SCOTUS Upholds WA Primary

Paul Gronke

In a shocker to the election reform community, the Supreme Court upheld the constitutionality of Washington State's "blanket" primary. 

Rick Hasen writes: The Court, and particularly Justice Roberts, leaves open the possibility of an as-applied challenge to the law later upon proof that voters are actually confused by the designations of the candidates' party preferences on the ballot (thinking that this is really a party primary).

The full text of the decision can be found here.

This has to be seen as seriously undermining any constitutional objections to Phil Keisling's "open primary"  proposal.

  • (Show?)

    In addition to just about every other disaster Bush has visited upon this nation, let us not forget the turds he dropped permanently into the Supreme Court.

    From the decision: "But respondents’ assertion that voters will misinterpret the party preference designation is sheer speculation."

    Because, of course, average voters are so exceptionally well informed.

    I'm sorry, but whether you put it as a "(D)", a "(Dem)", or a "Prefers to call himself a Democrat", the idea that no voters will be fooled into thinking (for example), that Joe Lieberman is a Democrat, simply fails on its face. Especially when that same designation is used everywhere else for people who actually ARE Democrats.

    I can only conclude, from reading this opinion, that the Supreme Court si composed of politically motivated idiots.

    Mind you: if this Washington State system was in effect in Connecticut, Joe Lieberman would still be called a full fledged Democrat - no matter what actually Democrats thought of him.

  • Justice (unverified)


    Looks to me like you're the idiot, not the Court. You don't even understand the difference between what you like and what the constitution prohibits. The Supreme Court said that the Washington initiative was constitutional. That doesn't mean it is a good idea or not, just that it doesn't violate the constitution. Idiots like you who don't understand these rather simple concepts are part of the problem.

  • (Show?)

    It's called "freedom of association". Maybe you should look it up, "Justice". You'll find it in the Constitution. Clearly something you've never read.

    It means, among other things, that everyone has a right to name their own group, and protect their good name by not endorsing people who would sully it. Like Democrats deciding they'd had enough with Lieberman and his cheering for Bush and the war on Fox news.

    This whole issue turns on the Court pretending that voters are simply too well informed to ever be tricked by a bogus party affiliation label that a candidate chooses.

    It fails the test of reason on its face, and opens itself to all sorts of abuse. Hell, if the GOP keeps going the way they have been, Mannix will go back to pretending he's a Democrat just to have a chance.

    Well that's enough of me arguing with yet another anonymous internet troll.

  • (Show?)

    By that logic, the Judges' decision is sacrosanct. Sure, they're put in place to uphold the Constitution, but the gross politicization of the Justice Department and the Supreme Court weighs heavily on this and other recent and forthcoming outcomes.

  • (Show?)

    It's called "freedom of association". Maybe you should look it up, "Justice". You'll find it in the Constitution. Clearly something you've never read.

    Pardon me for butting in, Steve Maurer, but I've got my copy of the Constitution out and I'll be damned if I can find "freedom of association" anywhere in it. Maybe "Justice" is having the same problem. Could you give us a cite?

    And, by the way, despite the ranting about against the "gross politicization of the . . . Supreme Court", note that Breyer, Ginsburg, Souter and Stephens all voted with the majority, while Scalia and Kennedy dissented (and Roberts and Alito signed onto a more restricted concurring opinion).

  • Ed Bickford (unverified)

    JR, ever hear of the 1st Amendment?

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

  • (Show?)

    "Freedom to associate" does not equal "freedom to have special access to ballots and election mechanisms paid for, legitimized, and conducted by the government." Parties, like all advocacy groups, are free to associate all they want, and to offer their endorsement to any candidate they like.

    I'm not 100% sure about the latest Washington version, but it doesn't take a law degree to understand that the Oregon Open Primary has no such problem with the Constitution.

    It's true that past versions of similar laws were overturned on this provision, but it's because they were structured in a way that was nonsensical and clearly unconstitutional. Those versions required the parties to nominate candidates according to the wishes of voters both inside and outside their parties.

    That's a thing of the past. Like I said -- I'm not intimately familiar with the Washington version that was just litigated, but since it was crafted after the Supreme Court ruling, it would be a pretty huge surprise if it still contained this basic (and easily-correctable) flaw.

    Disclosure: I've done consulting for the Oregon Open Primary campaign.

