Abstract
Since the late 1960s, a series of Supreme Court decisions has significantly restricted the ability of states to regulate political parties and elections and, in turn, significantly increased the authority of parties to control their own affairs. The fulcrum of the Court's reasoning has been the doctrine of freedom of association, derived from the First and Fourteenth Amendments. The Court's application of this doctrine has enabled the parties to gain more de jure, if not always de facto, control over their governing structures and nomination procedures.' These decisions beg a skeptical question: does the Court's recently favorable view of party authority have a stable base of support on the Court itself? History has shown repeatedly that Supreme Court dissents can later become majorities, e.g., Brown v. Board of Education, Garcia v. San Antonio Metopolitan Transit Authority, and Batson v. Kentucky.2 Indeed, one need look no further than the Populist/Progressive era state court decisions on party regulation to find a contrast to the current Court's approach, i.e., dissents that sound like today's majorities. In People v. Democratic Committee, for example, a New York court held that a party could not expel a member for disloyalty who was previously chosen as a party candidate in a legal primary, since this would contravene state law.3 While the majority favored the state's position, Justice Edgar M. Cullen filed a strong dissent with a modern ring:
Published Version
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