulate those elections in terms of all of the regulations that election laws presume, voter qualifications, to… in order to insure the integrity of that process.

That is the constitutional principle that we believe is enunciated in a long line of cases relating to the right to vote.

Thurgood Marshall:

Mr. Attorney General, isn’t the real problem here that Wisconsin is extending its long-arm into the convention in another state?

Bronson C. La Follette:

I’d like to address that question, Your Honor.

Yes, I believe that’s–

Thurgood Marshall:

Take the Cousins case while you do it, will you?

Bronson C. La Follette:

–Right, I certainly will.

I believe that that’s a very important issue.

The question of the extent and whether or not the Wisconsin order has chosen the narrowest means possible to effectuate its purpose.

First of all, let’s examine the form of the injunction in Cousins.

In Cousins, there was a state court injunction which was issued against named individuals which forbade them from directly associating with a political convention which they wanted to associate with and which wanted them to come in and be delegates.

And a criminal contempt process was pending at the time that these issues came before this Court, having of course been stayed by the lower courts.

The… probably the issue involved in that case, involved the affirmative action rules of the parties as far as slate-making, as far as age, race, sex; those kinds of qualifications were at issue in that case.

Bronson C. La Follette:

And there was an intervention by a state court, telling the party and the delegates who were chosen by private caucuses pursuant to party rules, that met all of these qualifications that those folks couldn’t go to the Democratic National Convention as delegates because these other folks were elected under state law and state law prevails.

Now as far as voting qualification… there’s one thing that hasn’t been said yet.

And that is that under Wisconsin direct open primary, we vote for candidates, we vote for President, we vote for the names on the ballot in the Wisconsin Democratic Party… are the party of candidates for President.

We are not talking about a process under state law which selects the delegates.

Under the state law the delegates are selected after the primary is over with, by the state party, under state law they must be party members, they must be… they must take, the only issue that the party has, is that they must take a pledge under state law to vote in accordance with the apportionment that are the results of the primary election.

That is the only thing that the party disagrees with.

Otherwise, these folks comply with state law, they are chosen by the party, and the only interference by this Wisconsin Court order, which is the narrowest that could possibly be drawn in order to effectuate the purpose of the primary which is to guarantee the vote of those people that went into the privacy of their voting booth and voted for those particular candidates.

And we feel that Cousins is not applicable here, and in fact, we would draw your attention to Buckley v. Valeo which is, we feel, much more in point as far as the constitutional issues that are involved in this case.

Where this Court recognized that in the question of disclosure of campaign contributions, that public disclosure of contributions to candidates in political parties will deter some individuals who otherwise might contribute.

In some instances, disclosure may even expose those contributors to harassment and retaliation.

That’s U.S…. 424 U.S. at 68.

We feel that the minimum intrusion by the Court order in this… in the Court below, has… certainly does not rise to the test that this Court has applied that it’s necessary that the Appellants here have the burden to show that they have been substantially interfered with in their associational rights.

William H. Rehnquist:

I don’t believe, General La Follette, that it appears in the record, but wasn’t one of the great battles after the English or formats of the 19th Century, where they had enfranchised people to obtain a secret ballot because the landlord simply stood at the polling place and if the person had to declare himself openly and orally it was just about like being disenfranchised.

Bronson C. La Follette:

It is a matter of disenfranchisement.

And I would also point out the Wisconsin open primary is held in conjunction with the spring election on the same day in Wisconsin in which literally thousands of our locally elected officials, our judiciary, our mayors, our city councilmen, our town board members, are all elected on the same day in a nonpartisan election.

And to require the state to change its law and force people who want to vote in these elections to declare their party allegiance would certainly frustrate the very substantial purpose in Wisconsin’s electoral process.

John Paul Stevens:

General La Follette, your opponent says they are not going to require you to change the law.

They simply won’t seat your delegates.

Bronson C. La Follette:

Well, we contend that they do not have the power to refuse.

They must meet the burden that this Court has laid down in claiming infringement of constitutional rights that they must be substantial.

Thurgood Marshall:

Then you admit that Wisconsin is controlling the Democratic convention being held in Timbuktu?

Bronson C. La Follette:

I would say we have the right–

Do you admit that?

Bronson C. La Follette:

–Yes, we have the right to do that.

All right.

Bronson C. La Follette:

As far as our law is concerned.

Thank you.

Warren E. Burger:

Very well.

Mr. Friebert.

Robert H. Friebert:

Thank you, Mr. Chief Justice and may it please the Court:

Robert H. Friebert:

My name is Robert Friebert and I represent the State Party in this action.

