A source close to the WSRP emails this update on the lawsuit to overturn the Top Two Primary. The one local race that could be most affected in the near term by this lawsuit is the Hammond-Dunn contest for the King County Council.
The Washington State Republican Party has filed a complaint in federal district court seeking an injunction against several county auditors and Dean Logan's office asking these auditors to refuse to administer a top two style primary in Sept and instead to operate a Montana style primary.
Provisions were included in the county's rules in the final week providing that any candidate garnering 25% of the vote at the nominating convention could appear on the ballot in a Montana style primary if the county auditors operate a Montana style primary in Sept. This rule addition was rationalized as logical given the fact that under Montana the state would be administering a real partisan primary, and the Party's objectives will have been achieved. For those suspecting foul play, I disagree. This move makes perfect sense as a means to reassure the court that any order issued by the court will achieve the desired effect, a true partisan primary. Filing for office occurs during the last week in July.
Arguments have been scheduled in the above mentioned case for July 13th. Apparently, the court is well aware of the need for speed and both petitioners and respondents have asked for expedited review. #### anticipates receiving a decision from the Judge by July 15th. That would give the 9th Circuit Court of Appeals approximately one week to consider an appeal before the start of the filing period in WA. I believe that the Secretary of State and the Grange are both intervenors in this case and can be expected to appeal if the judge decides against them and issues the requested injunction for this election cycle. Here are some potential scenerios: 1) Judge rules for petitioners and issues injunction and respondents take no further action thereby causing us to have a partisan primary in Sept. and Reagan will qualify to run as an R under party rules;Posted by Stefan Sharkansky at June 14, 2005 05:18 PM | Email This2) Judge rules for petitioners and issues injunction but injunction is stayed by 9th Cir. at request of respondents until 9th Cir. reviews district court decision after filing period (Reagan not qualified by filing deadline)
3) Judge rules for respondents but is reversed by 9th Circuit and Montana election is ordered whereby Reagan is qualified as R;
4) Judge rules for respondents and is upheld by 9th Cir. under expedited review and Reagan is not qualified;
5) Judge rules for petitioners and is upheld by 9th Cir. so that Reagan is qualified as an R ;
6) Judge rules for petitioners and 9th Cir. refused to stay top two election prior to review so that Reagan is not qualified as an R.
And why is the GOP working so hard to ignore the will of the people? You know... Kinda like the democrats getting rid of 601?
Posted by: Who.... me? on June 14, 2005 05:26 PMThe system adopted by initiative in Washington last fall was slightly different than the Louisiana system. In the Louisiana system, if a candidate gets over 50 percent of the vote, the election is decided. Only if no candidate gets over 50 percent is there a second election. In the new Washington system, the top two vote-getters advance to a second election no matter how many votes any candidate gets.
Personally, I don't think the top-two primary is unconstitutional as long as the parties are allowed to nominate their own candidates, i.e., as long as the Secretary of State and county auditors recognize the results of party conventions and caucuses and only allow the people thus nominated to have party designation on the ballot. The initiative and its supporters, including Sam Reed, were quite explicit that the new primary was not a nominating primary, but rather a "qualifying" primary. The 1908 (1907?) law requiring that the parties nominate by election was overturned by that initiative, and thus the right of nomination reverted to the parties. The government must recognize this.
Posted by: Legast on June 14, 2005 05:53 PMRegarding Louisiana, I heard that both parties have chosen to accept the system and not sue, and they're the only ones who could bring a lawsuit forward. So, since they're not fighting it, it stands.
RM
I seriously doubt that Judge Zilly will order that the State of Washington hold a party ballot primary election, even if he finds aspects of the Top Two primary to be unconstitutional. Federal judges will not rewrite state laws if some portion of them violates the constitution. They will just strike out only the portion that is unconstitutional.
There is no right to have party nominations or party designations on the ballot. It is clearly perfectly okay to simply have nonpartisan races -- put only the candidate name on the ballot, and have the top two vote getters face off in the general election. This works perfectly fine in this state for judges, city offices, school boards, port commissions, water districts, fire districts, sewer districts, etc. -- none of these races have party designations.
The parties might be able to convince Judge Zilly that allowing candidates to express party preferences when filing -- which would then be listed after the candidate's name on the primary and general election ballots -- violates the party's First Amendment rights of freedom of speech and freedom of association. This violation would be forcing a political party to associate with any candidate who listed that party as their preference. Another violation would be that voters could be misled and dilute the party's vote in the primary if multiple candidates expressed that party's preference and none of them made the top two.
The best solution, if allowing designation of party preference violates the constitutional rights of a given political party, would be to prevent ANY candidate from listing that party as their preference when filing for office. This treats all candidates equally (equal protection being another constitutional right), especially given the lack of any state law by which a political party can officially designate one candidate only to use its party label when filing.
This would effectively result in non-partisan elections. Republicans, Democrats and Libertarians object to free use of their party name as a preference, so no candidates would be able to use these party names. Some minor parties may not have such a problem with this, but their candidates usually aren't very popular. Most candidates will simply file as independents, and the parties can then endorse candidates and get the message to their supporters as to who they should vote for.
The next most likely alternative, if the law is found to be unconstitutional, is to keep the top two system, but only allow officially approved party nominees to use the party name as their preference on the ballot. Other candidates can file as independents, choose some other party, or form a new party to use its name instead. The top two candidates, regardless of party, would again go to the general election.
It is highly unlikely that Judge Zilly would impose a party ballot primary system in any event. State law clearly provides for the top two candidates to advance to the general election -- which is clearly constitutional. Any constitutional flaws in the I-872 system can be resolved without eliminating this provision of existing state law.
