On Monday, Oct. 1 the U.S. Supreme Court heard Oral Argument on two cases of interest:

No. 06-713
WASHINGTON STATE GRANGE v. WASHINGTON STATE REPUBLICAN PARTY And No. 06-730 WASHINGTON, ET AL., v. WASHINGTON STATE REPUBLICAN PARTY, ET AL.

In the first case the question is:
Does the First Amendment prohibit top-two election systems that allow a candidate to disclose on the ballot the name of the party he or she personally prefers?

In the second case the question is:
Does Washington’s primary election system in which all voters are allowed to vote for any candidate, and in which the top two candidates advance to the general election regardless of party affiliation, violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?

I attended Oral Argument on these cases which were consolidated into one-hour.

My Notes:

Washington State Attorney General Robert McKenna began.

Assumes top two ballots will look the same but they will not. Look at Declaration of Candidacy form instead of a Candidate of a party they now check a box.

Justice Alito: Why limit? Why not, I’m the Pro-Environment Candidate?

Justice Scalia: The Candidate can associate him/herself with a Party but the Party can not disassociate from the Candidate.

Look at pages 2 and 3 of the Grange Yellow Brief.

Justice Scalia: Please answer the question yes or no. Will the Party be able to disassociate itself from the candidate?

McKenna is clearly reluctant to answer the question yes or no.

McKenna makes the point that in Washington State nearly all voters vote by mail, now almost 90% and soon to approach 100%.

“It is not compelled speech by the party.”

Justice Kennedy: Is it relief for the Party to allow for greater speech?

Chief Justice Roberts: Can you change your preference statement from the Primary to the General?

McKenna: No.

Justice Ginsburg: The State has given the candidate the right but there is no constitutional right.

McKenna: It’s a practical consideration in terms of printing the ballot.

McKenna in response to Chief Justice Roberts: This is not an association of the Constitutional sense.

Justice Scalia: The Major parties are given greater rights than Minor Parties in access to the ballot. What about the ability of parties to achieve the 5% needed in order to achieve or maintain ballot access in a state-wide race?

McKenna: For the purposes of the 5% threshold it is the person identified as the nominee at convention.

Initiative 872 abolishes the primary as a way for the major parties to choose their nominees.

McKenna ended at this point and reserved his remaining time.

Mr. John White, representing the Washington State Republican Party then began.

The Republican, Democrat and Libertarian Parties have established rules for nominating their candidates by convention.

Justice Souter: You’re asserting that the right to nominate should be extended to the ballot.

White: We are suggesting that we have a right of partisan process.

Justice Ginsburg: Who do you consider a member of the Party?

White: Each of the three parties has a different way of identifying their members. (Remember that Washington State does not have registration by Party.) For example the Libertarians even have an oath that they have to sign that they will not support the use of force in political disputes.

Chief Justice Roberts: The Libertarians have a lot more rules than the other parties. (The audience chuckles.)

White: The State has shown no valid interest in establishing political affiliation.

Justice Stevens: This is a Facial Challenge, what relief are you seeking?

Severability. The Grange argued for Severance.

Justice Stevens: Facial Challenge vs. As Applied Challenge.
For example what about when David Duke associates himself with the Republican Party or when Lyndon LaRouche associates himself with the Democratic Party? These are examples of False Associations or Illegitimate Interests.

Justice Stevens: Does the State have an interest in weakening the influence of Political Parties?

McKenna: No.

# # # #

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.