Mr. Justice Stewart, I think, asked one of the critical questions and that is whether this election is a part of the constitutional electoral process.

It is.

It’s the beginning of the electoral process by which states nominate and elect electors to elect the President of the United States.

Potter Stewart:

Well now, the choosing of electors is in the Constitution; there’s nothing in there about political parties.

Robert H. Friebert:

Well, it’s up to the state to determine how–

Potter Stewart:

To choose their electors, yes.

Robert H. Friebert:

–to choose their electors.

And in Wisconsin it’s a very complex process.

It’s a complex process throughout the country.

It starts with, in Wisconsin, primaries which, in Wisconsin, has decided that every citizen should have an opportunity at least once every four years to determine who they want to be President of the United States and not wait until November when the choices are narrowed by the national parties.

And so that’s the beginning of the process which culminates in the national party having automatic ballot access in Wisconsin, just by having the results of nominating convention… it’s automatically on the ballot with the party name listed.

Warren E. Burger:

What about the states which begin this process at the precinct level with caucuses?

Would you say the precinct caucus process is part of the constitutional electoral process?

Robert H. Friebert:

Yes, I would say that.

Absolutely.

Warren E. Burger:

That the state could regulate that the caucuses must take place between 7 o’clock and 10 o’clock in a home on the main street or something of that kind?

Robert H. Friebert:

The National Party is regulated as to when these primaries take place.

I think that what is being missed here… excuse me–

Warren E. Burger:

The state legislature, you say, may regulate the caucus?

Robert H. Friebert:

–It may, to a point.

It can regulate it to achieve a certain state fundamental interest.

For example, I think it could regulate the caucus to make sure that blacks and other minorities are not interfered with in their right to associate and that has been long held in the United States v. Classic.

Once it’s conceded that we have a public–

Thurgood Marshall:

Classic did not involve a Negro.

Robert H. Friebert:

–I think, I think when–

Thurgood Marshall:

Classic did not involve a Negro.

Robert H. Friebert:

–Pardon?

Thurgood Marshall:

The U.S. against Classic did not involve a Negro.

Robert H. Friebert:

Well, the White Primary cases and there’s a generic statement, did involve blacks.

Robert H. Friebert:

The point is that when we have a decision like Moose Lodge from the Court, we have, I believe, a statement from the Court that in order for any of the 14th, 15th Amendment grants to be applicable you must have a finding that the particular activity involved constitutes public action.

And I think that it’s very clear by the decisions of this Court and especially footnote 16 in Buckley v. Valeo, that at this point in our history it is beyond doubt that primary contests, party primary contests are elections and that they can be heavily regulated because there is a public action that is taking place and that there would be a certain amount of retreat from that if we could say that this reform measure at the turn of the century from Wisconsin which outlawed the very thing that the National Party wanted to superimpose in Wisconsin… the very thing that was done in Michigan.

In Michigan, the Attorney General declared that their open primary statute was unconstitutional and the whole process was displaced with a party caucus where there were fees to be paid and as a result, only 15,000 people determined the delegates from the state of Michigan.

It seems to me that that is not the way this country has gone and that is not the direction that it should go; that it’s a step back and that a reform measure to increase voter participation in election process has been viewed as, in Buckley, with great favor.

And in this context, we’re not talking about the seating of delegates.

We… the Wisconsin statute couldn’t care less who are the delegates.

The only thing that it has focused upon is the apportionment process by which the will of the voters at the primary becomes effective and that’s the reason the injunction was entered.

It is very narrow in scope.

And beyond that, in all of the other party business, the Wisconsin statute couldn’t care less.

John Paul Stevens:

But if you say that, Mr. Friebert, it seems to me that you haven’t explained how you justify the injunction.

Let me put it this way, it seems to me one could agree with every word in Justice Abrahamson’s opinion, and still not quite understand the theory on which she entered the injunction, on which the Court entered the injunction.

Robert H. Friebert:

I think the theory on which the injunction was entered is the basic power that a state has when it is in the regulating area of voter qualifications to make its laws effective.

And in light of Cousins, and the kind of meshing of kinds of public action by a National Party and private action, it should be done in the least offensive manner to make the law effective.

The citizens of Wisconsin have a constitutional right as… or a right as created by the legislature of Wisconsin to vote in these primaries, then the law can be made effective in a way which doesn’t impair the associational interests of the National Party.

And I think that that’s what this Court indicated in Rosario, for example, that by saying the states can regulate they can make their laws effective.

And it’s in a very, very unoffensive way that the law is made effective.

Indeed–

Potter Stewart:

Well now, that’s the issue here, isn’t it, as my brother Stevens has indicated?

