ACLJ Represents OKGOP Again, Challenging Legal Measure Aimed at Stripping Political Parties' First Amendment Rights of Association in Choosing Their Candidates

For years, the ACLJ has engaged in election law cases – from representing parties to filing amicus briefs – across the nation, including at the U.S. Supreme Court. The First Amendment provides critical protections for speech and expression, and this certainly includes the right of political association.

That right is under attack again. So today, on behalf of our clients, the Oklahoma Republican Party (OKGOP) and an Oklahoma voter, and working with our local counsel, Trevor Pemberton, we just filed a legal action at the Supreme Court of Oklahoma, challenging a measure that would violate the First Amendment rights of political parties and their members across the state. 

The case law is clear: The First Amendment protects the rights of association of political parties. As we argued in our brief: “‘Unsurprisingly,’ the Supreme Court’s ‘cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer.’” Brief, at 6 (quoting California Democratic Party v. Jones, 530 U.S. 567, 575 (2000). While a state may impose certain types of rules and regulations concerning how a political party places its candidates on the ballot, it cannot impose rules that coerce a political party to associate (or disassociate) with a candidate against its will.

Whether based on First Amendment free speech and association, Fourteenth Amendment Equal Protection, or even a misuse of the Fourteenth Amendment’s “Disqualification Clause,” the ACLJ has taken these constitutional battles head-on. We represented the Colorado Republican Party from the trial court all the way to the U.S. Supreme Court in the landmark Trump v.Andersoncase, ensuring President Trump could not be barred from the ballot by biased state officials. We also represented multiple state Republican Parties in related cases aimed at blocking President Trump from ballots across the country, including Oklahoma. We recently represented Nevada’s Green Party in an effort to persuade the U.S. Supreme Court to protect its rights to put its candidate on the Nevada ballot. We’ve filed multiple amicus briefs (you can see some recent ones here), even going back to the pivotal Bush v. Gore case in 2001.

A common theme in these cases is voter choice – and a critical aspect of that is political parties’ and Americans’ ability to communicate their values with and to choose and present their candidates to voters, to associate freely in furtherance of those values and candidates, and to place their candidates on the ballot free of unlawful manipulation by adversaries. Unfortunately, election lawfare continues, and we must remain vigilant.

The measure we just challenged is Initiative Petition 448/State Question 836 (IP 448). As in many other states, citizens in Oklahoma may utilize the initiative petition process (often referred to elsewhere as a referendum) to propose new laws or amendments to the Oklahoma Constitution. In this case, the measure’s proponents filed a proposed initiative petition that would, essentially, strip from the state’s political parties the ability to ensure candidates running under the party’s name are, in fact, bona fide adherents to that party’s platform, meet that party’s requirements, and have followed that party’s rules in the process.

That’s a big deal – and a major game changer. It would shut down one of a political party’s most fundamental roles and First Amendment-protected rights: choosing their candidates to carry their banner to the voters. While its proponents included a “disclaimer,” it doesn’t fix the problem. It clarifies nothing, creates additional confusion, and still prevents the political party from conveying to the voter, on the ballot, whether that candidate claiming its affiliation is one of that party’s legitimate candidates.

We point out in our brief that, according to the U.S. Supreme Court, “[a] political party’s candidate is its ‘ambassador to the general electorate in winning it over to the party’s views.’ Jones, 530 U.S. at 575.” As we argue in our brief, “A political party’s programs and policies for governance may only be implemented by electing candidates who adhere to its principles and programs. If it cannot select its own candidates, it cannot properly exist.” As we explained, though,

under IP 448, any candidate could identify with any party, regardless of that party’s values or beliefs: a candidate need only have a “registration” for the ballot to “state, next to the candidate’s name, each candidate’s political party registration or independent status.” IP 448, Sec. 4(B); (App. A-4). And, “[a] candidate does not need to seek or gain approval of the political party to have the candidate’s registration with that party reflected on the ballot”– even in a general election. Id. In sum, any voter can vote for any candidate, and the candidate can indicate their affiliation with any party.

