What We Do

"Wealth Primary" - Litigation

The State Constitutional Frontier

Since its inception in 1994, NVRI has led the battle against the "wealth primary" in the United States, launching a series of constitutional challenges in courts around the country. NVRI's most recent wealth primary litigation took place in the state courts of North Carolina.

In Royal v. North Carolina, NVRI represented former, future, and would-be candidates for the state's General Assembly who did not have access to the wealth necessary to mount viable competitive campaigns. Plaintiffs, who comprised Democrats, Republicans, and Independents, also included the North Carolina State Conference of NAACP Branches and six other public interest advocacy groups. While the Royal plaintiffs relied on the Equal Protection provisions of the state constitution, which parallel the 14th Amendment to the federal constitution, they also lodged claims under other provisions that protect citizens' rights to meaningful political participation, most notably Section 11 of the North Carolina Declaration of Rights: "As political rights are not dependent upon or modified by property, no property qualification shall affect the right to vote and hold office."

Royal v. North Carolina marked the initiation of a promising new strategy to confront the wealth primary. Many state Constitutions contain far more detailed guarantees of basic political rights than the Federal Constitution. With the Royal case, NVRI began to bring wealth primary challenges before state courts, which are the ultimate arbiters of the meaning of state constitutions.

In a groundbreaking study commissioned by NVRI in aid of the lawsuit, an eminent expert in political science confirmed empirically what we all know to be true intuitively. Professor Theodore Arrington, Chair of the Political Science Department of UNC-Charlotte, performed regression analyses of information from a comprehensive database of four North Carolina legislative election cycles. Regression analysis is an established scientific method that provides a precise understanding of the causal relationships between variables in a complex system. Arrington's regression analyses confirmed that money is a primary determinant of electoral success, regardless of a candidate's party affiliation, race, gender, district, or previous office held. By controlling for the major variables that may have some effect on election results, Arrington found a strong consistent and statistically significant correlation between electoral spending and election results. In all kinds of situations, the amount of money spent by a candidate is critical in determining what proportion of the vote that candidate will receive and whether or not he or she can win. Bluntly stated, money is absolutely necessary to any campaign for office. No matter their qualifications or policies, candidates cannot run for office without access to substantial sums of money.

NVRI believed that the scientific study, the inspiring detail of the North Carolina Constitution, and the resolve of the Royal plaintiffs would draw the unconstitutionality of the wealth primary into stark relief. The ultimate remedy sought was: 1) a declaration that the wealth primary violates the North Carolina Constitution; and 2) an order requiring the state to overcome the exclusionary effects of the wealth primary by making available public funding for qualified candidates at a level sufficient to run a minimally adequate campaign.

Unfortunately, the North Carolina courts denied the Royal plaintiffs the opportunity to prove that access to significant wealth is a prerequisite to running for office. The trial court dismissed the complaint, the intermediate Court of Appeals affirmed the decision, and the North Carolina Supreme Court refused to hear the appeal.

Nevertheless, the courts' statement that the legislature alone has the power to fix this problem provides North Carolina activists with yet another tool to pressure their state legislature for a law allowing public funding of legislative races. The ruling also reminds us of the long-term nature of this challenge to conventional thinking.

Two former justices of the North Carolina Supreme Court, the Hon. James Exum and the Hon. Harry Martin, joined the prosecution of this lawsuit as local counsel. The legal team also included other prominent North Carolina attorneys: Adam Stein of the civil rights firm Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, and Lewis Pitts of the Legal Services of North Carolina. Click here to read the pleadings in this case, or here to peruse some of the press coverage click here.

Federal Litigation

 In 1994, NVRI launched the first wealth primary lawsuit representing a former congressional candidate and 13 of his supporters in an action against the Federal Election Commission. The lead plaintiff in this suit, Albanese v. FEC, had been a five term member of the New York City Council. Sal Albanese ran in 1992 as the Democratic nominee in the 13th Congressional District of New York against the incumbent Rep. Susan Molinari. But Ms. Molinari raised and spent almost twice as much money as Mr. Albanese, who lacked the personal wealth or access to wealthy interests that might have allowed him to mount a viable campaign. In addition to the challenge to the inequity of the wealth primary in this election, this suit claimed that Ms. Molinari also received an unconstitutional financial advantage in the form of her Congressional franking privilege.