If the political parties are allowed to restrict use of their party names on the election ballot, then they are obviously free to designate whatever method they desire to choose the candidates who will be allowed to do so. This does not require a party ballot primary system run at public expense.
Both the Democrats and Republicans chose to have a convention system for designating official nominees. They could just as easily held a privately run election for this purpose and designated polling places, poll hours, absentee balloting, and recruited volunteers (or paid workers) to run this system. And they can hold private party primaries in future years if Judge Zilly rules in their favor.
My prediction, on the other hand, is that Judge Zilly will rule that the top two primary under I-872 is perfectly constitutional, and that free allowance of party self-designation by candidates does not violate the constitutional rights of parties. After all, Louisiana has done things this way for over 30 years, and the U.S. Supreme Court in the California case said that such a system would be perfectly constitutional.
Posted by: Richard Pope on June 14, 2005 06:12 PM1. As another poster pointed out, it's not necessarily constitutional in Louisiana, either -- the law simply hasn't been challenged there, as the power brokers are fine with the status quo.
2. Louisiana does have party registration, which we do not. This forces the candidates claiming to be D's or R's, or anything else for that matter, to be registered to vote as a member of the party they claim to be. Since we have no party registration, anyone, on any day, can declare themselves to be a member of any party and run for office as a member of that party.
This is where an additional fundamental violation of free association rights, not found in Louisiana's system, occurs here.
Posted by: Susan B. Anthony on June 14, 2005 06:12 PMYour initiative for a top-2 primary contained the same flaw that the previous primary had - namely, a violation of an association's First Amendment right to freely associate among themselves without outside interference.
What the Grange's initiative has now done is force the counties to spend tax-dollars (needlessly, 'but for' the Grange initiative) defending a primary system that continues to allow non-party members to vote in the parties' selection of their nominees.
All voters have a constitutional right to vote in a general election. But a primary is not a general election.
Perhaps the Grange should let all of us vote in their association's election for their officers, by-laws, etc. ? I notice they did't feel like suggesting 'that' in their ridiculous, wasteful initiative.
TYG(I)
Posted by: ThankYouGrange(Idiots) on June 14, 2005 06:32 PMIn Louisiana, a registered voter can change their party affiliation at any time -- even on the very same day that they file for office.
There are only a few races in Louisiana where party affiliation matters. To vote in the presidential primary, you have to be registered with the given party at least 30 days before the election. Same thing for the party's representatives on the party's state central committee and the party's parish executive committee. When those races are on the ballot, the voting machines are set either Democrat, Republican or Other, based on each voter's registration, and only party members may vote for these restricted party races. For every other race, any voter may vote for any candidate in any race, regardless of party.
I remember a funny situation back in April 1980, when I was living in New Orleans. A state representative position had become vacant a few weeks before the April 1980 presidential primary. So the primary for that office was set on the same day as the presidential primary.
Some fellow wanted to run for this position, but happened to be a registered Republican. He felt he would do better as a Democrat on the ballot. So he changed his party affiliation and was able to file as (and be listed on the ballot as) a Democrat.
The main snag with this was in public relations. The fellow changed parties less than 30 days before the primary, so he had to vote as a "Republican" (and have the voting machine set that way) for the presidential primary. And he was listed in the precinct election register as a "Republican", even though he was listed on the ballot as a "Democrat".
So this made a lot of publicity. Then it was discovered that the fellow had been a registered Democrat all his life, but had only recently switched to Republican a few months before. He then told the press that he became a "Republican" in order to vote for a friend who was running for national convention delegate. This went over like a lead balloon.
The other candidate for the vacant position -- who had been a Democrat all his life -- won the primary by a landslide and was elected. Most of the real Republicans in the district (only about 4% of the voter registration at the time) voted for the real Democrat. And the fellow's friend didn't get that many votes at all for GOP national convention delegate (which was limited to the 4% or so who were registered "Republican").
Posted by: Richard Pope on June 14, 2005 06:40 PMRM,
Why are they the only ones who could bring suit? In Louisiana, it is possible that the primary could become the 'general election' (if someone gains 50% + 1 vote). Any voter who turns 18 after the 'primary' but before the general election might have standing if that voter is prevented from voting in the general election due to the primary's (50% + 1 rule actually taking effect in practice). Do you catch my drift? There is no general election there if someone gets 50% + 1 in the primary - thereby disenfranchising the voter who turns 18 on Oct. 31st.
(And now for my non-legal sentence): That whole primary is just "dumb." (I lived in New Orleans and voted there). Parties nominate, voters vote - especially if there is no party registration in your state. The possibility of voting the other party's ballot is wrong - and it's not democratic or republican in nature. But what about those who don't claim any party? Wait for the general election bubba.
Posted by: LegalEagle on June 14, 2005 06:44 PMThe suit is also politically stupid. If the voters threw a tantrum over the loss of the blanket primary (on which the parties were absolutely in the right), they're going to go nuts over the indefensible assertion that the parties have the power to determine how a candidate gets on the general election ballot.
This is one of the reasons I don't intend to run for PCO again. As PCO, I'm obliged to defend the party, but I can't defend this.
I really wish the parties would restrict their lawsuit to their right to choose which candidates can use the party label. On that issue, they're still right.
Posted by: ScottM on June 14, 2005 06:51 PMActually, in Louisiana, the primary is the general election. They have runoff elections after the first Tuesday in November if people don't win outright (50%+1) on Election Day. See this article for an example.
