February 08, 2006

Update on Washington Primary System Case

Update (2/9/2005, 11:23AM, Athens time): The Court did not release its decision yesterday, as I had expected it to. Hopefully it will be up tonight.

Update (2/9/2005, 8:06PM, Athens time): Still no decision. I've noticed that some of the opinions that have been published have been published months rather than days after the hearing. I find this very strange, since, as I understand it, the Supreme Court publishes its decisions usually a matter of hours after oral arguments (or perhaps the next morning). At any rate, I'll continue watching for any new developments.

The Ninth Circuit has still not released its decision in the Washington primary system case (when it is released, the decision will be available here), but a WMA of the oral arguments is now online. The 45 minute audio file is worth listening to for a summary of the arguments. There is not a lot of legal jargon, and it is not boring. On the other hand, there is really nothing new here. All five lawyers (representing defendants the Grange and the state, and plaintiffs the Republican Party, the Democratic Party, and the Libertarian Party) and the judges agree that a completely non-partisan primary would be constitutional. The political parties contend that the initiative was presented to the voters in such a way that it was clearly believed not to create a non-partisan election system. The state and the Grange insist that the plain language of the initiative redefined the term "partisan office" to mean simply "an office for which a candidate may indicate a party preference and have that preference appear on the ballot," and that the voters of Washington understand that this differs from a non-partisan election only in the inclusion of an additional piece of information on the ballot, and the elimination of this piece of information would not undermine the effect of the initiative as understood by the voters who passed it. Furthermore, the state and the Grange hold that the parties have no right to control what candidates are placed on the ballot, or what information about the candidates is included; this is up to the voters. The parties' counter-claim is that they do have a right to control what candidates are identified as members or nominees of their party. This is part of their freedom of association. The state and the grange respond that the parties are free to nominate whomever they wish, but this nomination will not affect the ballot or the election process. It is up to the parties to use their right of free speech to tell voters who is the "real" Republican on the ballot, etc. The state has no obligation to fund the parties' dissemination of this information. Furthermore, the plain language of the statute says that the letter next to the candidates name represents only his political party preference, not the party which nominated him, or the party of which he is a member, and the candidate has a First Amendment right to say that he likes the Republican Party, even if the Republican Party doesn't like him. The political parties point out that one of the statements made in the voters' guide in support of the initiative was that the ballot will look the same as the old blanket primary ballots, and this clearly means that the voters will have no way of knowing that some of the candidates were not actually nominated by, or perhaps are not even members of, the parties they indicate as their preferences. The Grange's lawyer was rebuffed by one of the judges near the end of the hearing when he pointed out that when he tells people that his football team preference is for the Seattle Seahawks, no one believes that he is a member or representative of the Seahawks. I think this is a perfectly analogous case, but at least one of the Circuit judges did not.

So that's the state of things. After listening to the defendants' arguments and the judges' comments, I thought that the judges might or might not overturn the portion of the statute permitting candidates to list their party preference, but certainly not the whole statute. After listening to the plaintiffs' arguments and the judges' responses, however, I am no longer certain. This could go any which way. If the judges rule that the portion of the statute permitting candidates to state their party preference is unconstitutional, but uphold the rest of the system, I expect that the case will not be appealed to the Supreme Court, but the parties may introduce a referendum to go back to the Montana-style primary used in the 2004 election (I don't think such a referendum would pass, and they wouldn't dare try to do it, even if they could, without a referendum, after the last time they passed it and the voters implemented the new system on initiative with 60% of the vote). If the statute is entirely overturned or entirely upheld, I expect the case will be appealed to the Supreme Court. If the decision is posted today, it will be posted by 10AM PST, which is 8PM my time. I'll still be where I have internet access by then, so hopefully I'll be able to post on it this evening.

