The U.S. Supreme Court recently heard two cases in which it was called upon to weigh the competing interests of political parties, government and the American people. In the argument of both cases, surprising deference was paid to the rights of political parties by the justices and lawyers alike.

At a time when 42 percent of Americans are choosing not to affiliate with political parties, what do these decisions tell us about the legal framework in which the process of checks and balances is taking place?

In Washington State Grange v. Washington State Republican Party, the Democratic and Republican parties joined with the Libertarian Party to challenge an election system adopted by a majority of the state’s voters via referendum in 2004.

The referendum put in place a nonpartisan primary election in which candidates for the general election ballot are selected by all of the state’s voters in an open primary where candidates are allowed to indicate their party affiliation.

When the political parties succeeded in overturning the referendum in the lower courts, the Grange and the state took the case to the Supreme Court. Justice Anthony Kennedy posed this question to Washington Attorney General Rob McKenna: “Does the state have a legitimate interest in weakening the influence of political parties?” McKenna answered, “No, your honor, it does not.”

But that’s precisely what the referendum was designed to address. It was an attempt by the voters to check the undue power of political parties in the electoral process and in state government.

In the second case, Lopez-Torres v. N.Y. State Board of Elections, the Democratic and Republican parties and the New York State Board of Elections sought reversal of a Court of Appeals decision that invalidated New York’s convention system for nominating judges.

The system was judged by that court to be a shell game that allowed voters to participate in the election of delegates but made it impossible for them to do so in a meaningful way.

As in the Washington case, counsel for the reformers who challenged the convention system deferred to the rights of the political parties whose undue influence his clients were fighting to diminish. He conceded that it would be acceptable for New York to allow judicial candidates to be hand-picked by party bosses.

A legal premise for this deference to the parties is that they are considered private associations protected by the First Amendment. A related premise is that the state is independent of the parties and a force against which the parties must be protected.

However, at one point in the Lopez-Torres argument, the following colloquy occurred:

Justice Scalia: Well, the parties are not protesting in this case, are they?

Mr. Rossman: Absolutely not.

Justice Scalia: In fact, it is probably the case that the parties got this system adopted by the New York Legislature.

The exchange reveals the extent to which the parties have succeeded in having it both ways – at the same time demanding and achieving legal status as private associations needing protection from the government, and controlling the very government from which they seek protection.

In achieving this special status, the parties have placed the American people in a difficult bind. A basic principle of democratic government is that the people are sovereign. However, the American people appear to be unable to freely determine how they are governed.

The people of Washington state passed a referendum establishing how they wanted their elections to be organized. The parties went to court and said, “You cannot have what you want as it violates our right of association.”

In New York, citizens sought to challenge a system for electing judges that gave de facto control to party bosses through a convention system they have rigged. The political parties that created the system through their dominant position in the state Legislature invoked their status as private associations to defend it against legal challenge.

It is time to look at how the First Amendment has been applied to political parties.

Unquestionably, it protects the right of citizens to freely associate in political parties, if they choose, and the right of those parties to express their point of view on public issues.

It does not follow, however, that the parties are exempt from government regulation when their activities have become so intertwined with and determining of the electoral and governmental processes.

George Washington clearly saw this danger. His farewell address cautioned against “the baneful effects of the spirit of party generally … (that) exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.”

Surely, he would have answered with a resounding “Yes” when asked if the state and its citizens have a legitimate interest in weakening the parties’ power.

Harry Kresky is an attorney in New York City and counsel to the Committee for a Unified Independent Party.