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  •   Justices Hear Third-Party Access Issue

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, December 5, 1996; Page A13

    In one of the hottest political disputes of the term, the Supreme Court heard arguments yesterday that state laws prohibiting a candidate from being the nominee of more than one political party violate rights of political association and expression.

    The case arose when the Twin Cities Area New Party tried to list on the ballot a candidate who already had been nominated by a major party, and the state refused to identify him as representing the New Party as well.

    Harvard law professor Laurence H. Tribe, arguing for the New Party, said the laws "marginalize" third-party candidates and prevent smaller parties from offering candidates of their choosing in an effort to mobilize party support.

    In the few states that permit "fusion" candidates, such as New York, a minor party can either field its own candidate or lend its party name to another nominee. When a fusion ban exists, supporters of fusion ballots say, even voters who might support the third party's platform don't want to "waste" votes on a candidate who has little chance of winning.

    But Minnesota Assistant Solicitor General Richard S. Slowes, defending the state's antifusion law, told the justices the ban does not violate core First Amendment values and stressed that states have the authority to regulate their own elections. He said the ban on a candidate appearing as the nominee of more than one party serves the state's interest by avoiding confusing, complex ballots.

    "The law doesn't keep anyone off the ballot," Slowes said, because the ban applies to people who already are the nominees of another party.

    Yesterday's session was rich with political references to cross-party support for President Dwight D. Eisenhower and to Earl Warren, who was elected governor of California before becoming chief justice, and reminders of the turn-of-the-century effort by major parties to suppress the Populists and other emerging minor parties. (Many states passed laws around 1900 barring fusion candidates; today 40 states and the District of Columbia prohibit the practice.)

    Overall, the justices were skeptical of arguments that Minnesota's law, specifically at issue in the case, violates political parties' First Amendment rights of political association and expression.

    "There are a lot of [state] rules that disadvantage third parties," Justice Stephen G. Breyer said, noting that some electoral practices, including single-member voting districts, might be more politically harmful to minor party candidates.

    Other justices' questions suggested they found nothing constitutionally amiss with a state's promotion of a strong two-party system.

    If the court were to strike down all antifusion laws, Chief Justice William H. Rehnquist observed, "it would result in sweeping change."

    The Twin Cities Area New Party tried to put incumbent state Rep. Andy Dawkins on the ballot in 1994 as its candidate for the state House of Representatives. Dawkins had already been nominated by the Democratic-Farmer-Labor Party.

    When state officials refused to identify Dawkins as a New Party nominee, the party sued. A federal District Court judge ruled for the state, but the 8th U.S. Circuit Court of Appeals reversed that decision, saying the ballot fusion ban burdens a minor party's association rights because it cannot nominate its selected candidate. It said the law keeps "the New Party from developing consensual political alliances and thus broadening the base of public participation in and support for its activities."

    Justice Ruth Bader Ginsburg noted that her home state of New York has long allowed ballot fusion, without problems. She also noted that voters may understand more about a candidate if he or she is listed as representing two parties – for example, a major party and one that has a specific agenda.

    Slowes said that while that practice might be more informative, it is not required by the First Amendment.

    The case of McKenna v. Twin Cities Area New Party has drawn wide political interest, and groups as diverse as the Republican National Committee, the Reform Party and the American Civil Liberties Union have sided with the New Party.

    Separately yesterday, the justices heard a constitutional challenge to an Arizona state law requiring government workers to speak only English. But the justices' questions showed that they would not decide the merits of the case because of procedural problems, such as the fact that the state is not enforcing or defending the law. The justices did not address the claim, pressed in lower courts, that the law violates the free speech rights of state workers. The case is Arizonans for Official English v. Arizona.

    © Copyright 1996 The Washington Post Company

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