February 8, 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 Kenny at February 8, 2006 11:06 AM
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