Chief Justice William Rehnquist seldom writes blithering nonsense, but on April 28 he filled his nonsense quota for this term. He voted to uphold a Minnesota law that tramples upon the people's right to vote for the candidate of their choice on the ticket of their choice. The law should have been struck down.
Two weeks earlier he voted to uphold a Georgia law that was more stupid than despotic. He was right. The law should have been upheld. Up to a clearly unconstitutional point, states have a right to pass stupid laws.The Georgia law required candidates for statewide office to take a drug test before qualifying for nomination or election. Such a test, the court held, amounts to an unconstitutional search in violation of the Fourth Amendment. Away with it!
Yes, the Georgia law had its inane aspects. It required a candidate to test clean during a 30-day period only. The law imposed a trivial burden on a candidate's privacy - he could take the drug test in his doctor's office - but to the high court, 8-1, the burden was unbearable. The law was a mere symbol of Georgia's rectitude. Strike it down!
Rehnquist filed a solo dissent. Under the Constitution, he emphasized, the states act as laboratories of political experiment. Said the chief justice:
"Nothing in the Fourth Amendment or in any other part of the Constitution prevents a state from enacting a statute whose principal vice is that it may seem misguided or even silly to members of this court."
The States' Righter Rehnquist of April 15 was still states-righting on April 28. The chief justice wrote for the court in upholding a Minnesota law that prohibits "fusion" candidacies. The decision was as disappointing as the court's decision five years ago in a similar case from Hawaii. In that case the Supremes upheld a law forbidding write-in votes.
In the case at hand, the Democratic Farm Labor Party nominated Andy Dawkins for a seat in the state Legislature. The fledgling New Party also liked Dawkins and wanted his name to appear on their own New Party ballot.
The Minnesota law forbids a nominee from appearing on two ballots. About 40 other states have similar laws. The idea is to promote political stability, and to impose "some sort of order, rather than chaos, upon the democratic process."
The ulterior purpose of anti-fusion laws, of course, is to protect the two major parties from third-party competition. If Ford and General Motors thus conspired in restraint of trade, somebody would go to jail.
Rehnquist conceded grandly that the people have a constitutional right to form a third party. "It does not follow, though, that a party is absolutely entitled to have its nominee appear on the ballot as that party's candidate." What, then, I wonder, is the point of forming a new party?
Rehnquist saw pandemonium if fusion tickets were permitted. Various factions within the Democratic Party, for example, could exploit a fusion law by listing their candidate on two ballots - the regular Democratic ballot, and also the ballot of the Conserve Our Environment Party. Republicans might test public sentiment on the deficit by running their guy on the ballot of a newly hatched Fiscal Responsibility Party.
Pandemonium? Chaos? Disorder? Nonsense! In a dissenting opinion, Justice John Paul Stevens termed the Rehnquist forebodings "fantastical," and indeed they are. States may deter frivolous candidacies in a dozen ways - for example, by requiring a reasonable number of signatures on petitions.
Anti-fusion laws, by contrast, impose immense burdens on newly organized parties. Justice Ruth Bader Ginsburg joined Stevens' dissent. They were prepared to strike down the Minnesota law. They noted that in New York, where state law permits fusion, no chaos has developed.
In my view, Georgia's drug testing law is harmless posturing, but Minnesota's ban on fusion is despotic. So what? Ah, me! At the high court, you win a few, you lose a few, but it hurts to lose two in a row.
Universal Press Syndicate