CALIFORNIA DEMOCRATIC PARTY et al. v. JONES, SECRETARY OF STATE OF CALIFORNIA, et al.

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Syllabus
CALIFORNIA DEMOCRATIC PARTY et al. v. JONES,
SECRETARY OF STATE OF CALIFORNIA, et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 99–401. Argued April 24, 2000—Decided June 26, 2000
One way that candidates for public office in California gain access to the
general ballot is by winning a qualified political party’s primary. In
1996, Proposition 198 changed the State’s partisan primary from a
closed primary, in which only a political party’s members can vote on
its nominees, to a blanket primary, in which each voter’s ballot lists
every candidate regardless of party affiliation and allows the voter to
choose freely among them. The candidate of each party who wins the
most votes is that party’s nominee for the general election. Each of
petitioner political parties prohibits nonmembers from voting in the
party’s primary. They filed suit against respondent state official, al-
leging, inter alia, that the blanket primary violated their First Amend-
ment rights of association. Respondent Californians for an Open Pri-
mary intervened. The District Court held that the primary’s burden
on petitioners’ associational rights was not severe and was justified by
substantial state interests. The Ninth Circuit affirmed.
Held: California’s blanket primary violates a political party’s First Amend-
ment right of association. Pp. 572–586.
(a) States play a major role in structuring and monitoring the pri-
mary election process, but the processes by which political parties se-
lect their nominees are not wholly public affairs that States may regu-
late freely. To the contrary, States must act within limits imposed by
the Constitution when regulating parties’ internal processes. See, e. g.,
Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214.
Respondents misplace their reliance on Smith v. Allwright, 321 U. S.
649, and Terry v. Adams, 345 U. S. 461, which held not that party affairs
are public affairs, free of First Amendment protections, see, e. g., Tash-
jian v. Republican Party of Conn., 479 U. S. 208, but only that, when a
State prescribes an election process that gives a special role to political
parties, the parties’ discriminatory action becomes state action under
the Fifteenth Amendment. This Nation has a tradition of political asso-
ciations in which citizens band together to promote candidates who
espouse their political views. The First Amendment protects the free-
dom to join together to further common political beliefs, id., at 214–215,
which presupposes the freedom to identify those who constitute the

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568 CALIFORNIA DEMOCRATIC PARTY v. JONES
Syllabus
association, and to limit the association to those people, Democratic
Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107,
122. In no area is the political association’s right to exclude more im-
portant than in its candidate-selection process. That process often
determines the party’s positions on significant public policy issues, and
it is the nominee who is the party’s ambassador charged with winning
the general electorate over to its views. The First Amendment re-
serves a special place, and accords a special protection, for that process,
Eu, supra, at 224, because the moment of choosing the party’s nominee
is the crucial juncture at which the appeal to common principles may be
translated into concerted action, and hence to political power, Tashjian,
supra, at 216. California’s blanket primary violates these principles.
Proposition 198 forces petitioners to adulterate their candidate-selection
process—a political party’s basic function—by opening it up to persons
wholly unaffiliated with the party, who may have different views from
the party. Such forced association has the likely outcome—indeed, it is
Proposition 198’s intended outcome—of changing the parties’ message.
Because there is no heavier burden on a political party’s associa-
tional freedom, Proposition 198 is unconstitutional unless it is narrowly
tailored to serve a compelling state interest. See Timmons v. Twin
Cities Area New Party, 520 U. S. 351, 358. Pp. 572–582.
(b) None of respondents’ seven proffered state interests—producing
elected officials who better represent the electorate, expanding candi-
date debate beyond the scope of partisan concerns, ensuring that dis-
enfranchised persons enjoy the right to an effective vote, promoting
fairness, affording voters greater choice, increasing voter participation,
and protecting privacy—is a compelling interest justifying California’s
intrusion into the parties’ associational rights. Pp. 582–586.
169 F. 3d 646, reversed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, Souter, Thomas, and Breyer, JJ.,
joined. Kennedy, J., filed a concurring opinion, post, p. 586. Stevens,
J., filed a dissenting opinion, in which Ginsburg, J., joined as to Part I,
post, p. 590.
George Waters argued the cause for petitioners. With
him on the briefs were Lance H. Olson, N. Eugene Hill, and
Charles H. Bell, Jr.
Thomas F. Gede, Special Assistant Attorney General of
California, argued the cause for respondents. With him
on the brief were Bill Lockyer, Attorney General, Manuel

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Opinion of the Court
M. Medeiros, Senior Assistant Attorney General, Andrea
Lynn Hoch, Lead Supervising Deputy Attorney General,
and James P. Clark.*
Justice Scalia delivered the opinion of the Court.
This case presents the question whether the State of
California may, consistent with the First Amendment to
the United States Constitution, use a so-called “blanket”
primary to determine a political party’s nominee for the
general election.
I
Under California law, a candidate for public office has two
routes to gain access to the general ballot for most state and
federal elective offices. He may receive the nomination of
a qualified political party by winning its primary,1 see Cal.
*Briefs of amici curiae urging reversal were filed for the Eagle Forum
Education & Legal Defense Fund et al. by Erik S. Jaffe; for the Repub-
lican National Committee et al. by Joseph E. Sandler and Thomas J.
Josefiak; and for the Republican Party of Alaska, Inc., et al. by Kenneth
P. Jacobus.
Briefs of amici curiae urging affirmance were filed for the State of
Washington et al. by Christine O. Gregoire, Attorney General of Wash-
ington, Maureen A. Hart, Senior Assistant Attorney General, Jeffrey T.
Evan, Assistant Attorney General, Bruce Botelho, Attorney General of
Alaska, and Dan Schweitzer; for California Governor Gray Davis by De-
metrios A. Boutris, D. Robert Shuman, Shelleyanne W. L. Chang, and
Allen Sumner; for Alaskan Voters for an Open Primary (AVOP) by Max
F. Gruenberg, Jr., and for Senator William E. Brock et al. by James M.
Johnson.
Briefs of amici curiae were filed for the Brennan Center for Justice
by Burt Neuborne; and for the Northern California Committee for Party
Renewal et al. by E. Mark Braden.
1 A party is qualified if it meets one of three conditions: (1) in the last
gubernatorial election, one of its statewide candidates polled at least two
percent of the statewide vote; (2) the party’s membership is at least one
percent of the statewide vote at the last preceding gubernatorial election;
or (3) voters numbering at least 10 percent of the statewide vote at the
last gubernatorial election sign a petition stating that they intend to form
a new party. See Cal. Elec. Code Ann. § 5100 (West 1996 and Supp. 2000).

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Elec. Code Ann. §§ 15451, 13105(a) (West 1996); or he may
file as an independent by obtaining (for a statewide race)
the signatures of one percent of the State’s electorate or
(for other races) the signatures of three percent of the voting
population of the area represented by the office in contest,
see § 8400.
Until 1996, to determine the nominees of qualified parties
California held what is known as a “closed” partisan pri-
mary, in which only persons who are members of the politi-
cal party—i. e., who have declared affiliation with that party
when they register to vote, see Cal. Elec. Code Ann. §§ 2150,
2151 (West 1996 and Supp. 2000)—can vote on its nominee,
see Cal. Elec. Code Ann. § 2151 (West 1996). In 1996 the
citizens of California adopted by initiative Proposition 198.
Promoted largely as a measure that would “weaken” party
“hard-liners” and ease the way for “moderate problem-
solvers,” App. 89–90 (reproducing ballot pamphlet dis-
tributed to voters), Proposition 198 changed California’s
partisan primary from a closed primary to a blanket primary.
Under the new system, “[a]ll persons entitled to vote, includ-
ing those not affiliated with any political party, shall have
the right to vote . . . for any candidate regardless of the
candidate’s political affiliation.” Cal. Elec. Code Ann. § 2001
(West Supp. 2000); see also § 2151. Whereas under the
closed primary each voter received a ballot limited to can-
didates of his own party, as a result of Proposition 198 each
voter’s primary ballot now lists every candidate regardless
of party affiliation and allows the voter to choose freely
among them. It remains the case, however, that the candi-
date of each party who wins the greatest number of votes
“is the nominee of that party at the ensuing general elec-
tion.” Cal. Elec. Code Ann. § 15451 (West 1996).2
2 California’s new blanket primary system does not apply directly to
the apportionment of Presidential delegates. See Cal. Elec. Code Ann.
§§ 15151, 15375, 15500 (West Supp. 2000). Instead, the State tabulates
the Presidential primary in two ways: according to the number of votes