Posted by: Timothy on June 14, 2005 07:01 PMjust my 2 cents worth...
Posted by: Bruce Kaye on June 14, 2005 07:05 PM...you just might get it" was never more appropriate than in this situation, wherein the state parties succeeded in torpedoing a system which had served for many decades.
I fervently hope that the end result is whichever one is most distasteful to the two parties.
We the people are the ones paying for the primary, so its structure should be what we, not the parties, prefer.
If the parties want to select their candidates all by themselves, fine. But they then have no grounds whatsoever to expect us to pay for it.
Posted by: ewaggin on June 14, 2005 08:49 PMSee, this is what I mean by "childish pique."
Posted by: ScottM on June 14, 2005 09:04 PM"Childish pique" - oddly enough, that's the phrase that came to mind when I considered the antics of the state parties in this matter.
But rather than engaging in an ad hominem attack, why don't you respond to my conclusion, that the parties have no justification for complaining about a system that they aren't paying for?
Posted by: ewaggin on June 14, 2005 09:34 PMIf it disagrees with your narrow agenda it's just childish pique, if it's something you support I suppose it's well thought out.
Posted by: Finney on June 14, 2005 09:38 PMThe breadth of your ignorance is truly breathtaking. First off, for the umpteen time, our new primary IS NOT a nominating primary, it is a qualifying primary. There is nothing in state law that says that any particular political party has a right to have a nominee on the General Election ballot.
Since it is not a nominating primary the voters of the state are therefore not participating in the selection of any party nominees when they would vote in such a primary.
Just keep pushing and we'll soon have only non-partisan races for all offices. Then you can thank the Grange once again.
In fact, I can't see how that part of the initiative could possibly stand, as it goes directly against the Jones decision. The court was clear: parties get to say who is and is not a member. There is simply no way the court can let this provision of I-872 stand.
Randy Mueller is wrong, this is not about consolidating power. Almost everyone I talk to in the state GOP wants a primary, just not a blanket one. I personally prefer a nominating convention, but that's just me.
Richard Pope is even more wrong. This has nothing directly to do with Dunn. This was planned all along, and would happen with or without that situation. Although he is right mostly about the party preference thing, but Richard, are you implying that the judge might remove all party names from the ballot? That would be rewriting state law; he would just strike out that part of the initiative, so it would revert to the previous wording, party affiliation.
I think Richard is also way overestimating the constitutionality of the Top Two system -- it seems to me it could go either way -- but I do think he's right in saying it is more likely to be found to be Constitutional than the party preference stuff.
ScottM, you sound like *you're* the one throwing a tantrum.
Bruce Kaye: yes, the people want to vote for whomever they wish. SO WHAT? The purpose of the primary is, and has always been, for the *the parties to pick their nominee.* This is not about voting for a candidate for office, this is about nominating a candidate for office, and if you are not a member of that party, then you should not have a say in that process.
That's the big problem: most people are simply clueless about what a nominating primary is. And because of that, they got ticked off when the entirely illogical blanket primary was tossed. And then they ignorantly replaced it with a system that abolished the nominating primary they said they wanted, and destroyed the general election that is actually important.
That's what voters get for their ignorance.
ewaggin, no, it does not get to be whatever you want. That's not how the real world works. You can either pay for a nominating primary, or not. The parties are not trying to force the state to pay for the primary. Feel free to try to abolish it. But you can't make up any rules about how that primary is conducted, if you agree to pay for and conduct one.
What you and most people don't get is that the parties are private organizations. You don't get to tell them who their nominees are. If you don't like it, you can put up your own nominee. This is a free country, which means what you think about who the party's nominee should be doesn't mean jack squat, unless you are a member of that party.
Finney: why would non-partisan races be any worse than what we have now with I-872, where party labels are meaningless?
You seem to have a serious problem with other people exercising their Constitutional rights.
"Yes, childish pique is what you on the left also always say is the reason we keep passing Eyman's initiatives."
Finney: Yeah, that's right. I'm one of those pro-life, pro-military, anti-tax-increase, anti-secularist, anti-gay-"marriage," pro-business, Bush-voting, Republican-literature-distributing, Edmund-Burke-venerating left-wingers you hear so much about.
Posted by: ScottM on June 15, 2005 05:15 AM"Writing for the court, Justice Antonin Scalia said California was "forcing political parties to associate with those who do not share their beliefs. And it has done this at the crucial juncture at which party members traditionally find their collective voice and select their spokesman."
"The burden (California's voting system) places on (the political parties') rights of political association is both severe and unnecessary," Scalia wrote.
Scalia said states could hold a nonpartisan blanket primary, in which voters can choose any candidate regardless of affiliation, and the top two vote-getters move on to the general election. The system he described would be similar to Louisiana's system.
Under such a voting plan, Scalia said, "primary voters are not choosing a party's nominee" and therefore political parties' rights of free association are not harmed.
His opinion was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Clarence Thomas and Stephen G. Breyer."
While it might be questionable whether our current law in Washington passes this test since it apparently allows for a party designation, it is chrystal clear that a law that allowed for no party designation (a qualifying primary) would pass the test as described above in California Democratic Party v. Jones, 99-40
So there is little likelihood that a judge would reimpose the short lived Montana style primary we had, a slight tweak to our current law is all that will be required.
Also would remind Rino Scott that is was not a childish pique that gave us the top two primary, perhaps you just moved here or something but to refresh your memory it was our Legislature that first gave us the top two Primary and it was your Governor Locke that by his veto gave us the Montana style Primary, yeah I was piqued at Locke for undoing what both parties had agreed to in the Legislature, he was just doing the bidding of the State Democratic party establishment.
