Does Tennessee's requirement that each political party have a state primary board, with members elected from each senatorial district, violate the parties' First Amendment freedom of association?

Subject

Constitutionality of Laws Governing State Primary Boards

Plain-English summary

Tennessee law requires every political party to have a state primary board, also called the state executive committee, with one man and one woman elected by the party's voters from each state senatorial district to serve four-year terms. The board's statutory duties include hearing and deciding contested primary elections.

The question put to the AG was whether forcing political parties to have such a board, with that membership formula, infringes the parties' First Amendment right to freedom of association. The AG said no, drawing the analytical line between the two Supreme Court cases that frame this area: Marchioro v. Chaney (upholding a similar Washington statute) and Eu v. San Francisco County Democratic Central Committee (striking down a much more intrusive California scheme).

Tennessee's law, like Washington's, gives the board a limited set of public election-administration duties. It does not put the board "at the party's helm," does not regulate the party chair, does not regulate dues or meeting times, and does not assign core party functions like running campaigns. Any incidental burden on the party's internal governance therefore gets the lighter constitutional review reserved for "reasonable, nondiscriminatory restrictions," and the state's broad authority over election administration easily satisfies that review.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does a Tennessee state primary board actually do?

Under § 2-13-102 and § 2-17-104, the board functions as the party's election-administration body. Its core statutory job is to hear and decide primary-election contests, with authority to "make the disposition of the contest which justice and fairness require, including setting aside the election if necessary." Members are elected at the August primary before the gubernatorial election, with one man and one woman from each senatorial district serving four-year terms.

Why doesn't this violate the First Amendment?

Political parties have associational rights, but those rights have to be balanced against the state's interest in administering elections. The Supreme Court has held that "severe burdens" on party rights get strict scrutiny while "lesser burdens" get a more lenient form of review. The AG concluded Tennessee's statutes fall in the lighter category because they regulate only a narrow election-administration role, not the party's core internal decisions about leadership, message, or candidates.

What was different about California's scheme that got it struck down in Eu?

In Eu, California state law dictated the size and composition of party central committees, controlled how committee members were selected and removed, capped the chair's term, imposed geographic requirements on the chair, set the time and place of meetings, and limited dues. The committee was placed by statute "at the party's helm" and was required to perform core party functions like running campaigns. That level of state control over party organization triggered strict scrutiny and could not be justified.

What if a Tennessee party voluntarily gives the primary board more authority?

Marchioro answered this directly: when the party itself confers additional authority on a state-mandated committee, that does not transform the underlying statute into an unconstitutional burden. The constitutional analysis focuses on what the statute requires, not on what the party chooses to add.

Background and statutory framework

Tennessee, like most states, regulates party primary elections to ensure they are administered in an orderly and accountable way. Section 2-13-102 establishes the state primary board structure; § 2-13-103 sets the membership formula and election cadence; § 2-17-104(c) gives the board authority to resolve primary-election contests. These provisions have been part of Tennessee law for decades, and the U.S. Supreme Court actually cited the 1978 version of § 2-13-103 in Marchioro as a representative example of the kind of state law it was upholding.

The opinion's framing is straightforward. Severe burdens on association get strict scrutiny under cases like Eu and Timmons. Modest burdens get the Anderson/Burdick balancing approach, under which a state's "important regulatory interests" usually justify "reasonable, nondiscriminatory restrictions." Election administration, primary integrity, and the protection of voters and candidates against fraud are the kinds of interests that typically clear that bar. Because Tennessee's statutes do not dictate party leaders, govern internal party affairs, or push beyond the limited election-administration functions the Supreme Court approved in Marchioro, the AG concluded they do not infringe on First Amendment freedom of association.