Your state’s Supreme Court has said that this state law is binding on the Democratic National Committee and I’m, when I use the word binding, I’m quoting from the injunction they ordered.

Robert H. Friebert:

–Yes.

Potter Stewart:

And that is what makes the controversy here, isn’t it?

Robert H. Friebert:

Well, I think it’s an illusory controversy, they come… the National Party comes in and claims a great deprivation of the First Amendment rights without in any way demonstrating that any of their other programs for selecting delegates would have any different kind of apportionment.

I think that they have the burden in claiming the First Amendment rights violations, not to speculate about just what the impact would be.

Byron R. White:

Well I know that your Court said the impact was speculative and therefore the case was over just on that ground.

Robert H. Friebert:

Yes.

Byron R. White:

But it went on to say that even if it isn’t… even if it were substantial there’s a state justification.

Robert H. Friebert:

Yes.

Byron R. White:

Now, do you make that claim too?

Robert H. Friebert:

I don’t get into the state justification–

Byron R. White:

You mean, you stop short of that?

Robert H. Friebert:

–Yes.

But it doesn’t have to go that far, because they, the National Party–

Byron R. White:

The state Court went that far, and if it easier to accept that branch of its judgment than the other–

Robert H. Friebert:

–I agree.

Byron R. White:

–Or do you, you back away from that part of it, though.

Robert H. Friebert:

I don’t back, I back away… the way the state party way of presenting the brief, because I don’t have to reach that question, because of several reasons.

One, if it is recognized that this is a public interest or public action activity by the National Party, then it seems to follow, it can be regulated.

And by definition, almost by constitutional definition, it is not a First Amendment problem.

Secondly, there is no showing in the context of apportionment of delegate strength among various contenders for President that anything would be any different if a different method were used.

William H. Rehnquist:

Mr. Friebert, what if the Democratic National Committee had never come into the Wisconsin courts, and the Wisconsin primary had proceeded according to Wisconsin law and then when it came time for credentials hearings or a seating at the Democratic National Committee, the Democratic National Committee simply refused to seat the Wisconsin delegates?

Do you think that would be permissible?

Robert H. Friebert:

No.

It’s a part of the process which results in… result of that convention gets automatic valid access.

The party can’t go walk down a one-way street.

They love the automatic ballot access, they love having their name on the Wisconsin ballot, they love the context and the appointments that they get in Wisconsin just by virtue of being a party, and it seems to me that that intertwining is a two-way street.

And I think that that… the two-way street is that it is private, in some respects as is stated in Cousins and it is public in other respects, especially when we’re talking about the critical franchise which is given by a state.

And in federal elections it can be further regulated by Congress if it chooses to come into the area.

So that the full extent of the National Party’s position is that Wisconsin could conduct a closed primary only if they wanted a closed primary.

If they wanted caucuses, they could outlaw it too.

It’s the full extent… of their position is that these state laws only are enforced if they want then to be enforced.

William H. Rehnquist:

When you say they, you mean the Democratic National Party?

Robert H. Friebert:

The National Party, yes sir.

John Paul Stevens:

That isn’t quite… I don’t think that’s a fair statement of their position.

They said they are perfectly valid laws, they just won’t seat your delegates.

Robert H. Friebert:

They just won’t let them be… any meaning to them.

They are perfectly valid and the state of Wisconsin can go out and have an intellectual exercise–

John Paul Stevens:

Just as they did in Cousins v. Wigoda, that delegation was elected pursuant to Illinois law and they refused to seat then.

Robert H. Friebert:

–I think Cousins v. Wigoda, it doesn’t… it’s not the best applicable case to this.

I think it is Buckley… but Cousins had as one of its major, major aspects is that they were concerned there with who were the delegates, which we are not concerned with here, here we are concerned with who are the voters.

And that is a completely different question, and I think extremely important–

John Paul Stevens:

Well if you’re not concerned with who the delegates are, you can’t possibly justify the injunction.

Robert H. Friebert:

–We care how they vote at the convention on the first ballot, and beyond, and that’s the only thing we care about.

Nothing else.

We don’t care who does it.

That is a private matter.

I think it accommodates Cousins.

But Cousins involved a… there was no conflict between a state law in Cousins as such, and a party rule, because–

John Paul Stevens:

Yes there was, the Illinois law provided one method of election and the other slate was not elected pursuant to that method.

Robert H. Friebert:

–No, the Illinois law was neutral on the process by which delegates could be chosen.

What happened there is, we had an intra-party squabble between people in the Chicago area who were enforcing a slate.

And that was the real underlying fight.

