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Court opens term with First Amendment case
2007-08 term preview

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — The first case to be argued today, on the first day of the Supreme Court’s term — Oct. 1 — is a First Amendment case.

And here’s another first: that case is the first of three election- or voting-related cases this term to invoke the First Amendment. All will be decided as the 2008 elections approach and reflect the Court’s continuing interest in election-law cases that could have big political consequences. The only other First Amendment case on the Court’s fall docket so far is a test of the latest congressional effort to restrict child pornography on the Internet.

The Oct. 1 argument — in the consolidated cases of Washington State Grange v. Washington Republican Party, 06-713, and State of Washington v. Washington Republican Party, 06-730, is the next in a series of cases in which the Court has looked at ways in which states are tinkering with their primary elections, ostensibly to make them more open to citizen participation.

In 2004, voters in Washington state overwhelmingly approved a ballot initiative changing the primary election system in the aftermath of a 2000 Supreme Court decision that invalidated an earlier effort. The high court in California Democratic Party v. Jones struck down so-called “blanket” primaries — like Washington’s — that allow voters of all parties to cast ballots in any party’s primary. The Court said such primaries allow nonmembers to dictate the standard-bearer for parties against the parties’ will, violating parties’ First Amendment associational rights.

The Washington state Grange responded by proposing a “top-two” system in which the top two vote-getters in a primary would be the candidates on the general election ballot, regardless of their party affiliation. Voters overwhelmingly approved the initiative in 2004, but it was quickly challenged by state political parties because of one feature of the new system: It allows primary candidates to list their own party preference on the ballot.

Because of that provision, the state Republican Party said it would be forced “to accept a candidate’s self-designation as a Republican, even if his views are anathema to the party.” As a result, the party and other critics claimed the new Washington system has the same defects as the California system the Court struck down in 2000. Lower courts agreed.

Washington Attorney General Rob McKenna defends the state’s right to fashion a primary suited to its citizens’ needs and argues that the state’s top-two primary “does not violate the parties’ First Amendment right of association because the voters are not choosing the party nominee. Rather, the voters are reducing the number of candidates who will advance to the general election to the top two vote-getters.” Under the new system, two candidates identifying themselves as Republicans could be the winners, and the Republican Party would have the option of endorsing either one. Allowing candidates to list their party affiliation is merely information that “voters may find useful,” McKenna argues, but does not imply party endorsement.

On Oct. 3 the Court will hear another election-related case, New York Board of Election v. Torres, 06-766, a test of the political party nominating conventions that control who gets on the ballot in elections for state trial-court judgeships. Margarita Lopez Torres challenged the system after repeatedly failing to win a Democratic Party nomination for state Supreme Court, which is the trial level court in New York. She claims the conventions are under tight party control, and candidates cannot win nomination without the blessing of party leaders. “New York’s state-imposed nominating process creates a locked gate, to which those in control of the party machinery hold the only key,” the Brennan Center for Justice argues in its brief for Torres. Lower courts agreed.

But the state and the Democratic and Republican parties defend the system as a valid method of choosing candidates that should not be second-guessed by courts. It also vindicates the parties’ own First Amendment right to decide how to pick their candidates, they say.

The third election-related case focuses primarily on the rights of voters, not candidates or parties. The Court announced just last week that it would review Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25, challenges to Indiana’s strict new voter-identification law. The law requires voters to present a current, government-issued photo ID card at the polling place. Anyone without such an ID can cast a provisional ballot, but has 10 days to get a photo ID for the vote to be valid.

The state Democratic Party and a group of voters are asking the high court to find that the law violates the “First and Fourteenth Amendment.” But both petitions make only scant mention of the First Amendment, dwelling instead on their 14th Amendment claim that the law will pose a “severe burden” and unequal impact on the poor and minorities, who are less likely to have drivers’ licenses. The 7th U.S. Circuit Court of Appeals, which upheld the law, acknowledged that such voters tend to vote Democratic, but said the law was a valid way of preventing voter fraud. The case will likely be argued early next year, with a decision before the 2008 elections.