Citations

• Tenn. Code Ann. §§ 2-13-102, 2-13-103, 2-17-104
• U.S. Const. amend. I, XIV
• Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214 (1989)
• Marchioro v. Chaney, 442 U.S. 191 (1979)
• Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)
• Wash. St. Grange v. Wash. St. Republican Party, 552 U.S. 442 (2008)
• Anderson v. Celebrezze, 460 U.S. 780 (1983)
• Clingman v. Beaver, 544 U.S. 581 (2005)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-11.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 30, 2019

Opinion No. 19-11

Constitutionality of Laws Governing State Primary Boards

Question
Do Tenn. Code Ann. §§ 2-13-102, 2-13-103, and 2-17-104, which require the establishment of a state primary board for each political party in Tennessee and give that board certain authorities, infringe on the political parties' First Amendment right to freedom of association?

Opinion
No.

ANALYSIS

Tennessee law requires each political party in the State to have "a state executive committee which shall be the state primary board for the party." Tenn. Code Ann. § 2-13-102(a). This primary board "shall perform the duties and exercise the powers" of the party under state law. Id. § 2-13-102(b). The members of the primary board must be "elected at the regular August primary election immediately before the election of the governor." Id. § 2-13-103(a). And in each primary, the party's "voters in each senatorial district shall elect one (1) man and one (1) woman as members" of the state primary board for a term of four years. Id. § 2-13-103(b). The primary board has the authority to, among other things, "hear and determine" a primary election contest and "make the disposition of the contest which justice and fairness require, including setting aside the election if necessary." Id. § 2-17-104(c).

It is "well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments [to the United States Constitution]." Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 229 (1989); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982) (noting the "importance of the freedom of association"). A political party's freedom of association includes the right "to identify the people who constitute the association," to "select a standard bearer who best represents the party's ideologies and preferences," and to make decisions about the "process for electing[] its leaders." Eu, 489 U.S. at 224, 229 (internal quotation marks omitted). This First Amendment right to freedom of association is incorporated against the States through the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

When challenged as unconstitutional, laws that "impos[e] severe burdens" on a political party's associational rights are subject to strict scrutiny and thus "must be narrowly tailored and advance a compelling state interest." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). But challenges to laws that impose "[l]esser burdens . . . trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Id. (internal quotation marks omitted).

Under these legal principles and the existing precedent discussed below it appears that Tenn. Code Ann. §§ 2-13-102, 2-13-103, and 2-17-104(c) do not impose a severe burden on Tennessee political parties' First Amendment right to association; any potential burden would merely be an "indirect consequence of laws necessary to the successful completion of a party's external responsibilities in ensuring the order and fairness of elections." Eu, 489 U.S. at 232. Because the laws impose only, at most, a "modest burden," Wash. St. Grange v. Wash. St. Republican Party, 552 U.S. 442, 452 (2008), they are subject to "less exacting review," Timmons, 520 U.S. at 358. And the State's "broad power" to regulate the election process is sufficient to satisfy that review. Wash. St. Grange, 552 U.S. at 451-52. "[T]he state's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions." Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also Clingman v. Beaver, 544 U.S. 581, 593 (2005) (noting the State's important regulatory interests are usually sufficient when "a state electoral provision places no heavy burden on associational rights").

The Supreme Court has upheld a Washington statutory scheme similar to Tennessee's. In Marchioro v. Chaney, 442 U.S. 191, 195-96 (1979), the Court recognized that "[t]he requirement that political parties form central or county committees composed of specified representatives from each district is common in the laws of the States," and that "[t]hese laws are part of broader election regulations that recognize the critical role played by political parties in the process of selecting and electing candidates for state and national office." In fact, in a footnote collecting representative state laws, the Court specifically cited the 1978 version of Tenn. Code Ann. § 2-13-103, which has not been amended since that time. Id. at 195 fn. 11 (citing Tenn. Code Ann. § 2-1304 (Supp. 1978)). Even though the committee required to be established in Marchioro did, in practice, "play a significant role in internal party affairs," the Court nevertheless upheld the law, finding that those activities were not "required by statute to be performed by the Committee." Id. at 198. "[A]ll of the 'internal party decisions,'" that the challengers claimed "should not be made by a statutorily composed Committee" were made "not because of anything in the statute, but because of delegations of authority" from the party itself. Id. at 198-99. "Nothing in the statute required the party to authorize such decisionmaking by the Committee." Id. at 199.

