September 5, 2007

Washington Primary System Case to be Heard By Supreme Court

The Washington Primary System case has been accepted by the supreme court and is, in fact, the very first case on the Supreme Court docket for the upcoming season, which begins Monday October first. All the documents are now online (the newest ones are at the bottom), including the reply briefs by the Republican, Democratic, and Libertarian Parties, and amicus briefs by the California Democratic Party (the plaintiff in the most important precedent, regarding California's blanket primary, which resembled Washington's original blanket primary), and the Democratic National Committee. Summaries of the arguments of each brief follow:

  • The State of Washington argues that the primary system at issue is a non-partisan blanket primary, which the Jones decision (invalidating California's partisan blanket primary) described as constitutionally permissible. The only difference between the Washington system and the Jones system is that candidates are allowed to state their "party preference" on the ballot. The primary is nevertheless non-partisan because (a) "prefering" a party does not make a candidate that party's nominee; the system does not choose the party's nominee and (b) the candidates party preferences are for information only; they do not effect the election process. This makes the listing of party preferences constitutionally irrelevant. It is merely a piece of information which voters can use as they see fit or disregard.Furthermore, the legislation furthers the state's legitimate interest in providing an electoral system in which the voters can vote for whomever they please and candidates for the final election are chosen by the voters.
  • The Grange argues, in addition to echoing the State's arguments, that the First Amendment protects the individual's speech rights, and the case of a candidate wishing to say that he prefers a certain party is an issue of the candidate's right of free speech; the Parties' associational rights cannot be used to block the candidate's free speech rights, provided the candidate's speech doesn't constitute slander or purgery or something. Furthermore, the Grange argues, the Ninth Circuit violated the principles of separation of powers and of federalism. Separation of powers is violated by the Ninth's rewriting of the Washington statute: the statute says "candidate's preference" and the Ninth has rewritten this to say "party's nominee." Federalism is violated by the Ninth's attempt to force Washington to have a primary election system like the ones that other states have.
  • In response, the Washington State Democratic Central Comittee argues that by dictating which candidate has (or which candidates have - there is a real possibility that there will be two under this system) the name "Democrat" attached to them in the final election, the state violates the Democratic Party's freedom of speech and association. Freedom of speech is (allegedly) violated because the candidate is the Democratic Party's chief mouth-piece. Freedom of association is (allegedly) violated because putting the name Democrat on the candidate (allegedly) forms an association between the candidate and the Party, and the Party did not consent to this. The Democrats conclude that "the state has not removed itself from the party nominating process - it has removed the parties from the party nominating process."
  • The Washington State Republican Party argues, in addition to echoing the Democrats' arguments, that the new system "reduces the party's right to nominate to the right to endorse." (One wonders what the "right to nominate" is; in the arguments before the district court, the parties acknowledged that a non-partisan primary system was constitutionally permissible, so they can't claim that they have a "right to nominate" if "nominate" means "select a candidate to appear on the final election ballot. It may simply mean the right to control who uses their name on the ballot, in which case this just repeats all the other arguments.) Furthermore, they claim that the difference between the old system and the new system is "merely cosmetic" and therefore not constitutionally significant.
  • The Libertarian Party of Washington argues, in addition to echoing the Republicrats (yes, the Libertarians really are echoing the Republicrats here, and yes I'm extremely irritated with them), that the Libertarian Party is deprived of "reasonable ballot access" by the statute (despite the fact that anyone can vote in the primary, and it is very easy to get on the primary ballot). More interestingly, the Libertarian Party argues that the name Libertarian Party, a registered trademark, is "unlawfully converted to the state's own use." This I regard as probably true, within bounds. That is, the Libertarian Party may be able to rightfully use its trademark to limit the use of its name in a political context. The Libertarian Party further argues that, in combination with existing campaign finance laws, the statute "severely burdens [its] right to financially support its candidates." Finally, the Libertarian Party attempts to show that the rights of individuals, and not just parties, are violated in terms of effectively casting their vote and being able to associate with political parties. The latter claim is due to potential confusion about the boundaries of political parties.
  • The California Democratic Party brief has very little that is new when compared with the briefs of the other parties.
  • The Demoratic National Committee discusses possible difficulties in relation to the application of federal law, especially campaign finance laws, to these "unnofficial" candidates.

