MR. JUSTICE STEWART delivered the opinion of the Court.
Under § 7-43 (d) of the Illinois Election Code, a person is prohibited from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months.
At the outset, we are met by the appellants'
The appellants note that the February 1971 Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a "political party within a city . . . only," and thus outside the purview of the 23-month rule.
As we stated in Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509:
The paradigm of the "special circumstances" that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. Zwickler v. Koota, 389 U.S. 241, 249; Harrison v. NAACP, 360 U.S. 167, 176-177. Abstention in such
We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants' argument—that the February 1971 Chicago Republican primary might be considered that of a "political party within a city . . . only"—is foreclosed by the decision of the Illinois Supreme Court in Faherty v. Board of Election Comm'rs, 5 Ill.2d 519, 126 N.E.2d 235. That decision made it clear that the kind of "local" primaries that are outside the scope of § 7-43 (d) are simply those of " `purely city . . . political part[ies]' "— those parties entitled, under § 7-2 of the Illinois Election Code, to make nominations for city offices only. Id., at 524, 126 N. E. 2d, at 238.
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
To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States.
There can be little doubt that § 7-43 (d) substantially restricts an Illinois voter's freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to "lock" the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement.
The same is true of § 7-43 (d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party's 1972 primary election. 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. By preventing the appellee from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party's candidates, and thus substantially abridged her ability to associate effectively with the party of her choice.
As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. Bates v. Little Rock, supra, at 524; NAACP v. Alabama, supra, at 463. For even when
The appellants here urge that the 23-month rule serves the purpose of preventing "raiding"—the practice whereby voters in sympathy with one party vote in another's primary in order to distort that primary's results. It is said that our decision in Rosario v. Rockefeller, 410 U.S. 752, recognized the state interest in inhibiting "raiding," and upheld the constitutional validity of legislation restricting a voter's freedom to change parties, enacted as a means of serving that interest.
It is true, of course, that the Court found no constitutional infirmity in the New York delayed-enrollment statute
The New York statute at issue in Rosario did not prevent voters from participating in the party primary of their choice; it merely imposed a time limit on enrollment. Under the New York law, a person who wanted to vote in a different party primary every year was not precluded from doing so; he had only to meet the requirement of declaring his party allegiance 30 days before the preceding general election. The New York law did not have the consequence of "locking" a voter into an unwanted party affiliation from one election to the next; any such confinement was merely the result of the elector's voluntary failure to take timely measures to enroll. Id., at 757-759. The Court therefore concluded that the New York delayed-enrollment law did not prevent voters "from associating with the political party of their choice." Id., at 762. And see id., at 758 and n. 8.
The basic difference in the Illinois law is obvious. Since the appellee here voted in the 1971 Republican primary, the state law absolutely precluded her from participating in the 1972 Democratic primary. Unlike the petitioners in Rosario, whose disenfranchisement was caused by their own failure to take timely measures to enroll, there was no action that Mrs. Pontikes could have taken to make herself eligible to vote in the 1972 Democratic primary.
In other words, while the Court held in Rosario that the New York delayed-enrollment scheme did not prevent voters from exercising their constitutional freedom to associate with the political party of their choice, the Illinois 23-month rule clearly does just that. It follows that the legitimate interest of Illinois in preventing "raiding" cannot justify the device it has chosen to effect its goal. For that device conspicuously infringes upon basic constitutional liberty. Far from supporting the validity of the Illinois legislation, the Court's decision in Rosario suggests that the asserted state interest can be attained by "less drastic means," which do not unnecessarily burden the exercise of constitutionally protected activity.
We conclude, therefore, that § 7-43 (d) of the Illinois Election Code unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments. The judgment of the District Court is accordingly
THE CHIEF JUSTICE concurs in the result.
MR. JUSTICE BLACKMUN, dissenting.
