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Washington State: Bob Bauer's analysis of Washington "top two" case

Bob Bauer writes on ACSblog.org: Political parties are having a hard time, and as the Supreme Court meets this week, it will hear their most recent complaint. It is not the complaint most in the news, as each national party grasps for control over its own Presidential nominating schedule. The Court will hear from parties that one state, Washington State, has approved what is called a “modified blanket primary” system, the effect of which is to deprive them of their right to choose their own candidates for partisan political office. Washington State Grange v. Washington State Republican Party, 460 F.3d. 1108 (2006).

Under the Washington arrangement, approved in 2004 by initiative, all voters of all parties participate in a primary, voting for any candidate they choose. The top vote-getters face each other. But any candidate can express her party preference, at her option, and this preference is reflected on the ballot. Hence the candidate who emerges may be associated with a party, by self-selection, but without the party’s consent, and perhaps over its active opposition. In fact, this system could produce two candidates identifying themselves as, say, Republicans, and they will face each other: but neither may be truly a Republican, and neither may have any support within their own party, or the backing or endorsement of any formal party process such as a convention.

The Republican party, challenging this arrangement, has won both rounds in court, leading to the case now before the Supreme Court. The State of Washington believes that the Republicans have it wrong in imagining that their associational rights are infringed by the blanket primary. -- Guest Blogger: Does Washington State's "modified blanket primary" system violate the right of association?


"[In the partisan blanket primary], ...the winners, emerging to compete in the general election, were the top two vote-getters from each party."

Actually, the single top vote-getter from each party advanced to the general election.

"The Ninth Circuit, holding against the parties..."

In fact, in the current case from Washington state, both of the lower courts ruled for the parties and against the State.

I have followed the controversy in Washington since 2001.

While the "top two" is fine for local and judicial elections, I personally despise it for state and congressional elections. Nevertheless, I believe that the only thing unconstitutional about the Washington measure is the timing of congressional elections. It seems to me that, when an individual has a party preference, he has that preference whether the party likes it or not. When party preferences are put on the ballot, it's mainly for the voters' information.

The "top two" is not actually a "primary." Rather, it is a nonpartisan general election with a runoff. Only Louisiana now uses the "top two" for all of its state elections. Louisiana, which, unlike Washington, has party registration, does put party labels on its "top two" ballots.

The attorney for the Washington state Republican Party complained that the "top two" changes the parties' "right to nominate" to a "right to endorse." Parties only have a "right to nominate" if the State gives it to them. If the State requires the parties to nominate candidates, the State must then prescribe the method(s) of nomination. (Thus, it's up to the State as to whether each party is limited to one candidate per office on the general election ballot. Again, the first round of the "top two" is the general election.)

Again, I see this issue of putting party preferences on a "top two" ballot as a "tempest in a teapot." But if the Washington measure is struck down for that reason, we have to assume that a "top two" with no party labels is constitutional. Otherwise, the way that the majority of U. S. judicial and municipal elections are conducted is unconstitutional.

Near the end of his majority opinion in California Democratic Party v. Jones, Justice Scalia refers to the "top two" as a "nonpartisan blanket primary." He says that it passes constitutional muster because "... voters are not choosing a party's nominee." (In his dissent, Justice Stevens correctly states that it's a general election with a runoff.)

In Party Politics in America, Frank Sorauf says this about nonpartisan elections: "Although there are no party labels on the ballot, the party affiliations of various candidates may be well known. Party organizations may openly endorse and support candidates... . In those cases the distinction between a partisan and nonpartisan [election] may remain only for the voters who have inadequate political information."

When a party endorses a candidate in a "top two" system, the party publicizes that fact whether party labels are on the ballot or not.

If the Supreme Court indeed strikes down the "top two" with party labels, the Washington Grange, if necessary, will come back with a new initiative for a "top two" without party labels. And the voters of Washington will again pass it overwhelmingly.

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