Oregon Advisory Opinions April 29, 1977: OAG 77-50 (April 29, 1977)

OAG 77-50.

A bill presently before the legislature (Corrected A-Engrossed House Bill 2569) provides that a person not affiliated with any political party may nevertheless vote in a party's primary if he has designated his desire to do so.

The fundamental issue thus raised is whether the state may require that members of a political party may be required to share with persons who have chosen not to be members of such party a voice in determining who the nominees of such party shall be.

ORS 249.366 provides:

"No elector shall be qualified or permitted to vote at any primary election under the primary election law, and it shall be unlawful for him to offer to do so, unless he is registered as being affiliated with one of the major political parties nominating or electing its candidates for public office under the primary election law at such primary election. Every elector offering to vote at any such primary election shall be given a ballot of the major political party with which he is registered as being affiliated. . . ."

The bill mentioned above would amend this statute to provide that an elector not affiliated with any party may vote in the party primary of his choice as designated by him under another provision of the proposed legislation.

Political parties have been characterized by the Oregon Supreme Court as ". . . voluntary associations, pure and simple . . . ." Ladd v. Holmes , 40 Or 167, 184, 66 P 714 (1901).

The right of freedom of association is guaranteed by the First Amendment of the United States Constitution.

"We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States." Williams v. Rhodes , 383 US 23, 30-31 (1968).

This right of association has been specifically held applicable to those who wish to associate with a political party:

"There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and

Fourteenth Amendments. [citations] The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom." Kusper v. Pontikes , 414 US 51, 56-57 (1973). See also Cousins v. Wigoda , 418 US 477, 487 (1975).

In the Kusper case, supra, the court held invalid a state law which required a long waiting period before a person who had changed parties may vote in the primary of the new party of the person's choice. The court viewed the right to have a voice in selecting nominees as basic to the right to associate with a political party:

"Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process." 414 US at 58.

Thus we see that the right to associate, including specifically the right to associate with a political party, is guaranteed by the United States Constitution and a basic aspect of the right to associate with a political party is to participate in that party's choice of nominees for elective office.

Of course a federal question is not raised if similar rights are guaranteed by the state constitution. The United States Supreme Court decisions referred to are based on the First Amendment (applied to the state through the Fourteenth Amendment) which provides:

"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 petition the Government for a redress of grievances."

It is not entirely clear which part or parts of the First amendment the court invokes as the basis for freedom of association, and thus which provision of the Oregon Constitution might be held to have the same effect. In NAACP v. Alabama , 357 US 449, 460 (1958), cited by the court in the Kusper case, it is said that "freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." Earlier in the same passage, however, the court had referred to "the close nexus between the freedoms of speech and assembly." Those two freedoms are stated separately in the Oregon Constitution.

Article I, § 8 provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Article I, § 26 provides:

"No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances (sic)."

In any event, the rights granted by the Federal Constitution are supreme, and would prevail if the Oregon Constitution were so interpreted as not to insure them.

We need not discuss the cases which consider whether a

compelling state interest may limit First Amendment rights because not only has no such interest been here suggested or perceived, but the idea of such an interest is in itself contrary to the reasoning of the United States Supreme Court in the statements quoted. At times in our history it has been a matter of contention whether or not a particular ideology should be provided a climate in which to flourish, but that subject is in no way involved here.

If one has a right to associate with a political party, and a basic part of that right is to have a voice in the selection of the party's nominee, a corollary of that right is that the state cannot dilute the effect of one's voice within a party by providing that non-members can participate in the selection process--the primary election--with an equal voice, or indeed any at all.

It would be nonsense to say that Americans have a fundamental right to form political parties and to participate in their choice of nominees and then add that a state may force those parties to accept a verdict as to who its nominees shall be which has been participated in by non-members.

This obvious conclusion reflects also a statement by the Oregon Supreme Court in Ladd v. Holmes , supra:

"Every elector has the right to have his vote count for all it is worth, in proportion to the whole number of qualified electors desiring to exercise their privilege." 40 Or at 167.

We thus conclude that the State of Oregon cannot require a

political party to allow non-members to participate in its primary election.