The voters last September merely restored what our Legislature had provided for in the first place, a top two primary, quite a switch in that we usually are attempting to undo the damage the Legislature imposes on us, not restore their handiwork.
I hadn't realized that the freedom of association for a political party trumped the freedom of association for the individual citizens in this state, particularly in light of a state constitution that explicitly lays out the mandate of individual rights. (vs. the collective)
I am truly disappointed to read what has been written by posters on this thread, in that so many seem to parrot a party line or another. (meaning, I have consistently seen a good portion of the letters to the editor in local papers mirrored here) Yet, few seem concerned about the rights of individuals to freely associate here.
Take some time, read the constitution. THINK about what you want in a state, and what's appropriate in terms of supporting that governing document. The constitution was written to put a form of government into place in support of the individuals who would eventually live here. Not to be bastardized into a vehicle to lord power over the people, taking their money to redistribute to political parties. Not to be twisted to give an edge to one power base or another over the rest. Not to create self perpetuating programs in attempting to maintain power.
Berendt and Vance are suing the CITIZENs of this state. And attempting to force the line of thought that their party's rights trump ours. Is that right? Is that correct? Are you willing to live with it? Does that support the constitution?
I think not. Particularly in light of the fact that of this gas tax increase meant to 'make congestion better,' we find out that CG and company is going to use the money to make animal paths and bridges on I-90, instead of working capacity into the system.
Posted by: Patches Pal on June 15, 2005 07:27 AMRights held against the sovereign are just as important and legitimate whether the sovereign is a King, or the People.
Does your First Amendment right to endorse the candidate of your choice trump the "right of the people" to tell you what to say or what not to say? Of course it does. And it still does, even if you're a member of a political party.
As I said above, so far the partes are absolutely in the right. Where they've gone wrong is in asking the courts to reinstate the Montana-style primary. And the Republicans are particularly culpable: At a time when we are working to get the President's judicial nominees confirmed in an effort to curb judicial legislation, the WSRP is seeking as brazen a piece of judicial legislation as I've ever heard of.
Posted by: ScottM on June 15, 2005 07:50 AMIf the parties win a victory, it will be a Pyrrhic victory at best. If parties can restrict the use of their names, candidates will simply ignore the nominating process and run as independents. Especially in the GOP, where our party leaders are notorious already for subjective loyality in selectively choosing which nominees to support and even supporting Democrats when it suits their fancy. And the voters won't respect the party nominations and be extremely willing to consider independent candidates. And if the Grange is upset enough, there will be another initiative to completely eliminate party labels from the ballot.
The best bet is to keep the present system, and also have the political parties run a nominating process to endorse candidates. Non-endorsed candidates could run under the party label anyway, but there would be hell to pay from the voters if they still respected the parties somewhat. And the GOP could start requiring (or at least expecting) objective loyalty from its own party leaders, and hope that the party's candidates and rank and file learn by example.
Posted by: Richard Pope on June 15, 2005 07:59 AMI disagree. Only the parties' nominees will get support from the local, state, and national parties. Running as an independent would mean giving up a lot of resources.
A candidate who was already fairly well-known and popular might be able to get away with it, but he'd be taking a big chance: If he lost, his political career would be in tatters.
Posted by: ScottM on June 15, 2005 08:12 AMI respectfully disagree, of course, but thank you.
Scenario:
State enacts through initiative, a process that has the top two vote getters advancing to the general.
Political party files suit, demanding closed primaries to support "feely associating." Attempts to force state to use power to inhibit inidividual citizen's access to candidates in publically funded statewide elections. (ie, one part, attacking the state, second, forcing state power to remove citizen's freedom of association)
Citizen sues state, demanding uninhibited access to any nominee from any party during a government funded statewide public election, to support guarantee of freedom of association.
Who wins?
You scenario has the party trumping the citizen.
Does no good to misdirect the question or principle, my friend.
I mean, it's okay if you truly feel that a political party's rights supercede and in some cases negate the rights of individuals in this state. You aren't alone. Most of the elected officials in this state agree with you. Just come out and say it. Far better than patronizing me.
Posted by: Patches Pal on June 15, 2005 09:06 AMSince there are so many collectivists here, who espouse pulic money expenditures for the benefit of the parties above individual citizens, shall we expect using transportation dollars and party affiliation to determine which lane of a road I then am allowed to drive?
After all, the freedom of movement is a right, is it not? Perhaps the parties want to declare certain lanes of the freeway available only to their 'freely associated' members. I, as an individual do not support restricting rights to political parties, unlike ScottM and others, and would choose any lane that I desired, for it is a public access, and am asserting my right to move about. Others, perhaps, would like to take this to the level that you would have to register with a party to drive.
Sorry, I don't buy having to access power/mobility through political organizations.
It's roughly the same principle on many levels.
Posted by: Patches Pal on June 15, 2005 09:15 AMPatches Pal: you said, "I hadn't realized that the freedom of association for a political party trumped the freedom of association for the individual citizens in this state." Um, it doesn't. No one is harming the right to association for any citizen. You're imagining things. You really are just completely making things up entirely. You have every right to identify with a party and vote in their nominating process.
The issue of funding is a canard. It's entirely beside the point. The citizens have the right to not fund the primary, if they so choose. But they don't get to make up any rules about that primary just because they fund it.
You also say "You scenario has the party trumping the citizen." So? A party is a private organization. It has rights. You cannot take away its rights just because the people vote to do so. You can disagree, of course, but the Supreme Court has been steadfastly asserting this for decades.