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Petitioners in this case are four political parties—the Cali-
fornia Democratic Party, the California Republican Party,
the Libertarian Party of California, and the Peace and Free-
dom Party—each of which has a rule prohibiting persons not
members of the party from voting in the party’s primary.3
Petitioners brought suit in the United States District Court
for the Eastern District of California against respondent
California Secretary of State, alleging, inter alia, that Cali-
fornia’s blanket primary violated their First Amendment
rights of association, and seeking declaratory and injunctive
relief. The group Californians for an Open Primary, also
respondent, intervened as a party defendant. The District
Court recognized that the new law would inject into each
party’s primary substantial numbers of voters unaffiliated
with the party. 984 F. Supp. 1288, 1298–1299 (1997). It fur-
ther recognized that this might result in selection of a nomi-
nee different from the one party members would select, or
at the least cause the same nominee to commit himself to
different positions. Id., at 1299. Nevertheless, the District
Court held that the burden on petitioners’ rights of asso-
ciation was not a severe one, and was justified by state inter-
ests ultimately reducing to this: “enhanc[ing] the democratic
nature of the election process and the representativeness of
elected officials.” Id., at 1301. The Ninth Circuit, adopting
the District Court’s opinion as its own, affirmed. 169 F. 3d
646 (1999). We granted certiorari. 528 U. S. 1133 (2000).
each candidate received from the entire voter pool and according to the
amount each received from members of his own party. The national par-
ties may then use the latter figure to apportion delegates. Nor does it
apply to the election of political party central or district committee mem-
bers; only party members may vote in these elections. See Cal. Elec.
Code Ann. § 2151 (West 1996 and Supp. 2000).
3 Each of the four parties was qualified under California law when they
filed this suit. Since that time, the Peace and Freedom Party has appar-
ently lost its qualified status. See Brief for Petitioners 16 (citing Child
of the ’60s Slips, Los Angeles Times, Feb. 17, 1999, p. B–6).

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II
Respondents rest their defense of the blanket primary
upon the proposition that primaries play an integral role
in citizens’ selection of public officials. As a consequence,
they contend, primaries are public rather than private pro-
ceedings, and the States may and must play a role in en-
suring that they serve the public interest. Proposition 198,
respondents conclude, is simply a rather pedestrian example
of a State’s regulating its system of elections.
We have recognized, of course, that States have a major
role to play in structuring and monitoring the election proc-
ess, including primaries. See Burdick v. Takushi, 504 U. S.
428, 433 (1992); Tashjian v. Republican Party of Conn., 479
U. S. 208, 217 (1986). We have considered it “too plain for
argument,” for example, that a State may require parties
to use the primary format for selecting their nominees, in
order to assure that intraparty competition is resolved in
a democratic fashion. American Party of Tex. v. White,
415 U. S. 767, 781 (1974); see also Tashjian, supra, at 237
(Scalia, J., dissenting). Similarly, in order to avoid bur-
dening the general election ballot with frivolous candida-
cies, a State may require parties to demonstrate “a signifi-
cant modicum of support” before allowing their candidates a
place on that ballot. See Jenness v. Fortson, 403 U. S. 431,
442 (1971). Finally, in order to prevent “party raiding”—a
process in which dedicated members of one party formally
switch to another party to alter the outcome of that party’s
primary—a State may require party registration a reason-
able period of time before a primary election. See Rosario
v. Rockefeller, 410 U. S. 752 (1973). Cf. Kusper v. Pontikes,
414 U. S. 51 (1973) (23-month waiting period unreasonable).
What we have not held, however, is that the processes by
which political parties select their nominees are, as re-
spondents would have it, wholly public affairs that States

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may regulate freely.4 To the contrary, we have continu-
ally stressed that when States regulate parties’ internal
processes they must act within limits imposed by the Con-
stitution. See, e. g., Eu v. San Francisco County Demo-
cratic Central Comm., 489 U. S. 214 (1989); Democratic
Party of United States v. Wisconsin ex rel. La Follette, 450
U. S. 107 (1981). In this regard, respondents’ reliance on
Smith v. Allwright, 321 U. S. 649 (1944), and Terry v. Adams,
345 U. S. 461 (1953), is misplaced. In Allwright, we invali-
dated the Texas Democratic Party’s rule limiting partici-
pation in its primary to whites; in Terry, we invalidated the
same rule promulgated by the Jaybird Democratic Associa-
tion, a “self-governing voluntary club,” 345 U. S., at 463.
These cases held only that, when a State prescribes an elec-
tion process that gives a special role to political parties, it
“endorses, adopts and enforces the discrimination against
Negroes” that the parties (or, in the case of the Jaybird Dem-
ocratic Association, organizations that are “part and parcel”
of the parties, see id., at 482 (Clark, J., concurring)) bring
into the process—so that the parties’ discriminatory action
becomes state action under the Fifteenth Amendment. All-
wright, supra, at 664; see also Terry, 345 U. S., at 484 (Clark,
J., concurring); id., at 469 (opinion of Black, J.). They do not
stand for the proposition that party affairs are public affairs,
free of First Amendment protections—and our later holdings
make that entirely clear.5 See, e. g., Tashjian, supra.
4 On this point, the dissent shares respondents’ view, at least where
the selection process is a state-run election. The right not to associ-
ate, it says, “is simply inapplicable to participation in a state election.”
“[A]n election, unlike a convention or caucus, is a public affair.” Post, at
595 (opinion of Stevens, J.). Of course it is, but when the election deter-
mines a party’s nominee it is a party affair as well, and, as the cases to be
discussed in text demonstrate, the constitutional rights of those composing
the party cannot be disregarded.
5 The dissent is therefore wrong to conclude that Allwright and Terry
demonstrate that “[t]he protections that the First Amendment affords

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Representative democracy in any populous unit of gov-
ernance is unimaginable without the ability of citizens to
band together in promoting among the electorate candidates
who espouse their political views. The formation of national
political parties was almost concurrent with the formation
of the Republic itself. See Cunningham, The Jeffersonian
Republican Party, in 1 History of U. S. Political Parties 239,
241 (A. Schlesinger ed. 1973). Consistent with this tradi-
tion, the Court has recognized that the First Amendment
protects “the freedom to join together in furtherance of
common political beliefs,” Tashjian, supra, at 214–215, which
“necessarily presupposes the freedom to identify the people
who constitute the association, and to limit the association
to those people only,” La Follette, 450 U. S., at 122. That
is to say, a corollary of the right to associate is the right
not to associate. “ ‘Freedom of association would prove an
empty guarantee if associations could not limit control over
their decisions to those who share the interests and per-
suasions that underlie the association’s being.’ ” Id., at 122,
to the internal processes of a political party do not encompass a right
to exclude nonmembers from voting in a state-required, state-financed
primary election.” Post, at 594–595 (internal quotation marks and cita-
tion omitted). Those cases simply prevent exclusion that violates some
independent constitutional proscription. The closest the dissent comes to
identifying such a proscription in this case is its reference to “the First
Amendment associational interests” of citizens to participate in the pri-
mary of a party to which they do not belong, and the “fundamental right”
of citizens “to cast a meaningful vote for the candidate of their choice.”
Post, at 601. As to the latter: Selecting a candidate is quite different from
voting for the candidate of one’s choice. If the “fundamental right” to
cast a meaningful vote were really at issue in this context, Proposition
198 would be not only constitutionally permissible but constitutionally re-
quired, which no one believes. As for the associational “interest” in se-
lecting the candidate of a group to which one does not belong, that falls
far short of a constitutional right, if indeed it can even fairly be character-
ized as an interest. It has been described in our cases as a “desire”—and
rejected as a basis for disregarding the First Amendment right to exclude.
See infra, at 583.

