blog.kennypearce.net

Washington Primary System Unconsitutional (Again)!

The Ninth Circuit has finally ruled on the case I have reported on several times in the past year regarding Washington state's 'modified blanket primary.' The court upheld the ruling of the district court that the system unduly burdened the free association rights of the political parties. I'm still not convinced.

For one thing, section IIB[2] of the ruling seems to imply that all state-run partisan nominating primaries are inherently unconstitutional - a view that I, like most libertarians, tend to agree with - but then in the very next paragraph it begins talking as though it's ok as long as the state has a "compelling interest." That kind of argument, though common, is plainly contrary to the whole reason we have a Constitution: no matter how compelling the state's interest, it is prohibited from violating our rights.

The court then argues that this is still a nominating primary despite the fact that (1) the plain language of the initiative - which was passed directly by a 60% vote of the people, not by the state legislature - says that it does not nominate candidates endorsed by parties, and (2) the new process leaves open the possibility that both candidates in the final election may be of the same party.

Next, the court claims that the voters won't know the difference between a party nomination and a party preference, which is ludicrous because we passed the law ourselves.

Beyond this, the court concludes that the supposedly unconstitutional measures (the measures allowing candidates to state their 'party preference') are inseverable from the rest of the law because the voters would never have passed the law without those measures (also a false claim).

So, it looks like the political parties may defeat the people yet again (I don't know why people in Washington still vote for major party candidates, while at the same time fighting with the parties in court and passing initiatives to limit what the party politicians are allowed to do). However, I haven't given up hope just yet. I have written a shorter email to Washington Secretary of State Sam Reed and also a longer email with much the same content to Washington State Grange legislative director Toni McKinley. If you are a Washington voter, I would encourage you to write to them as well at mail@secstate.wa.gov and tmckinley@wa-grange.org. The letters I wrote are below. Feel free to adapt them for your own use if you plan on writing. Be sure to include your Washington mailing address so they will know you are a real Washington voter and pay attention to you (I've deleted mine from the below).

Dear Secretary Reed,

I was deeply disappointed today to hear of the Ninth Circuit's ruling against the modified blanket primary of Initiative 872. I am grateful for your consistent stand with the voters of Washington in this matter, and would like to encourage the state to continue the appeals process in the hope of ultimately instituting the will of the people in this matter.

If the appeal is unsuccessful, I would like to ask you to work with the legislature to find a solution that can satisfy both the desires of the people for a fair and open electoral system not controlled by political party bosses and the consitutional concerns of the court for the parties' freedom of association. I believe that the best solution here would be to implement Instant Run-off Voting (http://www.irvwa.org), however this would require a radical change and there are less radical measures that I would find satisfactory.

The first and simplest of these is to convert all Washington elections to be non-partisan. This, however, leaves voters with very little to guide them on the ballot, and can be difficult in minor races. A better possibility that the court ruling seems to implicitly suggest is to add an additional piece of information to the ballot and state not only the candidate's party, but also the nature of his association with that party. Thus, in the example used by the Republican Party and the court, C would be able to state on the ballot that he was the official nominee of the Republican Party, whereas W's ballot entry would explicitly say that he merely 'preferred' the Republican Party. This, it seems, would address the concerns of all involved, and I can say that I personally would find this solution quite satisfactory as, I believe, would other Washington voters. The key point that must be addressed here if the voters are to be satisfied is that the voters' choice not be limited by locking them in to a single party. Washington voters are not partisan voters and are not content to allow the apparatus of major party politics to control which candidates they may vote for.

Thank you for your time.

Sincerely,
Kenny Pearce
<address here>

Dear Mr. McKinley,

As a Washington state voter, I would like to thank you for all of the work the Grange has done in representing the interests of the people as against those of the party bosses throughout Washington's history. This has been especially apparent in recent disputes with the political parties over the past few years in connection with Washington's primary system. I believe that the Grange has all along taken a very reasonable approach that truly protected the interests of the voters, and this was seen clearly in the 60% vote for the passage of modified blanket primary when it came before the people in November of 2004, and also by the 14,000 phone calls Secretary Reed received from voters oppose to the pick-a-party system (http://www.secstate.wa.gov/documentvault/HistoryofWashingtonStatePrimarySystems-920.pdf).

I was deeply saddened to learn that today the Ninth Circuit upheld the district court decision and declared the party preference provisions of the initiative unconstitutional and unseverable from the rest of the intiative. I would like to encourage the Grange to continue its tradition of standing up for Washington voters by continuing the appeals process regarding I-872, both as to its overall constitutionality and as to its severability. If this fails, however, there is a very simple way to prove that the court is wrong in concluding that the voters of Washington would not have passed the law without the party preference provisions: another initiative. In this vein, I would like to encourage the Grange to begin preparing an initiative for passage as soon as possible to return the state primary system to a format the voters of Washington can support.

This could take several forms. I think that the ideal system would be Instant Run-off Voting (http://www.irvwa.org/), and with the Grange's support the existing movement could probably garner the votes needed to pass the measure. However, there are other measures more similar to I-872 which I would also be quite happy with.

The simplest and most obvious of these possibilities would be to propose that all of Washington's election switch to the system currently used in non-partisan races. I would be satisfied with this outcome, but I suspect think that some voters might not be. It would certainly make it more difficult to remember which candidate was which on the ballot.

As another idea, I noted in the example given by the court and the Republic Party that the real problem seemed to be the inability to distinguish between candidates M, C, and W. Perhaps the remedy to this would be to give more rather than less information. For instance, each candidate might be permitted to put a very short statement (for example, it might be limited to ten words) on the ballot, which would of course be required to be truthful. The statement needn't be about party affiliation (some candidates might include their campaign slogan, or their endorsement by an organization such as the NRA), but some candidates might indicate their party. If necessary, a provision could be included notifying individuals and organizations in advance that they had been referenced in a ballot statement, and permitting them to go to court to have their name removed if the reference was inaccurate, in much the same way the old blanket primary allowed minor political parties to sue for the removal of their affiliation from a candidate whom they had not nominated. C would then be the only candidate who could write "official nominee of the Republican Party" on the ballot, and if anyone else tried to write this, the Republican Party could have it removed. Alternatively, if this 'free range' of information on the ballot proved too non-uniform and confusing, the ballot could contain the candidate's "party status" for which there could be a limited number of possibilities. A candidate could then list his political party and the nature of his relationship with that party. There might be three relationships: "preference," "member," and "official nominee." C might then have printed next to his name "(R) (Official Nominee)," whereas W could only write "(R) (Preference)." This would not substantially change the nature of the system, nor would it overly confuse voters, and it might answer the concerns of the court and the parties. Of all these possibilities, I think that the last would almost certainly gain the support of the voters.

The most critical point here is that the major political parties not be permitted to control the Washington state electoral system to ensure that elected officials work for the voters and not the parties responsible for getting them elected.

Thank you again for your work in connection with this issue. Best of luck in the continuing litigation.

Sincerely,

Kenny Pearce
<address here>