268
Thomas, J., dissenting
(emphasis added). In this case, the Party played no role in determining the participants in an election—whether primary, general, or special—but required persons who wished to attend its convention to pay a fee.
But, even assuming that the reasoning of Smith applies to conventions as well as actual elections, there is still insufficient state regulation in this case to find that "the party . . . [is] an agency of the State." Ibid. In Smith, the party was compelled by statute to hold a primary and was subject to myriad laws governing the primary from start to finish. See id., at 653, n. 6, 662-663. By comparison, the amount and burden of the state regulation in this case pale. Appellants point to only two provisions of the Virginia Code that directly regulate nominating conventions. Section 24.2-510 imposes certain deadlines for the nomination of candidates by methods other than a primary. Va. Code. Ann. § 24.2-510 (1993). And once a candidate is selected, § 24.2-511 requires that the party chairman certify the candidate to the State Board of Elections. Ibid. While § 24.2-509 permits parties to choose their own method of nomination, it is a purely permissive, not a mandatory, provision; the party is not "required to follow [this] legislative directio[n]." Smith v. Allwright, 321 U. S., at 663. There exists no "statutory system for the selection of party nominees for inclusion on the general election ballot," ibid.; there are only a few relatively minor statutory requirements. In other words, when the party holds its convention to select a candidate, it is party, not state, machinery that is put in gear. Cf. United States v. Classic, 313 U. S. 299, 318 (1941).10
10 While Justice Stevens believes that the decision in Smith did not depend at all upon state regulation of primaries, ante, at 199-200, and n. 17, Smith is by its terms premised upon the existence of a "statutory system." See Smith v. Allwright, 321 U. S. 649, 662-664 (1944) (detailing state law relating to primaries and concluding that the "statutory system" in Texas for the selection of party nominees "makes the party which is required to follow these legislative directions an agency of the State"). See also Terry v. Adams, 345 U. S. 461, 462 (1953) ("While no state law directed [the] exclusion [of blacks from the party's primary], our decision
Page: Index Previous 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 NextLast modified: October 4, 2007