Generally Applicable Federal Law

Federal Laws Applicable to the Right to Vote in Primary Elections


Prior to a legal analysis of primary election laws, it is imperative that we have a strong understanding of definitions used to refer to each type and component of a primary election. Often times, public discussion has misused or misplaced terminology that can lead to confusion even among those well versed in primary election law. It is essential that we clearly define these particular terms in light of the Constitutional considerations that arise from each.

For example, the term “open” refers to the access, herein defined, that a voter has to vote for the candidate(s) of his or her choice. But “open” is not a complete term. An “open primary” can be conducted for a partisan purpose, or a nonpartisan purpose. A “partisan open primary” can be conducted using a single ballot (AKA “blanket open primary”), or a separate ballot for each party, whereas a “non-partisan primary” may only be conducted on a single ballot.

For an overview and legal analysis of the basic components of different types of primary elections: 

READ: How Do Primary Elections Work?

Below is more in-depth information on the legal frameworks associated with primary elections throughout the United States.

Federal Law

U.S. Const. amend. I

Relevant Portion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

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U.S. Const. amend. XIV

Relevant Portion: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

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42 U.S.C. § 1983

Relevant Portion: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

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Federal Court Holdings

American Party of Texas v. White, 415 U.S. 767 (1974)

Basic Facts: Minority parties, candidates, and supporters filed four separate actions challenging the constitutionality under the First and Fourteenth amendments of Texas statutes regarding gubernatorial primaries. The Court consolidated the actions. Texas law had four methods of ballot access, which provided for different ballot access requirements for major and minor parties.

Relevant Holding: States may place a restriction and regulation on a party’s ballot access requirements when they are not invidiously burdensome and the purpose of the primary is to resolve inter-party conflicts.

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Anderson v. Celebrezze, 460 U.S. 780 (1983)

Basic Facts: An Ohio statute required independent candidates to file their paperwork to appear on the ballot significantly earlier than members of established parties. A candidate who was kept off of the ballot argued this was unconstitutional.

Relevant Holding: Placing an additional, significant burden on independent candidates and voters is unconstitutional where there are no state interests to justify it.

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Baker v. Carr, 369 U.S. 186 (1962)

Basic Facts: Plaintiff sought an injunction to prevent more elections and a remedy of reapportionment since Tennessee had not redistricted since 1901. This violated the Tennessee constitution requiring redistricting every ten years, and the Equal Protection Clause of Fourteenth Amendment.

Relevant Holding: The challenge is justiciable. Political question doctrine does not apply, as the issue is not enmeshed with the other branches of government.

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Board of Estimate v. Morris, 489 U.S. 688 (1989)

Basic Facts: Citizens brought an action to challenge the validity of the election process by which members were elected to the Board. Elected members from each borough had equal voting power on Board issues, even though the boroughs had vastly different populations.

Relevant Holding: The system was unconstitutional under the Fourteenth amendment because equal protection was not met by the existing system.

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Bullock v. Carter, 405 U.S. 134 (1972)

Basic Facts: A Texas law requires a candidate to pay a filing fee as a condition to having his name placed on the primary ballot.  These fees range from widely based upon the income of the candidate from $150 to $6300 or more.

Relevant Holding: The rights of candidates are not fundamental, but they are intertwined with the rights of voters, which are. Denying some voters the opportunity to vote for a candidate of their choosing based upon their resources requires strict scrutiny.

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Burdick v. Takushi, 504 U.S. 428 (1992)

Basic Facts: Plaintiff filed for violation of First and Fourteenth Amendments because of the ban on write-in voting, where only one candidate was qualified to run for the plaintiff’s district for Hawaii’s House of Representatives.

Relevant Holding: Hawaii’s prohibition on write-in voting doesn’t unreasonably infringe upon the rights under the First and Fourteenth Amendments.

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California Democratic Party v. Jones, 530 U.S. 567 (2000)

Basic Facts: California adopted an open blanket primary. Plaintiffs, political parties, alleged this violated the First Amendment right of association by requiring them to allow non-members to vote in their primaries.

Relevant Holding: Open blanket primaries violate the First Amendment's protection of freedom of association.

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Carrington v. Rash, 380 U.S. 89 (1965)

Basic Facts: Plaintiff was a member of the armed services who had moved to Texas in 1962 and was domiciled there and intended to make his permanent home there, but was refused the right to vote based upon Texas’ constitution.

Relevant Holding: A state can impose reasonable residence requirements for voting, but it can’t, under the Fourteenth amendment, deny the ballot to a bona fide resident simply for being a member of the armed services

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Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)

Basic Facts: Cleburne Living Center ("CLC") wanted to lease a building to use as a group home for the mentally retarded. The city told CLC a special permit would be required. CLC applied and was denied. CLC sued for the zoning ordinance violating equal protection by discriminating against a “quasi-suspect” class of people with mental retardation.