  • Ed Bickford (unverified)

    It is a strange day when Justice Scalia advocates my position:

    "Among the First Amendment rights that political parties possess is the right to associate with the persons whom they choose and to refrain from associating with persons whom they reject. ... Also included is the freedom to choose and promote the ‘standard bearer who best represents the party’s ideologies and preferences.’ ”

    I also agree with Justice Scalia's interpretation in his preamble, "...indeed, because it seems to me Washington’s only plausible interest is precisely to reduce the effectiveness of political parties—-I would find the law unconstitutional."

    I wouldn't rely too heavily on this case to impute constitutionality to the Keisling "open primary" proposal. The majority opinion merely rejected the lower courts' ruling that the 'blanket' primary was unconstitutional "on its face", and that they see the case as an issue "that can be evaluated only in the context of an as-applied challenge". That seems to me to be a tacit admission that its constitutionality has not been decided.

    The sticking point for me is that the proposed WA ballot allows candidates to be identified with a "party preference" which has no force of party approval. They base much on their ruling on the fact that there is no proof of voter confusion in this big change of primary election function. How high above the mortal crowd do you have to tower to be unable to see that?

  • (Show?)

    Ed, Justice Scalia might just as easily have said:

    • Among the First Amendment rights that environmental avocacy groups possess...
    • Among the First Amendment rights that neighborhood associations possess...
    • Among the First Amendment rights that rock bands possess...

    His statement would have been true in each case. Why, then, doesn't OLCV get to nominate a candidate to the November ballot? A clear violation of constitutional rights!

    Now, consider the converse. Suppose past legislators were silly enough to have declared that any rock band could nominate a candidate. Would we not have an interest in reversing that law, and wouldn't that interest be legitimate? What's the difference here? There isn't any. We have passed statutes that acknowledge parties and grant them special favors, but the U.S. Constitution doesn't mention parties. I'm pretty sure that's 100% true, but if you can find a passage to prove me wrong, bring it on.

    As to your entirely separate concern about voter confusion, the Oregon initiative will allow two clearly separate things: party registration, and party endorsements (which the candidate may choose whether or not to accept.) I suppose it's conceivable that a voter could be confused if no party bothered to endorse in a given race, and the registration was the only thing listed. How often do you think that will happen in a competitive race?

    Washington had a top-two system for 70 years. People like it; when the law was thrown out, they voted it back in by a 60% vote in 2004. They also seem to be doing things pretty well up there; two pretty good Senators, a progressive governor. Beat us to e-waste legislation by a couple years. You get the idea.

    Meanwhile in Oregon, we have a Republican party that can't keep its books straight, and that seems enamored of making sweeping commitments like "no taxes" that prevent substantive debate on numerous issues. And both parties overwhelmingly passed a law in 2005 -- HR 2614, I think -- that caused lots of people's ballots to be tossed simply because they signed a petition for Sen. Westlund. Talk about voter confusion!

    Why exactly should these organizations get special treatment on the November ballot? Me, I'd like to see who Dr. Theopolis would nominate. Now, there's a party for ya!

  • LT (unverified)

    I think it is a good decision, but then I can think of times when this would have been beneficial for Oregon, such as

    *Dist. 25 2004 when the primary result would have been Vic Backlund vs. Roger Pike with Kim Thatcher the loser,

    *the case Pete mentions about Westlund for Gov.,

    just to mention 2 examples.

    Now, if the parties want to pay for primaries, they have a right to say one must be registered to participate. But with 20% or more of the voters not registering with a party, and those people's tax dollars paying for closed primaries, it is time to try something new.

    Such ideas were discussed by the Public Comm. on the Legislature.

    It would be interesting to know Marilyn Shannon's response to this--she had a letter to the editor of the SJ recently warning about all kinds of problems if there was an open primary.

    Now, if I haven't made everyone angry, how about an end to pass throughs? Money would be contributed directly to candidates, becomes the property of the campaign (Friends of John Doe, for instance) and must be spent on that campaign. It would change the dynamic of target candidates ("sorry--limited resources, so we have to target only certain candidates") and get us closer to Howard Dean's vision of "show up everywhere, contest everything".

    Of course, power would shift---maybe even to "we the people" who would now be able to know exactly who contributed to which campaign. Look no farther than the Oregonian article about Mannix paying off his campaign debt. What if there was no way for him to obscure where the money to pay off that debt came from?

  • (Show?)

    Since the open primary business is coming up again, here's a little public service announcement: The 2008 One Ballot measure is dramatically different than the 2006 One Ballot measure.

    To be sure, some arguments on both sides still apply -- but others do not. Be sure to do your research before you run to your battle stations.

    Full disclosure: My company hosts the website for the One Ballot campaign. I speak here only for myself.

