author: ENSLEN, District Judge.

text:
    Cindy J. VERMEULEN, on behalf of herself, her children and all others similarly situated, Plaintiff, v. Noble KHEDER, Acting Director of the Michigan Department of Social Services and Richard Schweiker, Secretary of Health and Human Services, Defendants.
    No. K 82-135.
    United States District Court, W.D. Michigan, S.D.
    Dec. 5, 1984.

      Edward Hoort, Detroit, Mich., Richard Kupferschmidt, Kalamazoo, Mich., for plaintiff.
    Martin Palus, Asst. U.S. Atty., Grand Rapids, Mich., Wendy Kloner, U.S. Dept, of Justice, Washington, D.C., William Basing-er, Asst. Atty. Gen., Lansing, Mich., for defendants.
   OPINION

ENSLEN, District Judge.

This case presents a challenge to the “lump sum rule” whereby recipients of Aid to Families with Dependent Children benefits are denied eligibility if they acquire non-recurring lump sums. 42 U.S.C. § 602(a)(17); 45 CFR 233.20(a)(3)(ii)(D) (1982). The lawsuit was filed by a destitute mother, Cindy Vermeulen, and a welfare rights group, the Michigan Welfare Rights Organization. The Court previously granted Plaintiffs Motion for a Preliminary Injunction enjoining the Defendant officials from applying the lump sum rule to Ms. Vermeulen pending the outcome of this litigation. In a Memorandum Opinion, the Court denied Plaintiffs Motion for Class Certification and dismissed the welfare rights group as a party. The case is now before the Court on the parties’ cross Motions for Summary Judgment.

The Complaint framed by Plaintiff contains five counts. (1) That the lump sum rule as administered violates the purpose of the Social Security Act and violates the statutory method of determining need, 42 U.S.C. § 602(a)(7), by treating unavailable finances as available; and (2) that the Defendants violate the legislative intent of Congress in applying the lump sum rule to those without earned income; and (3) that the Defendants’ administration of the lump sum rule violates the due process clause of the Fifth and Fourteenth Amendments because it punishes persons for the acts of others by holding households responsible for money that has been lost, squandered, or stolen by others; and (4) that the administration of the rule by the Defendants violates the due process clauses of the Fifth and Fourteenth Amendments by establishing an irrebuttable presumption of availability of finances, regardless of actual availability; and (5) that the administration of the rule by the Defendants violates the equal protection clauses of the Fifth and Fourteenth Amendments by distinguishing between those persons who have applied for benefits and those who have not applied for benefits at the time the lump sum is dissipated.

I. Plaintiffs Constitutional Claims

The constitutional claims raised by Plaintiff appear to have little merit ab initio. The equal protection claim likely would run afoul of the judiciary’s general aversion to finding equal protection violations in the setting of economic legislation. See, Dandridge v. Williams, 397 U.S. 471, 495, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Legislative regulation of AFDC expenditures is well within the constitutional Article I power of Congress. Walker v. Adams, 741 F.2d 116, 119-20 (CA6 1984). Though all such legislation must be rationally related to legitimate governmental interests, the allocation of scarce resources to the most needy is rational. Sweeney v. Affleck, 560 F.Supp. 1118, 1125 (DC R.I. 1983), rev’d sub. nom., Sweeney v. Murray, 732 F.2d 1022 (CA1 1984).

Plaintiff’s due process claims are directed at the legislation, per se, and not at the procedure by which the welfare agency applies the rules, so are not related to the analysis of Goldberg v. Kelley, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Again, minimal scrutiny would indicate the constitutionality of the legislation. See, e.g., Walker v. Adams, supra at 120.

Finally, the courts are instructed to avoid reaching constitutional issues where there exists a sound statutory basis on which to decide the controversy. Wolston v. Read ers Digest Association, Inc., 443 U.S. 157, 160-161, fn. 2, 99 S.Ct. 2701, 2703, fn. 2, 61 L.Ed.2d 450 (1979). In this case, resolution based on statutory analysis is appropriate and closer inquiry into the constitutional issues is unwarranted.

II. Plaintiffs Earned Income Argument

. The lump sum rule, 42 U.S.C. § 602(a)(17), was enacted as § 2304 óf the Omnibus Budget Reconciliation Act of 1981 (OBRA), and was implemented pursuant to 45 CFR 233.20(a)(3)(ii)(D) (1982). Prior to the enactment of the lump sum rule, an AFDC recipient’s lump sum windfall was counted as income in determining his or her need only in the month it was received, and in subsequent months if the sum were actually available. Once the sum was expended, agency officials did not offset AFDC payments by the lump sum amount.

Congress enacted the lump sum rule in order both to promote responsible budgeting by AFDC recipients who received lump sum windfalls, and to reduce AFDC disbursements. Walker v. Adams, supra, at 120; Sweeney v. Murray, supra at 1027. Under the new rule, once the AFDC family receives the lump sum, it must budget to stretch the sum over a number of months computed by dividing the family’s standard of need into the lump sum. If the AFDC recipient fails to budget the sum and expends it all before the expiration of the months computed by the agency, the recipient remains ineligible for AFDC benefits.

Immediately after its enactment, the lump sum rule was attacked in numerous district court cases with varying results. Cf. Harris v. Heckler, 576 F.Supp. 915 (D.C.N.J.1983) and Faught v. Heckler, 577 F.Supp. 1180 (D.C.Iowa 1983). In almost every case, the plaintiff’s attack has focused on statutory construction; i.e. whether the Congress intended the lump sum rule to be applied to AFDC recipients who do not have earned income. Plaintiffs argued that when Congress passed the lump sum rule, at 42 U.S.C. § 602(a)(17), the wording of the statutory section referred to another section, § 602(a)(8)(A)(i) and (ii), which only pertained to those with earned income. The reference to 8(A)(i) and (ii), argued the plaintiffs, should be read to limit the applicability of the lump sum rule to those recipients who have earned income in addition to the lump sum windfall.

Plaintiff’s counsel in this case has argued that point well, and in fact has focused the Court’s inquiry on the “earned income” issue. Extensive and close analysis of the scanty legislative history has been provided. All counsel working on this case have kept the Court apprised of all legislative developments, and have provided advance sheets and other materials. In her supplemental brief, filed September 10, 1984, Plaintiff continues to argue, in part based on the June 18, 1984 amendments to the lump sum rule, that Congress initially intended that the rule should only apply to those with earned income.

Plaintiff argues that the amendment of the lump sum rule indicates, as do all other data, that the lump sum rule, as applied to Ms. Vermeulen in 1982, should have been limited to AFDC recipients with earned income. However well-made Plaintiff’s earned income argument may be, the argument is clearly wrong. It is the law in this Circuit that the lump sum rule was not and is not limited to AFDC recipients with earned income, and is applicable to all AFDC recipients. Walker v. Adams, supra. There remains some question about how large a savings Congress intended to enjoy by passing the lump sum rule, Sweeney v. Affleck, supra, and the suffering of affected welfare recipients is unmistakably “harsh”, Walker v. Adams, supra, but there is no doubting Congressional intent to enjoy the savings across the board as of the date of enactment. Id.; Sweeney v. Murray, supra; Faught v. Heckler, 736 F.2d 1235, (C.A.8 1984).

III. Plaintiffs Availability Argument

A. Introduction

Generally speaking, the facts of a lawsuit may be de-emphasized either because the parties choose to sing the Siren’s song of landmark theory, or because there truly is applicable principle so compelling as to preclude variance based on fact. In this case, the Siren call was strong. The lump sum/earned income argument predominated in the case, and because that argument is largely legalistic, the facts of Ms. Vermeulen’s Complaint were not emphasized. Thus, although an argument over “availability”, a factually oriented argument, was made, it was flawed by the paucity of facts and the beguiling echo of the central earned income argument.

B. The Stipulated Facts

The pertinent facts to which the parties stipulated are as follows:

Plaintiff, Cindy Vermeulen, was a recipient of AFDC from approximately May of 1981 through December 1981. Plaintiff received AFDC on behalf of herself, her husband, and her three minor children. In early December, 1981, Plaintiff’s husband received an inheritance of approximately $5,700. Plaintiff’s husband paid approximately $1,000 in household bills and gave Plaintiff approximately $100 for Christmas. Later in December, after paying the $1,100 Plaintiff left the household. In March, 1982, Plaintiff was determined to be ineligible for AFDC through August of 1982, pursuant to the lump sum rule.

C. Facts Elicited at the Preliminary Injunction Hearing

The stipulated facts convey the sense that Plaintiff’s husband received a lump sum inheritance, brought the money into the household, expended the sum of $1,100 and then departed. The remainder of the lump sum is not accounted for by the stipulated facts.

In contrast to the stipulated facts, the facts elicited from Plaintiff’s testimony at the preliminary injunction hearing indicate that the lump sum was received only by the husband (Tr 4); that the husband left the household at or before the time he received the money (Tr 6); that the husband made a $1,000 rent payment and a $200 utilities payment directly to the creditors without first giving the money to Plaintiff (Tr 6-7); that Plaintiff received only $100 of the lump sum received by the husband (Tr 6); and that when the husband left he took the money with him and did not give any money to Plaintiff thereafter (Tr 33).

