ACSBlog: The Blog of the American Constitution Society

by Robert F. Bauer, partner and Chair of the Political Law Group at Perkins Coie

Editor's Note: This is the first article in a series that analyzes cases argued before the U.S. Supreme Court this term. Washington State Grange v. Washington State Republican Party will be argued before the Court this morning.

Political parties are having a hard time, and as the Supreme Court meets this week, it will hear their most recent complaint. It is not the complaint most in the news, as each national party grasps for control over its own Presidential nominating schedule. The Court will hear from parties that one state, Washington State, has approved what is called a “modified blanket primary” system, the effect of which is to deprive them of their right to choose their own candidates for partisan political office.  Washington State Grange v. Washington State Republican Party, 460 F.3d. 1108 (2006).

Under the Washington arrangement, approved in 2004 by initiative, all voters of all parties participate in a primary, voting for any candidate they choose. The top vote-getters face each other. But any candidate can express her party preference, at her option, and this preference is reflected on the ballot. Hence the candidate who emerges may be associated with a party, by self-selection, but without the party’s consent, and perhaps over its active opposition. In fact, this system could produce two candidates identifying themselves as, say, Republicans, and they will face each other: but neither may be truly a Republican, and neither may have any support within their own party, or the backing or endorsement of any formal party process such as a convention.

The Republican party, challenging this arrangement, has won both rounds in court, leading to the case now before the Supreme Court. The State of Washington believes that the Republicans have it wrong in imagining that their associational rights are infringed by the blanket primary. 

One of their defenses is doctrinal:  the State claims that the Supreme Court indicated that this arrangement would pass constitutional muster in a prior case, California Democratic Party v. Jones, 530 U.S. 567 (2000). Jones was a different type of primary:  it was open to all voters, but the winners, emerging to compete in the general election, were the top two vote-getters from each party. The Court found that parties' right to associate were violated by allowing voters from one party to vote for the nominee of the other. Washington insists that its primary is different, since the parties do not field the candidates carrying their label: the candidates identify their party preference, which the State would have the Court believe to be nothing more than information useful to the voter. 

The lower courts did not adopt this argument. They were convinced that the danger was just as great to parties if candidates appeared on the ballot with their party “preference” indicated at their personal option. Voters would be confused; they would take the expression of party preference as a reliable guide to the candidate’s commitment to, and affiliation with, a specific party program. Both the party wishing to have control over who runs in its name, and the voter wishing to have reliable information about the party affiliation and support of candidates on the ballot, will have been injured through this selection mechanism. The Ninth Circuit, holding against the parties, wrote:  “Not only does a candidate’s expression of a party preference on the ballot cause the primary to remain partisan, but in effect it forces political parties to be associated with self-identified candidates not of the parties choosing. This constitutes a severe burden upon the parties’ associational rights.” 460 F.3d. 1108, 1118-1119 (2006).

The State of Washington must negotiate potential serious obstacles in the path toward a Supreme Court victory. For example, the argument it is making now does not seem fully consistent with the case made for the “modified blanket” primary when it was being presented for approval to the voters. The State seemed then to recognize that voters might rely on these statements of preference, since its rules prevent a candidate from changing the preference from the primary to the general election. Moreover, the arguments made for the modified blanket primary included the explanation that it was a reformed system for conducting partisan elections. It was a system, in other words, for admitting an element of partisanship, on the candidate’s choice, without control by the party—or even a say. And this is the just the parties' complaint.

This having been said, no one can predict what the Court, unpredictable in any case, will do in particular election law cases. Political parties nowadays are back on their heels and feeling battered. A decision against them here would stand alongside their travails in the Presidential nominating process as a clinching case for their increased irrelevancy.