Ten years later in Eu, the Supreme Court struck down California laws that created and regulated the state central committees of political parties. Eu, 419 U.S. at 216-19. But, as Eu itself pointed out, the California statutory scheme was materially different from the Washington scheme upheld in Marchioro. Eu, 489 U.S. at 232 n.22. The statute at issue in Marchioro had "only required that the state central committee perform certain limited functions such as filling vacancies on the party ticket, nominating Presidential electors and delegates to national conventions, and calling state-wide conventions." Id. In Marchioro, then, "the Democratic Party, not the State, had assigned" to the party committee "significant responsibilities in administering the party, raising and distributing funds to candidates, conducting campaigns, and setting party policy." Id. By contrast, in Eu, the California law itself "place[d] the state central committees at a party's helm" and required that committee to perform certain core party functions, such as "conducting the party's campaigns." Id.

The laws at issue in Eu "dictate[d] the size and composition of the state central committees; set forth rules governing the selection and removal of committee members; fix[ed] the maximum term of office for the chair of the state central committee"; contained geographical requirements for the chair of the committee; "specif[ied] the time and place of committee meetings; and limit[ed] the dues parties may impose on members." Id. at 218-19. Because these restrictions each "limit[ed] a political party's discretion in how to organize itself, conduct its affairs, and select its leaders," Eu held the laws were presumptively unconstitutional and put the burden on California to show they were narrowly tailored to a compelling governmental interest, a burden California could not satisfy. Id. at 230-33.

The Tennessee laws governing the establishment of primary boards are more similar to the laws at issue in Marchioro than to the laws at issue in Eu, and, accordingly, do not infringe on the First Amendment right of association of political parties. Section 2-13-103 does dictate, to a limited extent, the "composition" of a party's state primary board, the terms of service, and "geographical requirements." See Eu, 419 U.S. at 218. It requires voters in each senatorial district to elect one man and one woman to serve four-year terms. Tenn. Code Ann. § 2-13-103(b). But these requirements, much less extensive than those at issue in Eu, are imposed on a state primary board that, like the committee at issue in Marchioro, is required by state law to perform only limited functions. Indeed, the law that the Court upheld in Marchioro imposed similar requirements. See Marchioro, 442 U.S. at 192 n.1 (noting the Washington law required the state committee to consist of one man and one woman from each county).

If a political party decides to grant its state primary board additional authority to govern core party functions, that choice does not render the State's regulation of the primary board unduly burdensome under the First Amendment. See Marchioro, 442 U.S. at 199 ("There can be no complaint that the party's right to govern itself has been substantially burdened by statute when the source of the complaint is the party's own decision to confer critical authority on the State Committee."). As Eu explained, the California laws regulating the party committees at issue there were subject to strict scrutiny only because state law "place[d]" the committee at the "party's helm" and assigned it responsibility for core party functions such as "conducting the party's campaigns." 489 U.S. at 232 n.22. By contrast, Tennessee law, like the law at issue in Marchioro, assigns state primary boards limited responsibilities related to ensuring fair, timely, and honest elections, such as hearing and resolving primary election contests. See Tenn. Code Ann. § 2-17-104(c). Accordingly, unlike the provisions at issue in Eu, the requirements imposed on state primary boards by Tenn. Code Ann. § 2-12-103 do not constitute "direct regulation of a party's leaders" or "regulation of internal party governance," Eu, 489 U.S. at 231-32, nor does Tennessee law require that the state primary board be the party's "leaders" or that it "govern" the party's protected activities, id. at 230. Each party makes that choice.

In sum, in light of applicable legal principles and guidance provided by the United States Supreme Court in Marchioro and Eu, Tennessee's election laws governing state primary boards do not infringe on political parties' First Amendment rights to association.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Jason L. Powell
State Representative
418 Cordell Hull Bldg.
Nashville, TN 37243