  • Ed Bickford (unverified)

    Mr. Forsyth, I may not be a lawyer but that gives you no excuse to be condescending; not that you have needed any on your other posts here.

    Justice Scalia did not talk about any of those other groups because they were not the subjects of contention. Duh! Those who were subjects were people who were exercising their due under the First Amendment (see above!) "...the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

    As citizens we have the right to assemble in common cause with people who wish to induce the government to incorporate our common concern, and joining a political party is a valid way to excercise that right. There are very good reasons to form political parties, and one of the best is that the corporate culture is a very powerful politcal lobby which is very happy to use the power of government to enrich themselves at the expense of the quality of life for workin' Joes like me. Alone I have ZERO chance of getting out from under their thumb.

    I don't like the current incarnation of the two-party system, but oversimplifying the problem to one of ballot-construction is not going to make it better. The make-up of our political institutions is what makes it so difficult for third-tier parties to gain a place at the table.

    Washington state did not have a Top Two election system for 70 years. I'll quote form today's majority opinion again:

    "From 1935 until 2003, the State used a blanket primary that placed candidates from all parties on one ballot and allowed voters to select a candidate from any party. ... Under this system, the candidate who won a plurality of votes within each major party became that party’s nominee in the general election."

    Obviously that system was recognized as vulnerable to 'freedom of association' concerns, and was abandoned. The Top Two system has not been instituted, and so can take no praise for the state of Washington's government.

  • David Wright (unverified)

    I believe Mr. Bickford makes an important point when he stresses that Washington's previous system was not a "Top Two" scheme. In the previous system, each major party was guaranteed a candidate in the general election, but non-party-members were allowed to influence who that official party candidate would be.

    On the other hand, a "Top Two" system (as apparently I-872 would implement) essentially removes official party candidates from the equation entirely. Neither Democrats nor Republicans are guaranteed a spot in the general election, hence the primary election is not in point of fact an election for any party's nominee.

    Given that fact, clearly freedom of association concerns are moot. Unless I'm missing something, the state parties are unable to disassociate themselves from a particular voter -- i.e., if I self-register as a Democrat, I get to vote in the closed Democratic primary and the state party can't say boo about it. Which means, clearly, that the right of exclusion from association isn't absolute.

    The argument about a party's right to choose its own standard-bearer is certainly compelling, but as I said before in this case it's moot as there are no official party standard-bearers under the I-872 system. Can't stress that point enough -- I-872 strips from all parties the guaranteed privilege of designating an "official" party candidate for a general election.

    Maybe you think that's a bad thing, maybe you think it's a good thing -- but either way, it's a critical distinction to make in evaluating the impact that this decision may have on other proposals around the country.

  • Mac McFadden (unverified)

    I don't really care what they do in Washington, but I will fight tooth and nail against an "open" primary in Oregon. Those (estimated) 431,986 Oregonians disenfranchise themselves by their own choice. If they want to have a voice in choosing the Democratic Party's nominees then let them register as Democratic Party members (or Republicans, their choice again). Otherwise they can just wait untill Democrats decide who their nominee will be for the General Election in November. If you want to get invited to the party, you have to join the Party. No gatecrashers.

  • (Show?)

    Ed, I apologize for my unfortunate choice of words, it was not my intent to condescend to you. Steven Maurer, to whom I'm also responding in my comments, is a distinguished judge; all I meant to do was point out that the issue at question (which David Wright may have summarized better than I did) is not some arcane point we need to look to experts to evaluate, but a very simple principle that we can put behind us as we look at the Open Primary initiative.

    But, I can see how it came across as condescending, and I am sorry for that. I don't have a law degree either, or anything close. It wasn't my intent to talk down to you.

  • Ed Bickford (unverified)

    If I have a Constitutional right to make common cause with other voters in a party to make my concerns heard in the halls of government, how can an election be legal which "removes official party candidates from the equation entirely"? That is disenfranchisement, and does not make 'freedom of association' moot!

    I must note that the WA Top 2 system retains the illusion of party participation through allowance for candidates to self-identify a 'party preference' which only makes the insult to my intelligence worse.

    If you register as a Democrat, you identify with the expressed political views of the group. If you are simply lying about your aims to interfere with the association then you do not make the freedom to associate moot, you merely violate it and damage the democratic process.

  • Ed Bickford (unverified)

    Pete, I overreacted to your tone; it is the ideas I came here to discuss.

  • What Freedom to Associate? (unverified)

    "Pardon me for butting in, Steve Maurer, but I've got my copy of the Constitution out and I'll be damned if I can find "freedom of association" anywhere in it." - Jack Roberts

    First, they came for the political parties, and I said nothing, because I didn't like the Democrats or Republicans.