Though the facts derived from Ms. Vermeulen’s testimony are not dramatically different from the stipulated facts, it becomes clear that Ms. Vermeulen never had control of, or access to the lump sum, except for $100. The lack of control was noted by the district court in Harris v. Heckler, supra, at 916 fn. 2, as a district factual aspect of this case which is unlike virtually all of the other lump sum cases. Although those cases also were framed , in the context of challenging the lump sum rule, the AFDC recipient whose benefits were terminated invariably had received the lump sum themselves, or had received the benefit of the lump sum. For example, the facts of the Walker v. Adams case are typical of the lump sum cases:

In this case Plaintiff Walker received [a lump sum] from an automobile accident which paid her slightly over $5,000. She notified her caseworker about the payment that same day, but received no warning about disqualification for AFDC benefits and was not advised to retain the payment for living expenses. She spent substantially all of the funds, shortly after their receipt on a used car, car insurance, clothes, furniture, appliances, and groceries. Slip Op. p. 4.

Similarly, the Sweeney case involved an AFDC recipient who received a personal injury settlement and then, in a sad sequence of misadventure- reminiscent of a Hogarth series, parceled out her sum and became destitute. 560 F.Supp. 1120-1122.

There is an obvious and critical difference between the facts in the typical lump sum case, and the facts in Ms. Vermeulen’s case.

D. The Regulatory Scheme Implementing the Lump.

Sum Rule .

In construing the lump sum rule, 602(a)(17), the Sweeney court, on which Walker v. Adams relied, noted that the Health and Human Services played a significant role in drafting the implementing regulation of the rule. For that reason the regulation deserves special deference, Sweeney, supra at 1029, citing Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969). The implementing regulation should be disregarded only where there is a “compelling indication” of wrong. Red Lion Broadcasting Company v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969).

It is worthwhile to compare the “old" pre-lump sum regulation at 45 CFR 233.-20(a)(3)(ii)(D) (1981) with the “new” regulation, which incorporates the lump sum amendment, at 233.20(a)(3)(ii)(D) (1982):

1981: '
(D) Net income available for current use and currently available resources shall be considered; income and resources are considered available both when actually available and when the applicant or recipient has a legal interest in the liquidated sum and has the legal ability to make such sum available for support and maintenance. For AFDC when the assistance unit’s income after application of applicable disregards exceeds the State need standard for the family (unless such excess was caused by a regular and periodic extra paycheck from a recurring income source, in which case see § 233.24(d)), the family will be ineligible for aid for the number of full months derived by dividing this total income by the need standard applicable to the family starting with the month in which the income is received. Any income remaining after this calculation is treated as income received in the first month following the period of ineligibility. (Emphasis added)
1982:
(D) Net income, except as provided in paragraph (a)(3)(xiii) of this section, and resources available for current use shall be considered; income and resources are considered available both when actually available and when the applicant or recipient has a legal interest in a liquidated sum and has a legal ability to make such sum available for support and maintenance. When the AFDC assistance unit’s income, after applying applicable disregards, exceeds the State need standard for the family because of receipt of nonrecurring lump sum income, the family will be ineligible for aid for the full number of months derived by dividing the sum of the lump sum income and other income by the monthly need standard for a family of that size. Any income remaining in this calculation is income in the first month following the period of ineligibility. The period of ineligibility shall begin with the month of the receipt of the nonrecurring income or, at state option, as late as the corresponding payment month. For purposes of applying the lump sum provision, family includes the AFDC assistance unit and any other individual whose lump sum income is counted in determining the period of ineligibility. A State may shorten the period of ineligibility where it finds that a life-threatening circumstance exists, and the non-recurring income causing the period of ineligibility has been or will be expended in connection with the life-threatening circumstance. Further, until that time the non-recurring income must be used to meet the essential needs and currently the assistance unit must have no other income or resources suffi- • cient to meet the life-threatening circumstances. (Emphasis added).

In analyzing the “old” and “new” regulations, it would appear to be clear that the two versions of the regulation begin in the same fashion. That is, the regulation in each case states the general rule that net income and resources shall be considered available “both when actually available and when the applicant and recipient has a legal interest in a liquidated sum and has the legal ability to make such sum available for support and maintenance.” (Emphasis added).

Then the versions begin to diverge. The 1981 pre-lump sum regulation generally states that a lump sum received by the AFDC assistance unit is counted in the month it is received but only thereafter if it is “remaining”, or actually, available. In contrast, the 1982 post-lump sum regulation states that the lump sum received by the assistance unit is presumed to be available in subsequent months, so that “the family will be ineligible for aid for the full number of months derived by dividing the sum of the lump sum income and other income by the monthly need standard for a family that size.” (Emphasis added). The 1982 regulation then permits the state, at its option, to except the family from the lump sum rule in case of a “life threatening circumstance”.

In summary, both the pre-lump sum and post-lump sum regulations contain the same threshold rule: that for income to be considered, it must be actually available or legally available. The lump sum rule contained in the “new” 1982 regulation is an exception to the threshold rule. The lump sum rule requires a family to budget the lump sum it actually received or was legally able to use, or suffer the consequence of ineligibility. And the “life threatening circumstance” is the only regulatory exception to the consequence of ineligibility.

E. Applying the Regulatory Scheme to Ms. Vermeulen

It should be apparent that the lump sum rule should not apply to Ms. Vermeulen’s family for a $5,700 offset. The lump sum rule is an exception to the threshold rule of actual or legal availability. Unless the family receives the lump sum, or has the ability to spend the lump sum, the presumption of availability raised by the lump sum rule cannot be charged against the family.

That is not to say that a lump sum need remain “actually available” to be counted in computing the family’s standard of need. Congress’ intent clearly was not to require actual availability:

The committee believes that lump sum payments should be considered available to meet the ongoing needs of an AFDC family____ The amendment would require that such income received in a month be considered available in the month it is received and also in future months. (Emphasis added). S.Rep. No. 139, 97th Cong. 1st Sess., Reprinted in 1981 U.S.Code Cong. & Ad.News 771.

Therefore, the lump sum need not be “actually available” for the duration of the time computed by the agency. Once the AFDC family has received a lump sum; it may be considered constructively available in subsequent months.

The concept of constructive availability of resources is applied in other social welfare contexts. However, case law dealing with constructive availability all have one thing in common which is missing in Ms. Yermeulen’s case. In all those cases, there was either a past receipt and benefit from money, or a legal ability to make the mon-. ey available. Literally, the threshold of the AFDC unit had been crossed by the' lump sum. Money was taken into the family and expended for goods and services. The family benefited.

The federal Defendant cites the proposition that, for AFDC purposes, resources do not have to be “in hand, readily liquidated, or under the control of the individual.” Randall v. Goldmark, 495 F.2d 356, 361 (C.A.1 1974) cert. den., 419 U.S. 879, 95 S.Ct. 144, 42 L.Ed.2d 119. While that dicta is illuminative of the Randall court’s reasoning, the court’s holding was:

We believe that to qualify as a currently available resource under the Act and regulation, it need only be shown that regular payments made by third parties directly benefit an AFDC' recipient in such a manner that they are actually used to defray expenses which such recipient would otherwise incur. Cf. Cooper v. Carelson, 1973, 31 Cal.App.3d, 546, 107 Cal.Rptr., 502. Randall, supra at 361. (Emphasis added)

Presumably using the same logic, another court treated garnished wages as “available,” because they were used to offset a debt currently owed by an AFDC recipient. Powell v. Austin, 427 F.Supp. 749 (E.D.Va. 1977). Similarly, a state court challenge to income offset against welfare benefits was denied where the recipient claimed income was not currently available due to a technical accounting system — the “lag budgeting” system — used by the state, even though the resources had been used by the recipient. Hinderer v. Department of Social Services, 95 Mich.App. 716, 291 N.W.2d 672 (1980) lv. den., 409 Mich. 930. Similarly, with the medicaid program, the agency “deems” the income of one spouse available for the use of the other spouse although the spouse is separated and confined to an institution. Schweiker v. Gray Panthers, 453 U.S. 34, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981).

As the foregoing should indicate, the prevailing case law and the 1982 regulation promulgated by the Secretary in this case hinge on the fact that the recipient or family received some money or benefit. The federal Defendant acknowledges the receipt threshold:

Pursuant to the regulation at issue, 45 CFR 233.20(a)(3)(ii)(D), the AFDC claimant need only have a legal interest in the income and a legal ability to make the income available. (Original emphasis, Federal Defendant’s Memo of June 14, 1984, at p. 16).

The Federal Defendant then states, conclusorily, that Ms. Vermeulen had legal control over the lump sum, without explaining how she had control.

If it be the Defendants’ argument that simply because Ms. Vermeulen was married to an errant husband she was legally able to spend the lump sum, the argument is fallacious for two reasons. First, Michigan is not a community property jurisdiction. Secondly, such an interpretation would transform the lump sum rule from “harsh” to draconian.

If it be the Defendants’ argument that an AFDC family is exposed to total liability because of the receipt of fractional benefits of the lump sum, then that argument is on point but unavailing. As the Randall case indicates, the inquiry of the agency and the offset of AFDC aid must relate to monies which “... directly benefit an AFDC recipient in such manner that they are actually used...” Randall, supra, at 361.

