Constitutional law often splits society into two realms: public and private. A person’s constitutional rights and obligations depend on her classification into one of these realms. Almost all constitutional rights are only protected against encroachment by the state, and thus whether an action constitutes private or state action is incredibly significant. However, the body of law that governs this determination—the state action doctrine—is notoriously muddled.
The longstanding assumption is that political candidates and their campaigns are private actors, though the Court has on occasion, such as in the “white primary” cases, held that action by political parties constitutes state action. However, in recent years, the focus of electioneering has shifted away from political parties, and the democratic process has become far more candidate centric. At the same time, actions that might violate the Constitution if they were carried out by a state actor, such as the removal of protestors from campaign rallies and the rescission of press credentials for campaign events, have become widely publicized. In light of these developments, this Note argues that it is time to consider whether a candidate’s actions should now be considered state action for purposes of constitutional tort claims. By combining elements from the Supreme Court’s many formulations of the state action doctrine and invoking the logic behind the cases in which the Court found state action by political parties, this Note proposes a framework for assessing whether a candidate and her campaign’s conduct on the campaign trail should be considered state action.
Lauren N. Smith, The Constitution and the Campaign Trail: When Political Action Becomes State Action, 70 Duke L.J. 1473-1508 (2021)
Available at: https://scholarship.law.duke.edu/dlj/vol70/iss6/5