    Then, they came for the trade and labor unions, and I said nothing, because unions are so last-century.

    Then, they came for the non-profits, and I said nothing, because I was sick of junk mail asking for money.

    Then, they came for the Bar and Medical Associations, and I said nothing, because anyone should be able to practice law or surgery if they feel like it.

    Then, they came for the churches, and I said nothing, because I'm too hip to go to church.

    Then, they came for me. And, I could do nothing to stop them, for I was standing there, all alone.

    (with respect to Rev. Martin Niemoller)

  • (Show?)

    If they want to have a voice in choosing the Democratic Party's nominees then let them register as Democratic Party members (or Republicans, their choice again).

    Of course, Mac, your comment betrays a simple truth: You haven't actually read anything about the 2008 One Ballot measure.

    Because if you had, you'd know that the 2008 version doesn't let unaffiliated voters choose the Democratic Party's nominee (or the Republicans' nominee.)

    The facts are that our primaries would no longer select nominees at all. They'd be all-comers general elections, with a top-two run-off in November.

    By default, all candidates would be listed, with their party registration next to their name. But the parties would have the right to remove the D or the R if they so choose.

    In other words, the parties can select a nominee through whatever process they see fit - and then remove the D or R from all other candidates.

    Again, read the measure before you start lobbing arguments. The old arguments may no longer apply.

  • David Wright (unverified)

    Mr. Bickford, your constitutional right to peaceably assemble, and petition your government for redress of grievances, does not require that a selectively designated member of your own party be available as an option in a general election. That constitutional right has nothing whatsoever to do with elected representatives, it has to do with the citizens' right to petition government directly at any time, not just election time.

    The inability to vote for the candidate of your own personal choice in a general election does not disenfranchise you, else the entire primary process must of necessity "disenfranchise" everybody who voted for a candidate that lost in the primary, since they would then be unable to vote for that candidate in the general election. Which is, of course, nonsense.

    Central to the whole discussion of the consitutionality of I-872 (and other similar proposals), I believe, is the question of whether the Democrats and Republicans have a constitutional right to have a candidate in every general election. If not, and a given voting system does not purport to select an official party candidate for the general election, then it sure seems to me that such a system would be constitutional.

    Does anyone argue that the D's and R's have such special constitutional protection?

  • Ed Bickford (unverified)

    Mr. Wright do you also condemn "special rights" accorded to sexual or racial minorities? That would be barely concealed bigotry.

    How do you arrive at the judgement that I have no right to have a party representative in the election? If I have the right to assemble to address the government, why would that right evaporate if I choose to do so as a member of a party? The Constitution does not specify that we must descend on Congress as a mob to demand our rights. Does representative government mean nothing to you? Our democratic institutions have evolved since ancient Greece's heyday you know!

    Your example of disenfranchisement is (as you noted) nonsense. My "inability to vote for the candidate of your own personal choice in a general election" is not even the issue, but a diversion from the topic. The whole idea of the first amendment right under discussion is that I have the right to join with like-minded voters to wield the power of numerical and ideological superiority to "promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity". If you contend that we have no right to elect a representative of our party, we are by definition disenfranchised.

    I say that if you have problems with how political parties wield power, but your solution is to remove their power to function as a force in government, then you reveal yourself as no more than an anarchist.

  • Justice (unverified)


    Well thanks for making my point for me. It is now clear that you are indeed one of those idiot liberal judges who just sees whatever he wants in the constitution. Your example proves that as others have already pointed out on this thread. Hopefully I never end up in your courtroom since it appears that you're nothing more than a partisan hack.

  • Ed Bickford (unverified)

    Try as I might I seemingly cannot tempt Paul to re-enter the fray here.

  • (Show?)


    I'm ambivalent. I've been working for the past few years (graciously supported this year by Reed and Pew) to assure that we have solid, reliable empirical data on the performance of our elections system, and that any proposed changes are also supported by solid evidence.

    I've posted before that both the theoretical and empirical evidence runs contrary to the claims made by Phil and other supporters, most importantly:

    All evidence is that top two primaries are as likely to push forward extremist candidates to round two as they are to benefit moderate candidates.

    There is also half a century of evidence that non-affiliated voters are not the Normal Rockwellian well-informed, reflective, "vote the candidate not the party" sort of citizen that we'd like to believe they are.

