On November 29, the 9th circuit held oral arguments in Washington Republican Party v Washington State, the case originally filed in 2005 by the Republican, Democratic and Libertarian Parties against the Washington state top-two primary system.
The three judges are Raymond Fisher, a Clinton appointee from California, Dorothy Nelson, a Carter appointee from California, and Milan Smith, a Bush Jr. appointee originally from Oregon, but now also a Californian. The argument lasted for one hour. The entire hour was consumed by the freedom of association issue. There was no discussion of the ballot access issue, which is based on the U.S. Supreme Court’s holding in 1986 in Munro v Socialist Workers Party that there is no constitutional distinction between a petition to get a candidate on the November ballot, and a prior vote showing in a preliminary election. Because the U.S. Supreme Court has long ago established that petitions for a candidate to get on the November ballot can’t exceed 5%, the Munro decision ought to mean that vote tests in prior elections also can’t exceed 5%. But requiring a candidate to place first or second usually means that a candidate must poll 30% (on the average) to qualify for the election itself.
The freedom of association issue, in the judges’ eyes, appears to turn on whether they are permitted to evaluate all the evidence in the case on the ballot label “Candidate (whomever) prefers the (whichever) party.” The three political parties in the case had submitted social science experimental evidence that indicates a large share of the voters, after they see the ballot, then believe either that the party named on the ballot nominated the candidate, or approves of that candidate, or that the candidate is affiliated with the party. The state of Washington, and its ally the Washington State Grange, tend to argue that the judges should only determine whether the ballot language is as clear as the state can make it.
Washington state ballots say at the top, “Each candidate for partisan office may state a political party that he or she prefers. A candidate’s preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate.”
The political parties also submitted evidence that even sophisticated reporters who cover politics constantly refer to various Washington state politicians as “Democrats” or “Republicans”, never as individuals who “prefer” one of those parties. The state and the Grange ridiculed the idea that a law might be unconstitutional just because of what newspapers say. However, one of the judges noted that this case bears some similarity to trademark disputes, and that when courts hear a case on whether one company has infringed on the trademark of another company, the courts are supposed to look at all available evidence about public opinion. A decision will probably be out in the next three months.
Ignorance of the LAW is NO excuse.
Every Elector allegedly knows EVERY word in the WA Constitution and laws — especially the last second instructions on the ballots.
How much FREE advertising for the parties preferred by the various parties on the ballots ???
How often does a Stalin/Hitler clone say that it prefers the nazi/commie party respectively for a ballot label ???
When will SCOTUS end the show permanently ???
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The issue of ballot access was so clear cut that Judge Coughenour dismissed the claim before the case ever went to trial (or at least before the parties submitted their trial briefs). His decision was based on Munro and Justice Scalia’s dicta in California Democratic Party v Jones, which Justice Thomas reiterated when this case was previously before the Supreme Court.
Does the manner in which Nebraska elects its legislature violate the United States Constitution? Why not pursue a case based on Nebraska’s electoral system, so the issues are not clouded by party label issues.
#4, you say it is “clear cut” but you don’t explain why the actual holding in Munro (that there is no constitutional distinction between petitions and prior vote tests) shouldn’t dictate that the top-two system violates the old ballot access precedents.
What dicta of Justice Scalia are you referring to? I don’t see anything in California Democratic Party v Jones about ballot access.
Was there any evidence presented that reporters were more sophisticated than other persons? Reporters also used terms like “GOP” or “Dems” and you regularly note errors and oversights in articles written by these supposed sophisticated reporters.
The experiment was badly flawed. The “ballot” was formatted to show the explanation of party preference adjacent to a particular offices such that it could result in a “voter” misinterpreting what office they applied to. The experiment did not show a partisan primary ballot to the subjects, so that we don’t know whether voters were confused by the old style ballots. Instead, the experiment assumed that voters were not confused, and then became confused with the new ballot. Ordinary persons might not be used to the precise meaning of terms such as “nominee” let alone “affiliated with” or “associated with” mean. And the samples were badly drawn.
#5 Munro: “It can hardly be said that Washington’s voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election. It is true that voters must make choices as they vote at the primary, but there are no state-imposed obstacles impairing voters in the exercise of their choices. Washington simply has not substantially burdened the ‘availability of political opportunity.'”
Judge Coughenour: “Putting aside the issue of “party preference” and forced association, there can be no doubt that the ‘top-two’ aspect of I-872 would be permissible if the ‘primary’ were renamed a ‘general
election,’ and the ‘general election’ were renamed a ‘runoff.’ Yet the constitutionality of the election statute cannot turn on the identifiers used for its various provisions.”
