NewYorkUniversity
LawReview

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Nathaniel Persily

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Toward a Functional Defense of Political Party Autonomy

Nathaniel Persily

In its recent decision in California Democratic Party v. Jones, the Supreme Court struck down California’s “blanket primary,” which allowed any voter to vote in any race in any party’s primary. The decision has propelled questions of primary voter qualifications to the forefront of constitutional analysis of political parties. This Article analyzes the case law on state regulation of primary elections and argues in favor of constitutional protection for party organizational autonomy in determining qualifications for primary voters. Legal scholars have been almost unanimous in their condemnation of the Court’s decision in Jones. This Article takes a different view. Agreeing with the critics that traditional First Amendment rights of expression and association largely are inapplicable to party primaries, this Article advocates an approach that pays less attention to parties’ status as state actors or private associations and more attention to the functions they play in American democracy. In particular, the Article argues that autonomous parties are a necessary check against one party’s manipulation of the electoral process to its advantage and an indispensable means of aggregating interest groups into the American political system. Recognizing that in the context of primary elections, today’s major political parties are, nevertheless, state actors, the Article concedes that explicit constitutional guarantees preventing discrimination in the right to vote ought to apply to major-party primaries.

Testing Shaw v. Reno: Do Majority-Minority Districts Cause Expressive Harms?

Stephen Ansolabehere, Nathaniel Persily

The Supreme Court’s decision in Shaw v. Reno established an “analytically distinct” constitutional claim of racial gerrymandering for majority-minority districts drawn predominantly on the basis of race. The case was and continues to be controversial, because the precise nature of the injury caused by such districts has been a persistent source of debate. Shaw districts did not minimize a group’s representation, but rather they communicated an “expressive harm” due to signals they sent to the electorate and representatives that the jurisdiction relied too much on race in the construction of a district. Such districts, the Court argued, communicated racial stereotypes that individuals belonging to the same racial group were politically interchangeable, despite their many social and economic differences. This paper tests the “Shaw hypothesis” with recent survey data. We find no patterns in racial attitudes based on the shape and racial composition of a congressional district. We do, however, find substantial and expected gaps among racial groups concerning attitudes toward the practice of majority-minority districting, Section 5 of the Voting Rights Act, and job approval of the respondent’s representative.