This Comment analyzes whether the First Amendment
associational rights of the major political parties should include
candidate replacement and argues that the rights of parties to define
who votes in the primary logically should be extended to include a
right to replace candidates on the ballot after a withdrawal. Based on
the more recent Supreme Court cases finding greater freedom of
association for political parties, this Comment will focus on the 2002
replacement of Robert Torricelli in the New Jersey U.S. Senate
election and the 2006 failure to replace Tom DeLay in the Texas
22nd Congressional District U.S. House of Representatives election.
Although Torricelli and DeLay withdrew under similar
circumstances, the courts came to markedly different results, showing
the unequal impact of the different candidate replacement laws and
their effect on elections for federal office.19 This Comment
recommends a federal standard that will ensure political parties
retain their First Amendment associational rights, while still allowing
the states to efficiently manage the election process.
Part I.A of this Comment traces the Supreme Court’s
jurisprudence on the associational rights of political parties from the restrictive White Primary Cases to the more recent trend of greater
associational freedoms. Part I.B discusses the different state candidate replacement laws and illustrates their disparate effect on
the ability of political parties to replace withdrawn candidates
through discussion of the Torricelli and DeLay withdrawals. Part II.A
analyzes the associational rights of political parties in the context of
the candidate replacement process, and argues that political parties
should have broad powers to replace withdrawn candidates. Finally,
Part II.B of this Comment recommends a national standard for
candidate replacement in federal elections that is narrowly tailored
and preserves the associational freedoms of the political parties.
Baker, Kevin M. "Tom Delay, Robert Torricelli, and Political Party Maneuvering: Why the First Amendment Associational Rights of Political Parties Should Be Extended to Include Candidate Replacement." American University Law Review 56, no. 6 (August 2007):1583-1620.