The citizens of the State of Washington enacted a “top-two” primary law, Initiative 872, which allows primary voters to vote for any candidate regardless of party affiliation. The top-two candidates from the primary then advance to the general election. The law also permits candidates for some offices to disclose the name of their preferred political party on the ballot. The Republican Party argues that the law violates the right of association protected by the First Amendment. Washington State Grange argues that a candidate’s personal “preference” serves only as information for the voter, while the parties retain the right to nominate and endorse their own candidates. The Court must decide whether top-two primary systems that permit candidates to disclose their party preference on the ballot, without having any formal affiliation with the political party, violate political parties’ associational rights.
Questions as Framed for the Court by the Parties
Facts
The following facts are taken from the Ninth Circuit’s opinion, 460 F.3d 1108 (9th Cir. 2006): the state of Washington employed a “blanket primary” system from 1935 until 2003. Blanket systems allow all voters, regardless of party affiliation, to vote for any candidate on the primary ballot. The top candidate from each political party then advances to the general election. Many other states have closed primaries where voters are required to have a formal affiliation with the political party to vote in the party’s primary and select the party’s nominee.
In Democratic Party of Washington v. Reed, 343 F.3d 1198 (9th Cir. 2003), the Ninth Circuit invalidated Washington’s blanket primary system because it was “materially indistinguishable” from California’s system -- which the Supreme Court had found unconstitutional in California Democratic Party v. Jones. Jones, 530 U.S. 567 (2000). The primary system at issue in Jones permitted voters to vote for any candidate from any party, and the candidate who received the most votes from each party would then appear on the general ballot. The Supreme Court held that the system violated the constitutional right of free association of the political parties because voters who were not formally affiliated with the party were able to participate in the party nomination process.
After Washington’s primary system was invalidated by Reed, both the Washington legislature and the Washington State Grange, a non-partisan, grassroots advocacy for rural citizens, developed plans to replace the primary system. In March of 2004, the Washington legislature replaced the former system with a “top two” primary system, and, in anticipation of legal challenges, also enacted an open primary to take effect in the event that the top-two system was invalidated. The governor vetoed the top-two primary system in April of 2004, and the open primary system went into effect. In the elections of 2004 the Grange successfully sponsored Initiative 872, an effort to change the State’s previous blanket primary system but retain some of its partisanship by permitting candidates to disclose their personal party preference. Initiative 872 was voted into effect by nearly 60% of the voters and became law in December of 2004.
The Washington State Republican Party sued county auditors in May of 2005 for their enforcement of Initiative 872. The Libertarian and Democratic parties of Washington State were permitted to join as plaintiffs, and the State of Washington and the Grange replace the county auditors as defendants. The district court granted the parties’ summary judgment motions and issued a permanent injunction enjoining the enforcement of Initiative 872 on July 29, 2005.
The Ninth Circuit affirmed the district court’s decision, stating that the political parties’ rights of association were violated when candidates were allowed to identify their personal party preference without input from that party’s preference.
Analysis
The Washington State Republican Party asserts that Freedom of Association allows political parties to define the scope of their political association, choose their party representatives for the general election, and exclude outsiders from that process. Brief for the Respondent Washington State Republican Party, at 18. The Supreme Court has ruled that Freedom of Association, though not explicitly mentioned in the Bill of Rights, is an essential part of First Amendment because, in many cases, people can most effectively advance their beliefs and ideas through groups or associations. NAACP v. Alabama ex rel. Patterson, 357 U.S. 49, 460.
Washington State Grange makes a different First Amendment argument, contending that the political candidates have a fundamental Freedom of Speech right to express their party preference on the ballots. Brief for Petitioner Washington State Grange, at 21; Brief for Petitioner the State of Washington, at 33.
The State of Washington also asserts that the District Court and the Ninth Circuit Court wrongly used the strict scrutiny standard when evaluating this case. Brief for Petitioner the State of Washington, at 21. In order to pass strict scrutiny, the law must be justified by a compelling state interest, must be narrowly tailored to achieving the state’s interest, and must be the least restrictive means of achieving that interest. See Washington State Republican Party v. Washington, 460 F.3d 1108, 1122-23 (9th Cir. 2006). The State argues that, under the Supreme Court’s holding in Burdick v. Takushi, 504 U.S. 428 (1992), strict scrutiny is inappropriate if the state regulation “only imposes reasonable, nondiscriminatory restrictions upon First Amendment rights.” Brief for Petitioner the State of Washington, at 21.