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n. 22 (quoting L. Tribe, American Constitutional Law 791
(1978)). See also Roberts v. United States Jaycees, 468 U. S.
609, 623 (1984).
In no area is the political association’s right to exclude
more important than in the process of selecting its nominee.
That process often determines the party’s positions on the
most significant public policy issues of the day, and even
when those positions are predetermined it is the nominee
who becomes the party’s ambassador to the general elector-
ate in winning it over to the party’s views. See Timmons
v. Twin Cities Area New Party, 520 U. S. 351, 372 (1997)
(Stevens, J., dissenting) (“But a party’s choice of a can-
didate is the most effective way in which that party can
communicate to the voters what the party represents and,
thereby, attract voter interest and support”). Some politi-
cal parties—such as President Theodore Roosevelt’s Bull
Moose Party, the La Follette Progressives of 1924, the Henry
Wallace Progressives of 1948, and the George Wallace Amer-
ican Independent Party of 1968—are virtually inseparable
from their nominees (and tend not to outlast them). See
generally E. Kruschke, Encyclopedia of Third Parties in the
United States (1991).
Unsurprisingly, our cases vigorously affirm the special
place the First Amendment reserves for, and the special pro-
tection it accords, the process by which a political party
“select[s] a standard bearer who best represents the party’s
ideologies and preferences.” Eu, supra, at 224 (internal
quotation marks omitted). The moment of choosing the par-
ty’s nominee, we have said, is “the crucial juncture at which
the appeal to common principles may be translated into
concerted action, and hence to political power in the com-
munity.” Tashjian, 479 U. S., at 216; see also id., at 235–
236 (Scalia, J., dissenting) (“The ability of the members
of the Republican Party to select their own candidate . . .
unquestionably implicates an associational freedom”); Tim-
mons, 520 U. S., at 359 (“[T]he New Party, and not some-

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one else, has the right to select the New Party’s standard
bearer” (internal quotation marks omitted)); id., at 371 (Ste-
vens, J., dissenting) (“The members of a recognized political
party unquestionably have a constitutional right to select
their nominees for public office”).
In La Follette, the State of Wisconsin conducted an open
presidential preference primary.6 Although the voters did
not select the delegates to the Democratic Party’s National
Convention directly—they were chosen later at caucuses of
party members—Wisconsin law required these delegates to
vote in accord with the primary results. Thus allowing non-
party members to participate in the selection of the party’s
nominee conflicted with the Democratic Party’s rules. We
held that, whatever the strength of the state interests sup-
porting the open primary itself, they could not justify this
“substantial intrusion into the associational freedom of mem-
bers of the National Party.” 7 450 U. S., at 126.
6 An open primary differs from a blanket primary in that, although
as in the blanket primary any person, regardless of party affiliation, may
vote for a party’s nominee, his choice is limited to that party’s nominees
for all offices. He may not, for example, support a Republican nominee
for Governor and a Democratic nominee for attorney general.
7 The dissent, in attempting to fashion its new rule—that the right not
to associate does not exist with respect to primary elections, see post, at
594–595—rewrites Democratic Party of United States v. Wisconsin ex rel.
La Follette, 450 U. S. 107 (1981), to stand merely for the proposition that
a political party has a First Amendment right to “defin[e] the organization
and composition of its governing units,” post, at 592. In fact, however,
the state-imposed burden at issue in La Follette was the “ ‘intrusion by
those with adverse political principles’ ” upon the selection of the party’s
nominee (in that case its presidential nominee). 450 U. S., at 122 (quoting
Ray v. Blair, 343 U. S. 214, 221–222 (1952)). See also 450 U. S., at 125
(comparing asserted state interests with burden created by the “imposi-
tion of voting requirements upon” delegates). Of course La Follette in-
volved the burden a state regulation imposed on a national party, but that
factor affected only the weight of the State’s interest, and had no bearing
upon the existence vel non of a party’s First Amendment right to exclude.
Id., at 121–122, 125–126. Although Justice Stevens now considers this
interpretation of La Follette “specious,” see post, at 592, n. 3, he once

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California’s blanket primary violates the principles set
forth in these cases. Proposition 198 forces political parties
to associate with—to have their nominees, and hence their
positions, determined by—those who, at best, have refused
to affiliate with the party, and, at worst, have expressly affil-
iated with a rival. In this respect, it is qualitatively differ-
ent from a closed primary. Under that system, even when
it is made quite easy for a voter to change his party affilia-
tion the day of the primary, and thus, in some sense, to “cross
over,” at least he must formally become a member of the
party; and once he does so, he is limited to voting for candi-
dates of that party.8
subscribed to it himself. His dissent from the order dismissing the ap-
peals in Bellotti v. Connolly, 460 U. S. 1057 (1983), described La Follette
thusly: “There this Court rejected Wisconsin’s requirement that delegates
to the party’s Presidential nominating convention, selected in a primary
open to nonparty voters, must cast their convention votes in accordance
with the primary election results. In our view, the interests advanced by
the State . . . did not justify its substantial intrusion into the associational
freedom of members of the National Party. . . . Wisconsin required conven-
tion delegates to cast their votes for candidates who might have drawn
their support from nonparty members. The results of the party’s deci-
sionmaking process might thereby have been distorted.” 460 U. S., at
1062–1063 (emphasis in original).
Not only does the dissent’s principle of no right to exclude conflict with
our precedents, but it also leads to nonsensical results. In Tashjian v.
Republican Party of Conn., 479 U. S. 208 (1986), we held that the First
Amendment protects a party’s right to invite independents to participate
in the primary. Combining Tashjian with the dissent’s rule affirms a
party’s constitutional right to allow outsiders to select its candidates,
but denies a party’s constitutional right to reserve candidate selection to
its own members. The First Amendment would thus guarantee a party’s
right to lose its identity, but not to preserve it.
8 In this sense, the blanket primary also may be constitutionally distinct
from the open primary, see n. 6, supra, in which the voter is limited to
one party’s ballot. See La Follette, supra, at 130, n. 2 (Powell, J., dissent-
ing) (“[T]he act of voting in the Democratic primary fairly can be de-
scribed as an act of affiliation with the Democratic Party. . . . The situation
might be different in those States with ‘blanket’ primaries—i. e., those
where voters are allowed to participate in the primaries of more than one

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The evidence in this case demonstrates that under Califor-
nia’s blanket primary system, the prospect of having a par-
ty’s nominee determined by adherents of an opposing party
is far from remote—indeed, it is a clear and present danger.
For example, in one 1997 survey of California voters 37 per-
cent of Republicans said that they planned to vote in the
1998 Democratic gubernatorial primary, and 20 percent of
Democrats said they planned to vote in the 1998 Republican
United States Senate primary. Tr. 668–669. Those figures
are comparable to the results of studies in other States with
blanket primaries. One expert testified, for example, that
in Washington the number of voters crossing over from one
party to another can rise to as high as 25 percent, id., at 511,
and another that only 25 to 33 percent of all Washington voters
limit themselves to candidates of one party throughout the
ballot, App. 136. The impact of voting by nonparty members
is much greater upon minor parties, such as the Libertarian
Party and the Peace and Freedom Party. In the first pri-
maries these parties conducted following California’s imple-
mentation of Proposition 198, the total votes cast for party
candidates in some races was more than double the total
number of registered party members. California Secretary
of State, Statement of Vote, Primary Election, June 2, 1998,
http://primary98.ss.ca.gov/Final/Official Results.htm; Cali-
fornia Secretary of State, Report of Registration, May 1998,
http://www.ss.ca.gov/elections/elections u.htm.
The record also supports the obvious proposition that
these substantial numbers of voters who help select the nomi-
nees of parties they have chosen not to join often have policy
views that diverge from those of the party faithful. The 1997
survey of California voters revealed significantly different
policy preferences between party members and primary
voters who “crossed over” from another party. Pl. Exh. 8
party on a single occasion, selecting the primary they wish to vote in with
respect to each individual elective office”). This case does not require us
to determine the constitutionality of open primaries.

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(Addendum to Mervin Field Report). One expert went so
far as to describe it as “inevitable [under Proposition 198]
that parties will be forced in some circumstances to give
their official designation to a candidate who’s not preferred
by a majority or even plurality of party members.” Tr. 421
(expert testimony of Bruce Cain).
In concluding that the burden Proposition 198 imposes
on petitioners’ rights of association is not severe, the Ninth
Circuit cited testimony that the prospect of malicious cross-
over voting, or raiding, is slight, and that even though the
numbers of “benevolent” crossover voters were significant,
they would be determinative in only a small number of
races.9 169 F. 3d, at 656–657. But a single election in
which the party nominee is selected by nonparty members
could be enough to destroy the party. In the 1860 Presi-
dential election, if opponents of the fledgling Republican
Party had been able to cause its nomination of a proslavery
candidate in place of Abraham Lincoln, the coalition of intra-
party factions forming behind him likely would have disinte-
grated, endangering the party’s survival and thwarting its
effort to fill the vacuum left by the dissolution of the Whigs.
See generally 1 Political Parties & Elections in the United
States: An Encyclopedia 398–408, 587 (L. Maisel ed. 1991).
Ordinarily, however, being saddled with an unwanted, and
possibly antithetical, nominee would not destroy the party
but severely transform it. “[R]egulating the identity of the
parties’ leaders,” we have said, “may . . . color the parties’
message and interfere with the parties’ decisions as to the
best means to promote that message.” Eu, 489 U. S., at
231, n. 21.
In any event, the deleterious effects of Proposition 198 are
not limited to altering the identity of the nominee. Even
9 The Ninth Circuit defined a crossover voter as one “who votes for
a candidate of a party in which the voter is not registered. Thus, the
cross-over voter could be an independent voter or one who is registered
to a competing political party.” 169 F. 3d 646, 656 (1999).

