Tom Delay, Robert Torricelli, and Political Party Maneuvering: Why the First Amendment Associational Rights of Political Parties Should Be Extended to Include Candidate Replacement

This Comment analyzes whether the First Amendment associational rights of the major political parties should include candidate replacement and argues that the rights of parties to define who votes in the primary logically should be extended to include a right to replace candidates on the ballot after a withdrawal. Based on the more recent Supreme Court cases finding greater freedom of association for political parties, this Comment will focus on the 2002 replacement of Robert Torricelli in the New Jersey U.S. Senate election and the 2006 failure to replace Tom DeLay in the Texas 22nd Congressional District U.S. House of Representatives election. Although Torricelli and DeLay withdrew under similar circumstances, the courts came to markedly different results, showing the unequal impact of the different candidate replacement laws and their effect on elections for federal office.19 This Comment recommends a federal standard that will ensure political parties retain their First Amendment associational rights, while still allowing the states to efficiently manage the election process. Part I.A of this Comment traces the Supreme Court’s jurisprudence on the associational rights of political parties from the restrictive White Primary Cases to the more recent trend of greater associational freedoms. Part I.B discusses the different state candidate replacement laws and illustrates their disparate effect on the ability of political parties to replace withdrawn candidates through discussion of the Torricelli and DeLay withdrawals. Part II.A analyzes the associational rights of political parties in the context of the candidate replacement process, and argues that political parties should have broad powers to replace withdrawn candidates. Finally, Part II.B of this Comment recommends a national standard for candidate replacement in federal elections that is narrowly tailored and preserves the associational freedoms of the political parties