Posted by kpearce at 11:06 AM | Comments (0) | TrackBack

February 02, 2006

Status of Washington's Primary System

In September, I blogged on the present state of Washington's "top two" primary system. In brief, after being sued by the Republican, Democratic, and Libertarian parties to invalidate the "blanket primary," which allowed voters to vote for any one candidate for each office in the primary, regardless of party, and then sent the top vote getter from each party to the final election, voters passed on initiative a "top two" primary which permitted candidates for so-called "partisan" offices to list their party preference, but otherwise ignored parties, sending the top two vote-getters to the final election. In this system, we do not, properly speaking, have a nominating primary. Rather, we have a general election in September (as of yesterday, I guess it's in August - see here), and a run-off in November.

As I reported in the previous post, the political parties have sued again. The parties argue that the top two primary infringes upon their freedom of association by forcing them to endorse candidates not chosen exclusively by their members, and therefore the entire system should be struck down. The state and the grange counter that (a) the parties do not endorse the candidates; the candidates merely state their preference for one party over another, and (b) the portion of the act permitting candidates to state their party preference could be struck down, if unconstitutional, without striking down the entire system.

The case was heard by the federal district court for western Washington, beginning May 19, 2005. On July 29th, Judge Thomas Zilly issued a permanent injunction against the enforcement or implementation of any portion of the top two primary initiative (I-872).

This Monday, February 6, oral arguments in the case will be heard by the Ninth Circuit. I'm not a legal expert, and I don't necessarily know about the history of Ninth Circuit rulings, but I can't see how they can (or, for that matter, how the district court could) strike down the entire statute on the basis of a minor provision relating to a statement of party preference. Furthermore, I must again (and again) state my utter disgust at the Libertarian Party of Washington State's decision to participate in this lawsuit. The Libertarian Party doesn't participate in state run primaries, even in states where it has major party status (as it did in Washington until recently) because it opposes the idea of states running primaries. Here, the Party has decided to oppose a measure which it should, according to principle, support, because before the measure was passed, it had a gauranteed place on the November ballot, and with the measure it won't! Well, now it doesn't anyway, because it has lost its major party status, but it continues to pursue this extremely unprincipled lawsuit. If the Libertarian Party wishes to pass itself off as "the party of principle," it MUST hurry up and back off of this lawsuit. I discussed in my previous post the ways in which the Libertarian Party can exercise "quality control" over candidates running under its name in this kind of "free market" context.

I will try to post news as soon as I'm able to find it regarding the outcome of the arguments on Monday. In the meantime, all the official documents are here.

Posted by kpearce at 04:07 PM | Comments (0) | TrackBack

January 10, 2006

Smoking Bans, Private Property, and the Free Market

Hammer of Truth reports today that New Jersey has been added to the list of states banning smoking in "public buildings." Washington is also one of these states. Philadelphia tried to pass a city ban some time ago, but I believe it failed (I'm not entirely sure). Now, there are two things I want everyone to know about these smoking bans: (1) they are unjust, because they violate the private property rights of restraunt and bar owners, and (2) they are unnecessary because, to the degree that people actually want non-smoking establishments, the free markent provides them.

I do not have a problem with prohibiting smoking on public property, such as streets and public parks. If we-the-people own the land, and we-the-people don't want to inhale smoke when we are walking around on it, then we-the-people should prohibit smoking there (but how does the government come to acquire land justly?). So far so good. But, in general, we-the-people do not own restraunts! Restraunts are owned by private individuals, very much the way you own your home. We-the-people don't get to take a vote on what you can do in your home, because it's your home, not ours. We write, for instance, indecent exposure and obscenity laws regarding public streets, because we don't want ourselves or don't want our children to see certain things. We don't tell you what you can or can't wear, not wear, or say in your home. If we did, it wouldn't be your home. This kind of distinction has been wearing away for some time in this country, but it is not altogether gone, and it must be revived if we are to retain any of our liberties. Restraunt and bar owners have the right to decide whether they will allow smoking inside their establishments, and if you don't like it you have the right to leave. Period.