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580 CALIFORNIA DEMOCRATIC PARTY v. JONES
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when the person favored by a majority of the party members
prevails, he will have prevailed by taking somewhat different
positions—and, should he be elected, will continue to take
somewhat different positions in order to be renominated.
As respondents’ own expert concluded: “The policy posi-
tions of Members of Congress elected from blanket primary
states are . . . more moderate, both in an absolute sense
and relative to the other party, and so are more reflective of
the preferences of the mass of voters at the center of the
ideological spectrum.” App. 109 (expert report of Elisabeth
R. Gerber). It is unnecessary to cumulate evidence of this
phenomenon, since, after all, the whole purpose of Proposi-
tion 198 was to favor nominees with “moderate” positions.
Id., at 89. It encourages candidates—and officeholders who
hope to be renominated—to curry favor with persons whose
views are more “centrist” than those of the party base. In
effect, Proposition 198 has simply moved the general election
one step earlier in the process, at the expense of the parties’
ability to perform the “basic function” of choosing their own
leaders. Kusper, 414 U. S., at 58.
Nor can we accept the Court of Appeals’ contention that
the burden imposed by Proposition 198 is minor because
petitioners are free to endorse and financially support the
candidate of their choice in the primary. 169 F. 3d, at 659.
The ability of the party leadership to endorse a candidate
is simply no substitute for the party members’ ability to
choose their own nominee. In Eu, we recognized that
party-leadership endorsements are not always effective—
for instance, in New York’s 1982 gubernatorial primary,
Edward Koch, the Democratic Party leadership’s choice, lost
out to Mario Cuomo. 489 U. S., at 228, n. 18. One study
has concluded, moreover, that even when the leadership-
endorsed candidate has won, the effect of the endorsement
has been negligible. Ibid. (citing App. in Eu v. San Fran-
cisco County Democratic Central Comm., O. T. 1988, No. 87–
1269, pp. 97–98). New York’s was a closed primary; one

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would expect leadership endorsement to be even less effec-
tive in a blanket primary, where many of the voters are un-
connected not only to the party leadership but even to the
party itself. In any event, the ability of the party leadership
to endorse a candidate does not assist the party rank and
file, who may not themselves agree with the party leader-
ship, but do not want the party’s choice decided by outsiders.
We are similarly unconvinced by respondents’ claim that
the burden is not severe because Proposition 198 does not
limit the parties from engaging fully in other traditional
party behavior, such as ensuring orderly internal party gov-
ernance, maintaining party discipline in the legislature, and
conducting campaigns. The accuracy of this assertion is
highly questionable, at least as to the first two activities.
That party nominees will be equally observant of internal
party procedures and equally respectful of party discipline
when their nomination depends on the general electorate
rather than on the party faithful seems to us improbable.
Respondents themselves suggest as much when they assert
that the blanket primary system “ ‘will lead to the election
of more representative “problem solvers” who are less be-
holden to party officials.’ ” Brief for Respondents 41 (em-
phasis added) (quoting 169 F. 3d, at 661). In the end, how-
ever, the effect of Proposition 198 on these other activities
is beside the point. We have consistently refused to over-
look an unconstitutional restriction upon some First Amend-
ment activity simply because it leaves other First Amend-
ment activity unimpaired. See, e. g., Spence v. Washington,
418 U. S. 405, 411, n. 4 (1974) (per curiam); Kusper, 414 U. S.,
at 58. There is simply no substitute for a party’s selecting
its own candidates.
In sum, Proposition 198 forces petitioners to adulterate
their candidate-selection process—the “basic function of a
political party,” ibid.—by opening it up to persons wholly
unaffiliated with the party. Such forced association has the
likely outcome—indeed, in this case the intended outcome—

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of changing the parties’ message. We can think of no heav-
ier burden on a political party’s associational freedom.
Proposition 198 is therefore unconstitutional unless it is nar-
rowly tailored to serve a compelling state interest. See
Timmons, 520 U. S., at 358 (“Regulations imposing severe
burdens on [parties’] rights must be narrowly tailored and
advance a compelling state interest”). It is to that question
which we now turn.
III
Respondents proffer seven state interests they claim are
compelling. Two of them—producing elected officials who
better represent the electorate and expanding candidate
debate beyond the scope of partisan concerns—are simply
circumlocution for producing nominees and nominee posi-
tions other than those the parties would choose if left to their
own devices. Indeed, respondents admit as much. For in-
stance, in substantiating their interest in “representative-
ness,” respondents point to the fact that “officials elected
under blanket primaries stand closer to the median policy
positions of their districts” than do those selected only by
party members. Brief for Respondents 40. And in ex-
plaining their desire to increase debate, respondents claim
that a blanket primary forces parties to reconsider long
standing positions since it “compels [their] candidates to
appeal to a larger segment of the electorate.” Id., at 46.
Both of these supposed interests, therefore, reduce to noth-
ing more than a stark repudiation of freedom of political as-
sociation: Parties should not be free to select their own nomi-
nees because those nominees, and the positions taken by
those nominees, will not be congenial to the majority.
We have recognized the inadmissibility of this sort of
“interest” before. In Hurley v. Irish-American Gay, Les-
bian and Bisexual Group of Boston, Inc., 515 U. S. 557
(1995), the South Boston Allied War Veterans Council re-
fused to allow an organization of openly gay, lesbian, and
bisexual persons (GLIB) to participate in the council’s annual

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St. Patrick’s Day parade. GLIB sued the council under
Massachusetts’ public accommodation law, claiming that the
council impermissibly denied them access on account of their
sexual orientation. After noting that parades are expres-
sive endeavors, we rejected GLIB’s contention that Massa-
chusetts’ public accommodation law overrode the council’s
right to choose the content of its own message. Applying
the law in such circumstances, we held, made apparent that
its “object [was] simply to require speakers to modify the
content of their expression to whatever extent beneficiaries
of the law choose to alter it with messages of their own. . . .
[I]n the absence of some further, legitimate end, this object
is merely to allow exactly what the general rule of speaker’s
autonomy forbids.” Id., at 578.
Respondents’ third asserted compelling interest is that
the blanket primary is the only way to ensure that disenfran-
chised persons enjoy the right to an effective vote. By “dis-
enfranchised,” respondents do not mean those who cannot
vote; they mean simply independents and members of the
minority party in “safe” districts. These persons are disen-
franchised, according to respondents, because under a closed
primary they are unable to participate in what amounts to
the determinative election—the majority party’s primary;
the only way to ensure they have an “effective” vote is to
force the party to open its primary to them. This also ap-
pears to be nothing more than reformulation of an asserted
state interest we have already rejected—recharacterizing
nonparty members’ keen desire to participate in selection
of the party’s nominee as “disenfranchisement” if that desire
is not fulfilled. We have said, however, that a “nonmember’s
desire to participate in the party’s affairs is overborne by
the countervailing and legitimate right of the party to de-
termine its own membership qualifications.” Tashjian, 479
U. S., at 215–216, n. 6 (citing Rosario v. Rockefeller, 410 U. S.
752 (1973), and Nader v. Schaffer, 417 F. Supp. 837 (Conn.),
summarily aff ’d, 429 U. S. 989 (1976)). The voter’s desire to

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584 CALIFORNIA DEMOCRATIC PARTY v. JONES
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participate does not become more weighty simply because
the State supports it. Moreover, even if it were accurate to
describe the plight of the non-party-member in a safe district
as “disenfranchisement,” Proposition 198 is not needed to
solve the problem. The voter who feels himself disenfran-
chised should simply join the party. That may put him to a
hard choice, but it is not a state-imposed restriction upon his
freedom of association, whereas compelling party members
to accept his selection of their nominee is a state-imposed
restriction upon theirs.
Respondents’ remaining four asserted state interests—
promoting fairness, affording voters greater choice, increas-
ing voter participation, and protecting privacy—are not, like
the others, automatically out of the running; but neither are
they, in the circumstances of this case, compelling. That
determination is not to be made in the abstract, by asking
whether fairness, privacy, etc., are highly significant values;
but rather by asking whether the aspect of fairness, privacy,
etc., addressed by the law at issue is highly significant. And
for all four of these asserted interests, we find it not to be.
The aspect of fairness addressed by Proposition 198 is pre-
sumably the supposed inequity of not permitting nonparty
members in “safe” districts to determine the party nominee.
If that is unfair at all (rather than merely a consequence
of the eminently democratic principle that—except where
constitutional imperatives intervene—the majority rules), it
seems to us less unfair than permitting nonparty members
to hijack the party. As for affording voters greater choice,
it is obvious that the net effect of this scheme—indeed, its
avowed purpose—is to reduce the scope of choice, by assur-
ing a range of candidates who are all more “centrist.” This
may well be described as broadening the range of choices
favored by the majority—but that is hardly a compelling
state interest, if indeed it is even a legitimate one. The in-
terest in increasing voter participation is just a variation on
the same theme (more choices favored by the majority will