Finally, the Court takes judicial notice of the fact that the statute, 42 U.S.C. § 602(a)(17), speaks in terms of income received; the implementing regulation, 45 CFR 233.20(a)(3)(ii)(D) (1982), speaks of income received; the pertinent case law, e.g. Walker v. Adams, invariably deals with received income; and subsequent amendments speak of received, as well.

Any suggestion by the Plaintiff that the “actual availability” concept survived the enactment of the lump sum rule clearly is misplaced. But on the deciding point of this' case, the point that financial benefit must be received by the family in order to offset AFDC benefits, Plaintiff does prevail. In order to have a, “legal interest” or “legal ability” to spend finances, and thereby have those finances counted as income under (D), the family assistance unit against which the finances are counted must have received either the finances or the benefit.

Accordingly, Plaintiff’s family may be held potentially liable for the amount of benefit received — $1,200 in rent and utilities payments, and $100 in gifts — but not for the remainder of the $5,700 lump sum by which it did not benefit.

IV. Walker v. Adams and the Life Threatening Circumstances Exception to the Lump Sum Rule

Plaintiff’s family is potentially liable for the receipt of the $1,200 debt relief and the $100 cash “gift”. That does not automatically result in actual liability, under this Circuit’s rule in Walker v. Adams.

In Walker v. Adams, the plaintiff received a lump sum insurance settlement of slightly more than $5,000. Like Ms. Vermeulen, Walker notified her caseworker and then, receiving no warning to the contrary, proceeded to expend almost all of the sum on a used car, car insurance, clothes, furniture, appliances, and groceries. Judge Edwards, pursuant to the Secretary’s suggestion, noted that Walker had not availed herself of the proper administrative remedy available under the “life threatening circumstances” exception to the lump sum rule, also at 45 CFR 233.-20(a)(3)(ii)(D) (1982). Walker v. Adams, at 120. That is, once Walker had spent her money and become potentially ineligible for AFDC, she could still be eligible for benefits if the state agency found that she fit the “life threatening circumstances” exception:

... A State may shorten the period of ineligibility where it finds that a life-threatening circumstance exists, and the non-recurring income causing the period of ineligibility has been or will be expended in connection with the life threatening circumstance... 45 CFR 233.-20(a)(3)(ii)(D) (1982).

The regulation clearly comports with Congress’ two major motives in passing the lump sum rule; i.e. to promote responsible budgeting by AFDC families and reduce AFDC disbursements. See Walker, supra, at 120.

Given the sad testimony of Ms. Vermeulen, and the fact that the $1,200 rent and utilities payment by which the family benefited went directly to fundamental life sustaining needs, it is difficult if not impossible to imagine a state refusing to apply the “life threatening circumstances” offset to the period of ineligibility arising from the $1,200. That remains a determination for the State, however, as does the $100 Christmas “gift” issue.

V. The Motions to Intervene and to Recover Retroactive Benefits

Plaintiff has moved the Court to award retroactive benefits, and there have been filed numerous motions to intervene.

The Court expressly does not reach the question of retroactive benefits, both because it would be impossible to calculate such a sum prior to a State determination of the “life threatening circumstances” question, and because the question of retroactive benefits has not been developed in this case commensurate with its far-reaching significance. Neither Plaintiff’s argument, which rests largely on implication, or Defendants’ response, which rests on implication and analogy, provide advocacy sufficient to explore the controversy.

The intervenor’s motions have been reviewed by the Court. It goes without saying that these intervenors are truly pitiable human beings, made more pitiable by the passage of the lump sum rule. Nonetheless, the factual disparity of the intervenors’ affidavits makes it impossible for the Court to permit intervention, since intervention would inevitably delay or prejudice the adjudication of Ms. Vermeulen’s factually distinct claim. (Rule 24(b) of the Federal Rules of Civil Procedure.) Accordingly, the Motions to Intervene are denied.

VI. The Motion to Reconsider Class Certification

As noted above, the Court previously denied Plaintiff’s Motion for Class Certification, because of the failure to meet Rule 23(a) numerosity, commonality, and typicality requirements. Also, the Court noted the “necessity” limitation of the Sixth Circuit in Craft v. Memphis Light, Gas and Water Division, 534 F.2d 684 (C.A.6 1976) aff'd on other grounds, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978).

In reconsidering the class certification question, the Court has de-emphasized the Craft holding in light of United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). This suit is best analyzed in accordance with instruction of the Sixth Circuit, in Senter v. General Motors Corporation, 532 F.2d 511 (C.A.6 1976), cert. den. 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150, wherein the appeals court granted class-wide equitable relief pursuant to Rule 23(b)(2).

The class sought to be certified is one consisting of all AFDC applicants and recipients, as well as various subclasses, focused by the separate Counts of Plaintiffs Complaint. The Court has denied relief on all counts except Count 2, the § 602(a)(17) statutory violation, and has narrowed the focus of the relief under Count 2 to the issue of legal interest or legal ability — receipt — of the lump sum.

Plaintiffs affidavits and general pleadings convince the Court that the Senter standard for class certification has been met. The class contains a verifiable minimum in excess of even formalistic numerosity requirements under 23(a)(1). Similarly, the class suffers the common problem of being assessed lump sum liability under pertinent regulation even though the lump sum was not received for the benefit of the AFDC unit, 23(a)(2). The class, as defined broadly by Plaintiff is absolutely typical, 23(a)(3), and there is no doubt about the adequacy of representation, 23(a)(4).

If the requirements of 23(a) are met, and 23(b)(2) are met, then class-wide equitable relief is appropriate. Senter, supra. Subsection (b)(2) states:

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

Subsection (b)(2) would seem appropriate on its face to this case. As noted in the Advisory Committee Notes to the 1966 Amendments to Rule 23, the (b)(2) subsection is appropriate in a lawsuit “even if [the injury] has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” 39 F.R.D. at 102.

The affidavits and pleadings of Plaintiff suggest that there are two class-wide potential harms which require equitable relief in this case. First, there is the lack of knowledge by recipients and (apparently some) caseworkers of the workings of the lump sum rule. Consequently, as Ms. Vermeulen’s specific case indicates, an AFDC recipient risks substantial harm by honestly reporting lump sum income to the agency, without being advised of how to manage the lump sum. Furthermore, an incorrect report of the receipt of a sum certain which is subsequently not received, as was the case with Ms. Vermeulen, may have a devastating effect on the assistance unit. Second, there is the problem of applying the lump sum rule to those who have not received the sum, or do not have the threshold “legal interest or legal ability” to spend the sum.

Accordingly, a class consisting of all AFDC applicants and recipients in this jurisdiction is certified.

VII. Relief Granted

In light of the above reasoning, the Court will issue four orders resolving the motions and directing the appropriate conduct of the parties.

As to the Motions for Summary Judgment, an Order will issue denying Plaintiffs motion in part as relates to the legal questions of “earned income” and “actual availability”, and granting Plaintiffs motion in part, as it relates to the matter of the statutory violation arising from the Defendants’ improper application of the lump sum rule to Ms. Vermeulen, as analyzed in Sections III E. and IV of this Opinion.

A separate Order will issue certifying a class of individuals situated similarly to Ms. Vermeulen.

A separate Order will issue withholding Declaratory Judgment, as that relief appears unnecessary at this time.

An Injunction will issue directing that notification be given to AFDC recipients who may be unaware of the operation of the. lump .sum rule; and restraining the Defendants from incorrectly applying the lump sum rule to Ms. Vermeulen, either prospectively or retrospectively, due to her husband’s inheritance; and restraining the Secretary of Health and Human Services from issuing to AFDC offices, administrators, agents, or employees in the Western District of Michigan any directives which are inconsistent with this Opinion.

VIII. Conclusion

The rule as the Court today construes it is “harsh”, for it exacts a savings from those least able to pay. It requires the poor to budget at a time when the federal government’s deficit is astronomical. It places further limitation upon those for whom a lifetime of limitation is the norm.

Yet the rule as the Court today construes it is far less harsh than it would be under the Defendants’ interpretation. Whereas the Court requires responsible expenditure of finances the AFDC family receives, the Defendants would require an impossibility — the responsible expenditure of finances which were never received.

In ruling, the Court begins with the congressional. intent in enacting the AFDC program. First and last, this program is an eloquent statement of compassion for our needy children. It is evident that in difficult times a subsequent Congress will amend, but will not retract that statement of compassion.

      . The Court applied the established rule of Mason County Medical Association v. Knebel, 563 F.2d 256 (C.A.6 1977), to find that Ms. Vermeulen had a substantial likelihood of success on the merits of Counts 1 and 2 of her Complaint; that she faced imminent irreparable harm due to the withholding of benefits she and her children needed to survive; that the preliminary injunction would not substantially harm anyone; and that the public interest would not be served by depriving Ms. Vermeulen of her only means of support.

      . Briefly, the Court held that the class failed the numerosity, commonality, and typicality requirements under Rule 23(a) of the Federal Rules of Civil Procedure. The manner in which tea. AFDC recipient obtains and expends the lump sum is very significant, and affidavits offered by some of the putative class members indicated a great factual disparity in this regard. The Court therefore found it inappropriate to certify a class. Dismissal of the welfare rights organization was necessitated by similar consideration of the factual disparities under the third prong of the analysis of organizational standing in Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1976).

      . For that analysis, in the context of the lump sum rule, See Douthit v. Heckler, 577 F.Supp. 88 ' (D.C.K.S.1983).

