Washington State Grange Case and Primary Election Law

These two election law cases from the State of Washington were consolidated for oral argument, and that argument was held on October 1. The cases present interesting issues of election law. The deep, underlying issue in this case has to do with the concept of political parties in America and their continued viability. Or, to put it differently, with the rapidly increasing numbers of Independent voters, what is really left of our "two-party" system? These, ultimately, are questions to discuss and debate in political science classes and public meetings. Legal cases only deal with specific problems presented to the courts. Here, the question is whether an initiative (No. 872) passed by the WA voters in 2004 violates the First Amendment association clause of the federal constitution. In this essay I will describe the various systems of primary voting that predominate in the United States, with special emphasis on that system which was adopted by a 60% vote of the electorate in WA in 2004.

A Primer on Primary Elections

Primary elections (which will be coming up for President early in 2008) are those meetings or votes of registered voters of a political party for the purposes of nominating their candidates for a general election. This normally happens in the Winter/Spring of the year. The general election then happens in November. The Supreme Court has called a candidate nominated in a primary the party's "standard bearer."

Many states in the past have adopted a "closed" primary. It is called this because only voters who formally associate themselves with a party in some fashion in advance of the primary (usually by "registering" as a Republican/Democrat, etc.) may vote in that party's primary and thereby select the party's nominee. Your ballot only has names of people in your party up for election.

Although many states use a closed primary, the most popular alternative version is the "blanket" primary. This has nothing to do with what you give to a politician when you tell him/her to take a nap. In contrast to closed primaries, a blanket primary uses a common primary ballot in which names of candidates of all parties appear. All voters, regardless of their own political party, could vote for any candidate appearing on the blanket primary ballot regardless of that candidate's (or the voter's) designated political affiliation. The candidate receiving the greatest number of votes in relation to other candidates of the same party would then become that party's nomineee and advance to the general election as that party's "standard bearer."* Two candidates, one from each party, would face off in November (some states allow for smaller party candidates too), but they would be candidates chosen ultimately by voters and not by the parties.

[*There is also an "open" primary system, which is similar to a blanket primary in that any voter, regardless of party affiliation, may vote for the party's nominee, but the voter's choice is limited to that party's nominees for all offices. Thus, in an open primary, a voter cannot support a Republican nominee for Governor and a Democratic nominee for Secretary of State.]

But the US Supreme Court threw things into a cocked hat in 2000 when it decided the Jones case (530 US 567 (2000)). In that case the Court held that CA's blanket primary system violated the state's poltical parties' rights of association under the 1st and 14th Amendments. Why? Because allowing nonparty members to vote for party candidates forced a party's members to associate with voters who were members of rival parties in selection of that party's nominee. That, the Court concluded, violated the 1st and 14th Amendments.

Washington Responds

The State of WA's blanket primary system, modeled on CA's example, had been in place since 1935. When CA's was declared unconstitutional, the issue got kicked down to the lower courts. WA's system was held unconstitutional by the 9th Circuit's Reed decision in 2003 (343 F3d 1198 (9th Cir, 2003). WA then had to go back to the drawing board to decide what to do with their primary elections. In January 2004 the WA State Grange, an institution with a colorful history of supporting farm interests since about 1900, came up with a proposal that would "tweak" WA's former blanket system in attempting to follow the Supreme Court's guidance in Jones. The Grange initiative, Initiative 872, which eventually passed by a large margin in November 2004, made two important changes to the old "blanket" system:

(1) It allowed, but did not require, candidates to declare their political affiliations on a ballot; and (2) It adopted a "top two" rule whereby the two candidates with the greatest number of votes in the primary advanced to the general election regardless of their expressed party preference.

Thus, under Initiative 872 the "party" question was seemingly subordinated to the desire of the individual candidates. S/he could decide whether or not to be associated with a party. In addition, the election was set up so that there might be a general election contest between two people of the same party or two unaffiliated people, as well as the 'standard' situation of one D against one R. By the way, the WA legislature adopted alternative systems, but they were subject to the vote on Initiative 872 in the Nov. 2004 general election. Since 872 passed, the legislative alternatives weren't considered.

Fast Forward to Today

In 2005, predictably, this system was challenged. The District Court upheld the challenge brought by the political parties that it was an unconstitutional system. The Ninth Circuit affirmed. Thus, it comes to the Supreme Court with this simple question, at least as posted by the State of WA in its brief:

"Does the First Amendment prohibit top-two elections systems that allow a candidate the freedom to disclose on the ballot the name of the party she or she personally prefers?"

Though others would define the question slightly differently, I think you have it now. Is WA's revised blanket primary constitutional under Jones? I think we are in the midst of a potentially dramatic partisan political revolution in our country. Elections are the way that this "revolution" will be put into effect. I, for one, think we are completely muddled about how to do this now. The Supreme Court, as our mirror, will probably reflect the muddle in its decision.

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WA State Grange v. WA Republicans WA v. WA Republican Party

WA State Grange v. WA Republicans
WA v. WA Republican Party