SUPREME COURT OF THE UNITED STATES

No. 95–1608

MICHELE L. TIMMONS, ACTING DIRECTOR, RAMSEY COUNTY DEPARTMENT OF PROPERTY RECORDS AND REVENUE, et al.,

PETITIONERS v. TWIN CITIES

AREA NEW PARTY

on writ of certiorari to the united states court of appeals for the eighth circuit

[April 28, 1997]

Justice Souter, dissenting.

I join parts I and II of Justice Stevens's dissent, agreeing as I do that none of the concerns advanced by the State suffices to justify the burden of the challenged statutes on petitioners' First Amendment interests. I also agree with Justice Stevens's view, set out in the first paragraph of Part III, that the State does not assert the interest in preserving "the traditional two-party system" upon which the majority repeatedly relies in upholding Minnosota's statutes, see, e.g., ante, at 15 ("The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system"). Actually, Minnesota's statement of the "important regulatory concerns advanced by the State's ban on ballot fusion," Brief for Petitioners 40, contains no reference whatsoever to the "two-party system," nor even any explicit reference to "political stability" generally. See id., at 40–50.

To be sure, the State does assert its intention to prevent "party splintering," id., at 46–50, which may not be separable in the abstract from a desire to preserve political stability. But in fact the State has less comprehensive concerns; the primary dangers posed by what it calls "major-party splintering and factionalism," id., at 47, are said to be those of "turn[ing] the general election ballot into a forum for venting intraparty squabbles," ibid., and reducing elections to "a thinly disguised ballot-issue campaign," id., at 49. Nowhere does the State even intimate that the splintering it wishes to avert might cause or hasten the demise of the two-party system. In these circumstances, neither the State's point about "splintering," nor its tentative reference to "political stability" at oral argument, n. 1, supra, may fairly be assimilated to the interest posited by the Court of preserving the "two-party system." Accordingly, because I agree with Justice Stevens, ante, at 9, that our election cases restrict our consideration to "the precise interests put forward by the State as justifications for the burden imposed by its rule," Anderson v. Celebrezze, 460 U. S. 780, 789 (1983), I would judge the challenged statutes only on the interests the State has raised in their defense and would hold them unconstitutional.

I am, however, unwilling to go the further distance of considering and rejecting the majority's "preservation of the two-party system" rationale. For while Minnesota has made no such argument before us, I cannot discount the possibility of a forceful one. There is considerable consensus that party loyalty among American voters has declined significantly in the past four decades, see, e.g., W. Crotty, American Parties in Decline 26–34 (2d ed. 1984); Jensen, The Last Party System: Decay of Consensus, 1932–1980, in The Evolution of American Electoral Systems 219–225, (P. Kleppner et al. eds. 1981), and that the overall influence of the parties in the political process has decreased considerably, see, e.g., Cutler, Party Government Under the American Constitution, 134 U. Penn. L. Rev. 25 (1987); Sundquist, Party Decay and the Capacity to Govern, in The Future of American Political Parties: The Challenge of Governance 42–69 (J. Fleishman ed. 1982). In the wake of such studies, it may not be unreasonable to infer that the two-party system is in some jeopardy. See, e.g., Lowi, N. Y. Times Aug. 23, 1992, Magazine, p. 28 ("[H]istorians will undoubtably focus on 1992 as the beginning of the end of America's two-party system").

Surely the majority is right that States "have a strong interest in the stability of their political systems," ante, at 15, that is, in preserving a political system capable of governing effectively. If it could be shown that the disappearance of the two-party system would undermine that interest, and that permitting fusion candidacies poses a substantial threat to the two-party scheme, there might well be a sufficient predicate for recognizing the constitutionality of the state action presented by this case. Right now, however, no State has attempted even to make this argument, and I would therefore leave its consideration for another day.