The deprivation Mrs. Pontikes claims to have suffered, and which the Court today enshrouds with the mantle of unconstitutionality, is that she has been restrained by the Illinois statute from voting in one primary election of one party in the relatively minor context of a personal desire to undo an established party affiliation. Apart from this meager restraint, appellee Pontikes is
It is important, I think—and deserving of repeated emphasis—to note that this very limited statutory restriction on the appellee's exercise of her franchise is triggered solely by her personal and voluntary decision. This being so, the Court's conclusion seems to me to dilute an important First Amendment concept the vitality of which, in the long run, necessarily will suffer from strained and artificial applications of this kind. The mere fact that a state statute lightly brushes upon the right to vote and the right of association, important as these are, should not automatically result in invalidation. Prior case law does not require a conclusion of invalidity where, as here, the intrusion is so minor. See McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969); Rosario v. Rockefeller, 410 U.S. 752 (1973).
In nearly all the voting cases relied upon by the Court and by the appellee, the Court was faced with situations where the disqualification amounted to a direct disenfranchisement or a vote dilution suffered by a discrete class whose impediment, as so imposed, was the result of an involuntary condition not directly tied to the franchise. See, for example, Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) (poll tax and wealth); Reynolds v. Sims, 377 U.S. 533 (1964) (location); Cipriano v. City of Houma, 395 U.S. 701 (1969) (property ownership); Carrington v. Rash, 380 U.S. 89 (1965) (military status). Cf. Dunn v. Blumstein, 405 U.S. 330 (1972) (residence). In each of these cases there was a direct impairment of the ability of the affected class, without voluntary action, to participate in the electoral process. The level of intrusion was markedly significant.
By resorting to a standard of rigid and strict review, and by indulging in what I fear is a departure from the appropriately deferential approach in Rosario, the Court places itself in the position of failing to give the States the elbow room they deserve and must possess if they are to formulate solutions for the many and particular problems confronting them that are associated with the preservation of the integrity of the franchise. Cf. Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Burns v. Fortson, 410 U.S. 686, 687 (1973) (concurring opinion). Surely, at some point, the important interest of the State in protecting its entire electoral system outweighs a minor
The Illinois Legislature has determined that a rule precluding voting in the primaries of different parties in successive annual elections is a desirable and necessary means by which to preserve an otherwise vulnerable structure. In Rosario, 410 U. S., at 762, we applied a "particularized legitimate purpose" standard to a similarly directed scheme and upheld the New York statute. As MR. JUSTICE REHNQUIST points out in his dissent, post, at 68, the degree of disenfranchisement resulting from the New York provision is potentially as great as, if not greater than, the Illinois provision challenged here. That case and this one, taken together, therefore, effect incongruous results. Not only is the actual disenfranchisement in this case no greater than that in Rosario, but the Illinois provision has a more rational relation to its purpose than does the New York provision. The New York statute specified an arbitrary time period prior to which it is assumed that organized party switching for raiding purposes will not occur. In contrast, Illinois chose not to employ a flat time limit that is by nature speculative and arbitrary; instead, it tied its disqualification directly to a significant event, namely, a vote in another party's last primary. Seemingly, the 23-month period was chosen so that the limitation would not extend back beyond the most recent primary. When primaries are held annually, the 23-month period amounts to no more than a one-year limitation, and in this respect the statute is drawn as narrowly as can be expected for a system that is tied to a prior primary vote rather than a designated time period. By tying the cutoff to a primary, the Illinois scheme seems directly designed to succeed in preventing organized crossovers, for it is highly unlikely that any significant number of party regulars would ever be instructed not to vote at all in
MR. JUSTICE REHNQUIST also observes that the Illinois system does have the side effect of creating a per se exclusion for a few voters. It is this factor, apparently, that has caused the Court to seek to distinguish Rosario. In New York the disqualification occasioned by the time limit will have its impact, more often than not, upon those who have not been diligent. This, indeed, was the very situation in Rosario. The Illinois provision, on the other hand, affects only party switchers. And they clearly are the group most amenable to organized raiding. I do not agree that any marginal difference that may exist between the New York rule and the Illinois rule must have the effect of transforming a "legitimate time limitation," Rosario, 410 U. S., at 762, into an unconstitutional denial of freedom of association. This incongruity underscores what I believe to be the potential mischief that results from an easy and all-too-ready resort to a strict-scrutiny standard in election cases of this kind. To be sure, the line between constitutionality and unconstitutionality must be drawn somewhere. But I would not draw it short of what Illinois has done here.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE BLACKMUN joins, dissenting.