Relevant Holding: Greater scrutiny is required when there are members of a suspect class or a fundamental right is involved. Equal protection requires all similarly situated individuals to be treated alike.

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Clingman v. Beaver, 544 U.S. 581 (2005)

Basic Facts: Oklahoma provided that a party could only allow participation of its own members or independents in primaries. Libertarian Party of Oklahoma sued for violation of the First Amendment because it was barred from inviting other parties to participate.

Relevant Holding: No violation because the law is only a minor burden and it advanced substantial state interests, like keeping parties separate and identifiable. Not all restrictions on freedom of association are subject to strict scrutiny.

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Cousins v. Wigoda, 419 U.S. 477 (1975)

Basic Facts: Party members sued because delegates were seated at a convention in violation of party rules.

Relevant Holding: Parties’ right to associate would be infringed if statutes overrode their own rules for nominations. So, parties can exercise rules in conflict with the state’s election code.

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Crawford v. Marion County Election Bd., 553 U.S. 181 (2008)

Basic Facts: Statute in Indiana requires photo identification in order to vote. Plaintiffs claim that it discriminates against the old and the poor, who are typically Democrats.

Relevant Holding: It must be determined what level of burden is imposed by election laws first, and then the state interests to justify those burdens must be examined to make sure that they justify any burdens to the right to vote.

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Davis v. Bandemer, 478 U.S. 109 (1986)

Basic Facts: The combination of districting arrangements and the use of multimember districts significantly under-represented state-wide Democratic voting strength in the State’s Congressional delegation. Plaintiffs challenge the districting arrangement under the Equal Protection Clause.

Relevant Holding: Constitutional discrimination occurs where the electoral system is arranged in a manner that denies a voter’s or group of voter’s ability to influence the political process as a whole.

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Democratic Party of the United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981)

Basic Facts: The Democratic Party sued based upon Wisconsin’s law for primaries being unconstitutional. The law allowed an open primary where any registered voter could vote for delegates chosen by party caucus, however, delegates were required to vote the same way as the results of the primary. The Democratic Party sued for a violation of their freedom of association

Relevant Holding: A state cannot constitutionally compel the seat delegation of a political party in a way that violates the party’s rules.

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Dunn v. Blumstein, 405 U.S. 330 (1972)

Basic Facts: Tennessee law required one year of residence in the state and three months of residence in the county to vote.

Relevant Holding: The statute was an unconstitutional infringement on the right to vote and to travel, requiring strict scrutiny. There is no compelling state interest.

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Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214 (1989)

Basic Facts: California political parties challenged California’s primary laws based upon a violation of the First and Fourteenth amendments.

Relevant Holding: California’s ban on primary endorsements by political parties and regulation of their internal affairs violates the Fourteenth Amendment.

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Gomillion v. Lightfoot, 364 U.S. 339 (1960)

Basic Facts: City of Tuskegee had its boundaries redefined by the Legislature of Alabama removing all but four or five of the black voters in the city without removing a single white voter. Plaintiffs sued for declaratory judgment deeming the redefinition unconstitutional under the Equal Protection Clause. The issue is whether the plaintiffs can go to trial.

Relevant Holding: Insulation from federal judicial review for states exercising power over state interests does not apply when the power is used to circumvent a federally protected right.

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Gray v. Sanders, 372 U.S. 368 (1963)

Basic Facts: Voter claimed that the county unit system of the primary election gave greater weight to votes of citizens from rural counties than to votes of residents of urban counties.

Relevant Holding: The concept of political equality in the voting booth contained in the Fourteenth Amendment extends to all stages of state elections.

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Hadley v. Junior College District, 397 U.S. 50 (1970)

Basic Facts: Residents brought suit because the college trustees exercised general governmental powers over the entire district, but they were not apportioned on an equal basis, diluting the right to vote of some voters in the district.

Relevant Holding: In any general election that selects people to perform governmental functions, “one man, one vote” must be followed.

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Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966)

Basic Facts: Plaintiff brought suit for being unable to register to vote without having to pay a poll tax.

Relevant Holding: A previous ruling was overturned (Breedlove v. Suttles, 302 U.S. 277 (1937)) which found that state elections could impose poll taxes.

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Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995)

Basic Facts: A gay rights group requested permission, but was denied the right to march in the city’s St. Patrick’s Day parade.

Relevant Holding: The government cannot force a private group to alter its message to include generally accepted views, as it is protected freedom of expression.

