On August 11, Washington state filed its brief in the 9th circuit in Washington State Republican Party v State, 11-35122. The state’s brief is 89 pages. It argues that even if the evidence shows that voters are confused by the party labels that appear on Washington state ballots, the system is constitutional. On page 35, the state says confusion exists “in any electoral system”…”confusion about political facts – particularly about matters relating to political parties and political processes – is the norm among voters.”

As to the Libertarian Party’s ballot access arguments, the state quotes selectively from a 1986 U.S. Supreme Court decision, Munro v Socialist Workers Party, 479 U.S. 189. In that 1986 decision, the U.S. Supreme Court upheld Washington state’s old law, which required a candidate who wanted to be on the general election to poll at least 1% of the total primary vote in the state’s blanket primary. The state’s brief quotes from dicta in that case on page 199, which said, “Because Washington affords a minor-party candidate easy access to the primary election ballot and the opportunity for the candidate to wage a ballot-connected campaign, we conclude that the magnitude of 29.18.110’s effect on constitutional rights is slight.” This is dicta, because the case did not involve a system that kept all minor party and independent candidates off the November ballot. As the decision says in footnote eleven, a majority of minor party and independent candidates who ran in Washington state under the old system went on to poll more than 1% of the primary vote and to advance to the November ballot.

The state’s brief does not mention the Munro holding on pages 197-198 that the 1% primary vote test is constitutional because of the U.S. Supreme Court’s prior ballot access cases on petition requirements for getting on the November ballot. In Munro, the U.S. Supreme Court said, “We are unpersuaded, however, that the differences between the two mechanisms are of constitutional dimension…requiring candidates to demonstrate such support is precisely what we have held States are permitted to do.” In other words, because the U.S. Supreme Court had previously held that states could require petitions of up to 5% of the electorate as a condition of a candidate appearing on the general election ballot, and because there is no difference between a petition and a primary vote test, then obviously a primary vote test of up to 5% would also be constitutional. But, in the Washington state top-two system, prior experience shows a candidate needs a vote of 30%, on the average, to place second. 30% is far too high to be constitutional.

The Grange also filed a brief on August 11, on the side of the state. However, it is much shorter than the state’s brief, and says nothing about ballot access.