And then they hid under the Illinois law, to say, now you’ve got to accept our previous violation to the rule, I think that that’s what is underneath Cousins.

Very much what’s underneath Cousins.

They used the Illinois law as a refuge in an attempt to circumvent the national rules, that that’s what was at stake and therefore is a complete–

John Paul Stevens:

Well aren’t you using Wisconsin law in an effort to circumvent the national rule in exactly the same way?

You’re not complying with the national rule so you’re circumventing it.

Robert H. Friebert:

–No, it’s not… the state party of Wisconsin is not the Wisconsin legislature and what we had in Illinois was a state party or a Chicago party attempting by its slate-making processes–

John Paul Stevens:

Which complied fully with the Illinois statute.

Robert H. Friebert:

–It did comply fully, but they didn’t comply with the party rule–

John Paul Stevens:

Didn’t comply with the parry rule, it’s precisely the same situation here.

Robert H. Friebert:

–Because they were slate-making; they was no juggernaut between the state party, the national rules and the Illinois law, which is true here, and besides that, it was going to a different interest.

In this case, we are in the interest of apportioning the will of the Wisconsin voters to the choices made in the party.

That was not an issue in Illinois; Illinois does not have, I don’t believe, a choice, or at least not in 1976 or ’72, a binding primary, it was advisory only.

So the Illinois–

John Paul Stevens:

It’s binding with respect to who the delegates would be.

Robert H. Friebert:

–Yes, but not the more fundamental point as to who should be President of the United States, that’s a lot more important to the public than who the delegates are, it seems to me.

Thurgood Marshall:

Did I understand you correctly, to say that Wisconsin’s interest was in how the delegates voted at the convention?

Robert H. Friebert:

On the nomination process, yes.

Thurgood Marshall:

At the convention?

Robert H. Friebert:

Yes.

Robert H. Friebert:

In effectuating the will–

Thurgood Marshall:

Under the long-arm, that’s a rather long arm, isn’t it?

Robert H. Friebert:

–Oh, I think it’s the first step in the process by which people become President or nominees for President of the United States, and it is intertwined in the voter qualification dowers that we have as a state, subject to Congressional regulation in a federal election and also under the 12th Amendment as a part of a complex process for its electors–

John Paul Stevens:

Mr. Friebert, why couldn’t the state interest you described be adequately protected by a statute that said whoever the delegates are they shall vote, at least on the first ballot or on the second ballot, for the presidential candidate who receives the largest vote in the primary?

Robert H. Friebert:

–That’s a choice that the Wisconsin statute gives; a winner take all statute.

The Wisconsin statute allows a winner take all, but the party can choose apportion and the party has chosen apportionment in this instance.

John Paul Stevens:

I see.

Robert H. Friebert:

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Eastman?

Ronald E. Eastman:

Mr. Chief Justice, I don’t feel the need to say anything further, but I’m prepared to answer questions.

John Paul Stevens:

Let me just ask this one question.

Supposing the Wisconsin statute divided by districts, says that the person… the presidential candidate who receives the most votes in a given delegate district, however they are apportioned, shall be the candidate for whom the delegates from Wisconsin shall vote.

In other, words, you could pick the delegates, but on the first ballot they’ve got to vote for the people that represent the majority.

Would that comply with your rules?

Ronald E. Eastman:

No, it would not, so long as the primary was an open primary and non-Democrats–

John Paul Stevens:

So the open primary objective is not merely the selection of delegates but also the determination of the person for whom they might vote?

Ronald E. Eastman:

–Absolutely, Justice Stevens.

The heart of this case is the process of selecting the nominee, not merely delegates who are bound to hold their hands up to cast a predetermined vote.

Although I might add, actually the delegates functions are mightily affected by the candidate apportioning, because the candidate gets a certain number of members on the credentials committee, a certain number on the platform committee and a certain number on the–

Potter Stewart:

Mr. Eastman, the Wisconsin delegation was in fact, seated last summer, was it not?

Ronald E. Eastman:

–Yes, it was, Justice Stewart.

Again–

Potter Stewart:

Although there was a stay of the… of the Wisconsin Supreme Court’s order, was there not?

Ronald E. Eastman:

–Yes.

And the party very much appreciated being able to… the Court’s stay, which was issued sua sponte, and having the ability to make that decision free of the compulsion of the Wisconsin Court’s order, there simply wasn’t enough time left or really the resources, unfortunately, for the party to go out and run an alternate delegate selection system, the National Party, without the cooperation of the State Party.

Potter Stewart:

So there’s really no alternative, at least there was no other delegation?

Ronald E. Eastman:

That there was no other delegation, it was impractical for us to try to create one.