Richard, Finney, et al: even *if* the court finds the current law (excepting the party preference provision) is Constitutional, the whole thing could be thrown out simply because of the (obviously correct) argument that the entire intent of the Top Two is to take away the right of the parties to nominate their candidates. The most important effect of this is that the *purpose* of the Top Two is also subverted if you remove the party preference provision, and then you end up with something (presumably) nobody wants, not the people who voted for it, and not the parties.
That is, with such a carefully interwoven change in the law, it may make no sense to strike merely part of it.
That said, as noted, I think it's quite likely that the court will simply revert to the previous language (party affiliation) and not write new law by removing party designation from the ballot entirely, nor strike the Top Two.
I hope the citizens come to their senses and realize the Grange screwed them though. Now they have less choice in the primary, and less choice in the general. Oops.
Then the people can vote for that, if they wish. The parties certainly wouldn't like it, but it would be better than the current scenario, which is that people can misrepresent the parties by saying they are a member when they are not. So how does this make the parties "nitwits"?
And why is it the major political parties, only? All the parties agree with the GOP position on this.
The difference is that your second lawsuit has nothing to do with freedom of association. Your citizen is not demanding the right to voluntarily join together with fellow citizens to accomplish political ends, but to impinge himself upon private organizations to which he does not belong.
It's not about the parties trumping the citizens or citizens trumping the parties. It's about legitimate state power on the one hand, and necessary restrictions on that power on the other. It is certainly not about the parties trumping individual rights; indeed, individual rights are precisely on the side of the parties. The parties are merely groups of individuals who have voluntarily joined together. On the other hand, the people, when they join together to make laws, are the government.
What you seem to be saying is that government power should always trump individual rights.
Private organizations have the right to make their own endorsements without state interference, while the state clearly has the power to make the rules about who gets on the November ballot.
And your point about roads is too silly to deserve a response.
Having said that, I bid you all adieu.
It's been fun, challenging, and educational, but I fear that the enjoyment of it all has ended for me. This was the only political blog I chose to engage on (Unlike all who run from blog to blog and run rampant) and the last.
I really find myself disgusted at how many people are all about party politics, and power. The same people who have forgotten the basic values and principles that this state and this nations was founded upon. Perhaps I am too much an idealist in my expectations that we would band together to focus and support the bedrock of our political system, the individuals whom we interact with on a daily basis. Any more, I see the trend being the friction surrounding which politcal party's agenda will be foisted upon the citizenry. And, folks, I honestly can't support that.
And with that, I shall head for more peaceful surroundings.
Be well
Posted by: Patches Pal on June 15, 2005 09:32 AMYes, because standing up for Constitutional rights is about POWER and POLITICS. I am not sorry to see you leave, as I don't really care about the opinions of people who refuse to actually think and see things are they are.
It's not about you being idealist. It's about you being clueless about laws and rights. Instead, you just go by your gut feeling, which in this case happens to be entirely contrary to reason. There are probably more polite ways to say that, but I see little reason to bother.
PP, sorry if it was my insistence on standing up for what I believe to be right that drove you away.
Posted by: ScottM on June 15, 2005 09:44 AMOn another point, it is worth remembering that poster Richard Pope is someone who has run as a Republican and a Democrat in the past, switching parties as he saw fit, and actually getting nominated sometimes. Such behavior will be much less likely to be successful under the system the parties want.
Posted by: Legast on June 15, 2005 10:33 AMSo I'm a "Republican In Name Only" because I agree with the Republican Party?
That's a good one.
Posted by: ScottM on June 15, 2005 12:01 PMAnd of course, along with "rights," we also have "responsibilities." And if the GOP and their minions are successful in overturning the expressed will of the people, which, no matter how much they might not like it, is absolutely the same thing the democrats are all about... well, they should be held responsible for that.
And in this case, the parties should be held responsible to the extent that not one cent of government money should be used to pay for "their" primary.
At this point, if they are successful, it stops being the responsibility of the taxpayers of this state to pay for "their" flexing of "their" political muscle, domination and control.
Like Mr. Spoke once said, "Sometimes, there is much more to the wanting... then there is in the having."
So, to the disaster that is the chair of the state GOP, I say this: congratulations on your efforts to p1ss off thousands more voters. If only you were as successful at getting Republicans elected.
Posted by: Who... Me? on June 15, 2005 06:50 PMIt *does not matter* if it is the expressed will of the people if it is *unconstitutional*. Period.
Why do people not get this? We do not live in a democracy, we live in a republic. Majority does not rule when the majority passes a law that violates the Constitution.
And in this case, the parties should be held responsible to the extent that not one cent of government money should be used to pay for "their" primary.
That's a separate, though obviously related, issue. If that's what the people decide, so be it. The parties have already proven they are willing to shoulder the financial burden themselves, by having nominating conventions instead of primaries, so this is no big deal, if it comes to that.
But the public nominating primary benefits both groups. The parties want more participation by having a public primary, but want it to be closed to people who choose to -- at least for that day -- to identify with their party. If the people want such a say in the process, as they have in the past, they will pay for the public primary. Else it will be a closed nominating convention (where you can still be involved, but only with more time and effort), like we've got this year.
It's never been the responsibility of the taxpayers to pay for the primary, it's always been a choice, one they decided on because they wanted a say. If the GOP wins their court case (in whole or part), nothing's changed in that regard, except people are now more aware of the details.
Why is it so difficult for people to grasp that constitutional limits on the power of the sovereign are just as important when the sovereign is the people as they are when the sovereign is the king?