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Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)

Basic Facts: Under the Illinois Election Code, the standard of signatures required for new political parties and independent candidates to appear on the ballot were different for candidates in statewide elections than for political subdivision elections. This made independent candidates and new parties require substantially more signatures to gain access to the ballot than similarly situated parties or candidates.

Relevant Holding: The highly burdensome requirements violate the Equal Protection Clause, especially as there is no compelling state interest in the stricter requirements, and there are less restrictive ways to reach the state goals.

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Karcher v. Daggett, 462 U.S. 725 (1983)

Basic Facts: New Jersey lost a seat due to reapportionment & had to redraw its Congressional districts.  The plan that the legislature came up with was gerrymandered, but the population in the largest district was less than 1% greater than that of the smallest district.  Plaintiff sues, claiming that the apportionment plan fails to satisfy Art. 1 § 2 (requires apportionment of House districts based upon population) of the Constitution

Relevant Holding: One man, one vote is a high standard for equality. Population deviations must be reduced so as to achieve as close to population equality as is reasonable.

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Kramer v. Union Free School Dist., 395 U.S. 621 (1969)

Basic Facts: New York law required that voters in certain school board elections to own or lease taxable property within the school district or to have children enrolled in school. It was challenged by a single man with no children who lived with his parents.

Relevant Holding: If a law grants the right to vote to some and denies franchise to others, the court must determine whether the preclusions are necessary to promote a compelling state interest. This law does not meet these requirements.

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Moore v. Ogilvie, 394 U.S. 814 (1969)

Basic Facts: Plaintiffs sought to get onto the ballot, but were denied because their petitions were found to be defective. They were required to get an equal number of signatures from half of the state's counties, regardless of population.

Relevant Holding: By applying a rigid formula universally, members of less populous districts gain much greater voting strength, directly violating the “one man, one vote” principle.

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Munro v. Socialist Workers Party, 479 U.S. 189 (1986)

Basic Facts: Washington conducted a blanket primary and any candidate to receive at least 1% of the vote made it onto the general election ballot. Plaintiff’s party failed to reach the 1% margin & sues for violation of First Amendment rights.

Relevant Holdings: (1) States have a right to require candidates to make a preliminary showing of support to qualify for a place on the ballot. (2) The burdens imposed upon appellee’s First Amendment rights are not too severe to be justified by the State’s interest.

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Nader v. Schaffer, 417 F. Supp. 837 (D. Conn. 1976) aff’d, 429 U.S. 989 (1976)

Basic Facts: Connecticut voters could not participate in the primary without registering with a party. They brought suit alleging a violation of the Fourteenth and First amendments, seeking an injunction and an order to allow them to participate.

Relevant Holding: Barring unaffiliated voters from participation in party primaries is reasonably related to state goals, and voters equal protection rights aren’t violated since they don’t have an “interest” in the election.

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Norman v. Reed, 502 U.S. 279 (1992)

Basic Facts: New political parties challenged being barred from the party name they selected because it is the name of an established party in another location. Also, the signature requirements, which were higher for the county than statewide, were challenged.

Relevant Holding: The name restriction was overturned, as it would burden political parties lacking the resources to run a statewide campaign. Also, the signature requirements were unconstitutionally burdensome, requiring local candidates to get more than twice as many signatures as statewide parties.

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Ray v. Blair, 343 U.S. 214 (1952)

Basic Facts: A political party chose electors by partisan primaries. The electors were required to pledge to support the party’s nominees before becoming certified, or they were disqualified. A disqualified elector brought the case.

Relevant Holding: A state may allow the parties to exclude electors with no constitutional issue. This type of pledge is allowed as it helps parties maintain themselves as identifiable groups.

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Reynolds v. Sims, 377 U.S. 533 (1964)

Basic Facts: Alabama requires itself to redistrict every 10 years. Plaintiffs allege it hasn’t happened in over 60 years. Therefore, plaintiffs allege a violation of the Fourteenth Amendment.

Relevant Holding: Apportionment of state legislatures must be according to “one man, one vote”.

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Roberts v. United States Jaycees, 468 U.S. 609 (1984)

Basic Facts: A local group was threatened with expulsion from a national group because they allowed full membership to women. The local group argued the by-laws violated the Minnesota Human Rights Act by discriminating.

Relevant Holding: Government may infringe upon the right to associate when the infringement serves a compelling state interest that cannot be achieved through less restrictive means.

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Rosario v. Rockefeller, 410 U.S. 752 (1973)

Basic Facts: A New York law required a voter enroll 8 months before a presidential election and eleven months before a non-presidential election. Voters kept from participating in an election challenged the constitutionality of the law.