Now, most of the discussion on this subject has centered around not the consumers, but the employees who are required to breath second hand smoke as part of their job. To them I say, if you don't like it, you have the right to quit. This sounds callous, I know, but the real issue is this: you are a bartender in a bar that permits smoking and you make, say, $10/hour (I have no idea how much bartenders actually make). This means that someone values an hour of your work serving drinks in a smoky room at $10. If you accepted the job, then you must believe that your life breathing second hand smoke in a bar while mixing drinks and making $10/hour is better than your life without this job (or with any other job you were offered), so, by offering to let you breathe second hand smoke in his bar, the bar owner improves your life, according to your own standards. What are you complaining about?

Now, I mentioned that the free market takes care of these things. First, let's look at it from the perspective of consumers. Many restraunt goers don't want to inhale second hand smoke. Some people won't even go to a restraunt that smells like smoke. Many more will prefer a non-smoking one over a smoking one, and perhaps even be willing to pay more for the non-smoking restraunt. As a result, before the issue was ever regulated there were many non-smoking restraunts, and non-smoking sections in larger restraunts. This has not been the case with bars. As far as I know (I don't go to bars) there are very very few non-smoking bars in the world. Apparently, there is much less demand for non-smoking bars than for restraunts. If 51% of all bar-goers wanted bars to be non-smoking, there would be all kinds of non-smoking bars out there! In fact, there are only a few. This indicates that most bar-goers don't mind the smoke, and many of them even want to be able to smoke while they drink in bars, so in these bans we must have a bunch of people who don't even go to bars legislating what people who do go to bars can and can't do when they get there. Lovely.

Now let's look at the employees perspective. As I mentioned, the employee believes that his life is better with the job than without, even if the job requires inhaling second hand smoke, or he wouldn't have taken it. It seems perfectly possible to me that in some localities the free market determines higher pay for waiters in smoking establishments compared to non-smoking establishments, because most waiters would prefer not to breathe the smoke. However, some waiter may decide that he prefers the extra money to his health. We might chide him, and say that this decision is unwise, but he nevertheless believes that his life is better facing the health risks and receiving the extra cash than not breathing smoke and getting paid less. Who is the government to tell him how to live his life and what risks he may take? If just as many people would go to restraunts and bars if they were non-smoking, and those people would pay and tip just as much, there would be very few (or no) restraunts or bars that allowed smoking, because no one would be able to make a larger profit by permitting it (since there certainly are some people who won't go if the restraunt/bar permits smoking). That means that permitting smoking in some establishments increases the number of waitresses and bartenders who are employed, and the total amount of money paid to waitresses and bartenders in this country. Perhaps many of them think that it isn't worth it to inhale the smoke. If this is the case, then they will choose to accept lower pay from non-smoking establishments rather than work in smoking establishments, which will reduce the profit margin of the smoking establishments, compared to non-smoking ones. If enough employees think this way, it will become unprofitable to permit smoking, thus creating a de facto smoking ban. On the other hand, the restraunt and bar workers could unionize and make these demands about working conditions. (Ignore government recognition of unions, because when the government recognizes them they become EVIL. Our good union uses strikes and negotiations with management, not government coercion, to get its way.) If they were able to maintain solidarity, they would win. But if some people preferred to work under the poor conditions, or if the restraunts found it was more profitable to just hire and train new waiters and bartenders, they would lose. This is the way capitalism works. We all get to use our money and our time and our assets to influence the marketplace according to our preferences. We don't use our votes to do so. THAT is socialism, and it is the end of freedom.

Posted by kpearce at 12:36 PM | Comments (0) | TrackBack

September 12, 2005

Whitman County Special Election

Whitman County, Washington is holding a special election, coinciding with the September 20 primary election (which doesn't seem to have any measures or candidates on it this year) to approve a "budgetary emergency" measure to levy an additional .1% sales tax for the funding of jails and juvenile detention facilitties. I had some trouble finding information on the proposition, so let me point you to item 064927 (it reads 063927 at one point - apparently a typographical error) of the Whitman Country Commissioners' meeting minutes of last August 1, available online here. The county's total budget is available as item 063228 of the December 20, 2005 minutes, here.