Keep in mind that when you say that the rights of citizens must give way to the will of the people, some of us (we're called "Americans") find that as contemptible as the notion that the rights of citizens must give way to the will of the king.
Posted by: ScottM on June 15, 2005 07:56 PMTrue, when it's in private. But when public facilities become involved, those members are subject to the same restrictions as the rest of us.
ScottM, you and I "pay" for the roads, too, but I doubt that you would get very far telling the cop who pulled you over for speeding that since you "pay" for the roads, you're entitled to set your own speed limit.
In light of the SCOTUS ruling that the blanket primary is unconstitutional, it is now the case that the large majority of citizens who preferred same will not be permitted that option anymore.
The finding that the old system infringed on the parties' rights doesn't mean that the parties get to decide what the new system will be.
Posted by: ewaggin on June 15, 2005 08:40 PMBut what you said was, "But rather than engaging in an ad hominem attack, why don't you respond to my conclusion, that the parties have no justification for complaining about a system that they aren't paying for?"
The point I was making is that any citzen, or group of citizens, is entitled as a matter of right to complain about any government policy, and indeed to attempt to change it through the political process. Who "pays for it" simply doesn't enter into the question.
The parties' current quest to have the courts legislate the new primary out of existence is wrong because it's wrong for the courts to usurp legislative power, not because the parties don't "pay for it."
And the parties' right to express their opinion about the new primary and to try to get it repealed through the political process is absolute, regardless of who is going to "pay for it."
See my point now?
Posted by: ScottM on June 15, 2005 08:59 PMTo some degree, of course. But not to the degree of losing your rights, no. Look, argue this all you want, but the Supreme Court of the U.S. has ruled on this, many times, and says you're wrong. If you provide a nominating primary, it must protect the rights of the parties who are seeking to select their candidates. Otherwise don't provide it.
you and I "pay" for the roads, too, but I doubt that you would get very far telling the cop who pulled you over for speeding that since you "pay" for the roads, you're entitled to set your own speed limit.
ewaggin, that is the argument YOU are making! That because you pay for the primary, you get to make your own rules for the parties. You're the one making this obviously ridiculous argument, and it's incredible that you think the parties are the ones doing it.
The finding that the old system infringed on the parties' rights doesn't mean that the parties get to decide what the new system will be.
No one contended that they do. Straw man much?
ScottM: The parties' current quest to have the courts legislate the new primary out of existence is wrong because it's wrong for the courts to usurp legislative power
Then what's the option, ScottM? Just let the people destroy their rights? That makes no sense at all, especially coming from someone who just asserted that the people don't have the right to do that.
Besides, the parties are not attempting to have the courts legislate. That's simply, and clearly, false. They are asking the court to revert to the previous system, before I-872 was implemented, not to invent new law.
"Then what's the option, ScottM? Just let the people destroy their rights?"
No, as I've made clear about seven-and-a-half million times on this very thread, the parties are quite right to ask the courts to restore their right to choose their own nominees.
But the parties do not have the right to place those nominees on the ballot. Rules for ballot access are set by the state through the law-making process. Major party nominees were formerly placed automatically on the general election ballot because that's what the law said, not because either the state or federal Constitution requires it. Now the law has been changed.
If the state chooses to fill the November ballot through a top-two primary, that is well within the legitimate bounds of its power.
"Besides, the parties are not attempting to have the courts legislate. That's simply, and clearly, false. They are asking the court to revert to the previous system, before I-872 was implemented, not to invent new law."
Oh, come now. To repeal a perfectly constitutional law and reinstate an older law is a legislative act.
Posted by: ScottM on June 16, 2005 05:15 AMI disagree with that. I think it should be the right of every citizen to put someone on the general election ballot. This qualifying primary junk is, from my perspective, anti-democratic.
However, you miss the point of what I said. You said the parties are asking the courts to usurp legislative power. They are not. They are asking the courts to use judicial power to throw out something that is unconstitutional. If they are successful, no new law will be written, but an unconstitutional one will be thrown out.
You can disagree that this current law is unconstitutional, but it's silly to frame it as a request for legislative action by the court. By that standard, "legislative act" is simply "overruling a law via a court action that I disagree with," and that's entirely meaningless.
I could just as rationally (if not moreso) claim the Secretary of State is trying to usurp judicial authority. After all, he disagreed with the Supreme Court recently when he said, "on the thought that somehow you can say to somebody, you can't call yourself a Republican or Democrat (on a ballot), just doesn't wash." He completely disregarded the majority opinion of the court when he decided to enforce the "party preference" part of I-872. Where's your outrage?
Posted by: pudge on June 16, 2005 07:32 AMWhat if we didn't have a "top two" system, and every candidate who filed could appear on the general election ballot? Perhaps not even have a primary in September at all.
If a candidate got over 50% in the general election in November, then they would be elected. If no candidate got a majority, then there would be a runoff election between the top two vote getters a few weeks later.
What would be wrong with this kind of election system?
Posted by: Richard Pope on June 16, 2005 08:04 AMThat's basically what we have now, though few people realize it. The primary is effectively the general election, with a special runoff (which differs from the LA system primarily in that their runoff only occurs if no candidate gets 50 percent).
However, I have some major problems with it: far fewer people vote in it if you call it a primary, it is far earlier than everyone else's general election (although, of course, not early enough for a real primary :-), and it is, quite frankly (and I think, obviously), useless.