In 1996, NVRI filed a second wealth primary suit, this time on behalf of the Los Angeles branches of the NAACP and the Southern Christian Leadership Conference, the California Public Interest Research Group, the Multicultural Collaborative, the Southern California Americans for Democratic Action, and a number of California voters, candidates, and activists. This suit, NAACP v. Jones, focused on the operation of the wealth primary in judicial elections in Los Angeles and the costs of producing candidate statements in sample ballots that are sent to all voters.

In 1997, NVRI filed a third wealth primary challenge in federal court in Georgia, challenging the wealth primary in elections to the state Senate. In Georgia State Conference of NAACP Branches v. Cox, NVRI again represented the NAACP and the Southern Christian Leadership Conference, as well as a number of former and future candidates for office. For this suit, NVRI marshaled statistical analysis by the National Institute for Money in State Politics which showed that candidates who raised and spent more than their opponents won over 83% of the time. Ninety-four percent of all winners either outspent their opponents or enjoyed the natural advantage of incumbency. Over the three election cycles from 1992 to 1996, winners of Georgia state senate seats spent an average of almost $70,000. In a state where the median household income hovers around $29,000, and the poverty rate over 12%, hundreds of thousands of low-income citizens face insurmountable odds when contemplating a run for public office, or when hoping to find a candidate on the ballot who might represent their interests.

In each of these federal cases, the district courts dismissed the wealth primary lawsuits before plaintiffs were allowed to present evidence on their claims. The relevant Circuit Courts of Appeal affirmed the dismissals, on the ground that plaintiffs lacked "standing" to bring their claims because no one denies low income citizens the right to cast a ballot in official elections. These appellate court decisions are reported as Albanese v. FEC, 884 F. Supp. 685 (E.D.N.Y. 1995); NAACP v. Jones, 131 F.3d 1317 (9th Cir. 1997); and Georgia State Conf. of NAACP Branches v. Cox, 183 F.3d 1259 (11th Cir. 1999). Under Legal Errors of the Federal Court Decisions below, you will find a detailed discussion of NVRI’s position that these courts’ decisions were based on a clear misreading of the law, specifically the authority of the United States Supreme Court decision, Terry. v. Adams. In failing to confront the constitutional infirmities of the wealth primary, each of these decisions rests on a far too limited vision of the constitutional right to meaningful political participation.

In each of the three federal cases mentioned above, the District Courts dismissed the suits on jurisdictional grounds before plaintiffs were allowed to present any evidence. The courts that dismissed wealth primary challenges all relied on an incorrect reading of the critical White Primary case discussed above, Terry v. Adams.

First, all three federal decisions stated that wealth primary plaintiffs have no standing to bring suit because no one has denied them the right to cast a ballot. But, in Terry v. Adams, no one had denied African Americans the right to cast a ballot in any official state primary or general election. The wealth primary debases the right to vote in the same fashion as the all-white, Jaybird primaries of Texas: though African Americans were indeed allowed to cast ballots in all official elections, the real decision over who would appear on ballots was conducted by an exclusive, private group. The U.S. Supreme Court recognized that such a situation was anathema to democracy and broadened the doctrine of "state action" to encompass all integral aspects of the electoral process, whether or not they are conducted by private individuals. Just as in the Jaybird primary debased the voting power of African Americans, the wealth primary denies low-income citizens a meaningful opportunity to participate in an "integral part" of the electoral process. While all of us share the nominal right to cast an official ballot on election day, the choice of who shall govern us has substantially already been made by that small class of citizens who vote with their pocketbooks.