Washington State and Washington State Grange’s Argument
Washington State first argues that the Initiative simply limits the number of candidates on the ballot, and removes state regulation of the political party nomination process, thereby granting the parties greater freedom in selecting their nominee. Brief for Petitioner Washington State, at 20. Washington State also contends that, unlike the partisan primaries struck down in California Democratic Party v. Jones, 530 U.S. 567 (2000), Initiative 872's nonpartisan primaries allow political parties to retain their associational rights. Although the Initiative enables voters to select candidates of any political affiliation to advance to the general election, it does not permit voters to select political parties' nominees. Id. Under this system, for instance, two candidates with the same political party affiliation may advance to the general election. Brief for Petitioner Washington State, at 20.
Furthermore, the State argues that both the District Court and the Ninth Circuit erred in holding the Initiative to a strict scrutiny standard because the Supreme Court in Burdick rejected using this standard for all voting regulations. Instead, the State of Washington argues that the level of scrutiny the Court should use must be based on how severe a burden the state’s action places on First Amendment rights. Brief for the Petitioner Washington State, at 21. If the regulation imposes severe restrictions, then it is subject to strict scrutiny. Id. If, however, the state imposes only reasonable, nondiscriminatory restrictions on rights, then the state’s regulatory interests are generally sufficient to justify restrictions. Id.
The State also contends that the District Court and the Ninth Circuit erroneously concluded that primary voters were able to choose political parties’ nominees. Brief for the Petitioner Washington State, at 22. Rather, the top-two primary enacted by Initiative 872 is like the primary at issue in Munro v. Socialist Workers Party, 479 U.S. 189 (1986), which allowed voters to decide whether a party’s nominee could advance to the general election ballot. Id. The primary in Washington is similar because the voters are not choosing party candidates; rather, the voters are selecting the candidates that will advance, even if they are from the same political party. Id. This is dissimilar from Jones because in that case, voters were participating in selecting the party’s candidate. Id.; Brief for the Respondent Washington State Grange, at 19.
The State and the Grange further emphasize that there is a difference between a ‘nomination’ and a ‘preference’, arguing that voters are aware that a candidate’s personal preference does not equate to nomination because a candidate’s preference for one political party or another does not suggest that the candidate is necessarily a member of the party, or that he conforms to all of that party’s beliefs. Brief for the Petitioner Washington State, at 24; Brief for the Respondent Washington State Grange, at 20.
Washington State Grange also asserts that a candidate’s preference of political party is speech protected by the First Amendment, and by stating that it was basing its decision against Initiative 872 on the First Amendment, the Ninth Circuit “turn[ed] the First Amendment . . . on its head.” Brief for the Respondent Washington State Grange, at 19. Furthermore, the Grange argues that the Ninth Circuit ignored the virtue of federalism in ruling against Initiative 872. Id. at 21. That is, the federal court wrongly ruled against Washington State based on the fact that other states use party names on ballots to signify who is that party’s nominee. Id. Just because a party’s name appears beside a candidate’s name on the ballot does not mean that that candidate is the nominee of the party. Id. Other states do this, but Washington does not. Id. The federal court, however, assumed that the purpose of Washington’s ballot was to do this, and based this assumption on these other states, which “eviscerates the independence and flexibility that federalism assures” to each of the fifty states. Id.
Washington Republican Party’s Argument
The Washington State Republican Party’s main contention is that Initiative 872 severely burdens the party’s First Amendment right to freedom of association by denying it the ability to select a candidate to represent the party in the general election. Brief for Respondent Washington State Republican Party, at 12. The State forces the Republican Party to associate with any candidate who expresses a preference for that party, even when the party may not agree with his or her platform of beliefs. Id. This is problematic because a political party’s candidate is supposed to be the ambassador of its views in Jones. Allowing candidates who do not accurately represent the party’s stance on various issues to associate themselves with that party could create confusion about what the party itself actually stands for and could dilute the meaning of party membership. Brief for the Respondent Washington State Republican Party, at 12. It would also encourage greater splintering within the two main political parties as candidates would have no incentive to conform to their chosen party’s norms or to moderate their positions, allowing more radical candidates to be elected because they run under the party’s title. Id. at 34.
The Washington State Republican party maintains that Washington’s current top-two system gives candidates the ability to be disingenuous about their actual party affiliation or preference. Brief for the Respondent Washington State Republican Party, at 9, 28. This, in turn, would force the two mainstream parties to associate with candidates who would normally be their rivals. Id. at 20.