Relevant Holding: Where there is a legitimate state purpose, limitations on voter registration timing are valid and do not violate constitutional rights.

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Smith v. Allwright, 321 U.S. 649 (1944)

Basic Facts: Plaintiff, a black citizen, was denied the right to vote in a primary. The Democratic Party claimed that it was a private organization and could set its own rules of membership.

Relevant Holding: The right to vote, regardless of race, is protected by the Constitution, and the primary election is protected as well.

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Storer v. Brown, 415 U.S. 724 (1974)

Basic Facts: Plaintiff filed suit because they attempted to file as independent candidates after quitting the Democratic Party less than six months before the primary. California law required one year between disaffiliation with a prior party and filing as an independent. The state was also sued for its 5% petition signature requirement.

Relevant Holding: There must be a balancing between Fourteenth and First Amendment rights and state interests. The one-year requirement is valid, but the 5% signature requirement is too large a burden.

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Tashjian v. Republican Party, 479 U.S. 208 (1986)

Basic Facts: Plaintiff political party challenged a Connecticut law that prevented parties from allowing unaffiliated voters to participate in their primaries, even if requested by the party. They claimed a violation of First and Fourteenth amendment rights.

Relevant Holding: The state interests presented here do not outweigh First and Fourteenth Amendment rights of parties to include unaffiliated voters. Added costs alone aren’t sufficient to burden freedom of association and the statute did not prevent raiding.

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Terry v. Adams, 345 U.S. 461 (1953)

Basic Facts: A private political party that effectively controlled the outcome of the election barred black voters from participating in their primaries. Black voters brought suit for a violation of the Fifteenth Amendment.

Relevant Holding: A private political party engages in state action when it controls the outcome of elections and is therefore subject to the Fifteenth amendment.

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Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)

Basic Facts: A state representative was a candidate of Minnesota’s Democratic-Farmer-Labor Party and was nominated by the New Party as well. The nominating petition of the New Party was declined due to the ban on fusion candidates. New Party brought suit alleging the anti-fusion laws violated the First and Fourteenth Amendments.

Relevant Holding: Not all election laws require strict scrutiny. The state interests in preventing fusion candidates (ballot integrity and political stability) were sufficient to burden the associational rights of parties.

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United States Term Limits v. Thornton, 514 U.S. 779 (1995)

Basic Facts: Arkansas constitution prohibited an otherwise-eligible candidate for Congress from appearing on the ballot because the candidate has served three terms in the House of Representatives or two in the Senate.

Relevant Holding: Tenth amendment does not reserve rights for States that weren’t in the original powers of the States. Therefore, the ban on eligible candidates was unconstitutional.

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United States v. Classic, 313 U.S. 299 (1941)

Basic Facts: Election commissioners were indicted for denying rights to citizens under the Constitution by willfully miscounting and altering ballots. They argued that primaries were not subject to the criminal codes indicted under.

Relevant Holding: Congress has the same interest in regulating primaries to protect citizens as it does in a general election.

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Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)

Basic Facts: Washington created a modified blanket primary where each candidate on the ballot could list party preference of whatever party they chose, regardless of party approval. The party argued it was unconstitutional as it allowed voters unaffiliated with a party to choose the candidate.

Relevant Holding: Nonpartisan blanket primary law is not unconstitutional. Washington’s system did not choose party’s nominees, so it didn’t violate parties’ rights. Also, it was pure speculation that party preferences would create voter confusion.

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Wesberry v. Sanders, 376 U.S. 1 (1964)

Basic Facts: Plaintiffs brought suit due to the apportionment scheme of the state because the district had two to three times more people in it than other districts. They claimed this scheme violated the Fourteenth amendment.

Relevant Holding: One person, one vote requires apportionment schemes to be equal, or else they are unconstitutional.

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Williams v. Rhodes, 393 U.S. 23 (1968)

Basic Facts: Ohio Independent Party and Socialist Labor Party brought suit to challenge a series of election laws as applied on the ground that they denied voters equal protection under the Fourteenth Amendment.

Relevant Holding: The State failed to show a compelling interest that would justify imposing burdens on the First and Fourteenth Amendments. The totality of the laws created an unconstitutional burden.

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Yick Wo v. Hopkins, 118 U.S. 356 (1886)

Basic Facts: Plaintiff was imprisoned for operating a laundry in violation of a statute. He had operated there for twenty-two years, and it had been inspected and found safe. The board denied the license to all Chinese-American applicants but denied only one of eighty non-Chinese Americans. Plaintiff was imprisoned for failing to pay.

Relevant Holding: Voting is a fundamental right because it preserves all rights.

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