Potter Stewart:

And why isn’t this moot?

Ronald E. Eastman:

It isn’t moot for several reasons.

First, the Wisconsin Court order as I mentioned has continuing effect.

Ronald E. Eastman:

Secondly, the issue is not only capable of repetition but it’s almost virtually certain to be repeated, because I… there’s… I see no evidence that Wisconsin is going to change its statute and I see very, very strong evidence that the Democratic Party is not going to change its democrats only rule.

And furthermore, it will almost certainly evade review if the case doesn’t… the issue will almost certainly evade review if the Court doesn’t decide it now, because by the time the controversy arises, in the nature of the process of approving delegate selection plans and so on before the convention, the controversy won’t really arise as it didn’t this time, until about eight months before the Wisconsin primary election which is held in April, and about it a year before the convention, as was the case this time, and that simply isn’t enough time to get a conclusive final adjudication of the constitutional issues which have been raised here.

William H. Rehnquist:

Mr. Eastman, would you say that, that the state of Wisconsin is constitutionally prohibited from legislating, allowing a closed primary as you want, the declaration of the Democratic loyalty, but saying that delegates from the Fourth and Fifth, votes from the Fourth and Fifth Districts shall be counted as electing so many delegates; in other words, having a congressional district apportionment?

Ronald E. Eastman:

If I understand your hypothesis to be that the issue would not be necessarily closed versus open primary–

William H. Rehnquist:

Right.

Ronald E. Eastman:

–but the apportionment of delegates–

William H. Rehnquist:

Right.

Ronald E. Eastman:

–yes, apportionment of delegates selected from the state, but actually selected to… by the State Party to be at the convention, yes, I would say that the Democratic National Convention and the Democratic Party could decide on the apportionment of delegates from the state on the method of apportionment, and that if the state mandated a different one, the state could not constitutionally enforce that different allocation.

Byron R. White:

Even if the state said apportion according to the vote and the Democratic Party said winner take all?

Ronald E. Eastman:

I think that’s correct.

And the fact that the Democratic Party–

Byron R. White:

It’s true, you would take the same position both ways?

Ronald E. Eastman:

–Yes.

Potter Stewart:

Now the Democratic Party has rules, does it not, requiring that state delegations be representative of various, or have certain quotas of various age groups and genders and… there being only two genders… and be racially diverse in some of them, does it not?

Ronald E. Eastman:

It has guidelines to provide certain affirmative action steps and in fact, it did require this year that 50 percent of the delegates are women.

Potter Stewart:

So that if a state law should say, men only for example, or people only over 35, or something like that, that would also in your view be unconstitutional because it would impair your constitutional right of free association?

Ronald E. Eastman:

So long as there was a contrary party rule, yes.

Now I’m not addressing… I’m not addressing if it would be a… there may well be other constitutional constraints on the Democratic Party’s choices and that gets into a whole question that’s not presented here, of whether the party’s action is a state action and so forth and whether it can… whether, certain individuals can be precluded, but that’s not this case.

William H. Rehnquist:

You do adhere to the view that if the Wisconsin legislature says half of the population of the state lives in the lake shore counties and half of the population lives in the other half of the state, then half of the delegates shall be elected by the lake shore county closed declared Democrats and half shall be elected by the other declared Democrats?

Ronald E. Eastman:

That is our view, Mr. Justice Rehnquist, and in fact, that very issue was brought up in the context of the Republican Party’s allocation of its delegates in certain states, in a case decided by the D.C. Circuit not long ago, the Ripon case, which is cited in the briefs.

And the D. C. Circuit said that the, State Party… that the Republican Party had a right to determine its own apportionment.

Potter Stewart:

It wasn’t a state action?

Ronald E. Eastman:

No, it wasn’t quite the same thing.

Potter Stewart:

Mr. Eastman, do you… so if this injunction order were revoked at this time, you would say there’s still a case or controversy here that should be decided?

If the injunction were revoked–

Ronald E. Eastman:

Yes.

Because–

Byron R. White:

–Because the statute is still of operative force.

Ronald E. Eastman:

–Yes.

I believe that the Wisconsin Supreme Court’s declaration is faithful to what the statute has–

John Paul Stevens:

Mr. Eastman, I suppose you’d take the same position if the Democratic Party rule said no delegate shall be seated unless his loyalty to the Democratic Party shall be certified by the state chairman?

Ronald E. Eastman:

–While I can’t imagine the Democratic Party adopting that rule, I would take the same position.

Byron R. White:

It would be the same issue, wouldn’t it?

Ronald E. Eastman:

Yes.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.