October 1, 2007

Washington's Modified Blanket Primary - Supreme Court Oral Arguments

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 Stevens also seems likely to vote to overturn the Ninth Circuit, though his position is not as clear. Justices Alito, Scalia, and Roberts seemed skeptical of the State's arguments, though it was not clear to me if they had made up their minds. At at least one point (p. 32) Scalia seemed to think that the parties had overstated their case. Justice Thomas doesn't speak, but he ordinarily sides with the conservative bloc. Justice Breyer also never spoke, but ordinarily agrees with Ginsburg .Justice Kennedy was fairly harsh to both sides, so it is difficult to predict his vote, but he seemed skeptical of the parties' facial challenge - specifically, he seemed to think that as long as no one was actually misled into believing that the candidates who 'preferred' a party were that party's nominees, the statute was fine. Justice Stevens also seemed to consider this position (p. 42-43), though he was explicitly skeptical about whether anyone could possibly be misled about this distinction. My prediction: the usual liberal-conservative divide, with Kennedy as the swing vote. I expect him to swing our way, which means we'll win, but it wouldn't surprise me if he wrote a concurring opinion to the effect that if the parties could show that voters were actually misled they could come back with an as-applied challenge. It puzzles me a bit that the typical liberal-conservative split should apply to this case, and that the liberals should side with us, but I suppose it is a matter of the "little guy" versus the "establishment," and the liberals tend to like the little guy. At any rate, here are some interesting issues that came up in the argument.

First, I was very happy that Washington Attorney General Rob McKenna agreed with what I previously suggested (see the last paragraph): namely that the parties are free to nominate whomever they wish, by whatever means they wish, and this person is the party's nominee for purposes of campaign finance law, major party status, etc. This was not stated clearly earlier in the argument. McKenna also points to an exhibit I haven't been able to find online showing sample ballots which contains disclaimers to the effect that the parties do not necessarily endorse the candidates.

A second point is that the Justices, including some of those I've listed as "against" (especially Justice Scalia) consider some very slight modifications, such as allowing candidates to write any short phrase they choose, and on p. 31 Justice Stevens asks whether narrower relief could not have been granted, i.e. whether the whole statute necessarily had to be invalidated. This means that if the Ninth Circuit be upheld we can expect at least that the decision will list some very minimal modifications that could render the system permissible.

I've already mentioned Justices Stevens and Kennedy's skepticism about the facial challenge. Basically, the idea here seems to be that it is possible for the state to apply the statute in such a way as to comply with the Constitution and accept the parties' rights, so the parties can only sue if they can show it was applied in such a way that it did violate their rights. Since the statute was never applied, they can't do that now.

While I'm guardedly optimistic about this case, if we should lose, I support the action the Blue Eyed Buddhist suggests: namely, a completely non-partisan election system. Right now, I don't think there is sufficient support for it, but if the political parties persist in suing the people, I think there eventually will be plenty of support.

Update (10/1/07, 11:30PM): Ballot Access News also has some analysis of the argument. He is on the opposite side and also optimistic. Time will tell.

Posted by Kenny at October 1, 2007 5:55 PM
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