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Opinion of the Court
produce more voters), and suffers from the same defect. As
for the protection of privacy: The specific privacy interest at
issue is not the confidentiality of medical records or personal
finances, but confidentiality of one’s party affiliation. Even
if (as seems unlikely) a scheme for administering a closed
primary could not be devised in which the voter’s declaration
of party affiliation would not be public information, we do
not think that the State’s interest in assuring the privacy
of this piece of information in all cases can conceivably be
considered a “compelling” one. If such information were
generally so sacrosanct, federal statutes would not require
a declaration of party affiliation as a condition of appoint-
ment to certain offices. See, e. g., 47 U. S. C. § 154(b)(5)
(“[M]aximum number of commissioners [of the Federal Com-
munications Commission] who may be members of the same
political party shall be a number equal to the least number
of commissioners which constitutes a majority of the full
membership of the Commission”); 47 U. S. C. § 396(c)(1) (1994
ed., Supp. III) (no more than five members of Board of Direc-
tors of Corporation for Public Broadcasting may be of same
party); 42 U. S. C. § 2000e–4(a) (no more than three members
of Equal Employment Opportunity Commission may be of
same party).
Finally, we may observe that even if all these state inter-
ests were compelling ones, Proposition 198 is not a narrowly
tailored means of furthering them. Respondents could pro-
tect them all by resorting to a nonpartisan blanket primary.
Generally speaking, under such a system, the State deter-
mines what qualifications it requires for a candidate to have
a place on the primary ballot—which may include nomina-
tion by established parties and voter-petition requirements
for independent candidates. Each voter, regardless of party
affiliation, may then vote for any candidate, and the top two
vote getters (or however many the State prescribes) then
move on to the general election. This system has all the
characteristics of the partisan blanket primary, save the

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586 CALIFORNIA DEMOCRATIC PARTY v. JONES
Kennedy, J., concurring
constitutionally crucial one: Primary voters are not choosing
a party’s nominee. Under a nonpartisan blanket primary,
a State may ensure more choice, greater participation, in-
creased “privacy,” and a sense of “fairness”—all without se-
verely burdening a political party’s First Amendment right
of association.
* * *
Respondents’ legitimate state interests and petitioners’
First Amendment rights are not inherently incompatible.
To the extent they are in this case, the State of California
has made them so by forcing political parties to associate
with those who do not share their beliefs. And it has done
this at the “crucial juncture” at which party members tradi-
tionally find their collective voice and select their spokes-
man. Tashjian, 479 U. S., at 216. The burden Proposition
198 places on petitioners’ rights of political association is
both severe and unnecessary. The judgment for the Court
of Appeals for the Ninth Circuit is reversed.
It is so ordered.
Justice Kennedy, concurring.
Proposition 198, the product of a statewide popular ini-
tiative, is a strong and recent expression of the will of Cali-
fornia’s electorate. It is designed, in part, to further the
object of widening the base of voter participation in Cali-
fornia elections. Until a few weeks or even days before an
election, many voters pay little attention to campaigns and
even less to the details of party politics. Fewer still partici-
pate in the direction and control of party affairs, for most
voters consider the internal dynamics of party organization
remote, partisan, and of slight interest. Under these condi-
tions voters tend to become disinterested, and so they refrain
from voting altogether. To correct this, California seeks to
make primary voting more responsive to the views and pref-
erences of the electorate as a whole. The results of Califor-
nia’s blanket primary system may demonstrate the efficacy

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587 Cite as: 530 U. S. 567 (2000)
Kennedy, J., concurring
of its solution, for there appears to have been a substantial
increase in voter interest and voter participation. See Brief
for Respondents 45–46.
Encouraging citizens to vote is a legitimate, indeed es-
sential, state objective; for the constitutional order must be
preserved by a strong, participatory democratic process. In
short, there is much to be said in favor of California’s law;
and I might find this to be a close case if it were simply a
way to make elections more fair and open or addressed mat-
ters purely of party structure.
The true purpose of this law, however, is to force a political
party to accept a candidate it may not want and, by so doing,
to change the party’s doctrinal position on major issues.
Ante, at 581–582. From the outset the State has been fair
and candid to admit that doctrinal change is the intended
operation and effect of its law. See, e. g., Brief for Respond-
ents 40, 46. It may be that organized parties, controlled—
in fact or perception—by activists seeking to promote their
self-interest rather than enhance the party’s long-term sup-
port, are shortsighted and insensitive to the views of even
their own members. A political party might be better
served by allowing blanket primaries as a means of nomi-
nating candidates with broader appeal. Under the First
Amendment’s guarantee of speech through free association,
however, this is an issue for the party to resolve, not for the
State. Political parties advance a shared political belief, but
to do so they often must speak through their candidates.
When the State seeks to direct changes in a political party’s
philosophy by forcing upon it unwanted candidates and
wresting the choice between moderation and partisanship
away from the party itself, the State’s incursion on the par-
ty’s associational freedom is subject to careful scrutiny under
the First Amendment. For these reasons I agree with the
Court’s opinion.
I add this separate concurrence to say that Proposition 198
is doubtful for a further reason. In justification of its stat-

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588 CALIFORNIA DEMOCRATIC PARTY v. JONES
Kennedy, J., concurring
ute California tells us a political party has the means at hand
to protect its associational freedoms. The party, California
contends, can simply use its funds and resources to support
the candidate of its choice, thus defending its doctrinal posi-
tions by advising the voters of its own preference. To begin
with, this does not meet the parties’ First Amendment ob-
jection, as the Court well explains. Ante, at 580–581. The
important additional point, however, is that, by reason of the
Court’s denial of First Amendment protections to a political
party’s spending of its own funds and resources in coopera-
tion with its preferred candidate, see Colorado Republican
Federal Campaign Comm. v. Federal Election Comm’n, 518
U. S. 604 (1996), the Federal Government or the State has
the power to prevent the party from using the very remedy
California now offers up to defend its law.
Federal campaign finance laws place strict limits on the
manner and amount of speech parties may undertake in
aid of candidates. Of particular relevance are limits on co-
ordinated party expenditures, which the Federal Election
Campaign Act of 1971 deems to be contributions subject to
specific monetary restrictions. See 90 Stat. 488, 2 U. S. C.
§ 441a(a)(7)(B)(i) (“[E]xpenditures made by any person in
cooperation, consultation, or concert, with, or at the request
or suggestion of, a candidate, his authorized political com-
mittees, or their agents, shall be considered to be a contri-
bution to such candidate”). Though we invalidated limits on
independent party expenditures in Colorado Republican,
the principal opinion did not question federal limits placed
on coordinated expenditures. See 518 U. S., at 624–625
(opinion of Breyer, J.). Two Justices in dissent said that
“all money spent by a political party to secure the election
of its candidate” would constitute coordinated expenditures
and would have upheld the statute as applied in that case.
See id., at 648 (opinion of Stevens, J.). Thus, five Justices
of the Court subscribe to the position that Congress or a
State may limit the amount a political party spends in direct
collaboration with its preferred candidate for elected office.

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Kennedy, J., concurring
In my view, as stated in both Colorado Republican, supra,
at 626 (opinion concurring in judgment and dissenting in
part), and in Nixon v. Shrink Missouri Government PAC,
528 U. S. 377, 405–406 (2000) (dissenting opinion), these re-
cent cases deprive political parties of their First Amendment
rights. Our constitutional tradition is one in which political
parties and their candidates make common cause in the ex-
ercise of political speech, which is subject to First Amend-
ment protection. There is a practical identity of interests
between parties and their candidates during an election.
Our unfortunate decisions remit the political party to use of
indirect or covert speech to support its preferred candidate,
hardly a result consistent with free thought and expression.
It is a perversion of the First Amendment to force a political
party to warp honest, straightforward speech, exemplified
by its vigorous and open support of its favored candidate,
into the covert speech of soft money and issue advocacy so
that it may escape burdensome spending restrictions. In a
regime where campaign spending cannot otherwise be lim-
ited—the structure this Court created on its own in Buckley
v. Valeo, 424 U. S. 1 (1976) (per curiam)—restricting the
amounts a political party may spend in collaboration with
its own candidate is a violation of the political party’s First
Amendment rights.
Were the views of those who would uphold both Cali-
fornia’s blanket primary system and limitations on coordi-
nated party expenditures to become prevailing law, the
State could control political parties at two vital points in
the election process. First, it could mandate a blanket pri-
mary to weaken the party’s ability to defend and maintain
its doctrinal positions by allowing nonparty members to
vote in the primary. Second, it could impose severe restric-
tions on the amount of funds and resources the party could
spend in efforts to counteract the State’s doctrinal interven-
tion. In other words, the First Amendment injury done by
the Court’s ruling in Colorado Republican would be com-
pounded were California to prevail in the instant case.

