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Primaries And Conventions

A political party is entitled to nominate candidates for public office, subject to regulation by Congress and state legislatures. The nominating process is accomplished through a system of primaries, caucuses, and nominating conventions. The process varies from state to state, but generally, primaries and caucuses produce delegates who later cast votes at a nominating convention held several weeks or months before Election Day. Political parties hold nominating conventions at the local, state, and national levels to choose candidates for public office in the upcoming elections.

A primary is a preliminary election held by a political party before the actual election, to determine its candidates. A primary may be open or closed. An open primary is one in which all registered voters may participate. The number of delegates a candidate receives is then based on the candidate's performance. In some states, the winner of the popular vote wins all the delegates available to the state at the nominating convention. In other states, candidates receive a portion of delegates based on their respective showings.

In a closed primary, only voters who have declared their allegiance to the party may vote. Closed primaries may be indirect or direct. In an indirect, closed primary, party voters only elect delegates who later vote for the party's candidates at a nominating convention. In a direct, closed primary, party voters actually decide who will be the party's candidates, and then choose delegates only to communicate that decision at the nominating convention.

In some states (e.g., Iowa), political parties use a caucus system, instead of a primary system, to determine which candidates to support. A caucus is a local meeting of registered party members. The manner in which delegates are chosen at these caucuses varies widely from state to state. In some states, each party member who attends the caucus is entitled to one vote for each office. The caucus then produces an allotment of delegates based on the popular vote in the caucus, and these delegates later represent

the caucus in the county, legislative district, state, and national conventions. In other states, those who attend the caucus vote for delegates who pledge their support for certain candidates. These delegates then represent the caucus at the party's nominating conventions.

At a convention, delegates vote to determine who will emerge as the party's candidate. Usually, if no candidate wins a majority of the delegates on the first round, delegates are free to vote for a candidate other than the one whom they originally chose to support. More often than not, candidates have garnered sufficient delegates in the primaries and caucuses before the nominating convention to win the nomination. Where particular nominations are assured prior to the convention, the convention becomes a perfunctory celebration of the party policies, and an advertising vehicle for the nominated candidates.

Conflicts over nomination procedures often arise within a political party. In 1991, the Freedom Republicans, a group representing minority members of the REPUBLICAN PARTY, launched an attack on the party's allocation of delegates among the states. Since 1916, the Republican Party had employed a bonus-delegate system as a method of determining delegate representation at its national convention for nominating presidential candidates. Under that system, each state received a number of delegates equal to three times its ELECTORAL COLLEGE vote. States that elected Republican presidents, senators, representatives, and governors then received an additional allotment of delegates. The bonus delegate system gave certain Republican-dominated states a greater say in choosing the party's presidential candidate.

According to the Freedom Republicans, the bonus-delegate system reduced the representation of minority interests within the party because minority members often came from Democrat-dominated states. The largely rural, Republican-dominated, western states contained small minority populations, so minorities were poorly represented in the Republican delegate system. The Freedom Republicans sued the FEC under title VI of the CIVIL RIGHTS ACT OF 1964(42 U.S.C.A. § 2000d) in an attempt to stop FEC funding of the Republican National Convention.

The U.S. District Court for the District of Columbia ordered the FEC to create and enforce regulations governing the selection of delegates to the publicly funded national nominating conventions of political parties. On appeal by the FEC, the U.S. Court of Appeals for the District of Columbia Circuit vacated the order. The appeals court held that the connection between the FEC funding and the Republican delegate scheme was insufficient to hold the FEC accountable for the delegate scheme. According to the court, it was also unlikely that the Republican party would change its delegate scheme if funding were withheld (Freedom Republicans, Inc. v. Federal Election Comm'n, 13 F. 3d 412 [D.C. Cir. 1994]).

The First Amendment protects against a state's intrusion on the governance or structure of a political party. However, courts have held that states have the right to enact reasonable regulations of parties, elections, and campaign-related disorder. The U.S. Supreme Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997) held that states may lawfully prohibit candidates from appearing on a ballot as the candidate of more than one political party.

In 1994, Minnesota State Representative Andy Dawkins ran unopposed for office. Two different political parties, the Democratic-Farmer-Labor party and NEW PARTY, wanted him to run on their ballots, which he agreed to do. Local election officials, citing so-called "anti-fusion" laws, refused to place Dawkins on the ballot under the "fused" parties. The New Party, a minor political party, brought suit, alleging that the anti-fusion law violated its First Amendment associational rights.

Although the U.S. Court of Appeals for the Eighth Circuit agreed that the system was unconstitutional, the U.S. Supreme Court reversed, finding that the state of Minnesota had "important regulatory interests" in forbidding a candidate from appearing on the same ballot. The Court, per Chief Justice WILLIAM REHNQUIST, noted that a party does not have the absolute right to have its nominee appear on the ballot as a candidate, and that the anti-fusion law did not impose a severe burden on the New Party. The Court also rejected the New Party's contention that this law interfered with the ability of a minor party to take part in the election process.

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