Honestly, I must say I don't understand how the county manages to operate at a deficit. They've got a $37M/year budget to govern a bunch of wheat. It seems that the vast majority of the budget comes from federal or state grant money. Most of the line items consist in a revenue and an exactly matching expenditure. I won't criticize this, as it is not relevant to the present ballot measure, and is beyond the control of the commissioners. However, the portion of the budget which does not have corresponding revenues, and thus presumably comes from property and sales taxes (the county sales tax is currently 1.1%), is nearly $10M. To govern a bunch of wheat. Excuse my sarcasm, but I'm frustrated that the use of government to provide ridiculous and unnecessary services at outrageous costs has reached this far down. Now, granted, road repairs are expensive. But, guess what?! County road repairs have an $11M special revenue associated with them! Not a penny of "currentt expense" money is slated for road repairs. Law enforcement? Surely any good libertarian will acknowledge that this is necessary. But the sherriff's department, the court system, and everything else associated wtih law enforcement total only $4M of the "current expense" budget. That's less than half. Now, I'm alright, I suppose, with a government on the county level where voters really have a say, and where implicit social contract arguments make sense, maintaining parks and fairgrounds and things, and I suppose the same is true of "public health" measures (although I'm more skeptical about that one), so perhaps I've been a little hard on the commissioners here. However, I still have two problems. Firstly, how does one spend millions of dollars in administrative costs to govern a bunch of wheat? Second, why sales tax? That's a terrible idea. Don't they know that already everyone does their shopping in Idaho, and every business wants to be located in Idaho, simply because Washington's laws are anti-business (due mostly to the western side of the state)? Don't they see how every tiny increase in sales tax further cripples Whitman county's limited economy? If you really MUST have money for jails, couldn't you have passed a property tax instead? This was considered, but the minutes give no reason that I can find for the selection of sales tax instead.

Maybe I don't know what I'm talking about, maybe the county couldn't be run on less money than it is, and maybe I'm projecting my frustrations with the federal government down to my local level. I still haven't decided how to vote on the proposition, because I certainly support funding for jails. This IS part of the purpose of government. But I think it's terrible that Washington's sales tax is so much higher than Idaho's, and Whitman county feels that difference economically, since its largest city is a mere 5 miles from the border. Presumably it is the state income tax that allows Idaho to do this. Now, I'm not a fan of confiscatory taxation in general. I would much rather see the government figure out more ways to charge for services it provides. However, at some point a service effects everyone, even those who don't chose to pay for it (it is what economists call a "positive externality"), and law enforcement is this way, so I acknowledge that we must pay for law enforcement somehow. There are also some good reasons for low levels of government (city or county) to provide certain health services, particularly in rural areas where it would not be profitable to establish such services commercially and where lack of services is unlikely to draw attention from charitable organizations (although I still suspect that a private sector solution might be possible, and if it was it would be desirable). I would also rather pay just about any tax than see the government irresponsibly operate at a deficit. If anyone (especially anyone from the area) should happen to read this in the near future, feel free to lobby for your side. As I'm sure you've picked up, I am currently leaning against.

Posted by kpearce at 06:35 PM | Comments (0) | TrackBack

September 09, 2005

Washington Initiative 872 Unconstitutional?!

So I got a ballot today for a county special election, and was looking on the web for more information about the proposition when I made a shocking discovery: On July 15, 2005, Washington initiative 872 was declared unconstitutional in federal court! What does this mean? Let me tell you...