We also argued that

[t]he inclusion of a disclaimer, that “[e]very ballot shall contain a statement informing voters that a candidate’s indicated party registration does not imply that the candidate is nominated or endorsed by the political party or that the party approves of or associates with that candidate,” id., fails to cure the petition’s illness, and instead, diagnoses it.

The disclaimer

adds no clarity. It highlights, without remedying, the confusion of the system and the loss of all associational rights in meaningfully presenting its candidates to the voters. Thus, in addition to IP 448 forcing party association with a candidate invoking its name while not duly affiliated with or endorsed by the political party, its disclaimer also prevents the political party from expressing on the ballot that its bona fide, duly affiliated candidates are in fact, duly associated.

While courts have allowed primary systems that are truly “open,” as well as those allowing candidates to indicate their preferred political party on a ballot, IP 448 goes way beyond that. Instead, it mandates that the candidate may place their actual registration with that party on the ballot. This is compelled association. That crosses the line and, again, the intentionally confusing “disclaimer” actually violates the party’s rights, conversely preventing it from clearly indicating to the voter that it, in fact, endorses a particular candidate. As we emphasized in our brief: “Curtailing these rights at the ballot box ‘limits the Party’s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action.’” Brief at 7 (quoting Tashjian v. Republican Party, 479 U.S. 208, 216 (1986)).

While billed as a measure implementing a so-called “open” primary system in Oklahoma, that’s not what it does. Instead, it creates what precedent defines as a partisan blanket primary. No matter the label, the case law does not look favorably at laws forcing political parties, which are merely associations of like-minded Americans joining together to advance their values, to associate with candidates (and prevent association with their legitimate party candidates) in this manner.

It boils down to this: Under IP 448, if a candidate had registered with a party on the date their candidacy paperwork is filed, that party’s name goes right next to the candidate’s name on the primary ballot (and ultimately the general election ballot) – whether that party wants it to or not. This is wrong and is nothing more than an effort to accomplish something that apparently cannot be accomplished in the free market of ideas with free speech without changing the rules of the game.

As we said in our filing:

IP 448 raises material questions: What is a political party if it cannot choose candidates embodying its values and present them to the public? Why should a candidate, who merely registers as a member of a party by the filing deadlines, be able to capitalize on that party’s name without its consent? And why may a candidate place a party’s name next to their own on a ballot if a disclaimer is required stating that party’s name may or may not indicate alignment with the party?

These questions point to one conclusion: IP 448 is unconstitutional. It severely burdens political parties’ associational rights protected by the First Amendment and cannot be justified by any compelling governmental interest.

To save time and expense, the applicable law allows Oklahomans to challenge initiative petitions like IP 448, which clearly and manifestly violate the Constitution before they are even presented to the people for a vote. We also raised some procedural challenges, highlighting that the summaries included as part of IP 448 (referred to as the suggested ballot title and gist) are insufficient and misleading.

According to ACLJ Executive Director Jordan Sekulow:

Lawfare via ballot and election law manipulation is nothing new, and it is relentless. The stakes are high. Whether it’s protections for voter choice and ballot access or, like here, a political party’s ability to express its views and associate with the candidates of its choice, the Constitution and, specifically, the First Amendment in particular, remains the cornerstone. We’re thrilled to stand with the OKGOP again as it defends its critical constitutional rights, and those of its members, in court.

Oklahoma State Senator Nathan Dahm, who chairs the OKGOP, had this to say:

The OKGOP is committed to protecting people’s right to freedom of association. We’re adjudicating this before the court to ensure these groups can’t force our elections to turn into the failed California model. We as Republicans welcome anyone to join our party who agrees with our ideals, yet we won’t stand idly by as others attempt to infiltrate and force their views upon us and all the voters of Oklahoma. We’re grateful the ACLJ is standing with us in this important constitutional battle to protect the First Amendment and our ability to associate freely here in Oklahoma and present our values through our candidates to Oklahomans.

We’ll keep you informed as this important case moves forward. As we’ve seen clearly in the past few years across the nation, seemingly small battles over election laws that occur between elections when fewer people are typically paying attention are where the rules of the game are set – well before the summer primary and November general elections. Stand with us now and make your voice heard in these critical battles. We can’t do it without you.