      . P.L. 97-35, 95 Stat. 357, 845 (1981).

      . For a reported compilation of all germane legislative data, see Sweeney v. Murray, supra.

      . The amendment to 602(a)(17) was enacted as part of the Deficit Reduction Act of 1984, § 2632(a), as follows:
      § 2632(a) § 402(2)(17) of the Social Security Act is amended by adding at the end thereof (after and below subparagraph (b)) the following:
      Except that the state may at its option recalculate the period of ineligibility as otherwise determined under subparagraph (A) (but only with respect to the remaining months in such period) in any one or more of the following cases: (i) an event occurs which, had the family been receiving aid under the State plan for the month of the occurrence, would result in a change in the amount of aid payable for such-month under the plan, or (ii) the income received has become unavailable to the members of the family for reasons that were beyond the control of such members, or (iii) the family incurs, becomes responsible for, and pays medical expenses (as allowed by the State) in a month of ineligibility determined under subparagraph (A) (which expenses may be considered as an offset against the amount of income received in the first month of such ineligibility).
      (b) § 402(a)(17) of such Act is further amended—
      (1) by striking out “a person specified in paragraph (8)(A)(i) or (ii)" in the matter preceding paragraph (A) and inserting in lieu thereof “a child or relative applying for or receiving aid to families with dependent children or any other person whose need the State considers when determining the income of a family", and
      (2) effective on the date the enactment of this Act, by striking out "an amount of income" in the manner preceding subparagraph (A) and inserting in lieu thereof "an amount of earned or unearned income”.

      . Cf. Wylie v. Kitchin, 589 F.Supp. 505 (N.D.N.Y. 1984); Woolfolk v. Leadbetter, (N.D.Ga. June 29, 1984) No. C 83-1244 A; Faught v. Heckler, 577 F.Supp. 1180 (D.Iowa 1983); Reed v. Lukhard, 578 F.Supp. 40 (W.D.Va.1983); Douthit v. Heckler, supra; Harris v. Heckler, supra; Bowmaster v. Petit, 576 F.Supp. 354 (D.Me.1983); Betson v. Cohen, 578 F.Supp. 121 (E.D.La.1983); Clark v. Harder, 577 F.Supp. 1085 (D.C.KS.1983); Walsh v. Heckler, (E.D.Cal.1984) No. S-84-0406 RAR.

      . The AFDC program is authorized and funded "For the purpose of encouraging the care of dependent children in their own homes or the homes of relatives...” 42 U.S.C. § 601. All the wording that follows that opening phrase relates to procedure for the encouragement of the care. To enforce a legal fiction against those without recourse to finances or adequate legal representation would be to repeal the intrinsic compassion of the AFDC program.

      . "The lump sum income received by the Vermeulen assistance unit was real, not assumed, and it was actually received by the unit. Plaintiff reported this income to her caseworker and, on that basis, the family was deemed ineligible for benefits. Also, Plaintiff and her children received some benefit from the lump sum. Where a claimant has either obtained some value or benefit from the income, it must be considered to have been ‘actually available’. Randall v. Goldmark, supra. Further, Plaintiff, as Mr. Vermeulen’s wife, had a legal interest in the lump sum and the legal ability (although it was not exercised) to make the sum available.” (Federal Defendant’s Memorandum in Opposition filed June 14, 1984.)

      . The Court is mindful of the agency’s suggestion that individual determinations are not a constitutional prerequisite when administrative difficulties "outweigh the marginal increments and the precise effectuation of congressional concern which they might be expected to produce.” Kollet v. Harris, 619 F.2d 134, 139 (C.A.1 1980). But reliance on the receipt threshold does not entail extraordinary inquiry, any more than does the current inquiry or reliance on the AFDC client to report the lump sum. Presumably, the Schweiker v. Gray Panthers reasoning should apply where the spouse does not leave the family and there is no legal separation. In Ms. Vermeulen’s case, there was abandonment of the family by the husband, and the private bar was unwilling and the public interest bar was unable to provide the penniless Plaintiff any relief in the form of legal separation or legally-obtained support payments. (See Transcript of Ms. Vermeulen’s Testimony at the June 3, 1982 Hearing on the Preliminary Injunction). If the lump sum rule were applied automatically in such cases, the result would be to reward the selfishness of family members who receive personal windfalls and abdicate familial responsibility, and at the same time it would cruelly punish the needy children left behind.

      . See amendment of the lump sum rule enacted as § 2632(a) of the Deficit Reduction Act of 1984, subsection (ii).

      . Upon the advice of Plaintiff’s counsel, there are a large additional number of intervenors wishing to enter this lawsuit. The Court requested that counsel hold these many pleadings in abeyance pending a decision on the cross motions for summary judgment.

      . It should be apparent from the Court’s analysis of the case that crucial significance attaches to the manner of the receipt and expenditure of the sum, both for purposes of assessing potential liability and actual liability. Of all the 45 potential intervenors, Leesha Edwards, Cindy Sleight, Fatima Alwan, Mrs. Mclver, Linda Duncan, Agnes Scott, Sherry Haines, and Jacqueline Young would seem, at first reading, to have generic factual compatibility with Ms. Vermeulen's claim, in that in each case the family has been assessed liability for financial benefits not received. Yet, even given such generic compatibility, there is obviously significant variation possible in determining the facts, absent the parties’ willing stipulation. Therefore, the Court may not entertain these additional claims.


source: Caselaw Access Project

author: JOSÉ A. CABRANES, District Judge:

license: Public Domain

text:
    REPUBLICAN PARTY OF the STATE OF CONNECTICUT, Lowell P. Weicker, Jr., Stewart B. McKinney, Nancy L. Johnson and Thomas J. D’Amore, Jr. v. Julia H. TASHJIAN, Secretary of the State of the State of Connecticut.
    Civ. No. H 84-548 (JAC).
    United States District Court, D. Connecticut.
    Dec. 5, 1984.

      Stanley A. Twardy, David S. Golub, Silver, Golub & Sandak, Stamford, Conn., Ralph G. Elliot, Tyler, Cooper & Alcorn, Hartford, Conn., for plaintiffs.
    Joseph I. Lieberman, Elliot F. Gerson, Daniel R. Schaefer, Henry S. Cohn, Hartford, Conn., for defendant. .
    Martin B. Margulies, University of Bridgeport School of Law, Bridgeport, Conn., Martha Stone, Connecticut Civil Liberties Union Foundation, Hartford, Conn., Burt Neuborne, American Civil Liberties Union, New York City, for amici curiae American Civil Liberties Union and Connecticut Civil Liberties Union Foundation.

      Stephen E. Gottlieb Albany Law School, Albany, N.Y., for amici curiae F. Christopher Arterton, James MacGregor Burns, Barbara Burrell, William Crotty, Roman B. Hedges and John S. Jackson, III.

      . Due to the possible implications of this case for primary elections and the two-party system generally, the court extended an invitation to interested persons and organizations to participate as amici curiae. See Order (filed May 23, 1984). As the court has noted on previous occasions, the decision to invite these parties to participate as friends of the court was in no way motivated by questions concerning the capacity of existing counsel adequately to represent the interests of their clients. Rather, these arrangements — made without,objection from either party — reflected the shared conviction that this lawsuit may possess broad-ranging significance and that the court would benefit from the presentation of widely divergent ideological, political and professional viewpoints on the constitutional issues in the litigation. Those who elected to participate as amici curiae argued generally in favor of the position asserted here by plaintiffs. See Certified Official Transcript of Oral Argument of July 5, 1984 (filed Dec. 4, 1984) (“Tr.”) at 4-6.

      . The amici curiae represented by Professor Gottlieb are professors of political science at Yale University, Williams College, the State University of New York at Albany, Northwestern University, the Graduate School of Public Affairs at the State University of New York at Albany, and Southern Illinois University at Carbondale, respectively. The statement submitted by these political scientists contained interesting arguments grounded in history and public policy. In the final analysis, however, the determination of issues in this case must be made exclusively on the basis of constitutional principles.

   RULING ON DEFENDANT’S MOTION TO DISMISS AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

JOSÉ A. CABRANES, District Judge:

This case brings into dramatic conflict the power of states to regulate primary elections and the right of political parties to freedom of association under the First Amendment to the United States Constitution. The State of Connecticut has asserted a broad and discretionary claim to authority over the activities of political parties based on their integral involvement in the selection of candidates for public office. Plaintiffs acknowledge that political parties are not typical voluntary organizations immune from state regulation and constitutional strictures, but maintain that freedom of association would prove an empty guarantee if states were unrestrained in their ability to dictate eligibility requirements for participation in a party’s candidate selection process.

The action challenges the validity of Con-, necticut’s “closed primary law,” Section 9-431 óf the Connecticut General Statutes, which prohibits voters who are not enrolled in a political party from participating in primary elections. This is the first case to present the situation in which a political party challenges a closed primary law on First Amendment grounds. Plaintiffs are the Republican Party of the State of Connecticut, the Chairman of the Republican State Central Committee, Thomas J. D’Amore, Jr., and the Connecticut Republican Party’s principal federal elected officials, United States Senator Lowell P. Weicker, Jr. and United States Representatives Stewart B. McKinney and Nancy L. Johnson. The defendant is Julia H. Tashjian, Secretary of the State of the State of Connecticut (“Connecticut” or “defendant”), who is responsible for administering the challenged statute. Plaintiffs allege that Section 9-431 infringes their First Amendment right to associate for the advancement of common political objectives. They seek to have this court declare the statute unconstitutional and enjoin its enforcement.

