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High court to revisit primary-election politics

By Tony Mauro
First Amendment Center legal correspondent
02.27.07

WASHINGTON — The Supreme Court is showing renewed First Amendment interest in how candidates for election are selected.

For the second week in a row, the Court agreed to hear a case on this subject, which has proven to be a tricky balancing act between the association rights of political parties and the rights of voters and candidates to have access to the political system.

The Court yesterday granted review in two consolidated cases that will examine Washington state’s “top-two” primary system for picking candidates that appear on general election ballots: Washington State Grange v. Washington Republican Party, 06-713, and State of Washington v. Washington Republican Party, 06-730.

On Feb. 20, the Court agreed to hear 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. The challenge to the system was brought by Margarita Lopez Torres after repeatedly failing to win a Democratic Party nomination for state Supreme Court — the trial level court in New York. Both cases are to be argued in the fall.

“It might be,” says election-law expert Richard Hasen, “ that the Court simply finds these cases interesting and enticing to take even when there are not high stakes involved.” Hasen, a professor at Loyola Law School in Los Angeles, operates the widely-read Election Law blog.

The high court’s action on the Washington state cases came as something of a surprise to both sides. The 9th U.S. Circuit Court of Appeals, applying an earlier Supreme Court ruling, struck down the state system on the grounds that it in effect forces parties to associate with candidates against the will of the parties.

In its 2000 decision California Democratic Party v. Jones, the Court struck down that state’s “blanket primary” system which allowed voters of all parties to cast ballots in any party’s primary. The Court’s concern was that blanket primaries allow nonmembers to dictate the standard-bearer for parties against the parties’ will.

That ruling doomed Washington state’s similar system, which led the state Grange to propose a ballot initiative to create a “top-two” system whereby 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 argues in its brief to the high court that 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 Republican Party and the other objectors claim the new Washington system has the same defects as the California system the Court struck down in 2000.

Both the federal district court and the 9th Circuit agreed, with the appeals court finding that the new primary system was “overtly partisan” because candidates are allowed to list their party preference. As a result of the legal dispute, the primary system has never been implemented.

Washington Attorney General Rob McKenna argues that the system in fact is non-partisan and remedies the problems the Supreme Court identified in the 2000 ruling. He notes that 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.

McKenna also makes a strong argument that the 9th Circuit ruling “severely limits the choices states have in deciding how to structure their election systems to best serve their citizens.”


Related

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 to review Wash. primary system
9th Circuit had found 'top-two' system, which has never been used, infringes on political parties' rights to choose nominees. 02.26.07

GOP members sue to close Idaho primaries
Federal lawsuit, filed by 72 Republicans, alleges state's open-primary system violates plaintiffs' 'right to associate in a political party.' 07.14.07

Ariz. independents can't vote in Libertarian primary
Federal judge's ruling could eventually affect statewide open-primary system. 10.02.07

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

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

First Amendment rulings awaited
By Ronald K.L. Collins Ten free-expression cases, including 'Bong Hits,' and one religion case are still to be decided this term and next. 05.16.07

Court opens term with First Amendment case
2007-08 Supreme Court term preview by Tony Mauro Justices to decide three election- or voting-related cases, consider appeal from government on Internet law. 10.01.07

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

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