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590 CALIFORNIA DEMOCRATIC PARTY v. JONES
Stevens, J., dissenting
When the State seeks to regulate a political party’s nomi-
nation process as a means to shape and control political doc-
trine and the scope of political choice, the First Amendment
gives substantial protection to the party from the manipu-
lation. In a free society the State is directed by political
doctrine, not the other way around. With these observa-
tions, I join the opinion of the Court.
Justice Stevens, with whom Justice Ginsburg joins
as to Part I, dissenting.
Today the Court construes the First Amendment as a limi-
tation on a State’s power to broaden voter participation in
elections conducted by the State. The Court’s holding is
novel and, in my judgment, plainly wrong. I am convinced
that California’s adoption of a blanket primary pursuant to
Proposition 198 does not violate the First Amendment, and
that its use in primary elections for state offices is there-
fore valid. The application of Proposition 198 to elections
for United States Senators and Representatives, however,
raises a more difficult question under the Elections Clause
of the United States Constitution, Art. I, § 4, cl. 1. I shall
first explain my disagreement with the Court’s resolution of
the First Amendment issue and then comment on the Elec-
tions Clause issue.
I
A State’s power to determine how its officials are to
be elected is a quintessential attribute of sovereignty. This
case is about the State of California’s power to decide who
may vote in an election conducted, and paid for, by the
State. 1 The United States Constitution imposes constraints
1 See Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986)
(observing that the United States Constitution grants States a broad
power to prescribe the manner of elections for certain federal offices,
which power is matched by state control over the election process for
state offices). In California, the Secretary of State administers the pro-

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591 Cite as: 530 U. S. 567 (2000)
Stevens, J., dissenting
on the States’ power to limit access to the polls, but we have
never before held or suggested that it imposes any con-
straints on States’ power to authorize additional citizens to
participate in any state election for a state office. In my
view, principles of federalism require us to respect the policy
choice made by the State’s voters in approving Proposition
198.
The blanket primary system instituted by Proposition 198
does not abridge “the ability of citizens to band together in
promoting among the electorate candidates who espouse
their political views.” Ante, at 574.2 The Court’s contrary
conclusion rests on the premise that a political party’s free-
dom of expressive association includes a “right not to asso-
ciate,” which in turn includes a right to exclude voters un-
affiliated with the party from participating in the selection
of that party’s nominee in a primary election. Ante, at 574–
575. In drawing this conclusion, however, the Court blurs
two distinctions that are critical: (1) the distinction between
visions of the State Elections Code and has some supervisory authority
over county election officers. Cal. Govt. Code Ann. § 12172.5 (West 1992
and Supp. 2000). Primary and other elections are administered and paid
for primarily by county governments. Cal. Elec. Code Ann. §§ 13000–
13001 (West 1996 and Supp. 2000). Anecdotal evidence suggests that each
statewide election in California (whether primary or general) costs gov-
ernmental units between $45 million and $50 million.
2 Prominent members of the founding generation would have disagreed
with the Court’s suggestion that representative democracy is “unimagin-
able” without political parties, ante, at 574, though their antiparty thought
ultimately proved to be inconsistent with their partisan actions. See,
e. g., R. Hofstadter, The Idea of a Party System 2–3 (1969) (noting that
“the creators of the first American party system on both sides, Federalists
and Republicans, were men who looked upon parties as sores on the body
politic”). At best, some members of that generation viewed parties as an
unavoidable product of a free state that were an evil to be endured, though
most viewed them as an evil to be abolished or suppressed. Id., at 16–17,
24. Indeed, parties ranked high on the list of evils that the Constitution
was designed to check. Id., at 53; see The Federalist No. 10 (J. Madison).

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592 CALIFORNIA DEMOCRATIC PARTY v. JONES
Stevens, J., dissenting
a private organization’s right to define itself and its mes-
sages, on the one hand, and the State’s right to define the
obligations of citizens and organizations performing public
functions, on the other; and (2) the distinction between laws
that abridge participation in the political process and those
that encourage such participation.
When a political party defines the organization and compo-
sition of its governing units, when it decides what candidates
to endorse, and when it decides whether and how to commu-
nicate those endorsements to the public, it is engaged in the
kind of private expressive associational activity that the
First Amendment protects. Timmons v. Twin Cities Area
New Party, 520 U. S. 351, 354–355, n. 4, 359 (1997) (recogniz-
ing party’s right to select its own standard-bearer in context
of minor party that selected its candidate through means
other than a primary); id., at 371 (Stevens, J., dissenting);
Eu v. San Francisco County Democratic Central Comm.,
489 U. S. 214 (1989); Democratic Party of United States v.
Wisconsin ex rel. La Follette, 450 U. S. 107, 124 (1981) (“A
political party’s choice among the various ways of determin-
ing the makeup of a State’s delegation to the party’s national
convention is protected by the Constitution”); Cousins v. Wi-
goda, 419 U. S. 477, 491 (1975) (“Illinois’ interest in protect-
ing the integrity of its electoral process cannot be deemed
compelling in the context of the selection of delegates to the
National Party Convention” (emphasis added)).3 A political
3 The Court’s disagreement with this interpretation of La Follette is
specious. Ante, at 576–577, n. 7 (claiming that state-imposed burden actu-
ally at issue in La Follette was intrusion of those with adverse political
principles into party’s primary). A more accurate characterization of the
nature of La Follette’s reasoning is provided by Justice Powell: “In ana-
lyzing the burden imposed on associational freedoms in this case, the
Court treats the Wisconsin law as the equivalent of one regulating dele-
gate selection, and, relying on Cousins v. Wigoda, 419 U. S. 477 (1975),
concludes that any interference with the National Party’s accepted
delegate-selection procedures impinges on constitutionally protected
rights.” Democratic Party of United States v. Wisconsin ex rel. La Fol-

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Stevens, J., dissenting
party could, if a majority of its members chose to do so, adopt
a platform advocating white supremacy and opposing the
election of any non-Caucasians. Indeed, it could decide to
use its funds and oratorical skills to support only those candi-
dates who were loyal to its racist views. Moreover, if a
State permitted its political parties to select their candidates
through conventions or caucuses, a racist party would also
be free to select only candidates who would adhere to the
party line.
As District Judge Levi correctly observed in an opinion
adopted by the Ninth Circuit, however, the associational
rights of political parties are neither absolute nor as compre-
hensive as the rights enjoyed by wholly private associations.
169 F. 3d 646, 654–655 (1999); cf. Timmons, 520 U. S., at 360
(concluding that while regulation of endorsements implicates
political parties’ internal affairs and core associational ac-
lette, 450 U. S. 107, 128 (1981) (dissenting opinion). Indeed, the La Fol-
lette Court went out of its way to characterize the Wisconsin law in this
manner in order to avoid casting doubt on the constitutionality of open
primaries. Id., at 121 (majority opinion) (noting that the issue was not
whether an open primary was constitutional but “whether the State may
compel the National Party to seat a delegation chosen in a way that vio-
lates the rules of the Party”). The fact that the La Follette Court also
characterizes the Wisconsin law at one point as a law “impos[ing] . . .
voting requirements” on delegates, id., at 125, does not alter the conclu-
sion that La Follette is a case about state regulation of internal party
processes, not about regulation of primary elections. State-mandated in-
trusion upon either delegate selection or delegate voting would surely im-
plicate the affected party’s First Amendment right to define the organiza-
tion and composition of its governing units, but it is clear that California
intrudes upon neither in this case. Ante, at 570–571, n. 2.
La Follette and Cousins also stand for the proposition that a State’s
interest in regulating at the national level the types of party activities
mentioned in the text is outweighed by the burden that state regulation
would impose on the parties’ associational rights. See Bellotti v. Con-
nolly, 460 U. S. 1057, 1062–1063, and n. 3 (1983) (Stevens, J., dissenting)
(quoted in part ante, at 577, n. 7). In this case, however, California does
not seek to regulate such activities at all, much less to do so at the na-
tional level.

