[EL] Scope of Anderson-Burdick "balancing test"

[Salvador Peralta]

Hi Michael,

I can't speak to the balancing test, but Democrats in the Oregon legislature attempted a similar bill in 2011.  They backed off after being subjected to ridicule and condemnation for what was viewed in the press as a cynical and unconstitutional attack on the speech and association rights of a political party.

By way of further background, there are now Independent Parties in Oregon, Hawaii, New Mexico, Connecticut, Florida, Delaware, and Maryland.  The Independent Party of Oregon has 100,000 members and is likely to be a major political party under Oregon law by the 2016 Presidential election.  

In addition to cross-nominating some statewide officeholders (including the current Governor) and state legislators, the party appears to be attracting some pretty credible candidates (http://www.wweek.com/portland/blog-31500-assisted_living_tycoon_may_jump_into_state_senate_race_updated.html). 

Here are a few examples of the press response in Oregon:

Editorial: What’s next, word police?
 
   Editorial: What’s next, word police?
A bill under consideration in Salem and scheduled for a hearing this afternoon, HB 2442, would prohibit the use of the word “independent” in the name of any politic...  
View on democratherald.com Preview by Yahoo  
 
 
   Former Secretaries of State Slam Attempt to Kill Indepe...
The House Rules Committee today held a hearing on House Bill 2442, which would force the Independent Party of Oregon to drop the word Independent from its nam...  
View on www.wweek.com Preview by Yahoo  
 
Former Secretaries of State Slam Attempt to Kill Independent Party





________________________________
 From: Michael L. Tellerico <michael.l.tellerico at gmail.com>
To: law-election at department-lists.uci.edu 
Sent: Wednesday, April 16, 2014 12:03 PM
Subject: [EL] Scope of Anderson-Burdick "balancing test"
 


Good afternoon all,

I am a 3L at the University of Connecticut School of Law and am presently working on an article examining whether a political party has a constitutional right to its name/identity.

For some background:  Connecticut has an Independent Party (and other parties with derivatives of the word "independent" such as "The Independence Party" or "The Independent Voice Party," etc.).  The General Assembly raised a concept last year that would have prohibited the word "independent" from use in the names of political parties.  The rationale was that people often confuse the term with "unaffiliated" -- that is, some may colloquially speak of "independent" voters when what they actually mean is "unaffiliated" voters.  It seems a fair concern that some might conflate these terms -- CT does primarily operate in a two-party system, and one might truly consider herself to be "independent" if she is neither Republican nor Democrat.  However, in CT, the term "Independent" does have a very particular meaning as it appears on an election ballot.  Underlying this is the fact that in recent elections, the Independent Party has been cross-endorsing
 Republicans (while the Working Families Party has been cross-endorsing Democrats).  So the effort, on behalf of a Democratic-controlled legislature, appeared to have partisan motivations, though the argument was made that it was designed to minimize voter confusion.

My research brought me to the Anderson-Burdick "balancing" test, but I'm having a difficult time truly pinning down whether this framework applies generally for election regulations, or specifically for ballot access cases.  My research appears to indicate the latter, though I'll admit to not being as learned in this area as others.

My questions: 
a.)  what is the scope of the test laid out in Anderson and re-affirmed in Burdick?
b.)  accordingly, what impact does this have on a political party's right to refer to itself by a particular name?

Any guidance would be greatly appreciated.  Thanks for the opportunity to discuss/try your minds.
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