In 1976, the constitutionality of the very statute at issue in this case was challenged by unaffiliated voters who desired to participate in primary elections against the express wishes of political parties. See Nader v. Schaffer, 417 F.Supp. 837 (D.Conn.) (three-judge court), aff'd mem., 429 U.S. 989, 97 S.Ct. 516, 50 L.Ed.2d 602 (1976). The court in Nader held that Connecticut was justified in preventing these unwanted intruders from disrupting party primaries. In this case, the Connecticut Republican Party is no longer a willing beneficiary of the protections afforded by the state’s closed primary law. The party now seeks to open its candidate selection process to unaffiliated voters. Accordingly, the concern with barring unwelcome “outsiders” that motivated the result in Nader is not present here.

On January 14,1984, the delegates to the state convention of the Connecticut Republican Party approved an amendment to the party rules permitting unaffiliated voters to join with enrolled Republicans in voting for candidates for the offices of United States Senator, United States Representative, Governor and the gubernatorial “underticket” in primary elections. The amendment would not affect voter qualifications in other Republican Party primary elections, including those for seats in the Connecticut Senate and House of Representatives; enrollment in the party would continue to be a requirement for voting in those primaries. The amended party rule is in direct conflict with Section 9-431.

Because Section 9-431 substantially interferes with plaintiffs’ associational rights, it is subject to strict judicial scrutiny. The statute can thus be upheld only if it is necessary to advance compelling state interests and if it advances those interests in the manner least restrictive of the ability of the Republican Party to structure its candidate selection process in the way it deems appropriate.

In the circumstances of this case, the purposes purportedly served by Section 9-431 — the prevention of raiding, the avoidance of voter confusion, and the preservation of the two-party system — are not compelling state interests justifying the substantial burden that the statute imposes on the exercise of plaintiffs’ right of political association. Accordingly, Section 9-431 constitutes an impermissible infringement on First Amendment rights and it cannot be applied to prevent the Republican Party from including unaffiliated voters in certain of its primaries.

The court today holds not that participation by unaffiliated voters in party primaries is constitutionally required, but that a party’s decision to permit unaffiliated voters to participate in its primaries is constitutionally protected.

Discussion

Although the memoranda filed by the parties are lengthy, this is not a particularly complex case. The principal issues are relatively straightforward. They are, first, whether the dictates of Article I, section 2 of the Constitution and the Seventeenth Amendment (defining voter eligibility in elections for the federal House of Representatives and Senate, respectively) are applicable to primary elections; second, whether Article I, section 2 and the Seventeenth Amendment require that eligibility to vote in congressional elections be “absolutely symmetrical” to eligibility to vote in state legislative elections; third, whether Article I, section 4 (vesting in states the power to regulate the time, place, and man-, ner of holding congressional elections) grants states virtually unreviewable power to regulate the conduct of primaries; fourth, whether the challenged statute constitutes so insubstantial an imposition on the right of association that courts need not strictly scrutinize the statute under the First and Fourteenth Amendments; and fifth, whether the interests proffered by Connecticut in support of its closed primary law are legitimate and sufficient to outweigh the burden that the statute imposes on plaintiffs’ right of political association. The court will address each of these questions in turn.

I. Political Parties and State Action

Article I, section 2, clause 1 of the United States Constitution provides:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

The Seventeenth Amendment employs virtually identical language to delineate the class of persons eligible to vote in elections for United States Senator.

Connecticut maintains that the Republican Party rule at issue in this litigation violates these constitutional provisions by permitting unaffiliated voters to participate in primaries for congressional offices while denying them a similar opportunity to vote in primaries for seats in the Connecticut General Assembly. Putting aside for the moment Connecticut’s dubious interpretation of the relevant constitutional provisions, it is not apparent that Article I, section 2 and the Seventeenth Amendment have any application to primary elections whatsoever. Connecticut uncritically asserts that “the activities of a political party constitute state action” and thus that “there can be no question” that Article I, section 2 applies to primaries. Defendant’s Reply to Plaintiffs’ Memorandum Dated June 27, 1984 in Opposition to Motion to Dismiss (filed July 9, 1984) (“Defendant’s Reply Memorandum”) at 4. This conclusion rests on the selective use of passages from Supreme Court decisions, the reliance on dicta in United States v. Classic, 318 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), and an unwarranted extension of the so-called White Primary Cases.

The White Primary Cases, in which the Supreme Court overturned a series of increasingly subtle tactics employed to exclude blacks from participating in the Texas Democratic Party’s candidate selection process, do not stand for the proposition that all actions of political parties constitute state action without regard to the surrounding circumstances. See O’Brien v. Brown, 409 U.S. 1, 4 n. 1, 92 S.Ct. 2718, 2720 n. 1, 34 L.Ed.2d 1 (1972); Kester, Constitutional Restrictions on Political Parties, 60 Va.L.Rev. 735, 756-760 (1974); see also Ripon Society v. National Republican Party, 525 F.2d 567, 598-600 (D.C. Cir.1975) (Tamm, J., concurring), cert. denied, 424 U.S. 933, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976). The White Primary Cases concerned discrimination against members of a suspect class. They thus reflect the principle that, in cases of invidious discrimination, a lesser degree of state involvement in private conduct is sufficient to trigger constitutional scrutiny. See, e.g., Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17, 23, 27 n. 16 (2d Cir.1979). No discrimination against a “discrete and insular minority,” United States v. Carotene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778 n. 4, 82 L.Ed. 1234 (1938), is present on the facts of this case.

Absent a malfunctioning of the machinery of the Connecticut Republican Party that results in a perversion of its electoral processes, such as the arbitrary exclusion of members of particular ethnic or religious groups, there is no basis for the state to interfere in the party’s decision-making; the party’s internal processes will supply any necessary corrective. “Where ... all persons who share the party’s basic philosophy can participate more or less equally in fashioning party rules, there is no reason to set those rules aside merely because a legislative majority ... thinks it can do a better job.” Brief of Amici Curiae American Civil Liberties Union and Connecticut Civil Liberties Union Foundation in Support of Plaintiffs’ Motion for Summary Judgment (filed June 27, 1984) at 5; see generally J. Ely, Democracy and Distrust 135-179 (1980).

Furthermore, the White Primary Cases were decided at a time when Texas was a one-party state and the Democratic Party nomination was tantamount to election to public office. See Ripon Society v. National Republican Party, supra, 525 F.2d at 598 (Tamm, J., concurring). Defendant could not seriously contend that anything resembling that situation is true of Connecticut at this time. Read as they must be in light of their factual underpinnings, the White Primary Cases do not support defendant’s far-reaching view that the activities of political parties always constitute state action.

Connecticut’s reliance on United States v. Classic, supra, is similarly misplaced. In Classic, the Supreme Court reversed the dismissal of an indictment against a Louisiana election official for fraudulently tabulating ballots in a primary election. The Court reasoned that primaries were such an “integral part” of the electoral process that the right to vote implicit in Article I of the Constitution, see Ex Parte Yarbrough, 110 U.S. 651, 662-664, 4 S.Ct. 152, 157-58, 28 L.Ed. 274 (1884), extended to them. Kester, supra, 60 Va.L.Rev. at 745-746. In dicta, the Court suggested that a party official also could be prosecuted for miscounting ballots in a primary election because the right to vote in congressional elections guaranteed by Article I is protected against state and private interference alike. United States v. Classic, supra, 313 U.S. at 315, 61 S.Ct. at 1037.

Any argument, based on this dictum in Classic, that the activities of political parties are, by definition, state action, is unfounded. See Developments in the Law— Elections, 88 Harv.L.Rev. 1111, 1158-1159 (1975); L. Tribe, American Constitutional Law § 13-23, at 789 n. 16 (1978). As Judge Tamm observed in his concurrence in Ripon Society v. National Republican Party, supra,

the Classic holding was firmly grounded in the Article I protection of the right to vote in congressional elections, which also extends to private interferences, and thus cannot stand for the proposition that all nominating procedures closely related to general elections constitute state action.

525 F.2d at 599.

Defendant also argues that Article I, section 2 is applicable to political parties in primary elections even absent a finding of state action. See Defendant’s Memorandum in Support of Motion to Dismiss (filed June 21, 1984) (“Defendant’s Memorandum”) at 17-18. This argument is premised on the isolated statement in Classic that “the constitutional command ... is secured against the action of individuals as well as of states.” 313 U.S. at 315, 61 S.Ct. at 1038. Reading “the constitutional command” to mean its postulated “absolute symmetry” requirement, Connecticut concludes that Article I, section 2 directly prohibits political parties from establishing voting qualifications in primaries for congressional offices different from those for state legislative offices.