And now a bit of commentary: this is a non-partisan election system because party affiliation doesn't determine its outcome. That seems to be the constitutionally crucial element of the former system. The use of the letter R next to a candidates name doesn't seem to be very constitutionally important. Furthermore, I think that the parties must be being deliberately obtuse in failing to recognize the obvious fact that Washington's top two primary turns things on its head as compared to other primary systems: no longer do parties endorse candidates; instead, candidates are permitted to endorse parties. The parties argue a lot about their brand image and the trust voters place in their names. This is silly, firstly because Washington voters don't trust them. The parties talk as if we are going to trust politicians to implement the Democratic Party platform just because they are members of the Party. This isn't the case at all, because, as many people have observed, "typically you can tell that a poltician is lying because his mouth is moving." By saying that he prefers the Democratic Party, a candidate says that he agrees with most of the Democratic Party platform (or at least that he is closer to that platform than to any other party's platform). Just because he is an actual member, or even the official nominee, of the Democratic Party, doesn't make him any more likely to be honest about his intention to implement its platform, nor does it make him more likely to follow through with any honest intentions he might have. Nevertheless, the letter D is a shorthand for the Democratic Party platform as defined by the Democratic Party, and the candidate is free to endorse that platform or not. The Democratic Party is free to endorse the candidate or not. It can even nominate him (i.e., make him its "official" candidate). However, by endorsing the Democratic Party, the candidate does not create an "association". "Mutual endorsement" might be an association, but endorcement as such is not. Consider the following cases for comparison (this also bears on the Libertarian Party's trademark claims):

  • A man with very ugly teeth publicly endorses Listerine. He does this with no malice; perhaps he is trying to argue that his bad teeth are not his fault. The man goes so far as to buy television ads in support of Listerine (featuring himself, bad teeth and all). This has a devastating effect on Listerine's brand image. What recourse does Listerine have? If the man does not make false representations implicitly or explicitly, and is not intentionally attempting to damage Listerine's brand image, he can't be charged with slander, or false advertising. It also doesn't seem that he is infringing Listerine's trademark, since he isn't using it to refer to a different product in the same field, and that is the primary use trademarks are intended to protect against. It seems that the only recourse Listerine has is to (1) ask him to stop (he is not obligated to comply) and (2) issue statements to the effect that his results are not typical, possibly buying their own television advertisements at great expense. Certainly neither Listerine's free speech rights, nor its associational rights are violated (or even "burdened," whatever that's supposed to mean - libertarians reject this category; rights are either violated or they are not).
  • Perhaps someone will object that this is different in that the individual is not using Listerine's trademarked name for his own benefit. Consider, then, the following case: at a candidates' forum, candidates are asked to name their favorite public policy think tank. A socialist candidate names The Cato Institute. There are two problems here for Cato: (1) some people may be familiar with the candidate and not with the Cato institute, and therefore assume that the Cato institute endorses the candidate's policies. This, however, is the same as the previous case. (2) Some voters may be familiar with Cato and not with the candidate and vote for the candidate because of his endorsement of Cato, and thus Cato's name would be used to acheive the opposite of its ends (I'm sure Marcus Porcius Cato Uticensis, for whom the institute was named, would not be happy at his name promoting socialism either). But, since the candidate only said that he liked Cato - that is, since he only said that he endorsed Cato and not that Cato endorsed him - the damage is really no greater than if he had simply lied about supporting Cato's principles without the use of Cato's name. It is only if the candidate actually represents himself as being endorsed by Cato that Cato's integrity is damaged.

What's really interesting about the political parties' arguments, and a point that may have some merit, is that when they claim to be arguing that the top two primary is not non-partisan, they are actually arguing that there is a problem with a non-partisan election system in a state with a partisan government. As I've already mentioned, the DNC and the Libertarians cite campaign finance laws. The Republican Party (p. 16) and the Democratic Party (p. 3) also point out that Washington law requires that a mid-term vacancy be filled by a member of the same party. The problem here is that if the ballot designations are the relevant features for determining who is a nominee for purposes of campaign finance and who is a member for purposes of filling vacancies, then clearly this is a case of forced association.

This difficulty is, however, easily solved: the State and the Grange hold that under the top two system the State is not responsible for determining who the Party's nominees are. Furthermore, the State of Washington has never been in the business of determining who a party's members were, since it has always has non-partisan voter registration (see the State's Brief, pp. 9-10 with n. 3). Therefore, the simple solution is that, for purposes of state and federal law, the members and nominees of the party are simply whoever the party says they are. This has no effect whatsoever on the ballot or election process, but the parties don't have a constitutional right to maintain their current stranglehold on this country's electoral systems. The parties complain that the express purpose of the statute is to make them change their platforms (things like that were said in the voter's guide statement), but that's not the case at all: the purpose was to change the system so that in order to be successful, a candidate would need to appeal to a broad range of voters. Is that so bad? Ultimately the purpose is to ensure that the candidates who show up on the final election ballot are the candidates that the voters want, and not the candidates that the parties want. The political parties do not own our electoral system. We do.

Posted by Kenny at September 5, 2007 6:13 PM
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Washington's Modified Blanket Primary - Supreme Court Oral Arguments
Excerpt: Oral arguments in the Washington primary system case took place this morning between 10:02 and 10:53, and the transcript is now available online. Justice Souter and, to a lesser degree, Justice Ginsburg seem clearly to be in favor of I-872. Justice Ste...
Weblog: blog.kennypearce.net
Tracked: October 1, 2007 6:48 PM

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