September 9, 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 Kenny at September 9, 2005 5:11 PM
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Status of Washington's Primary System
Excerpt: 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 candi...
Weblog: blog.kennypearce.net
Tracked: February 2, 2006 4:39 PM

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