This analysis is not borne out by a close reading of the opinion in Classic. It is apparent that in referring to “the constitutional command,” the Court was speaking of the right to vote implicit generally in Article I of the Constitution and not any alleged constitutional prescription of “absolute symmetry” in the definitions of voter eligibility in congressional and state legislative elections. See Ex Parte Yarbrough, supra, 110 U.S. at 662-664, 4 S.Ct. at 157-58; United States v. Mosley, 238 U.S. 383, 386, 35 S.Ct. 904, 905, 59 L.Ed. 1355 (1915). It is the right to vote that is “without restriction or limitation” and thus protected from private as well as state-imposed interference. Connecticut’s suggestion that the phrase “the constitutional command” in Classic refers to the explicit terms of Article I, section 2, adopting state voter qualifications for use in congressional elections, is groundless. Those provisions, by their terms, have no logical application to the conduct of private persons or entities.

II. The Meaning of Article I, Section 2

Even assuming arguendo the existence of some principled basis for applying Article I, section 2 and the Seventeenth Amendment to primary elections, Connecticut has failed to demonstrate that these constitutional provisions mandate “absolute symmetry” or “unqualified symmetry and equality” in voter qualifications for congressional and state legislative primaries. Defendant’s painstaking review of the history of Article I, section 2 demonstrates only that nationally uniform voter qualifications for congressional elections were rejected by the Constitutional Convention in 1787 in favor of the diverse standards utilized by the states themselves in electing the corresponding branches of their legislatures. This expedient eliminated the difficulty of identifying a single standard mutually acceptable to all states and insured that the House of Representatives would be elected by “the great body of the people of the United States.” The Federalist No. 57, at 385 (J. Madison) (J. Cooke ed. 1961). The Founding Fathers were concerned that discrimination against federal interests might lead states to restrict the franchise in congressional elections, “rendering] too dependent on the State Governments, that branch of the Federal Government, which ought to be dependent on the people alone.” The Federalist No. 52, at 354 (J. Madison) (J. Cooke ed. 1961). In tying eligibility to vote in congressional elections to the qualifications for electors of the most numerous branches of state legislatures, the drafters of the Constitution sought to prevent states from restricting popular participation in congressional elections; this goal was accomplished by the requirement that any such restriction of the franchise in congressional elections be accompanied by an identical narrowing of the electorate in state legislative contests.

None of this suggests the slightest concern with symmetry in the abstract, as a value meriting protection in its own right. Neither the language nor the history of Article I, section 2 precludes a more expansive classification of eligible voters in congressional as opposed to state legislative elections, and defendant’s repeated insistence that the Constitution requires “absolute symmetry” does not make it otherwise. To guarantee that the House of Representatives would be elected by the general populace, the framers devised a method of dissuading states from capriciously restricting the franchise in congressional elections. Those qualified to vote for members of the most numerous branches of state legislatures are entitled to vote for members of the House of Representatives; a more restrictive standard is constitutionally impermissible. It does not logically follow from this, however, that a less restrictive standard is similarly proscribed. In fact, it is arguable that a standard that opens the political process by including greater numbers of voters in congressional primaries furthers, rather than undermines, the democratic values underlying Article I, section 2.

Defendant’s unexplained assertion that “the power to discriminate in favor of ‘openness’ implies the power to discriminate for narrow purposes,” Defendant’s Memorandum at 9, is without merit. The ability to expand but not contract the pool of eligible voters in congressional primaries is the functional analogue of Justice Brennan’s famous “ratchet” theory concerning the power of Congress to enforce the Fourteenth Amendment. Under that theory, Congress may enact laws that strengthen guarantees under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as interpreted by the Supreme Court, but may not dilute those guarantees. See Katzenbach v. Morgan, 384 U.S. 641, 651 & n. 10, 86 S.Ct. 1717, 1724 at n. 10, 16 L.Ed.2d 828 (1966). In a similar vein, although states under no circumstances may limit rights beyond constitutionally required minima, they may in certain instances extend the reach of rights guaranteed by the Constitution.

III. Article I, Section 4

Connecticut maintains that Article I, section 4 of the Constitution — which vests in state legislatures the power to regulate the time, place and manner of holding congressional elections — authorizes states to trump the choices of a political party regarding the structure of its candidate selection process. See Defendant’s Memorandum at 36-39. The weakness of this argument is revealed by the paucity of authority marshaled in support of it. Connecticut places principal reliance on dicta in Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974), to the effect that “[i]t is very unlikely that all or even a large portion of the state election laws would fail to pass muster” under existing Supreme Court precedents. This is less than a ringing affirmation of the expansive view of state regulatory power urged by Connecticut.

Connecticut then embarks on an extended review of election law cases in search of pronouncements arguably supportive of the position that state power to regulate primary elections knows few bounds. This exercise accomplishes little but reiteration of the basic principle that states are empowered to enact laws regulating primary elections if, and only if, such legislation does not transgress some specific constitutional limitation. See Rodriquez v. Popular Democratic Party of Puerto Rico, 457 U.S. 1, 13, 102 S.Ct. 2194, 2201, 72 L.Ed.2d 628 (1982) (“[ajbsent some clear constitutional limitation”); Oregon v. Mitchell, 400 U.S. 112, 125, 91 S.Ct. 260, 265, 27 L.Ed.2d 272 (1970) (“within the limits of the Constitution”). The right to associate with others for the advancement of common political beliefs or objectives is just such a constitutional limitation on the authority of government. See Kusper v. Pontikes, 414 U.S. 51, 56-57, 94 S.Ct. 303, 307-08, 38 L.Ed.2d 260 (1973); Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 121-122, 101 S.Ct. 1010, 1018-19, 67 L.Ed.2d 82 (1981).

IV. The Standard of Review

Connecticut concedes that “substantial burdens on the right to ... associate for political purposes can only be justified if they serve a compelling state interest.” Defendant’s Memorandum at 67, citing Nader v. Schaffer, supra, 417 F.Supp. at 849. The state maintains, however, that Section 9-431 imposes only incidental burdens on plaintiffs’ freedom of political association and thus that the statute need only be rationally related to the achievement of a legitimate state purpose in order to pass constitutional muster. See Defendant’s Reply Memorandum at 9-12.

In contending that Section 9-431 is subject to this deferential standard of review, defendant relies solely on cases involving challenges by individual voters to state-imposed party affiliation requirements that were not opposed by the parties themselves. See Defendant’s Memorandum at 69 n. 9. Put very simply, this is a different case.

The argument that a party affiliation requirement constitutes only a de minimis burden on associational rights rests on the notion that any “communality” of interests “between the excluded individual and the group from which he is excluded,” Developments in the Law — Elections, supra, 88 Harv.L.Rev. at 1166, is belied by the independent voter’s refusal “to express a commitment to the party and to the party’s basic ideas,” Defendant’s Memorandum at 64. As stated by one commentator:

There can be little objection to a requirement that those wishing to vote in a party’s primary profess that, as of that time, they are affiliated with that party. Absent a willingness to profess such affiliation, it would be tenuous to assert that substantial associational rights were being abridged; without a communality of interests, there is little association to abridge.

L. Tribe, supra, § 13-23, at 793, quoted in Defendant’s Memorandum at 68; see also Nader v. Schaffer, supra, 417 F.Supp. at 843.

The analysis is persuasive in the case of challenges by independent voters to state laws excluding them from participation in primary elections. The ability to comply with the essentially pro forma requirement of affiliation is exclusively in the hands of the complaining independent voter. Moreover, the countervailing right of a political party to be free from unwelcome intrusions must be weighed in the balance. Finally, the independent voter’s claim to a “communality” of interests with the party in whose primary he seeks to vote is indeed tenuous in light of his refusal to take the simple and largely formalistic step of affiliating with the party.

The analysis is substantially less persuasive when a party is challenging a state law excluding independent voters from its primaries. As noted above, independent voters possess the ready means to overcome the burden on associational rights imposed by a closed primary law. The same cannot be said of the party itself. In cases relied upon by Connecticut, the plaintiffs were unaffiliated voters who sought to participate in primary elections having intentionally failed to comply with statutory prerequisites for voting in such elections. Accordingly, some doubt was cast upon their asserted “communality” of interests with the party in whose primary they sought to vote. In this case, on the other hand, there is nothing the Connecticut Republican Party can do within the terms of Section 9-431 to permit unaffiliated voters to participate in its primaries. The statute’s affiliation requirement is thus a real and formidable obstacle to a party which seeks to broaden its appeal by including unaffiliated voters in its candidate selection process.

The analysis relied on by defendant also presupposes that parties are the willing beneficiaries of laws that preserve their institutional integrity by barring “gatecrashers” with adverse political views from sabotaging their decisionmaking. See Ray v. Blair, 343 U.S. 214, 221-222, 72 S.Ct. 654, 657-58, 96 L.Ed. 894 (1952) (states may protect parties “from intrusion by those with adverse political principles”). This is not the situation when a political party is contesting a state-imposed affiliation requirement, in which case the party obviously does not welcome “protection” against efforts by “outsiders” to participate in the party’s candidate selection process. If the Connecticut Republican Party opts to invite “outsiders” to vote in its primaries, these “outsiders,” by definition, are not intruders.

Defendant’s reliance on Democratic Party of the United States v. Wisconsin ex rel. LaFollette, supra, stands that case on its head. When the Supreme Court observed that “freedom to associate for the ‘common advancement of political beliefs’ necessarily presupposes the freedom to identify the people who constitute the association,” 450 U.S. at 122 (citations omitted), it was speaking of the power not of states but of political parties. As one commentator has noted, it is unclear “[w]hat meaning ... freedom of association [can] have if the association has no control over who can participate in its decisionmaking.” Note, Democratic Party v. Wisconsin: May States Impose Open Primary Results Upon a National Party Convention?, 59 Denver L.J. 611, 620 (1982) (emphasis added).