The political parties maintain that Initiative 872 reduces their political power: where the parties used to have the power to nominate, now they only have the power to endorse. Brief for the Respondent, Washington State Republican Party, at 36. And even that endorsement does not have much clout, because the candidates have the power to associate the party with themselves on the ballot, whether or not the party officially endorses them. Id. Because a political party can accomplish its goals only by electing representatives who adhere to their principles and aims, the selection of a candidate for election is the party’s primary function. Id. When the State allows all candidates to indicate their political preferences, it usurps the party’s only means of advancing its goals – through electing candidates with identical aims. Jones, at 575; Brief for the Respondent Washington State Republican Party , at 12.
Discussion
This case involves three competing interests: the voters’ desire to be informed, the political parties’ associational right to control who becomes affiliated with the party, and the candidates’ right to free speech. Under Initiative 872, candidates are permitted to select a political party of their choice to be printed next to their name on the election ballots and voters are permitted to cast their vote for any candidate, regardless of party membership. The Washington State Republican Party argues that this system violates its constitutional right to free association. The right to free association derives from the First Amendment to the Constitution, which provides that “Congress shall make no law respecting . . . the right of the people peaceably to assemble.” The Republican Party contends that the top-two system allows candidates to associate themselves with a particular party without that party’s consent. The State of Washington and Washington State Grange assert that Initiative 872 helps to protect voters’ ability to be informed and politicians’ right to free speech.
Washington’s top-two system holds benefits for candidates and voters. According to the State of Washington’s Brief, I-872 gives voters more latitude in the primaries because anyone can vote for any candidate, regardless of party. At the same time, it allows uninformed voters to cast their votes for candidates that presumably represent the majority of their beliefs based on the candidate’s political party affiliation. The Ninth Circuit noted in its decision that allowing candidates to list party preference on the ballots facilitates candidates' ability to connect with their target voters by communicating their beliefs in shorthand to those voters. By the same token, the system permits voters to choose candidates who represent their interests, by using a candidate’s party preference to draw inferences about the candidate’s stance on important issues.
Removing party preference information, as the Republican Party desires, would hamper those who wish to vote the "straight ticket" based purely on party affiliation. Straight-ticket voting, however, is not universally well regarded. To date, thirty-five states have taken measures to discourage this practice. It is doubtful, though, that the political parties would be satisfied with the removal of political preference from the ballot. According to the brief for the Washington State Republican Party, even if political preference were removed, I-872 would still lessen the political power of the parties: where the parties used to have the power to nominate their own candidate for the general election, under I-872 they retain only the power to endorse.
By choosing their own candidates in the primaries, parties can articulate their stances on various issues and avoid confusion about what the party itself actually stands for. In its brief, the Washington State Republican Party argues that Washington’s current top-two system under I-872 gives candidates the ability to be disingenuous about their actual party affiliation or preference, which could dilute the meaning of the party. For example, a candidate whose beliefs aligned most closely with the Libertarians or the Greens – parties which normally would not have enough public support to win a primary – could simply label himself as a Republican or Democrat and benefit from straight-ticket voting. This might force the two mainstream parties to associate with candidates who would normally be their rivals, thereby removing the parties' value as symbols for particular positions on policy issues.
The long range ramifications of a decision upholding I-872 are uncertain. On one hand, as the Washington Republican Party claims, I-872 could, over time, force all candidates to become more moderate in order to appeal to a wider demographic – not just members of their own parties. The opposite effect could also result, however, because, under the top-two system, candidates would have no incentive to conform to their chosen party’s norms or to moderate their positions, thus allowing more radical candidates to be elected under the party’s title. In this way, a top-two system could undermine ideological unity within the two major political parties.
Conclusion
The state-sanctioned election process safeguards the right of individuals to cast their votes, protects political parties’ right to freedom of association, and preserves the representative democracy upon which the nation was founded. A decision for Washington State and Washington State Grange will preserve states’ rights to choose their election systems, and permit voters to participate more freely in primary elections by removing the requirement of party affiliation. On the other hand, a decision in favor of Washington Republican Party would protect parties’ Freedom of Association by affirming their exclusive right to choose their candidates, and the exclusion of non-party affiliated voters from the primary election process.
Written by: Debbie Faulkner & Ginger McCall
Edited by: Richard Beaulieu