Looks like Washington will be heading away from primary elections – from party nominations as we have known them – with the new U.S. Supreme Court decision in Washington State Grange v. Washington State Republican Party, which overturned the 9th Circuit Court decision holding the “top two” method of winnowing candidates was facially unconstitutional.
“Because I–872 does not on its face impose a severe burden on political parties’ associational rights, and because respondents’ arguments to the contrary rest on factual assumptions about voter confusion that can be evaluated only in the context of an as-applied challenge, we reverse,” the decision (delivered by Justice Clarence Thomas) reads. That presumably enacts (in effect) Initiative 872, passed in 2004 with about 60% support.
This approach (sometimes called “Cajun” because it was first widely used in Louisiana) doesn’t really include at all a process for a political party to nominate a candidate. Instead, all candidates for a given office appear on the primary election ballot, and the top two winner, whoever they are and whatever party they belong to or don’t, move on to the general election in November. That may mean two Democrats or two Republicans.
There may be some real implications in other states, notably in Idaho, where a number of Republicans have been pressing for a more-closed primary system. Closed-primary advocates have relied (understandably) on a 2000 Supreme Court decision in California Democratic Party v. Jones, where the court described nomination elections as “the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community,” and specifically upheld the “freedom to exclude” as part of the freedom of association.
The new decision doesn’t structure itself as a reversal of Jones, but rather a more fine-grained explication of it: “In Jones we noted that a nonpartisan blanket primary, where the top two vote-getters proceed to the general election regardless of their party, was a less restrictive alternative to California’s system because such a primary does not nominate candidates. . . . Petitioners are correct that we assumed that the nonpartisan primary we described in Jones would be constitutional. But that is not dispositive here because we had no occasion in Jones to determine whether a primary system that indicates
each candidate’s party preference on the ballot, in effect, chooses the parties’ nominees. That question is now squarely before us.”
However: “unlike the California primary, the I–872 primary does not, by its terms, choose parties’ nominees. The essence of nomination—the choice of a party representative—does not occur under I–872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. To the contrary, the election regulations specifically provide that the primary ‘does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.’” In other words, it treats partisan elections as if they were non-partisan.
In a way, the court noted, it frees up the parties: “Whether parties nominate their own candidates outside the state-run primary is simply irrelevant. In fact, parties may now nominate candidates by whatever mechanism they choose because I–872 repealed Washington’s prior regulations governing party nominations.”
It also dismisses the argument that voters might be confused by the process.
Now Washington has a primary system formally ensconced in the law and high-court approved, and Secretary of State Sam Reed says it will go into effect with this election, in August.
It changes the calculus. Our guess is that it could move Washington politics toward the center; but we’ll all start to get sense of that in a period of mere months.
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