Moreover, while there may be justification for rejecting claimed violations of associational rights asserted by voters who refuse to take the mechanical step of affiliating with the party, it does not follow that only those persons who have enrolled in a political party are capable of “sharpng] the interests and persuasion that underlie the association’s being,” Democratic Party of the United States v. Wisconsin ex rel. LaFollette, supra, 450 U.S. at 122 n. 23, 101 S.Ct. at 1019 n. 23, quoting L. Tribe, supra, § 13-23, at 791. Political beliefs are not susceptible to such rigid compartmentalization. See Rosario v. Rockefeller, 410 U.S. 752, 769, 93 S.Ct. 1245, 1255, 36 L.Ed.2d 1 (1973) (Powell, J., dissenting) (“the political parties in this country traditionally have been characterized by a fluidity and overlap of philosophy and membership”); Note, The Constitutionality of Non-Member Voting in Political Party Primary Elections, 14 Willamette L.J. 259, 290 (1978). It is not for the Connecticut legislature to determine whether or not the goals and aspirations of the Connecticut Republican Party can be shared by independent voters who, for whatever reason, have chosen not to become members of that party.

The ultimate goal of any political party is to take control of the levers of government in order to achieve its objectives. See Storer v. Brown, supra, 415 U.S. at 745, 94 S.Ct. at 1286, 39 L.Ed.2d 714. In order to accomplish this goal, a minority party such as the Connecticut Republican Party may wish to nominate candidates who will attract support in the general election from persons who are not members of that party. See Bode v. National Democratic Party, 452 F.2d 1302, 1309 (D.C.Cir.1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 684, 30 L.Ed.2d 668 (1972). The party rule at issue in this litigation is designed to increase the likelihood that candidates with such broad appeal will emerge from the party’s primaries. Any effort by the state to substitute its judgment for that of the party on this question — the question of who is and is not sufficiently allied in interest with the party to warrant inclusion in its candidate selection process — substantially impinges on First Amendment rights. Accordingly, Section 9-431 must be subjected to strict judicial scrutiny under the First Amendment.

V. The Purported Interests of the State

Under the strict scrutiny analysis the court is thus required to undertake, Section 9-431 can be upheld only if it is narrowly tailored to serve compelling state interests. Connecticut maintains that its closed primary law furthers a number of “important state interests, all of which may be classified under the general rubric of ‘preserving the integrity of the electoral process.’ ” Defendant’s Memorandum at 75, quoting Democratic Party of the United States v. Wisconsin ex rel. LaFollette, supra, 450 U.S. at 121, 101 S.Ct. at 1019, 67 L.Ed.2d 82. These interests are principally three: (1) preventing raiding; (2) avoiding voter confusion; and (3) promoting a stable two-party system. Id. at 76, quoting Developments in the Law — Elections, supra, 88 Harv.L.Rev. at 1168-1169; see Nader v. Schaffer, supra, 417 F.Supp. at 845. None of these interests is sufficient to outweigh the burden on plaintiffs’ associational rights imposed by Section 9-431.

Raiding is a practice “whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary.” Rosario v. Rockefeller, supra, 410 U.S. at 760, 93 S.Ct. at 1251. Connecticut’s avowed interest in preventing raiding is of questionable relevance in this case, inasmuch as the party rule at issue permits only unaffiliated voters to participate in Republican Party primaries; no such invitation has been extended to Democrats or members of other political parties. In any event, the spectre of Democratic voters severing ties with their party en masse in order to mount a raid on a Republican Party primary is effectively eliminated by Section 9-59 of the Connecticut General Statutes (a law not directly at issue here), which provides that a person affiliated with one party may not vote in the primary of another party within six months after leaving his original party.

Any professed concern with raiding by unaffiliated voters--an anomalous concept to begin with — is contradicted by Public Act 84-118, effective January 1, 1985, which permits unaffiliated voters to affiliate with a political party up to one day prior to a primary election. This statute already has eliminated any real obstacle to “raiding” by independent voters bent on disrupting the candidate selection process of a political party.

The second interest articulated by defendant in support of Section 9-431, that of avoiding voter confusion “by ensuring that the candidate who wins a party primary is that candidate who best represents the views of party members,” Defendant’s Memorandum at 90, is illegitimate. Connecticut may well have an interest in “fostering an informed electorate.” Id.; see Anderson v. Celebrezze, 460 U.S. 780, 796, 103 S.Ct. 1564, 1573, 75 L.Ed.2d 547 (1983). However, that interest does not authorize the state to gauge, much less determine, whether candidates for public office adequately reflect the views of their parties. Connecticut presents no reasoned argument in support of its assertion that it has a legitimate interest in protecting “voters who rely on party labels as representative of certain ideologies.” Defendant’s Memorandum at 91. It is not obvious that unthinking reliance on party labels is a practice that ought to be encouraged in any event, but protecting voters who, in a general election, reflexively pull a party’s lever in the voting booth, and may thereby be “misled,” simply does not rise to the level of a compelling state interest. Whether to pursue an electoral and political strategy that assures voters that party nomination implies a recognizable ideology (or other types of political values) is a matter for each political party, not the state, to decide. Connecticut has no compelling interest in so rigidly constraining the contours of party politics.

The third interest advanced by Connecticut to justify its closed primary law, apparently closely related to the second, is maintenance of the stability of the state’s two-party system. Viewing the pivotal question as “which primary system [i.e., “open” or “closed”] is better,” Connecticut maintains that the legislature’s choice of a closed primary represents the best judgment of political scientists as to “the means of émphasizing the differences between the parties ... and thereby encouraging voting.” . Defendant’s Reply Memorandum at 13 & n. 7. Defendant has misconstrued the issue before this court. The controversy does not center on which form of primary election is more desirable, but rather, on whether there are compelling state interests to justify imposition of a. closed primary structure on an objecting party. It is not apparent that maintaining the two-party system in its present configuration rises to the level of a compelling state interest sufficient to validate the limitation on First Amendment rights present in this case. Much less is it clear that the state’s imposition of a closed primary structure on an unwilling party furthers the state’s purported interest.

Connecticut has failed to explain how permitting unaffiliated voters to participate in Republican Party primaries will lead to the splintered parties and unrestrained factionalism that it professes to fear, or how any such result would' justify a substantial infringement on plaintiffs’ right of association. The Connecticut Republican Party’s attempt to broaden its appeal by including unaffiliated voters in its primaries, whatever its practical effects, cannot be foreclosed on defendant’s unsupported assertion that this action somehow will “discourage a politics of coalition and accommodation,” Defendant’s Memorandum at 81, quoting A. Bickel, Reform and Continuity 21-22 (1971).

To the extent that Section 9-431 is defended on the grounds that it preserves the Connecticut Republican Party in its present form, the defendant’s position is untenable. Absent an invidious design effectively to limit participation in the electoral process, the efforts of a political party to alter its character — indeed, to reshape itself altogether — by redefining who may participate in its affairs is of no concern to a state.

There is nothing legitimate or reasonable, much less compelling, about an asserted state interest in freezing the parties in status quo. Whether or not permitting unaffiliated voters to participate in primary elections somehow will “destabilize” the Republican Party is a matter for Republicans to consider; it is not an appropriate subject for state legislation. Whether the course chosen by a party leads to success and power or to failure and decline, the First Amendment ensures that that course will be the choice of the party, not the state.

Conclusion

Section 9-431 of the Connecticut General Statutes imposes substantial burdens on plaintiffs’ right of association under the First and Fourteenth Amendments of the United States Constitution and is not supported by compelling state interests. Accordingly, as applied to the Republican Party rule permitting unaffiliated voters to participate in certain Republican Party primaries, the statute abridges the right of association guaranteed by the First Amendment and that abridgement must be enjoined. Plaintiffs’ motion for summary judgment is therefore granted and defendant’s motion to dismiss is denied.

It is so ordered.

      . Compare Seergy v. Kings County Republican County Committee, 459 F.2d 308, 313-314 (2d Cir.1972) (“political parties are not immune from constitutional limitations merely because they are private groups”) with Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 167, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (racially discriminatory guest policies of private club are not within purview of Equal Protection Clause of Fourteenth Amendment).

      . Section 9-431 provides, in pertinent part:
      No person shall be permitted to vote at a primary of a party unless he is on the last-completed enrolment list of such party in the municipality or voting district, as the case may be____

      . The rule provides:
      Any elector enrolled as a member of the Republican Party and any elector not enrolled as a member of a party shall be eligible to vote in primaries for nomination of candidates for the offices of United States Senator, United States Representative, Governor, Lieutenant Governor, Secretary of the State, Attorney General, Comptroller and Treasurer.

      . See Cousins v. Wigoda, 419 U.S. 477, 489, 95 S.Ct. 541, 548, 42 L.Ed.2d 595 (1975); Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 308-09, 38 L.Ed.2d 260 (1973); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968).

      . The Seventeenth Amendment provides, in pertinent part:
      The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

      . Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 345 U.S. 461 (1953); Smith v. Aliwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927).