Judge Coughenour quoted the following in his decision on the ballot access issue:
California Democratic Party v Jones: “The State determines what qualifications it requires for a candidate to have a place on the primary ballot—which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election.”
Judge Coughenour: “The Supreme Court’s unqualified endorsement of its top-two voting proposal is confirmation of this Court’s interpretation of Munro and Williams—that after giving all political parties equal and sufficient access to a statewide primary, limiting the general election to the top-two vote getters does not violate the other parties’ right to ballot access.”
Judge Coughenour’s quote from California Democratic Party v Jones is a misinterpretation. We know this because Scalia wrote California Democratic Party v Jones, and in Washington v Washington State Republican Party, Scalia said the Washington blanket primary is unconstitutional.
What you quoted from Munro is dicta. Washington state in 1986 did not have a system that forced all minor parties to be omitted from the November ballot. In the Munro case, footnote eleven of the majority decision points out that minor parties had appeared on the November ballot 36 times out of 40 candidacies.
The holding of Munro, unlike the dicta, is that there is no constitutional difference between a petition for general election ballot access, and a primary vote test. See page 197 of Munro in the US Reports.
#8 Scalia was writing for the court in California Democratic Party v Jones. We don’t precisely what he meant, because he chose not to clarify what he had meant in his dissent in Washington v Washington State Republican Party. Judge Stevens, in his dissent in California Democratic Party said that Scalia was referring to a system like the Open Primary in Louisiana. My understanding is that the justices circulate their opinions before they are issued. Scalia could have addressed Stevens’ interpretation, or provided clarification. Louisiana ballots do carry party affiliation, but they do not indicate party endorsement or nomination.
Justice Thomas wrote the majority opinion in Washington Republican Party. He offered a clarification of what Scalia had written, saying that the majority had not meant a system where a candidate could express his political beliefs on the ballot, but that nonetheless, such a system was presumably constitutional.
I don’t see a material difference between the system used in Louisiana and that in Washington, as far as the political association issue. So Stevens said that Scalia meant a system like Louisiana, Thomas said Scalia had not meant a system like Washington, and Scalia did not offer an explanation of what he had meant.
Judge Coughenour indicated that there would be no ballot access issue if a system like that used for electing the legislature in Nebraska were used, or the system used for electing the Superintendent of Public Instruction in California and Washington.
I don’t know whether you agree with that conclusion or not. As far as the right of political association, surely it equally extends to those who would associate around an individual candidate such as Anderson or Nader as it would the Libertarian Party.
I don’t think that Judge Coughenour’s quote from Munro at page 199 was dicta. It was central to the holding of the court in the very next paragraph.
Judge Coughenour has decided that there is no material difference between an Open Primary followed by a general election; and a general election followed by a runoff. In the system used in Washington State, candidates do have reasonable access to the election at which all voters may participate.
The SCOTUS robot party hacks have been writing nonstop NONSENCE in ALL of the their MORON ballot access opinions since 1968.
— all sorts of UNEQUAL arbitrary made up stuff for third parties (old or new) and independents.
Thus ALL of their opinions are JUNK.
Separate is NOT equal.
Brown v. Bd of Ed 1954 — NOT brought up by the armies of MORON lawyers and judges and justices.
#9, there is a gargantuan difference between the Louisiana system for congressional elections, and the California/Washington system. In Louisiana, no candidate is shut out of the prime campaign season. The first round is in November so everyone gets to campaign during the months when voters are most interested in political ideas.
California shuts out everyone but the two most popular candidates from campaigning after the first week in June. Even a write-in campaign is unrealistic because of the California law that says write-ins won’t be counted in November, even if the write-in candidate got the most votes.
#11 What does this have to do with congressional elections specifically? When the 9th Circuit remanded the case to the district court they specifically ordered that claims related to the timing of congressional elections and qualification be dismissed since they had not been pled before the district court.
“The district court should DISMISS as waived all claims that Initiative 872 imposes illegal qualifications for federal office, sets illegal timing of federal elections or imposes discriminatory campaign finance rules because these claims were neither pled by the parties nor addressed in summary judgment by the district court.”
Is it unconstitutional for California to shut out everyone but the two most popular candidates for county offices and the state superintendent of public instruction from early June?
And what about the Nebraska legislature, where the primary is in May?
Washington held its primary in September until the federal government forced it to send its ballots for the general election out in mid-September, so now it holds its primary in August. And of course Washington does permit write-ins in the general election.
You’re not going to seriously argue that the Top 2 Open Primary is unconstitutional in California because SB 6 didn’t change the primary to August are you?