So, to your question directly: I've been clear that the parties have no need for a nominating primary. They can -- and are -- taking the less desirable step of having a nominating convention, which I will attend on Saturday. So if you won't use the primary to nominate, and the primary is just an early general election, yes, why bother with a primary at all?
You save money, you increase participation in the election that has all the candidates actually on the ballot.
What would be wrong with this kind of election system?
I was with you until the 50 percent runoff (I personally like nominating conventions best, but most in the party disagree with me, and prefer a public partisan primary).
I hate runoffs, and all other "alternative" election systems (it's another reason I hate the current Top Two system, though it's a more esoteric, and therefore difficult, case to make). Just take the candidate with the most votes and be done with it. To me, it's anti-democratic. Democracy should be about one person, one seat, one vote. The more complicated you get than that, the more the system is gamed, and necessarily the less the system represents the voice of the people, and the more it follows various formulas that can be manipulated.
I said: "But the parties do not have the right to place those nominees on the ballot ... If the state chooses to fill the November ballot through a top-two primary, that is well within the legitimate bounds of its power."
Then you replied: "I disagree with that. I think it should be the right of every citizen to put someone on the general election ballot. This qualifying primary junk is, from my perspective, anti-democratic."
I'm not entirely sure what this means. Clearly there has to be some method for determining who gets on the general election ballot and who doesn't.
And I'm not sure why a system in which a Libertarian Party candidate can advance to November with 6% of the total primary vote, while a Republican candidate who gets 20% of the total primary vote is out of the race, is more democratic than a system in which the top two primary vote-getters get on the ballot. It seems to me that if pure democracy is your lodestar, you should favor the top-two primary, in which advancement to the general election is based entirely on getting more votes than other candidates.
In any case, if you can cite a constitutional provision which would make your favored method constitutional, and the top-two primary unconstitutional, please do so. Otherwise, it's a policy question for the people and their representatives, not a legal question for the courts.
(Just in case, I'll make clear that my argument against preventing the parties from choosing their own nominees is based on the First Amendment and the free speech guarantees of the Washington State Constitution; groups of individuals also have the right to speak freely, including the right to endorse a candidate or to withhold an endorsment, without interference by the state.)
You: "However, you miss the point of what I said. You said the parties are asking the courts to usurp legislative power. They are not. They are asking the courts to use judicial power to throw out something that is unconstitutional. If they are successful, no new law will be written, but an unconstitutional one will be thrown out."
No, if they are successful, a perfectly consitutitonal law will be thrown out because judges disliked it on policy grounds, just as the US Supreme Court did in Roe v. Wade and many, many other decisions. That is what I mean by "judicial legislation."
You: "You can disagree that this current law is unconstitutional, but it's silly to frame it as a request for legislative action by the court. By that standard, 'legislative act' is simply 'overruling a law via a court action that I disagree with,' and that's entirely meaningless."
So you are in favor of whatever the courts decide to do?
Personally, I am in favor of constitutional government, and when the courts make policy decisions which should be the province of the legislature, that is a usurpation of authority.
And it doesn't simply mean that I disagree with a court's decision. I happen to agree with the Supreme Court's recent decision on interstate wine sales, but I don't think the other side was attempting to legislate their policy preferences. Their interpretation of the Commerce Clause was wrong, in my view, but it was a legitimate attempt to interpret that clause, not an attempt to twist the Constitution for policy reasons.
In this case, the parties are transparently trying to get the courts to change the law simply because the parties don't like the law. In other words, to legislate.
You said: "I could just as rationally (if not moreso) claim the Secretary of State is trying to usurp judicial authority. After all, he disagreed with the Supreme Court recently when he said, 'on the thought that somehow you can say to somebody, you can't call yourself a Republican or Democrat (on a ballot), just doesn't wash.' He completely disregarded the majority opinion of the court when he decided to enforce the 'party preference' part of I-872. Where's your outrage?"
That would be here.
Posted by: ScottM on June 16, 2005 08:55 AMSo what is wrong with majority rule? Why shouldn't a candidate have to get a majority of the vote in order to be elected? Otherwise, your general election ballot will be crowded with every Ron, Dino, Ruth and Christine who wants the job, and the winner will be elected by a relatively small fraction of the vote.
We either have a free-for-all general election in November with lots of candidates, and a run-off a few weeks later (bearing in mind that most offices start in early January, and our ballot counting and mailing takes several weeks to accomplish). The run-off might be impractical due to time constraints. And if not many offices require a run-off, the turnout could be a lot lower.
Or we have a primary in September (or maybe earlier if we like) to figure out which two candidates are the most popular and have them face off against each other in November. Make it fairer than the Louisiana system, and have the top two candidates advance to November, even if one of them gets over 50% in September.
The political parties don't like the top two system, since they like to be able to elect someone with less than a majority of the vote. Also, if there are more than two candidates on the general election ballot (and that is the final election), voters aren't nearly as likely to take a chance on an independent or minor party candidate, for fear of "wasting" their vote. They will choose between the two major party candidates, figuring one of them is certain to win. In a "top two" system, if an independent or minor party candidate makes it to the general, it is not a "waste" to vote for them -- if they get more votes than the other fellow, they get elected.
Posted by: Richard Pope on June 16, 2005 09:10 AMYes, the same one we've always had, the same one everyone else has, including Louisiana: get enough signatures (established parties are de facto granted this without the need for signatures, in some cases, but it's a minor and tangential point), get on the general election ballot. This is not about the rights of the parties per se, this is about the rights of all citizens to have access to the ballot.
I'm not sure why a system in which a Libertarian Party candidate can advance to November with 6% of the total primary vote, while a Republican candidate who gets 20% of the total primary vote is out of the race, is more democratic than a system in which the top two primary vote-getters get on the ballot.
