ACSBlog: The Blog of the American Constitution Society

Today, the U.S. Supreme Court upheld Washington State's primary election system against a facial challenge that argued that the system violated political parties' associational rights by forcing them to associate with candidates not of their choosing. If implemented, the primary election system, passed by voter initiative in 2004, would allow candidates to choose a party label to accompany their name on the ballot, in addition to permitting voters to vote for any candidate regardless of party affiliation and advancing the top two vote-getters for each office to the general election.

The 7-2 decision in Washington State Grange v. Washington State Republican Party, with the majority opinion written by Justice Thomas, left the door open to an as-applied challenge to the law and hinted at ways the law could survive such a challenge. Justice Thomas identified the key issue as "whether a primary system that indicates each candidate's party preference on the ballot, in effect, chooses the parties' nominees," or at a minimum whether voters will assume "that the parties associate with, and approve of [the nominees]." After footnoting that the First Amendment does not give political parties a right to have their nominees designated as such on a ballot, the majority opinion asserts that there is no basis to assume that voters will conclude that a political party approves of a particular candidate.

Justice Thomas answers in the affirmative the question of whether "the ballot could conceivable be printed . . . as to eliminate the possibility of widespread voter confusion" over whether the indication of a candidate's party preference could be misconstrued as an endorsement. He notes Petitioners suggestions that the ballot could include disclaimers explaining that the party preference only reflects the self-designation of the candidates, or that the candidate could indicate his or her preference in a candidate statement, or that Washington State could conduct a public information campaign to explain the ballot. After disposing of the notion that the primary election system law severely burdens the political parties' associational rights, Justice Thomas concludes that the state's interest in providing voters with relevant information about the candidates is easy to sustain, and thus the law is constitutional on its face.

A concurring opinion written by Justice Roberts and joined by Justice Alito further delves into ballot design and warns "if the ballot merely lists the candidates' preferred parties next to the candidates' names, or otherwise fails clearly to convey that the parties and the candidates are not necessarily associated, the [primary election ballot law] would not survive a First Amendment challenge." To pass muster, "no reasonable voter would believe that the candidates listed there are nominees or members of, or otherwise associated with, the parties that the candidates claimed to prefer."

The dissenting opinion, written by Justice Scalia and joined by Justice Kennedy, terms the primary election system "sabotage," arguing that "thrusting an unwelcome, self-proclaimed association upon the election ballot itself is amply destructive of the party's associational rights," particularly where the party has no means of replying that would be equally effective with the voter. Scalia likens Washington's law to "a law that encourages Oscar the Grouch (Sesame Street's famed bad-taste resident of a garbage can) to state a 'preference' for Campbell's [soup] at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations." After finding a forced association, Justice Scalia questions whether there is even a rational basis behind the law beyond "the Washington Legislature's dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own desires." He concludes "Washington's electoral system permits individuals to appropriate the parties' trade-marks, so to speak, at the most crucial state of election, thereby distorting the parties' messages and impairing their endorsement of candidates."