Washington State Grange & Washington v. Washington State Republican Party

The Supreme Court will wade once again into the political thicket when it opens its 2007 Term on Monday, Oct. 1, in a case pitting Washington State’s political parties against the state’s voters.

In the consolidated case, Washington State Grange v. Washington State Republican Party, Nos. 06-713, 06-730, a grass-roots organization of Washington farmers is protesting the Ninth Circuit’s decision last year to strike down the state’s so-called “modified blanket primary” system. The system lets primary voters cross party lines when voting for different offices, and permits the top two vote-getters for each office to advance to the general election.

The case is one of two election cases scheduled for the Term so far. The second, a challenge to New York State’s judicial elections, Lopez-Torres v. New York State Board of Elections, No. 06-766, will be heard on Oct. 3.

The Washington case is a corollary to the Supreme Court’s 2000 decision in California Democratic Party v. Jones, 530 U.S. 567 (2000). In Jones, the Court held that primaries permitting voters to cast ballots for candidates of any party – whether or not they are registered party members -- violated the political parties’ right of free association under the First Amendment.

Washington’s California-style blanket primary was struck down in 2003, and voters responded a year later by approving Initiative 872. That measure established a primary election in which all candidates could identify the political party they “preferred,” while not being formally affiliated with the party. In addition, rather than permitting the top vote-getter from each party to advance to the general election, the system permits the two candidates who garner the most votes overall to move forward. Thus, both general election candidates could conceivably be members of the same political party.

The Ninth Circuit struck down the modified blanket primary in 2006, holding that it suffered from the same fatal flaw as the discredited blanket primary. Namely, because candidates could have their party “preference” printed on the ballot, they infringed on the parties’ right to associate only with candidates of its own choosing.

In urging the Court to review the case, Washington State and the Grange have relied on dictum from the Jones case stating that a top-two primary might be constitutional even if the ballot included party affiliation, so long as the result of the primary was nonpartisan. The parties have countered that the Court’s “blueprint” for a permissible blanket primary also required that the State permit the parties to control which of its candidates appeared on the primary ballot.

The case represents a continued effort by those unhappy with the current political process to reduce the influence of party organization and money on elections. As the Grange explicitly told voters in 2004, “[t]his proposed initiative will ensure that the candidates who appear on the general election ballot are those who have the most support from the voters, not just the support of the political party leaders . . . . [Candidates] will not be able to win the primary by appealing only to party activists.”

On the other hand, the parties contend that First Amendment history and tradition require the Court to permit it to exclude those who do not fit within their philosophical boundaries. Both parties argue that they fear candidates such as Ku Klux Klan member David Duke, who in the mid-1990s claimed the mantle of the Republican Party against the party’s will.

The case will be argued on October 1, 2007. An opinion is expected by late 2008.Questions presented: Does a primary election system that permits candidates to identify a party preference, and then awards a general election ballot spot to the top two vote-getters, violate political parties' rights to associate with the candidates of their choice?

The Supreme Court delivered a blow to Washington State’s political parties when it upheld the state’s open primary election system.

In the consolidated case, Washington State Grange v. Washington State Republican Party, Nos. 06-713, 06-730, a grass-roots organization of Washington farmers protested the Ninth Circuit’s decision last year to strike down the state’s so-called “modified blanket primary” system. The system lets primary voters cross party lines when voting for different offices, and permits the top two vote-getters for each office to advance to the general election.

The case is one of two election cases scheduled for the Term so far. The second, a challenge to New York State’s judicial elections, Lopez-Torres v. New York State Board of Elections, No. 06-766, was heard on Oct. 3.

The Washington case is a corollary to the Supreme Court’s 2000 decision in California Democratic Party v. Jones, 530 U.S. 567 (2000). In Jones, the Court held that primaries permitting voters to cast ballots for candidates of any party – whether or not they are registered party members -- violated the political parties’ right of free association under the First Amendment.

Washington’s California-style blanket primary was struck down in 2003, and voters responded a year later by approving Initiative 872. That measure established a primary election in which all candidates could identify the political party they “preferred,” while not being formally affiliated with the party. In addition, rather than permitting the top vote-getter from each party to advance to the general election, the system permits the two candidates who garner the most votes overall to move forward. Thus, both general election candidates could conceivably be members of the same political party.

The Ninth Circuit struck down the modified blanket primary in 2006, holding that it suffered from the same fatal flaw as the discredited blanket primary. Namely, because candidates could have their party “preference” printed on the ballot, they infringed on the parties’ right to associate only with candidates of its own choosing.

In urging the Court to review the case, Washington State and the Grange relied on dictum from the Jones case stating that a top-two primary might be constitutional even if the ballot included party affiliation, so long as the result of the primary was nonpartisan. The parties countered that the Court’s “blueprint” for a permissible blanket primary also required that the State permit the parties to control which of its candidates appeared on the primary ballot.

The case represented a continued effort by those unhappy with the current political process to reduce the influence of party organization and money on elections.

As the Grange explicitly told voters in 2004, “[t]his proposed initiative will ensure that the candidates who appear on the general election ballot are those who have the most support from the voters, not just the support of the political party leaders . . . . [Candidates] will not be able to win the primary by appealing only to party activists.”

On the other hand, the parties contend that First Amendment history and tradition require the Court to permit it to exclude those who do not fit within their philosophical boundaries. Both parties argue that they fear candidates such as Ku Klux Klan member David Duke, who in the mid-1990s claimed the mantle of the Republican Party against the party’s will.

On March 18, the Supreme Court upheld the plan, ruling 7-2 that to overturn it would have been an “extraordinary and precipitous nullification of the will of the people.”

“The state has had no opportunity to implement (the primary) and its courts have had no occasion to construe the law in the context of actual disputes arising from the electoral context, or to accord the law a limiting construction to avoid constitutional questions,” wrote Justice Clarence Thomas for the majority.

“Without the specter of widespread voter confusion, [challengers’] arguments about forced association and compelled speech fall flat,” Thomas noted.

In dissent, Justice Antonin Scalia, joined by Justice Anthony Kennedy, argued that the plan would cause a political party to be associated with candidates who may not represent its views.

“There is no state interest behind this law except the Washington legislature’s dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates,” Scalia asserted.

Questions presented: Does a primary election system that permits candidates to identify a party preference, and then awards a general election ballot spot to the top two vote-getters, violate political parties' rights to associate with the candidates of their choice?