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the ability of political parties to replace withdrawn candidates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should have broad powers to replace withdrawn candidates.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.

Recommended Citation

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.