Second, in another plain error of law, the rulings in NAACP v. Jones and Georgia State Conf. of NAACP Branches v. Cox mistakenly stated that the discriminatory Jaybird primary was struck down in Terry v. Adams because that white primary was in fact the joint creation of the officers of the state and the private persons who ran the Jaybird primaries. By making this incorrect reading, the Georgia and California courts distinguished the unconstitutional Jaybird primary and the wealth primary on "state action" grounds. In support of this misreading of Terry v. Adams, the courts cited the solo concurrence of Justice Frankfurter, who assumed that "county election officials have participated in" the Jaybird meetings. None of the other eight justices agreed with Justice Frankfurter in this assumption. In fact, all the other Justices in Terry, as well as both of the lower federal courts that heard the case before it reached the U.S. Supreme Court, agreed that there was absolutely no involvement by the state or any of its officers in the operation of the Jaybird primary. Thus, Terry v. Adams, read correctly, stands for the proposition that the state cannot sanction and condone discrimination in the electoral process, even when that discrimination is instigated by entirely private parties.

Lastly, the decisions in NAACP v. Jones and Georgia State Conf. of NAACP Branches v. Cox erred by mischaracterizing the plaintiffs’ complaints as seeking to vindicate a "right to equal influence in the overall electoral process." This, too, is plainly incorrect. In challenging the wealth primary, NVRI seeks to have the courts recognize all citizens’ right to participate meaningfully in all critical aspects of the electoral process. In the area of campaign finance, this means that the state must provide, at least, a program of public financing that allows qualified low income candidates a minimally adequate opportunity to mount a viable campaign for office. Such a public financing program would not mandate "equal influence in the overall electoral process"; it would, instead, raise the floor of opportunity to a minimally adequate level which allowed persons to meaningfully participate in electoral competition.

In sum, no federal court has yet faced the evidence that demonstrates how the wealth primary operates as a barrier to meaningful political participation by low-income citizens. NVRI is committed to the long-term struggle to force the courts eventually to face the facts. It took three lawsuits over the span of four decades, and the persistent struggle of the Civil Rights Movement, to finally convince the U.S. Supreme Court that the poll tax was an unconstitutional burden on the voting rights of low-income citizens. While it may take time to persuade the courts about the wealth barrier to meaningful participation in modern United States elections, NVRI is confident that the wealth primary will one day be recognized as an unconstitutional threat to fundamental voting rights.

A Remedy for the Wealth Primary: Public Financing

Some might ask, if the influence of private money in elections cannot be tolerated, then how are candidates to run? Where does the money come from? In Bullock v. Carter, the State of Texas argued, among other things, that its system of high candidate filing fees was necessary in order to finance "the cost of conducting the primary elections." The State argued that if the fees were struck down, "the voters, as taxpayers, will ultimately be burdened with the expense of the primaries."

But Chief Justice Warren Burger, writing for the Court, stated that the primary is part of the democratic process and that "it seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all the voters in an attempt to distribute the influence without regard to wealth." Given the many functions that government pays for, Burger wrote, "it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern."

We can take guidance from the Court's ruling in Bullock. If the primary is part of the democratic process, so too is the electoral campaign, including all the fundraising, that leads up to the primary and the general election. We ought, then, to have democratically-financed elections, elections financed not by a wealthy elite but by all the people. Such a system, in which candidates received equal amounts of public financing for their campaigns, would end the wealth primary and open up the candidate selection process to all voters. The cost, at five to ten dollars per taxpayer, would be far less than the billions of dollars in legislative favors to campaign contributors — in the form of corporate subsidies and payoffs — for which taxpayers now foot the bill.

While the "wealth primary" is plainly inconsistent with the promise of Equal Protection of the Laws, as guaranteed by the Fourteenth Amendment to the Constitution of the United States, the federal judiciary has yet to recognize this potent form of de facto discrimination sanctioned by the state. A vibrant grass-roots movement has nonetheless taken shape to force reform legislatively at the state level. Four of the fifty states have adopted meaningful, voluntary public financing systems to allow otherwise qualified candidates to receive a minimally adequate level of campaign funding. The critical aspects of such public funding systems have been upheld by federal courts of appeal. While legislation has been proposed to provide for public funding of elections at the federal level and in other states, it remains dauntingly difficult to persuade incumbent legislators to reform a system from which they directly benefit.

NVRI is dedicated to working as an advisor and defender of the push in the states, and at the federal level, to enact meaningful public financing. NVRI will also continue to bring legal challenges to dismantle the wealth primary. If legislatures are unable to act to eradicate the wealth primary, then courts must vindicate the constitutional promise of political equality by striking down this pervasive threat to our democratic form of representative government.

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