    I also suspect, though have no evidence to support, Neel Pender's belief that this will increase campaign spending overall because we essentially run two general elections. That bothers me less because I am not one who is concerned about the amount we spend on elections, as long as we have open and transparent accounting.

    All that being said, I think the two party stranglehold on our political system is a real problem, and I'm looking around the ways to shake up that duopoly. Perhaps this will work? I don't know. I'm still turning over in my head ways that this may operate in Oregon, how Oregon may differ from Peru, France, Louisiana, and other top two systems, etc.

    As an empiricist, if it happens, i get more data, so heck, I'm golden!

  • Ed Bickford (unverified)

    Paul, do you still think this weak endorsement of the Top Two contest will impute constitutionality to Oregon's Open Primary?

    Also, isn't it more a result of the "majority holds all power" construction of our governmental institutions which elicits the two-party hegemony in the U. S.? If the minority splits, they can't hope to gain power. How will banning party-annointed candidates from dominating the ballot change that?

  • Ed Bickford (unverified)

    Paul, are you going to let go unchallenged the assertion in today's editorial in the Oregonian, "A historic win for the voters of Washington":

    "Closed primaries favor party extremists, culling out moderates who have the broadest appeal but who fare poorly in party-controlled elections."

  • Sunnyside (unverified)

    I like the idea of open primaries - in terms of the fact that you can vote for whichever party affiliation you like. The problem I have with this particular proposal is that it seems to eliminate the parties all together, more or less resulting in a no-party system, and puts us into similar situations such as the Portland City Council race...where two individuals are forced to run two full-fledged (and often expensive) campaigns to run against each other twice. In the cases of races that are decided through only a Democratic primary (ie no Republican challengers) this means these individuals would have to run two full campaigns. As someone who knows many people working on these types of campaigns, I can't imagine having to do this - nor the cost it would incur in these safely liberal seats that could be spent elsewhere protecting and gaining seats that are much needed.

  • Steve Rankin (unverified)

    Re the possible later "as-applied challenge" to the law: Louisiana, the only other state with a similar system, has used it since 1975. LA has always put party labels on its ballots, and it seems to work just fine. Most of my relatives live in LA, and I've never heard of any problems related to having party affiliations on the ballots. I would have thought that SCOTUS would have studied LA's experience prior to issuing its ruling.

    This "top two" system is, in my view, fine for local and judicial elections, but it's a terrible idea for state and congressional elections.

    Louisiana has restored party primaries this year for its congressional elections. Also, the Washington "top two" as applied to its congressional elections is clearly unconstitutional, portending yet another lawsuit there.

  • Richard Winger (unverified)

    Freedom of association was first recognized by the US Supreme Court in the 1950's. Several southern states had passed laws making it almost impossible for the NAACP to exist in those states. They had to reveal their membership list, but the US Supreme Court invalidated that in NAACP v Alabama, 357 US 449 (1958). Virginia passed a law preventing the NAACP from soliciting ordinary people to become plaintiffs in lawsuits, but the US Supreme Court threw that out in NAACP v Button, 371 US 415 (1963). Since then the US Supreme Court has extended freedom of association to the Boy Scouts (New Jersey anti-discrimination laws concerning gays couldn't be used to force the Boy Scouts to accept gay members and scoutmasters), and to an association that sponsors a St. Patricks Day parade and won't let gay Irish groups have floats in that parade.

    Freedom of association was extended to political parties around the 1972 Democratic national convention, when the Court ruled that state laws on presidential primaries cannot be used to tell the major parties which delegates to seat.

    When political parties assert freedom of association rights, they aren't asking for anything that groups in general don't get...freedom to run their own affairs according to their own wishes.

    The Washington top-two law will result in some very peculiar "party preferences" appearing on the primary ballot, such as the "Democratic Republican Party" or the "Republican Democratic Party" or the "Green Democratic Party" or the "Libertarian Republican Party." It will fall apart of its own inanity. At the oral argument in the US Supreme Court, one of the justices asked the Attorney General for Washington how the state will even know in the future (assuming the law was upheld) which are the qualified parties, since Washington law defines a party as a group that polled 5% for "its nominee." But Washington law says parties don't have "nominees". The Attorney General guessed that the state would go by which candidate has been endorsed by any particular party. He was making it up on the spot. No one has figured all these details out.

  • Richard Shepard (unverified)
    <h2>For a fairly thorough and detailed explanation--from the left--as to why the Washington Top Two Initiative is an extremely bad idea, and why, for once, even a leftie is agreeing with Justice Scalia, go to the Northwest Progressive Institute weblog, here:</h2>

connect with blueoregon