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"Wealth Primary" - Legal Theory

"State Action" and Barriers to the Franchise

In the middle decades of the twentieth century, the U.S. Supreme Court heard a series of cases that addressed efforts by white communities in southern states to exclude African Americans from the franchise. In the first of these cases, which have collectively become known as the "white primary" cases, the Supreme Court struck down all-white Democratic Party primary elections that were authorized by statute (Nixon v. Herndon, 273 U.S. 536 (1927)), reasoning that primaries were so critical a part of the electoral process that they should be subject to the anti-discrimination provisions of the 14th and 15th Amendments to the Constitution.

This case was a critical development in the law regarding electoral discrimination because the Court was forced to reconcile an unacceptable form of discrimination with a legal doctrine that, on its face, might appear to prevent the court from providing any remedy: the "state action" doctrine. Interpreting the Reconstruction Amendments to the Constitution, the Supreme Court had previously decided that persons seeking relief from discrimination can invoke the protections of the Equal Protection Clause only when their case involves "state action", that is, only when the state is responsible for the discrimination in question. However, as our history amply demonstrates, there are many situations in which the state has delegated to private parties the authority to perform public functions, in which private parties assume control over public facilities, or in which private parties work in concert with state actors. In the Nixon v. Herndon case, the Supreme Court first began to recognize that even nominally "private" organizations like political parties must be deemed "state actors" because they have been authorized to take over a critical public function of the state. Thus, the Court deemed such "private" activity "state action" and held those private political parties accountable for discrimination under the 14th Amendment.

Terry v. Adams and the "Jaybird" Primary

Building on the precedent of Nixon v. Herndon, the Court in later years struck down all-white party primaries authorized by act of the state party's executive committee, (Nixon v. Condon, 286 U.S. 73 (1932)), and by resolution of the state party membership (Smith v. Allwright, 321 U.S. 649(1944)). In 1953, the Supreme Court decided the last of these white primary cases, Terry v. Adams, 345 U.S. 461 (1953), which actually did not involve a racially exclusionary primary. Terry involved the pre-primary candidate nominating process of an all-white political "club" in Texas, an organization that had nothing to do with officials of the state.

The Jaybird Democratic Association — a large, private political organization open only to white Texas voters — had for years nominated candidates to run in the Democratic Party primary. Those who won the "Jaybird primary" would invariably go on to win the Democratic primary and the general election. In a decision of enormous import, the Supreme Court ruled in Terry that the Jaybird Democratic Association's exclusionary process had become "part of the machinery for choosing officials" and, therefore, required constitutional scrutiny. The Court then struck down the Jaybird primary, finding that it unconstitutionally excluded African-American voters on the basis of their race from "an integral part" of "the elective process that determines who shall rule and govern."

Like the white primaries of old, the wealth primary today is "part of the machinery" for getting elected to office. It is, like its predecessor, both exclusionary and decisive. Candidates and voters who lack wealth and access to wealth are effectively shut out of the process. And the candidate who, by raising the most money, wins the wealth primary almost invariably wins the election.

Wealth and the Right to Vote

That's the American way, some might say. If you have the money or can raise the money, you can spend it on your election campaign. The Supreme Court said as much in its (highly controversial) 1976 decision, Buckley v. Valeo, 424 U.S. 1, when it struck down on First Amendment grounds mandatory congressional limits on overall congressional campaign expenditures, on candidates' expenditure of their personal wealth, and on "independent" expenditures.

But the constitutional question posed by the wealth primary is not about the First Amendment rights of the well-financed candidates and wealthy contributors. It is about the Equal Protection rights of all candidates and voters who are left behind in the fundraising process because of their lack of money and access to money. The Buckley ruling did not involve, and therefore did not address this critical question.

In the midst of the civil rights movement, the Supreme Court stated that wealth cannot serve as a barrier to the right to vote. In Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), a decision that came two years after the Twenty-Fourth Amendment had banned poll taxes in federal elections, the Court struck down a poll tax of $1.50 in Virginia state elections. The Court found that a "State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth."

Six years later, in Bullock v. Carter, 405 U.S. 134 (1972), the Court again faced the issue of wealth as a barrier in the electoral process and again stated that such a barrier cannot stand. This time, the question concerned a system of high filing fees that the state of Texas required candidates to pay, in order to appear on the primary ballot. These fees ranged from $150 to $8900. The Court invalidated this system on Equal Protection grounds, finding that "potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be and no matter how enthusiastic their popular support." The "exclusionary character" of the system also violated the constitutional rights of non-affluent voters. "We would ignore reality," the Court stated, "were we not to find that this system falls with unequal weight on voters, as well as candidates, according to their economic status."

The "Wealth Primary" theory draws on these two lines of cases — the White Primary cases and the cases forbidding wealth barriers to the franchise — to argue that the present reliance on privately financed elections violates the fundamental Equal Protection rights of low-income, low-asset citizens all across our country. Just as African Americans were excluded from an integral part of the electoral process by a private club that chose candidates in a non-official process, non-wealthy citizens are today excluded from the process of choosing candidates for the ballot because such choices are made by that small class of citizens who can afford to contribute to political campaigns. Because wealth has no proper function as a qualification on the right to vote, the wealth primary violates this country’s essential promise of political equality.

The constitutional theory of wealth primary litigation is set out more fully in two law review articles co-authored by Jamin Raskin, Professor of Constitutional Law and Associate Dean at the Washington College of Law at American University, and John Bonifaz, Executive Director of NVRI: Equal Protection and The Wealth Primary, 11 YALE LAW & POLICY REVIEW 273 (1993) and The Constitutional Imperative and Practical Superiority of Democratically Financed Elections, 94 COLUMBIA LAW REVIEW, 1160 (1994).

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