Wednesday, October 12, 2011

Party Witness Rule does not violate First Amendment

Election Law in New York is notorious for its crazy rules and requirements to get on the ballot. You sometimes hear about political careers that were destroyed because the nominating petitions used the wrong staple. Is that an urban legend? Maybe. But everybody knows you need an Election Law expert to get on the ballot, which is why some of these rules are unconstitutional. But some are legal.

The case is Maslow v. Board of Elections, decided on September 30. It took the Court of Appeals two years to issue this 11-page decision. Political candidates, among other candidates, asked the Court to decide whether the Party Witness Rule violates the Constitution. Under that rule, the guy who circulates petitions to get you on the party primary ballot has to be a notary public or commissioner of deeds. If you can't find a notary or commissioner of deeds, you can use instead "enrolled voter[s] of the same political party as the voters qualified to sign the petition.” The plaintiffs want to use petition witnesses from different political party. They lose the case.

This is a First Amendment case. The plaintiffs say the Party Witness rule violates their freedom of associational right to have non party members assist in party elections. But the Court of Appeals (Hall, Straub and Livingston) say this rule only minimally interferes with freedom of association.

The Court of Appeals notes that "A political party’s associational right to exclude forecloses the possibility that non-party members have an independent First Amendment right to participate in party affairs." Moreover, “As for the associational ‘interest’ in selecting 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 characterized as an interest.” The parties have the right to limit these activities to members of their own party. The Republicans don't need Democrats to gather signatures for Republican candidates, and vice-versa. The rights of the party exceed the rights of the candidates.

What further hurts the plaintiffs here is that there is some logic to the Party Witness rule. The rule was enacted in 1951. Under the Legislative history, New York enacted the Party Witness Rule "apparently in response to incidents of 'party raiding,' whereby members of one party would actively participate in the primary of a rival party in the hope of influencing that party’s candidate nomination and thus improving their own chances in the general election."

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