Timmons v. Twin Cities Area New Party 520 U.S. 351 (1997)

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Beginning with Williams v. Rhodes (1968), the Supreme Court rebuffed attempts by state legislatures to justify ballot access restrictions or other election laws favoring the Democratic and Republican parties on grounds that such laws favored the "two-party system." Though the Williams Court did not reject the idea that a state in theory could defend an election law on these grounds, the Court struck down Ohio's ballot access law because it favored "two particular parties—the Republicans and the Democrats—and in effect tends to give them a complete monopoly."

The 6–3 Timmons decision, in which the Court for the first time accepted the two-party rationale, suggests a major shift in favor of allowing state legislatures to protect the Democratic and Republican parties. The Twin Cities Area New Party, a minor political party, wished to nominate Andy Dawkins as its candidate for state representative in the Minnesota legislature. Dawkins was already the candidate of the Democratic Party (known in Minnesota as the Democratic–Farmer–Labor Party, or DFL). Though neither Dawkins nor the DFL objected to this multiple-party or "fusion" candidacy, Minnesota officials refused to accept the New Party's nominating petitions because Minnesota law prohibits fusion. A majority of states similarly ban fusion, though a few states, most notably New York, allow the practice.

The New Party challenged Minnesota's antifusion law as unconstitutional under the first and fourteenth amendments. The Court, in an opinion by Chief Justice william h. rehnquist, upheld the law's constitutionality. In ballot access and similar election law cases, the Court does not use a single level of scrutiny (or "litmus-paper test") to judge a challenged law's constitutionality. Instead, the Court calibrates the scrutiny to the severity of the law's burden on First Amendment rights; the greater the burden, the higher the scrutiny. The Timmons majority first held that the burden on the New Party was not severe, though it recognized that the law slightly burdened the party by reducing the universe of potential party nominees and by limiting the ability of the party to send a message to voters and to its preferred candidates through its nomination process.

Nonetheless, the Court held that three "sufficiently weighty" state interests justified the burden. First, the fusion ban prevented parties from joining with sham parties with popular catch phrases, like the "No New Taxes" party. Second, the ban prevented a minor party from capitalizing on the popularity of another party's candidate, rather than its own appeal to the voters, in order to secure access to the ballot. Finally, the Court agreed that states "have a strong interest in the stability of their political systems" and therefore they may "enact reasonable regulations that may, in practice, favor the traditional two-party system."

The first two reasons hardly seem "sufficiently weighty" to overcome even a minor burden on the New Party's First Amendment rights. As for the first interest, reasonable ballot access laws can prevent the formation of sham parties, and the Court expressly denied it was concerned about voter confusion. The second argument ignores the ability of the state to list candidates on the ballots once under each party and then count only the votes cast for the candidate under the minor party label to meet that minor party's future ballot access requirements. This leaves the state's interest in promoting the two-party system, which the Court stated "temper[s] the destabilizing effects of party-splintering and excessive factionalism."

Unfortunately, the Timmons majority failed to examine with care the propositions that the two-party system deserves or needs the Court's protection. Proponents of a strong two-party system have argued that it promotes political stability, decreases interest-group politics, and provides a valuable voting cue to busy voters. But these proponents have not been able to demonstrate that the existence of only two major political parties actually promotes stability or decreases factionalism; and increasing the number of parties may enhance the voting cue by increasing the salience of differences among parties and candidates. Moreover, even if the two-party system is a valuable institution, the Court need not uphold antifusion and similar laws in order to preserve it; instead, the predominant first-past-the-post, single-member district voting mechanism appears to drive a political system with only two viable political parties.

Three Justices dissented in Timmons. Justice john paul stevens, for himself and Justice ruth bader ginsburg, found the risk to political stability engendered by fusion politics "speculative at best," but Justice david h. souter rejected the two-party system argument only on the ground that the state had failed to raise it.

Given the lack of evidence that the two-party system deserves or needs protection, and given the agency problem that stems from having these laws passed by legislatures made up almost exclusively of Democrats and Republicans, the Court should be wary of such flimsy justifications for infringing First Amendment rights.

Richard L. Hasen

(see also: Political Parties and the Constitution.)


Argersinger, Peter H. 1980 "A Place on the Ballot": Fusion Politics and Antifusion Laws. American Historical Review 85: 287–306.

Hasen, Richard L. 1998 Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition. Supreme Court Review 1997:331–371.

Issacharoff, Samuel and Pildes, Richard H. 1998 Politics as Markets: Partisan Lockups of the Democratic Process. Stanford Law Review 50:643–717.