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Abstract

The recent decision of the Supreme Court declaring durational residency requirements for voting in general elections unconstitutional has raised the analogous question of the constitutionality of state-imposed durational party affiliation requirements for voting in primary elections. These requirements base a voter's eligibility to participate in a primary not solely on his affiliation with the party, but also on the additional requirement that the party affiliation has extended over a period prior to the primary. This additional requirement has recently been successfully attacked in several states as violative of the First and Fourteenth Amendments to the Constitution. However, New York's statutory system which requires a primary voter to have enrolled for the primary and to have stated his affiliation prior to the general election preceding the primary in which he wishes to vote, has been upheld in part by the Second Circuit in Rosario v. Rockefeller. The statute there was held to be minimally infringing on First and Fourteenth amendment rights, while it effectively furthered the state's compelling interest in preventing "raiding," and thus protected political parties from fraudulent candidacies. Voting and free association for the advancement of political beliefs have been given strong constitutional protection under the First and Fourteenth amendments, and have been characterized as "fundamental rights." The Supreme Court has repeatedly reaffirmed that such rights cannot be restricted unless "the purpose of the restriction and the assertedly overriding interests served by it [have met and passed] close constitutional scrutiny." Thus, the test of any statute "granting the franchise to residents on a selective basis" has been measured by the doctrine of compelling state interest, which was the standard applied in Rosario in upholding the constitutionality of the durational party affiliation statute.

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