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tivities, regulation of access to election ballot does not);
La Follette, 450 U. S., at 120–121 (noting that it “may well
be correct” to conclude that party associational rights are
not unconstitutionally infringed by state open primary); id.,
at 131–132 (Powell, J., dissenting) (concluding that associa-
tional rights of major political parties are limited by parties’
lack of defined ideological orientation and political mission).
I think it clear—though the point has never been decided
by this Court—“that a State may require parties to use the
primary format for selecting their nominees.” Ante, at 572.
The reason a State may impose this significant restriction
on a party’s associational freedoms is that both the general
election and the primary are quintessential forms of state
action.4 It is because the primary is state action that an
organization—whether it calls itself a political party or just
a “Jaybird” association—may not deny non-Caucasians the
right to participate in the selection of its nominees. Terry
v. Adams, 345 U. S. 461 (1953); Smith v. Allwright, 321 U. S.
649, 663–664 (1944). The Court is quite right in stating that
those cases “do not stand for the proposition that party af-
fairs are [wholly] public affairs, free of First Amendment
protections.” Ante, at 573. They do, however, stand for
the proposition that primary elections, unlike most “party
affairs,” are state action.5 The protections that the First
4 Indeed, the primary serves an essential public function given that,
“[a]s a practical matter, the ultimate choice of the mass of voters is pre-
determined when the nominations [by the major political parties] have
been made.” Morse v. Republican Party of Va., 517 U. S. 186, 205–206
(1996) (opinion of Stevens, J.) (internal quotation marks omitted); see also
United States v. Classic, 313 U. S. 299, 319 (1941).
5 Contrary to what the Court seems to think, I do not rely on Terry and
Allwright as the basis for an argument that state accommodation of the
parties’ desire to exclude nonmembers from primaries would necessarily
violate an independent constitutional proscription such as the Equal Pro-
tection Clause (though I do not rule that out). Cf. ante, at 573–574, n. 5.
Rather, I cite them because our recognition that constitutional pro-
scriptions apply to primaries illustrates that primaries—as integral parts

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Amendment affords to the “internal processes” of a political
party, ibid., do not encompass a right to exclude nonmembers
from voting in a state-required, state-financed primary
election.
The so-called “right not to associate” that the Court relies
upon, then, is simply inapplicable to participation in a state
election. A political party, like any other association, may
refuse to allow nonmembers to participate in the party’s de-
cisions when it is conducting its own affairs; 6 California’s
blanket primary system does not infringe this principle.
Ante, at 570–571, n. 2. But an election, unlike a convention
or caucus, is a public affair. Although it is true that we have
extended First Amendment protection to a party’s right to
invite independents to participate in its primaries, Tashjian
v. Republican Party of Conn., 479 U. S. 208 (1986), neither
that case nor any other has held or suggested that the “right
not to associate” imposes a limit on the State’s power to open
up its primary elections to all voters eligible to vote in a
general election. In my view, while state rules abridging
participation in its elections should be closely scrutinized,7
the First Amendment does not inhibit the State from acting
to broaden voter access to state-run, state-financed elections.
When a State acts not to limit democratic participation but
to expand the ability of individuals to participate in the dem-
of the election process by which the people select their government—are
state affairs, not internal party affairs.
6 “The State asserts a compelling interest in preserving the overall in-
tegrity of the electoral process, providing secrecy of the ballot, increasing
voter participation in primaries, and preventing harassment of voters.
But all those interests go to the conduct of the Presidential preference
primary—not to the imposition of voting requirements upon those who, in
a separate process, are eventually selected as delegates.” La Follette,
450 U. S., at 124–125.
7 See Timmons v. Twin Cities Area New Party, 520 U. S. 351, 370
(1997) (Stevens, J., dissenting) (general election ballot access restriction);
Bullock v. Carter, 405 U. S. 134 (1972) (primary election ballot access
restriction).

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ocratic process, it is acting not as a foe of the First Amend-
ment but as a friend and ally.
Although I would not endorse it, I could at least under-
stand a constitutional rule that protected a party’s associa-
tional rights by allowing it to refuse to select its candidates
through state-regulated primary elections. See Marchioro
v. Chaney, 442 U. S. 191, 199 (1979) (“There can be no com-
plaint that [a] party’s [First Amendment] right to govern it-
self has been substantially burdened by [state regulation]
when the source of the complaint is the party’s own decision
to confer critical authority on the [party governing unit
being regulated]”); cf. Tashjian, 479 U. S., at 237 (Scalia, J.,
dissenting) (“It is beyond my understanding why the Repub-
lican Party’s delegation of its democratic choice [of candi-
dates] to a Republican Convention [rather than a primary]
can be proscribed [by the State], but its delegation of that
choice to nonmembers of the Party cannot”). A meaningful
“right not to associate,” if there is such a right in the context
of limiting an electorate, ought to enable a party to insist
on choosing its nominees at a convention or caucus where
nonmembers could be excluded. In the real world, however,
anyone can “join” a political party merely by asking for the
appropriate ballot at the appropriate time or (at most) by
registering within a state-defined reasonable period of time
before an election; neither past voting history nor the voter’s
race, religion, or gender can provide a basis for the party’s
refusal to “associate” with an unwelcome new member. See
169 F. 3d, at 655, and n. 20. There is an obvious mismatch
between a supposed constitutional right “not to associate”
and a rule that turns on nothing more than the state-defined
timing of the new associate’s application for membership.
See La Follette, 450 U. S., at 133 (Powell, J., dissenting) (“As
Party affiliation becomes . . . easy for a voter to change
[shortly before a particular primary election] in order to par-
ticipate in [that] election, the difference between open and
closed primaries loses its practical significance”).

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The Court’s reliance on a political party’s “right not to as-
sociate” as a basis for limiting a State’s power to conduct
primary elections will inevitably require it either to draw
unprincipled distinctions among various primary configura-
tions or to alter voting practices throughout the Nation in
fundamental ways. Assuming that a registered Democrat
or independent who wants to vote in the Republican guber-
natorial primary can do so merely by asking for a Republican
ballot, the Republican Party’s constitutional right “not to as-
sociate” is pretty feeble if the only cost it imposes on that
Democrat or independent is a loss of his right to vote for
non-Republican candidates for other offices. Cf. ante, at
577–578, n. 8. Subtle distinctions of this minor import are
grist for state legislatures, but they demean the process of
constitutional adjudication. Or, as Justice Scalia put the
matter in his dissenting opinion in Tashjian:
“The . . . voter who, while steadfastly refusing to reg-
ister as a Republican, casts a vote in [a nonclosed] Re-
publican primary, forms no more meaningful an ‘associa-
tion’ with the Party than does the independent or the
registered Democrat who responds to questions by a
Republican Party pollster. If the concept of freedom of
association is extended to such casual contacts, it ceases
to be of any analytic use.” 479 U. S., at 235.
It is noteworthy that the bylaws of each of the political
parties that are petitioners in this case unequivocally state
that participation in partisan primary elections is to be lim-
ited to registered members of the party only. App. 7, 15,
16, 18. Under the Court’s reasoning, it would seem to follow
that conducting anything but a closed partisan primary in
the face of such bylaws would necessarily burden the parties’
“ ‘freedom to identify the people who constitute the associa-
tion.’ ” Ante, at 574. Given that open primaries are sup-
ported by essentially the same state interests that the Court
disparages today and are not as “narrow” as nonpartisan pri-

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maries, ante, at 582–586, there is surely a danger that open
primaries will fare no better against a First Amendment
challenge than blanket primaries have.
By the District Court’s count, 3 States presently have
blanket primaries, while an additional 21 States have open
primaries and 8 States have semiclosed primaries in which
independents may participate. 169 F. 3d, at 650. This
Court’s willingness to invalidate the primary schemes of 3
States and cast serious constitutional doubt on the schemes
of 29 others at the parties’ behest is, as the District Court
rightly observed, “an extraordinary intrusion into the com-
plex and changing election laws of the States [that] . . . re-
move[s] from the American political system a method for can-
didate selection that many States consider beneficial and
which in the uncertain future could take on new appeal and
importance.” Id., at 654.8
In my view, the First Amendment does not mandate that
a putatively private association be granted the power to
dictate the organizational structure of state-run, state-
financed primary elections. It is not this Court’s constitu-
tional function to choose between the competing visions of
what makes democracy work—party autonomy and disci-
pline versus progressive inclusion of the entire electorate in
8 When coupled with our decision in Tashjian that a party may require
a State to open up a closed primary, this intrusion has even broader im-
plications. It is arguable that, under the Court’s reasoning combined
with Tashjian, the only nominating options open for the States to choose
without party consent are: (1) not to have primary elections, or (2) to
have what the Court calls a “nonpartisan primary”—a system presently
used in Louisiana—in which candidates previously nominated by the vari-
ous political parties and independent candidates compete. Ante, at 585.
These two options are the same in practice because the latter is not actu-
ally a “primary” in the common, partisan sense of that term at all.
Rather, it is a general election with a runoff that has few of the benefits
of democratizing the party nominating process that led the Court to de-
clare the State’s ability to require nomination by primary “ ‘too plain for
argument.’ ” Ante, at 572; see Lightfoot v. Eu, 964 F. 2d 865, 872–873
(CA9 1992) (explaining state interest in requiring direct partisan primary).