The story so far: From its founding until the 2004 election, Washington used an "open" primary system. The law, written by the Grange (which is and always has been a very influential organization in the state, fighting for the interests of voters against the interests of political parties - we hate political parties in Washington), provided for a primary in which voters may vote for candidates in any party, one candidate per office, including mixing and matching parties based on the office and candidate in question. In 2003, the state's political parties sued and the system was ruled unconstitutional on the grounds that it forces political parties to run candidates not selected exclusively by their own members (since, for instance, Democrats could vote in the Republican primary for certain offices) and thus violated their freedom of association rights from the First Amendment (made applicable on the state level by the Fourteenth Amendment). The court ruling came down just before the 2004 election, and the legislature hastily implemented a "Montana-style" primary, in which no record of party affiliation was kept on file, but a separate primary ballot was used for each major party (Republican, Democrat, or Libertarian in Washington) and the voter chose which primary to vote in at election time. We the people were not so happy about being forced into this electoral system not of our choosing, so the Grange wrote another initiative, I-872, got it on the 2004 general election ballot by petition, and passed it with 60% of the vote.

Under I-872, voters may choose any candidate in the primary (interestingly, the new language says that primaries no longer "nominate" candidates, but "winnow" them from a larger pool - you know your laws are written by the Grange when "winnow" becomes a legal term!), and the top two vote-getters, regardless of party, go to the final election.

Last May, the parties again filed suit against the state, alleging that the new electoral system was also unconstitutional. In July, a federal court sides with the parties. The state appealed to the Ninth Circuit, and the case is expected to be decided in November or December. At issue, it seems, is the fact that the new system still allows candidates to list their party affiliation, so that the parties are still being forced to run particular candidates, they claim.

I am not sure how I expect the Ninth Circuit to rule. On the one hand, the language of the intiative says that is not a process for nominating any particular party's candidates for office (see esp. DEFINITIONS sec. 5 as amended). The argument of the state (the Grange is also involved in the litigation) is that the candidates are already running for office under the banner of some particular party before the primary takes place. Indeed, this seems to me to be the case.

Once again, I can't believe the Libertarian party has joined in this lawsuit (they were in on the last one too). This is a completely unprincipled move; the Libertarian party is not supposed to believe in government suppport for or regulation of political parties.

There is, of course, still a legitimate problem: the system as it stands seems to have as a consequence that a candidate not supporting the platform of a particular party could run for office under that party's name. However (another reason I'm appalled at the Libertarian party's role in the litigation), there is an obvious (small l) libertarian solution to the problem: trademark law. All that a party needs to do is register a trademark on its name, and then enforce the trademark on anyone who attempts to run under the party's name and is not a duly nominated candidate. For instance, the Libertarian Party holds nominating conventions, so they will trademark the phrase "Libertarian Party", nominate a candidate, then use trademark law to prohibit any other candidate from claiming to be endorsed by the Libertarian Party. I imagine that this is already done by, for instance, the NRA when they endorse candidates. The Party could go further by having as a membership condition a contractual obligation not to run for office unless duly nominated by the Party, then no one running could claim to be a member of the Libertarian Party. (Could he still claim to be a Libertarian? Would a trademark on the word Libertarian carry? I don't know what trademark law looks like, but if it was my decision they would be allowed to trademark Libertarian used as a proper name of an organization, but not used as an uncapitalized common noun.) The Democratic and Republican parties might want to hold their own primaries, or allow multiple candidates to run, but only after somehow being approved. The problem (in the eyes of the parties) is that if the approval process was not to the liking of the voters, it would be easy for a candidate to get on the primary ballot and the "major parties" would not have any special priveleges in the election process. Sounds good to me.

When I-872 was up on the ballot last year, I had a discussion with then-candidate for Secretary of State Jacqueline Passey in a pair of posts to this blog. I thought, and still think, that libertarian principles far prefer I-872 over any type of partisan primaries. Like labor unions, political parties do wonderful things as long as they are truly voluntary associations of individuals who wish to work together to effect some end. However, the moment they are recognized by the government and regulations are put into effect giving them special treatment and deciding which ones count as "legitimate," they suddenly become irredeemably evil. I support labor unions and I support political parties, in principle, but I am vehemently opposed to government recognition of either, and I must oppose the parties and unions themselves once they become recognized by the government.

For complete information on the status of I-872, see here.

Posted by kpearce at 05:11 PM | Comments (0) | TrackBack