      . See also Girard v. 94th Street & Fifth Avenue Corp., 530 F.2d 66, 69 (2d Cir.), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976); Weise v. Syracuse University, 522 F.2d 397, 405 (2d Cir.1975); Jackson v. Statler Foundation, 496 F.2d 623, 628-629 (2d Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1155 n. 6 (2d Cir.1971); Stewart v. New York University, 430 F.Supp. 1305, 1311 n. 6 (S.D.N.Y.1976).

      . Cf. Mrazek v. Suffolk County Board of Elections, 630 F.2d 890, 897 n. 11 (2d Cir.1980) ("The parties are best situated to define the proper constituencies of their nominating delegates, and these determinations should not be invalidated unless ... [the process is] utilized to exclude or disadvantage discrete groups or minorities.”).

      . It is possible that the notion of "absolute symmetry” so vigorously embraced by defendant, if adopted by the courts, could have some unexpected, not to say bizarre, consequences, as suggested by the following exchange between the court and plaintiffs' counsel during oral argument:
      Mr. Elliot: The United States Constitution requires only that the U.S. Senate electors and the U.S. House electors have the same qualifications as electors do- who vote for the State House of Representatives, and there is nothing in this case to indicate that that is not so____
      The State argues [.however,] that the U.S. Constitution requires that everyone who can vote for the State House of Representatives must be able to vote in the Republican primary for U.S. Representative and U.S. Senator____
      The State’s argument would thus invalidate Section 9-431 because it .limits the right to vote in Democratic primaries to Democrats and in Republican primaries to Republicans and does not open up all of the primaries to all of the voters who can vote for the State House of Representatives.
      The Court: But then your argument is that the so called open primary is constitutionally mandated?
      Mr. Elliot: No. Our argument is that the State’s argument is that the openprimarfy] is constitutionally mandated so that all voters in all parties can vote in each party's primaries.

      Tr. 21-23 (emphasis supplied): see also Tr. 25-26, 29-30, 38-40, 43-44.

      . 1 Story, Commentaries on the Constitution of the United States § 584, at 418 (T. Cooley 4th ed. 1873) ("the reducing of the different qualifications, already existing in different States, to one uniform rule, would have been a difficult task, even to the convention itself, and would be dissatisfactory to the people of different States”).

      . See also Oregon v. Mitchell, 400 U.S. 112, 249 n. 31, 91 S.Ct. 260, 327 n. 31, 27 L.Ed.2d 272 (1970) (Brennan, J., concurring in part and dissenting in part); G. Gunther, Cases and Materials on Constitutional Law 1096-1104 (10th ed. 1980); Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv.L. Rev. 1212, 1230-1231 & n. 63 (1978). For the related views of Judge Jon O. Newman, see note 14, infra, and accompanying text.

      . See Newman, The "Old Federalism": Protection of Individual Rights by State Constitutions in an Era of Federal Court Passivity, 15 Conn.L. Rev. 21, 25 (1982).

      . Article I, section 4, clause 1 provides:
      The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

      . The concept is best conveyed by defendant in a single sentence:
      In summary, the State of Connecticut has the power to enact laws, within constitutional limits, setting qualifications for voting in a primary election.
      Defendant’s Memorandum at 64 (emphasis added).

      . Defendant here runs afoul of the principle that cases must be construed in light of their facts.
      A similar criticism can be made of the arguments of Professor Ronald Rotunda, on which defendant relies. See Defendant's Reply Memorandum at 11 n. 5. Professor Rotunda attributes to plaintiffs the position that ”[e]ven though a nonparty member could not force an open primary and invalidate ... [a state closed primary] law, the political party could, if it chooses to do so.” He then concludes that such a position "does not find support in the case law.” Letter from Ronald D. Rotunda to Judge José A. Cabranes (dated June 15, 1984) at 2. This conclusion is unpersuasive inasmuch as no reported case has ever addressed the situation in which a political party, rather than an independent voter, challenges a closed primary law on First Amendment grounds.

      . Cf. Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107, 133, 101 S.Ct. 1010, 1024, 67 L.Ed.2d 82 (1981) (Powell, J., dissenting) ("As party affiliation becomes this easy for a voter to change in order to participate in a primary election, the difference between open and closed primaries loses its practical significance.”).

      . See, e.g., Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Ray v. Blair, 343 U.S. 214, 72 S.Ct. 654, 96 L.Ed. 894 (1952); Nader v. Schaffer, 417 F.Supp. 837 (D.Conn.) (three-judge court), aff'd mem., 429 U.S. 989, 97 S.Ct. 516, 50 L.Ed.2d 602 (1976).

      . See also Gottlieb, Rebuilding the Right of Association: The Right to Hold a Convention as a Test Case, 11 Hofstra L.Rev. 191, 198 (1982).

      . As of October 1983, there were 659,268 registered Democrats, 425,695 registered Republicans, and 532,723 registered but unaffiliated voters in the State of Connecticut. Joint Statement of Facts ¶ 1 (filed June 6, 1984). As counsel for plaintiffs asserted at oral argument, "the Republican Party recognizes that in general elections, because of the ... breakdown of Republican, Democrat and unaffiliated voters, that for the Republican Party to win in general elections it needs the support of unaffiliated voters.” Tr. 56; see also Tr. 66; note 28, infra, and accompanying text.

      . As the Supreme Court noted in Democratic Party of the United States v. Wisconsin ex rel. LaFollette, supra,

      [i]t is for the National Party — and not the Wisconsin Legislature or any court — to determine the appropriate standards for participation in the Party's candidate selection process.
      450 U.S. at 124 n. 27, 101 S.Ct. at 1020 n. 27; see also Opinion of the Justices to the Governor, 385 Mass. 1201, 1207-1208, 434 N.E.2d 960, 963-964 (1982). But see Bellotti v. Connolly, 460 U.S. 1057, 1063 & n. 3, 103 S.Ct. 1510, 1513 n. 3, 75 L.Ed.2d 938 (1983) (Stevens, J., dissenting) (observing that the Democratic Party case involved a state's attempt "to control delegates in a nationwide party contest”); Rotunda, Constitutional and Statutory Restrictions on Political Parties in the Wake of Cousins v. Wigoda, 53 Tex.L. Rev. 935, 950-951 (1975) (arguing that statutes regulating national political parties constitute extraterritorial extensions of state jurisdiction and must therefore be justified by "special interests").

      . Section 9-59 of the Connecticut General Statutes provides, in pertinent part:
      ... Any elector whose name has been transferred from one enrolment list to another or who has applied for erasure ... shall not be entitled to vote in a ... primary of any party ... for a period of six months from the date of the filing of his application for transfer or for erasure.

      . Public Act 84-118 provides, in pertinent part:
      ... The application shall be effective as of the date of its execution and any person making application for enrolment in such manner shall immediately be entitled to the privileges of party enrolment unless he executes the application for enrolment after [the fourteenth] TWELVE O’CLOCK NOON ON THE LAST BUSINESS day before a primary, in which case he shall be entitled to the privileges of party enrolment immediately after the primary____
      1984 Conn.Legis. Service No. 4, at 10 (West) (bracketed language deleted from and capitalized language added to prior statutory provision).

      . Comments in Nader v. Schaffer, supra, 417 F.Supp. at 845, to the effect that a state has a “legitimate ... interest in protecting the overall integrity of the historic electoral process” cannot be employed to support defendant’s arguments in this litigation. The Nader case involved a challenge by independent voters to the affiliation requirement of Section 9-431 and thus the central concern was the prevention of raiding. A conviction that political parties are ill-equipped to protect themselves from the disruptive effects of raiding led the court to conclude that "in the regulated situation, the state has a legitimate interest in protecting party members’ associational rights, by legislating to protect the party 'from intrusion by those with adverse principles.’ ” Id., quoting Ray v. Blair, supra, 343 U.S. at 221-222, 72 S.Ct. at 657-58. (1952).

      . A logical but unarticulated extension of defendant’s argument would permit a state to displace a party’s choice of candidates whenever the state determines that the candidate’s views are so antithetical to those of the party that permitting him to run on the ticket in the general election would engender “voter confusion." While such a result would comport with the notion that political parties are mere functionaries carrying out tasks delegated to them by the state, it is utterly inconsistent with the freedom of political parties to associate for the advancement of common beliefs guaranteed to them by the First Amendment.

      . Connecticut’s counsel has asserted that it would be "a very legitimate interest of the State” to enact legislation designed to foster party differentiation along ideological and other political lines. See Tr. 80-81.

      . The amici curiae political scientists correctly note that the real issue is the “right of political parties to choose the basis on which to seek the support of the American public." Statement of F. Christopher Arterton, et al. and Supporting Memorandum of Law (filed June 26, 1984) at 1.

      . In any event, it is possible that the challenged rule actually would decrease the likelihood of political fragmentation by encouraging independent voters to participate in the affairs of an existing political party. As one commentator has noted:
      Inasmuch as parties in competitive systems seek to win the electoral support of groups that may not be particularly predisposed toward political participation, the parties serve to pull these groups into more active involvement in the polity and thus to integrate them into the political system and its processes.
      Dawson, Social Development, Party Competition, and Policy, in The American Party Systems 208-209 (W. Chambers & W.D. Burnham eds. 1967).

      . "The principle is plain that there can be no interference with freedom of expression on the general ground that it will lead to social change, or change at the wrong rate, or in the wrong direction.” T. Emerson, The System of Freedom of Expression 47 (1970).