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Majority: Give Wash. 'top 2' primaries a chance to work

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — In Washington State, as a result of a U.S. Supreme Court ruling yesterday, a political candidate will be able to call herself a Democrat, appear on a primary ballot as a self-described Democrat, and win that way — even if the state Democratic Party repudiates her.

By a 7-2 vote, the high court in Washington State Grange v. Washington Republican Party upheld the state’s “top two” primary system, in which candidates can designate their party preferences and the top two vote-getters appear on the general election ballot. The result may be that one major party or another won’t be represented at all — and neither of the candidates on the ballot might be a party’s pick.

State political parties had challenged the system, enacted by voters in a 2004 initiative, as a violation of their First Amendment right of association because it forces them to associate with candidates not of their choosing. The parties prevailed in courts below, stopping the initiative from ever being implemented.

But the Supreme Court reversed those judgments yesterday, in large part because the parties' lawsuit was a so-called “facial challenge,” brought before the new primary system was allowed to take effect. The Roberts Court has tried to rein in such challenges, which allege that something is unconstitutional on its face, and the Washington state parties were the latest victims of that campaign.

“Facial challenges are disfavored for several reasons,” wrote Justice Clarence Thomas for the majority yesterday. “Claims of facial invalidity often rest on speculation.” Not only do they anticipate problems prematurely, Thomas added, but they “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.”

Thomas went on to say that the parties are engaging in “sheer speculation” when they say the new system would confuse voters by implying, on the ballot, that a candidate who declares himself a Democrat actually has some association with the Democratic Party.

The Thomas opinion points to proposals made by state officials that would place prominent disclaimers on the ballot, and put the candidate’s self-designation in the form of a statement, such as, “My party preference is the Republican Party.” As a result, the majority said, “we are satisfied that there are a variety of ways” in which voter confusion can be avoided.

“The First Amendment does not require this extraordinary and precipitous nullification of the will of the people,” Thomas concluded. If any problems arise once the system begins to operate, Thomas suggests, that is when an “as-applied” challenge can be launched.

In dissent, Justice Antonin Scalia attacked the majority for endorsing a system that would allow “any candidate to use the ballot for drawing upon the goodwill that a party has developed.” He added, “Not only is the party’s message distorted, but its goodwill is hijacked.”

Scalia said that in this case, as with other First Amendment issues, the “wait and see” approach suggested by the majority is inappropriate. There is, Scalia said, “no good reason to wait until Washington has undermined its political parties to declare that it is forbidden to do so.” Justice Anthony Kennedy joined Scalia’s dissent.

Chief Justice John Roberts, joined by Justice Samuel Alito, wrote an opinion concurring with the majority. Roberts sympathized with Scalia’s concerns about the parties’ First Amendment rights, but agreed with the majority that the system should be allowed to take effect. “We have no idea” what the ballots will look like and whether voters will be confused in real life, Roberts said.

The chief justice offered an analogy, arguing that the statement “I like Campbell’s soup” would not be understood as implying a connection with the Campbell’s company.

Scalia could not resist responding to the Campbell’s soup statement. Washington’s law, Scalia said in his dissent, would be the equivalent of allowing Oscar the Grouch (Sesame Street’s famed bad-taste resident of a garbage can) to state his preference for Campbell’s without ever allowing the soup company to disavow the endorsement.

A quick database search suggests this was the first time Oscar the Grouch has been mentioned in a Supreme Court decision.

The cases are Washington State Grange v. Washington State Republican Party, 06-713, and Washington et al. v. Washington State Republican Party, 06-730.


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

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Court overturns federal judge's ruling that would have forced residents to register by political party, show photo ID at the polls to be able to vote. 05.29.08

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

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Last system update: Thursday, November 13, 2008 | 21:32:53
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