Morse v. Republican Party of Va., 517 U.S. 186, 54 (1996)

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Cite as: 517 U. S. 186 (1996)

Breyer, J., concurring in judgment

I would note, moreover, that the lower courts have applied § 5 only to a small subcategory of party rules. See Hawthorne v. Baker, 750 F. Supp. 1090, 1094-1095 (MD Ala. 1990) (three-judge court), vacated as moot, 499 U. S. 933 (1991); Fortune v. Kings County Democratic County Committee, 598 F. Supp. 761, 764-765 (EDNY 1984) (three-judge court) (per curiam); MacGuire v. Amos, 343 F. Supp. 119, 121 (MD Ala. 1972) (three-judge court) (per curiam).

While these limitations exclude much party activity—including much that takes place at an assembly of its members—I recognize that some of the First Amendment concerns raised by the dissents may render these limits yet more restrictive in the case of party conventions. But the practice challenged here—the fee—lies within the Act, and well outside the area of greatest "associational" concern. Like the more obviously evasive "all-white" devices, it is of a kind that is the subject of a specific constitutional Amendment. U. S. Const., Amdt. 24, § 1 (banning poll tax).

We go no further in this case because, as the dissents indicate, First Amendment questions about the extent to which the Federal Government, through preclearance procedures, can regulate the workings of a political party convention, are difficult ones, see, e. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 (1989), as are those about the limits imposed by the state-action cases. See Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991). Those questions, however, are properly left for a case that squarely presents them.

Such questions, we are satisfied, are not so difficult as to warrant interpreting this Act as containing a loophole that Congress could not have intended to create. See, e. g., Terry v. Adams, 345 U. S. 461 (1953); Smith v. Allwright, 321 U. S. 649 (1944). See also Eu, supra, at 232 (recognizing that the First Amendment, while guaranteeing associational rights, does not bar "intervention . . . necessary to prevent the dero-

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