The Court decides that the Illinois rule disqualifying a person from voting in the primary of one political party if he has voted in the primary of another political party during the preceding 23 months imposes an impermissible burden on Illinois voters' exercise of their right of free political association. In so doing it distinguishes Rosario v. Rockefeller, 410 U.S. 752 (1973), decided last Term. I find Rosario more difficult to distinguish than does the Court.
The Illinois system of primary elections, unlike the New York system before the Court in Rosario, does not require a voter to have enrolled as a member of a party months in advance in order to be eligible to vote in that party's primary. Illinois provides instead for a declaration
On the other hand, Illinois' rule imposes a lesser burden on its previously unaffiliated voters than does New York's. Indeed, it imposes a lesser burden on any voter who has, for whatever reason, failed to vote in the primary of another party within the past 23 months. Such voters are not required to foresee their interest in the primary by eight or more months, as are New York voters under the rule upheld in Rosario. As a practical matter, a voter is not required to swear that he has not participated in the primary of another party as a condition of his right to vote unless he is challenged. In these respects the Illinois rule is more closely tailored to the State's interest in preventing "raiding" than is the New York rule. Voters who have recently demonstrated loyalty to another party by voting in its primary, are more likely than those who have not to engage in "raiding." Moreover, challenges for violations of the 23-month rule are not likely to be made where no serious danger of "raiding" is perceived.
"No person shall be entitled to vote at a primary:
"(d) If he has voted at a primary held under this Article 7 of another political party within a period of 23 calendar months next preceding the calendar month in which such primary is held: Provided, participation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party: And, provided, that no qualified voter shall be precluded from participating in the primary of any purely city, village or incorporated town or town political party under the provisions of Section 7-2 of this Article by reason of such voter having voted at the primary of another political party within a period of 23 calendar months next preceding the calendar month in which he seeks to participate is held."
Under § 7-43 (d), a "political party within a city . . . only" is one that has qualified under § 7-2 to make only city nominations; in other words, a party that has polled more than 5% of the vote at the preceding municipal general election, but less than 5% of the vote at the preceding statewide general election. Obviously, the Republican party, in whose 1971 Chicago primary the appellee voted, does not fit within this description.
"Every person having resided in this State 6 months and in the precinct 30 days next preceding any primary therein who shall be a citizen of the United States above the age of 21 years, shall be entitled to vote at such primary.
"The following regulations shall be applicable to primaries:
"No person shall be entitled to vote at a primary:
"(a) Unless he declares his party affiliations as required by this Article;
"(b) Who shall have signed the petition for nomination of a candidate of any party with which he does not affiliate, when such candidate is to be voted for at the primary;
"(c) Who shall have signed the nominating papers of an independent candidate for any office for which office candidates for nomination are to be voted for at such primary; or
"(d) If he has voted at a primary held under this Article 7 of another political party within a period of 23 calendar months next preceding the calendar month in which such primary is held: Provided, participation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party: And, provided, that no qualified voter shall be precluded from participating in the primary of any purely city, village or incorporated town or town political party under the provisions of Section 7-2 of this Article by reason of such voter having voted at the primary of another political party within a period of 23 calendar months next preceding the calendar month [in which such primary] in which he seeks to participate is held.
"(e) In cities, villages and incorporated towns having a board of election commissioners only voters registered as provided by Article 6 of this Act shall be entitled to vote at such primary.
"(f) No person shall be entitled to vote at a primary unless he is registered under the provisions of Article 4, 5 or 6 of this Act, when his registration is required by any of said Articles to entitle him to vote at the election with reference to which the primary is held."