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71 Tex. L. Rev. 1741 (1992-1993)
Associational Rights of Major Political Parties: A Skeptical Inquiry

handle is hein.journals/tlr71 and id is 1761 raw text is: Associational Rights of Major Political Parties:
A Skeptical Inquiry
Daniel Hays Lowenstein*
I.   Introduction
Two First Amendment decisions of the Supreme Court in the late
1980s went far to shield political parties from state regulation. In Tashjian
v. Republican Party of Connecticut,1 the Supreme Court held that the
Republican Party has a constitutional right to permit independents to
participate in its primary despite a Connecticut statute restricting voting in
primaries to registered party members. In Eu v. San Francisco County
Democratic Central Committee,2 the Court struck down California statutes
that barred official party endorsements in partisan primary elections and
that regulated the internal governance of the party's official state and
county central committees.
In a series of earlier cases, the Court had shielded the national Demo-
cratic Party from judicial enforcement of state laws affecting the selection
of delegates to the Democratic National Convention.' Some commentators
* Professor of Law, University of California, Los Angeles.
The gestational period of this Paper has been unconscionably long. I presented the first version
to a panel at the annual meetings of the American Political Science Association (APSA) in 1987, after
the Supreme Court's decision in Tashjian v. Republican Party, 479 U.S. 208 (1986), but before the
Court decided Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989). A
second version, incorporating a discussion of Eu, was presented to the 1991 APSA meetings. Finally,
I presented the latest revised version to the current symposium at the University of Texas School of
Law in 1992.
I am grateful to the following individuals for their helpful comments and suggestions: David
Adamany, Bruce Cain, Neil Cotter, Leon Epstein, Steve Gottlieb, Ken Karst, Kay Lawson, Marlene
Nicholson, Mark Rush, Howard Scarrow, Roy Schotland, Gary Schwartz, and John Shockley. The
thrust of this Paper runs counterto deeply held beliefs of some of these people, who nevertheless were
exceedingly generous with their time and effort. In addition, I received valuable research assistance
from two UCLA students, Don Deyo and Todd Schwartz.
1. 479 U.S. 208 (1986).
2. 489 U.S. 214 (1989).
3. See Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981)
(holding that Wisconsin cannot constitutionally compel the national party to seat a delegation chosen
in a way that violates the party's rules); Cousins v. Wigoda, 419 U.S. 477 (1975) (holding that the
state's interest in protecting the integrity of its electoral process is not compelling in the context of the
national party's delegate selection); O'Brien v. Brown, 409 U.S. 1 (1972) (per curiam) (staying a
Court of Appeals judgment that would have prevented the National Democratic Party from unseating
delegates to the 1972 Democratic National Convention).


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