The First Amendment case involving the Internet is scheduled for argument Oct. 30. In U.S. v. Williams, 06-694, one section of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003 is under review. That provision bans promotion or distribution of “any material or purported material” in a manner that “reflects the belief” or is “intended to cause another to believe” that the material is illegal child pornography. Congress passed the law to in the wake of the 2002 decision in Ashcroft v. Free Speech Coalition, which struck down an earlier law aimed at child pornography. The Court found the 1996 law’s definitions so broad that they could criminalize “virtual” or computer-generated pornography that did not depict any actual children.

The 11th Circuit ruled that the new provision is vague and overbroad and could ensnare liars, braggarts and even innocent grandparents who send cute photos by e-mail with the subject line “Good pics of kids in bed.”

In defending the law, Solicitor General Paul Clement said the lower court “relied on a few abstract hypotheticals” that did not detract from the fact that government is entitled to prohibit the promotion of illegal pornography.

Michael Williams of Key Largo, Fla., brought suit against the law after he was arrested in a sting operation in 2004. An undercover federal agent, checking various online chat rooms, came across an offer from Williams for “good pics of her and me,” referring to his toddler daughter. Williams was sentenced to 60 months in prison, but was allowed to challenge the constitutionality of the pandering provision on appeal.

In a brief filed with the Court, Williams’ lawyer Richard Diaz said the law “criminalizes protected thought and expression — repugnant as it may be.”


9th Circuit won't reinstate Washington's 'top 2' primary

Three-judge panel says system, which voters approved to replace state's blanket primary, infringes on rights of political parties to choose their own nominees. 08.23.06

Supreme Court to review N.Y. judicial-selection process
Lower courts have ruled that state's use of political conventions instead of primaries to pick judicial contenders violates First Amendment rights of candidates, voters. 02.20.07

High court agrees to review child-porn law
11th Circuit had found pandering provision of PROTECT Act of 2003 overbroad, impermissibly vague. 03.26.07

Supreme Court hears arguments on Wash. 'top 2' primary system
Several justices appear wary of voter-approved law, which has twice been struck down by lower courts. 10.02.07

High court seems wary of tossing N.Y. judicial-selection system
During oral arguments, justices say state's method of letting political bosses essentially pick trial judges doesn't appear to violate Constitution. 10.04.07

Court upholds N.Y. system of choosing trial judges
'A political party has a First Amendment right to limit its membership as it wishes,' Justice Scalia writes in unanimous ruling. 01.16.08

Court upholds Wash. 'top 2' primaries
In dissent, Justice Scalia says system could cause a political party to be associated with candidates who may not represent its views. 03.18.08

High court upholds part of child-porn law
Justices vote 7-2, rejecting concerns that PROTECT Act could apply to mainstream movies depicting adolescent sex. 05.19.08

1 First Amendment case on Court docket
2006-07 Supreme Court term preview by Tony Mauro Case concerns whether states may prohibit labor unions from using non-union employee dues for political activities without consent. 09.26.06

High court to revisit primary-election politics
By Tony Mauro Justices must weigh association rights of political parties against rights of voters, candidates to have access to political system. 02.27.07

PROTECT Act to face high court scrutiny
By Tony Mauro Justices to decide whether latest congressional effort to combat child pornography violates First Amendment. 03.27.07

Rhetoric aside, most First Amendment claimants lose
By Tony Mauro Beyond the scorekeeping, however, 2006-07 term gives important insights into how Roberts, Alito view First Amendment. 07.16.07

Court may have found child-porn law it can support
By Tony Mauro Idea of limiting interpretation of 2003 PROTECT Act so it won’t be overly broad seems to take hold among justices. 10.31.07

'Millionaire' case: new look at campaign finance
By Tony Mauro Appellant argues that allowing opponents of self-financed candidates to receive larger campaign contributions encourages corruption. 01.14.08

Majority: Give Wash. 'top 2' primaries a chance to work
By Tony Mauro Justice Thomas suggests that if problems arise once system begins, an 'as-applied' challenge can be launched. 03.19.08

2007-08 Supreme Court case tracker

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