Tabatha Abu El-Haj (Drexel University Thomas R. Kline School of Law; Thomas R. Kline School of Law, Drexel University) has posted The Associational Rights of Political Parties (The Oxford Handbook of American Election Law (Eugene Mazo, ed.) (2023, Forthcoming)) on SSRN. Here is the abstract:
The regulation of political parties is often necessary to protect the integrity of the electoral process and the larger constitutional promise of self-governance. At the same time, political parties are rights bearers under the First Amendment. This chapter summarizes how, in the absence of specific textual guidance, U.S. courts have adjudicated their way to a constitutional settlement on the place of political parties—major and minor—in our constitutional order. The chapter takes a historical approach, explaining why the U.S. Supreme Court’s political party jurisprudence did not begin in earnest until the twentieth century. It then lays out how the doctrine has evolved to afford significant associational freedom under the First Amendment to the two major political parties, while also recognizing their constitutional obligations as the engines of democracy. After reviewing this settlement, this chapter stresses the ways that the U.S. Supreme Court’s current approach to the associational freedom of political parties significantly constrains party reform strategies, despite the manifest need for regulation in the interest of a healthy democracy.