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the process of selecting their public officials—that are held
by the litigants in this case. O’Callaghan v. State, 914 P. 2d
1250, 1263 (Alaska 1996); see also Tashjian, 479 U. S., at 222–
223; Luther v. Borden, 7 How. 1, 40–42 (1849). That choice
belongs to the people. U. S. Term Limits, Inc. v. Thornton,
514 U. S. 779, 795 (1995).
Even if the “right not to associate” did authorize the Court
to review the State’s policy choice, its evaluation of the com-
peting interests at stake is seriously flawed. For example,
the Court’s conclusion that a blanket primary severely bur-
dens the parties’ associational interests in selecting their
standard-bearers does not appear to be borne out by ex-
perience with blanket primaries in Alaska and Washington.
See, e. g., 169 F. 3d, at 656–659, and n. 23. Moreover, that
conclusion rests substantially upon the Court’s claim that
“[t]he evidence [before the District Court]” disclosed a “clear
and present danger” that a party’s nominee may be deter-
mined by adherents of an opposing party. Ante, at 578.
This hyperbole is based upon the Court’s liberal view of its
appellate role, not upon the record and the District Court’s
factual findings. Following a bench trial and the receipt of
expert witness reports, the District Court found that “there
is little evidence that raiding [by members of an opposing
party] will be a factor under the blanket primary. On this
point there is almost unanimity among the political scien-
tists who were called as experts by the plaintiffs and de-
fendants.” 169 F. 3d, at 656. While the Court is entitled
to test this finding by making an independent examination
of the record, the evidence it cites—including the results of
the June 1998 primaries, ante, at 578, which should not be
considered because they are not in the record—does not
come close to demonstrating that the District Court’s fac-
tual finding is clearly erroneous. Bose Corp. v. Consumers
Union of United States, Inc., 466 U. S. 485, 498–501 (1984).
As to the Court’s concern that benevolent crossover voting
impinges on party associational interests, ante, at 579, the

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600 CALIFORNIA DEMOCRATIC PARTY v. JONES
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District Court found that experience with a blanket primary
in Washington and other evidence “suggest[ed] that there
will be particular elections in which there will be a substan-
tial amount of cross-over voting . . . although the cross-over
vote will rarely change the outcome of any election and in
the typical contest will not be at significantly higher levels
than in open primary states.” 169 F. 3d, at 657. In my
view, an empirically debatable assumption about the relative
number and effect of likely crossover voters in a blanket pri-
mary, as opposed to an open primary or a nominally closed
primary with only a brief preregistration requirement, is too
thin a reed to support a credible First Amendment distinc-
tion. See Tashjian, 479 U. S., at 219 (rejecting State’s inter-
est in keeping primary closed to curtail benevolent crossover
voting by independents given that independents could easily
cross over even under closed primary by simply registering
as party members).
On the other side of the balance, I would rank as “sub-
stantial, indeed compelling,” just as the District Court did,
California’s interest in fostering democratic government by
“[i]ncreasing the representativeness of elected officials, giv-
ing voters greater choice, and increasing voter turnout and
participation in [electoral processes].” 169 F. 3d, at 662; 9
cf. Timmons, 520 U. S., at 364 (“[W]e [do not] require elabo-
rate, empirical verification of the weightiness of the State’s
asserted justifications”). The Court’s glib rejection of the
9 In his concurrence, Justice Kennedy argues that the State has no
valid interest in changing party doctrine through an open primary, and
suggests that the State’s assertion of this interest somehow irrevocably
taints its blanket primary system. Ante, at 587. The Timmons balanc-
ing test relied upon by the Court, ante, at 582, however, does not support
that analysis. Timmons and our myriad other constitutional cases that
weigh burdens against state interests merely ask whether a state interest
justifies the burden that the State is imposing on a constitutional right;
the fact that one of the asserted state interests may not be valid or com-
pelling under the circumstances does not end the analysis.

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Stevens, J., dissenting
State’s interest in increasing voter participation, ante, at
584–585, is particularly regrettable. In an era of dramati-
cally declining voter participation, States should be free to
experiment with reforms designed to make the democratic
process more robust by involving the entire electorate in the
process of selecting those who will serve as government of-
ficials. Opening the nominating process to all and encourag-
ing voters to participate in any election that draws their
interest is one obvious means of achieving this goal. See
Brief for Respondents 46 (noting that study presented to
District Court showed higher voter turnout levels in blanket
primary States than in open or closed primary States); ante,
at 586–587 (Kennedy, J., concurring). I would also give
some weight to the First Amendment associational interests
of nonmembers of a party seeking to participate in the pri-
mary process,10 to the fundamental right of such nonmem-
bers to cast a meaningful vote for the candidate of their
choice, Burdick v. Takushi, 504 U. S. 428, 445 (1992) (Ken-
nedy, J., dissenting), and to the preference of almost 60% of
California voters—including a majority of registered Demo-
crats and Republicans—for a blanket primary. 169 F. 3d, at
649; see Tashjian, 479 U. S., at 236 (Scalia, J., dissenting)
(preferring information on whether majority of rank-and-
file party members support a particular proposition than
whether state party convention does so). In my view, a
State is unquestionably entitled to rely on this combination
of interests in deciding who may vote in a primary election
conducted by the State. It is indeed strange to find that the
First Amendment forecloses this decision.
10 See La Follette, 450 U. S., at 135–136 (Powell, J., dissenting); cf.
Tashjian, 479 U. S., at 215–216, n. 6 (discussing cases such as Rosario
v. Rockefeller, 410 U. S. 752 (1973), in which nonmembers’ associational
interests were overborne by state interests that coincided with party in-
terests); Bellotti v. Connolly, 460 U. S., at 1062 (Stevens, J., dissenting)
(discussing associational rights of voters).

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II
The Elections Clause of the United States Constitution,
Art. I, § 4, cl. 1, provides that “[t]he Times, Places and Man-
ner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof.”
(Emphasis added.) This broad constitutional grant of power
to state legislatures is “matched by state control over the
election process for state offices.” Tashjian, 479 U. S., at
217. For the reasons given in Part I, supra, I believe it
would be a proper exercise of these powers and would not
violate the First Amendment for the California Legislature
to adopt a blanket primary system. This particular blanket
primary system, however, was adopted by popular initiative.
Although this distinction is not relevant with respect to
elections for state offices, it is unclear whether a state elec-
tion system not adopted by the legislature is constitutional
insofar as it applies to the manner of electing United States
Senators and Representatives.
The California Constitution empowers the voters of the
State to propose statutes and to adopt or reject them.
Art. 2, § 8. If approved by a majority vote, such “initia-
tive statutes” generally take effect immediately and may
not be amended or repealed by the California Legislature
unless the voters consent. Art. 2, § 10. The amendments
to the California Election Code that changed the state pri-
mary from a closed system to the blanket system presently
at issue were the result of the voters’ March 1996 adoption
of Proposition 198, an initiative statute.
The text of the Elections Clause suggests that such an
initiative system, in which popular choices regarding the
manner of state elections are unreviewable by independ-
ent legislative action, may not be a valid method of exercis-
ing the power that the Clause vests in state “Legislature[s].”
It could be argued that this reasoning does not apply in Cali-
fornia, as the California Constitution further provides that
“[t]he legislative power of this State is vested in the Cali-

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Stevens, J., dissenting
fornia Legislature . . . , but the people reserve to them-
selves the powers of initiative and referendum.” Art. 4, § 1.
The vicissitudes of state nomenclature, however, do not
necessarily control the meaning of the Federal Constitution.
Moreover, the United States House of Representatives has
determined in an analogous context that the Elections
Clause’s specific reference to “the Legislature” is not so
broad as to encompass the general “legislative power of
this State.” 11 Under that view, California’s classification of
voter-approved initiatives as an exercise of legislative power
would not render such initiatives the act of the California
Legislature within the meaning of the Elections Clause.
Arguably, therefore, California’s blanket primary system for
electing United States Senators and Representatives is in-
valid. Because the point was neither raised by the parties
nor discussed by the courts below, I reserve judgment on it.
I believe, however, that the importance of the point merits
further attention.
* * *
For the reasons stated in Part I of this opinion, as well
as those stated more fully in the District Court’s excellent
opinion, I respectfully dissent.
11 Baldwin v. Trowbridge, 2 Bartlett Contested Election Cases, H. R.
Misc. Doc. No. 152, 41st Cong., 2d Sess., 46, 47 (1866) (“[Under the Elec-
tions Clause,] power is conferred upon the legislature. But what is meant
by ‘the legislature?’ Does it mean the legislative power of the State,
which would include a convention authorized to prescribe fundamental
law; or does it mean the legislature eo nomine, as known in the political
history of the country? The [C]ommittee [of Elections for the U. S. House
of Representatives] have adopted the latter construction”).