Foster v. Love
Did Louisiana's open primary system, which could result in the final election of a federal candidate in October before the congressionally mandated Election Day in November, violate federal statutes setting a uniform date for congressional elections?
The Decision
9-0 decision · Opinion by David H. Souter · 1997
Majority Opinion— David H. Souterconcurring ↓
The Supreme Court ruled unanimously, 9–0, in favor of the petitioners (the Louisiana voters), reversing the Fifth Circuit. The opinion was written by Justice David H. Souter. The Court held that Louisiana's open primary system violated federal law whenever it resulted in the final election of a congressional candidate before the federally mandated Election Day in November.
The Court's reasoning focused on the plain meaning of the federal statutes. Congress had exercised its constitutional authority under Article I, Section 4 — the Elections Clause — to set a uniform day for choosing members of Congress. Sections 1 and 7 of Title 2 of the U.S. Code specified that the election of Senators and Representatives must take place on the Tuesday after the first Monday in November. The Court found that when Louisiana's open primary conclusively chose a winner in October, it was functionally an 'election' in every meaningful sense of the word. The seat was filled, the race was over, and voters had no opportunity to cast a ballot on the date Congress had designated.
Justice Souter emphasized that the critical question was not what a state called its voting process, but what the process actually accomplished. A contest that selects a federal officeholder with finality is an election, regardless of the label a state attaches to it. Because Louisiana's system could and regularly did produce final winners before November, it directly conflicted with federal law, and under the Supremacy Clause the federal statute had to prevail.
Importantly, the Court drew a careful line: it was not ruling that states could not hold primaries or other preliminary votes before Election Day. The holding applied specifically to situations where the state's pre-November voting process was the conclusive, determinative event that filled the office. The decision left open the possibility that Louisiana could restructure its system to comply — for example, by requiring that any final, decisive vote occur on the November date set by Congress.
Concurring Opinions
Justice Anthony Kennedy, joined by Chief Justice William Rehnquist, wrote a concurrence agreeing with the result but suggesting a broader principle: that the federal Election Day statutes might require all voting for federal candidates — including the initial round of an open primary — to occur on the designated day, not just the final determinative election. This broader reading was not adopted by the full Court, which decided the case on the narrower ground that the conclusive selection of a winner before Election Day was what violated federal law.
Background & Facts
Louisiana operated an unusual election system often called a 'jungle primary' or open primary. Under this system, all candidates for a congressional seat — regardless of party — ran on a single ballot in October. If any candidate received more than 50 percent of the vote in that October contest, that candidate was declared the winner and was elected to office right then and there. A November runoff election only took place if no candidate won a majority in October. The practical effect was that in many Louisiana congressional races, the winner was determined weeks before the rest of the country voted on the traditional Election Day — the Tuesday after the first Monday in November.
A group of Louisiana voters filed a lawsuit challenging this system. They argued that federal law — specifically 2 U.S.C. §§ 1 and 7 — required that the election of Senators and Representatives take place on a single, uniform day set by Congress, and that Louisiana's system violated that requirement whenever it conclusively elected someone in October.
The federal district court ruled against the voters, finding that Louisiana's October contest was merely a 'primary,' not an 'election,' and therefore did not conflict with the federal Election Day statute. The U.S. Court of Appeals for the Fifth Circuit affirmed that decision, agreeing that the open primary was not the kind of 'election' that Congress meant to regulate when it set a uniform Election Day.
The Supreme Court agreed to hear the case to resolve whether Louisiana's system, which could determine the final outcome of federal races before the nationally designated Election Day, conflicted with federal law. The question had obvious national importance: if states could effectively hold binding federal elections on different dates, the whole purpose of a uniform Election Day could be undermined.
The Arguments
Louisiana voters argued that federal law mandates a single, uniform Election Day for choosing members of Congress, and that Louisiana's open primary system violated that mandate whenever it resulted in the final election of a candidate in October — weeks before the rest of the nation voted in November.
- Federal statutes (2 U.S.C. §§ 1 and 7) explicitly set the Tuesday after the first Monday in November as the day for electing Senators and Representatives, reflecting Congress's clear intent to establish a uniform national Election Day.
- When a Louisiana candidate won a majority in the October open primary, that contest was the functional equivalent of a final election, not merely a preliminary step — the seat was filled and no November vote occurred.
- Congress's constitutional authority under Article I, Section 4 to set the 'Times, Places and Manner' of federal elections means that conflicting state procedures must yield under the Supremacy Clause.
Louisiana state officials argued that the October open primary was just that — a primary, not an election — and that federal Election Day statutes did not prevent states from conducting preliminary rounds of voting before November.
- Louisiana's October contest was structured and labeled as a primary election, and states have traditionally had broad discretion to design their own primary systems without federal interference.
- The federal statutes setting Election Day should be read narrowly to apply only to the final general election, and Louisiana did hold a runoff on the federal Election Day when no candidate secured a majority.
- Striking down Louisiana's system would intrude on the state's sovereign power to structure its own electoral processes.