And I'm not sure why you're misrepresenting the nominating primary. No libertarian has ever gotten on the ballot with six percent of the voters. You're still, like many people, conflating separate things. There is a separate primary for each party. They just happen to be conducted together. The libertarian candidate almost always gets 90 percent or more of the vote, in fact, in a proper nominating primary, as they are usually the only libertarian candidate for the given position.
It seems to me that if pure democracy is your lodestar
It isn't.
In any case, if you can cite a constitutional provision which would make your favored method constitutional, and the top-two primary unconstitutional, please do so.
I already presented the argument.
No, if they are successful, a perfectly consitutitonal law will be thrown out because judges disliked it on policy grounds
I guess I'll repeat myself: "You can disagree that this current law is unconstitutional, but it's silly to frame it as a request for legislative action by the court. By that standard, 'legislative act' is simply 'overruling a law via a court action that I disagree with,' and that's entirely meaningless."
So you are in favor of whatever the courts decide to do?
So you beat your mother?
In this case, the parties are transparently trying to get the courts to change the law simply because the parties don't like the law. In other words, to legislate.
"Transparently" is another code word for "I disagree with what they are doing." You simply don't like it, but try to couch it in grand terms to make it sound sinister, but you offer no reason for anyone to agree with it.
Posted by: pudge on June 16, 2005 09:47 AMSorry, back up. Why *should* a candidate have to get a majority? There's no significant precedent for it in this country, except in the electoral college. The burden of proof here is on you.
Otherwise, your general election ballot will be crowded with every Ron, Dino, Ruth and Christine who wants the job, and the winner will be elected by a relatively small fraction of the vote.
How is that different from how it has *always* been in *every general election in WA* in our lifetime? You make it sound like a big deal, when we've always had it that way, and no one's complained until they decided they needed to change it in order to get a blanket primary back.
The political parties don't like the top two system, since they like to be able to elect someone with less than a majority of the vote.
That's false. They don't like it because it's a terribly lame idea, as I've described in detail.
It actually serves no purpose but one: to take away the right of the parties to nominate their own candidates. And once the parties regain that right, as they are soon to do, the top two system no longer serves its intended purpose.
And the Grange didn't even hide this fact. They said they only chose the top two system because it was the only way to get a blanket primary, and the only reason they wanted that is because they want to choose the parties' candidates for them. No one likes the top two, but it is the only way they could accomplish their goal.
And this is the strongest case for overturning the top two altogether. It's clear that the purpose is to restrict the right of the parties to nominate candidates, and if that purpose is abolished by the court (by striking the party preference change), then we are left with a bunch of changes to the law that do not represent the intent of the initiative, and it is not fair to the public to saddle them with something there's no reason to suspect they actually want.
This is not courts legislating as ScottM says, this is courts protecting the public from micromanaging the law beyond what is its scope, by saying, "if you really want a top two, OK, but not this way. Try again, to make sure you get what you really want."
Courts often do this, and there's nothing outrageous about it. It's the same reason many executives don't have a line-item veto: it often defeats the entire intended will of the people when you strike one small provision of a law, and it's generally best to just start over. You can't take each small provision of the law in a vacuum, separate from the rest.
Also, if there are more than two candidates on the general election ballot (and that is the final election), voters aren't nearly as likely to take a chance on an independent or minor party candidate, for fear of "wasting" their vote. They will choose between the two major party candidates, figuring one of them is certain to win. In a "top two" system, if an independent or minor party candidate makes it to the general, it is not a "waste" to vote for them -- if they get more votes than the other fellow, they get elected.
How would a minor candidate *get* to the general election in the first place? By people taking a "chance" on them, which by your logic, they are no more likely to do in significant numbers in the current primary than they would in a traditional general election, because they would have the same pressure to not "waste" their vote.
Don't merely take my word for it: every single minor party is against the Top Two, and so is independent Ralph Nader, because none of them buy your argument, either.
Me: "But the parties do not have the right to place those nominees on the ballot ... If the state chooses to fill the November ballot through a top-two primary, that is well within the legitimate bounds of its power."
You: "I disagree with that. I think it should be the right of every citizen to put someone on the general election ballot. This qualifying primary junk is, from my perspective, anti-democratic."
(Emphasis added.)
But now you're saying that the courts should overturn the top-two primary not because the state doesn't have the power to do it, but based on unsupported assumptions about what the people "really want" (which just happens--through pure coincidence, I'm sure--to give you the policy result you desire)?
"This is not courts legislating as ScottM says, this is courts protecting the public from micromanaging the law beyond what is its scope, by saying, 'if you really want a top two, OK, but not this way. Try again, to make sure you get what you really want.'"
I have neither the time nor the inclination to chase you around as you shift your ground.
Posted by: ScottM on June 16, 2005 11:15 AMSorry for the confusion, but no, I didn't. When I said "I disagree with that," I was referring to your first sentence that you didn't boldface, not the second that you did. My second sentence should have provided the clarification you needed to discern this.
now you're saying that the courts should overturn the top-two primary not because the state doesn't have the power to do it, but based on unsupported assumptions about what the people "really want"
It's not unsupported at all. I gave you support from the Grange (well cited it, but it is easy to back up), and the major support is simply the broad-based and well-accepted principle. And it is not "now" that I offer this; read about halfway into the discussion where I note the "intent" of the Top Two system.
I have neither the time nor the inclination to chase you around as you shift your ground.
First a court disagreeing with you is improperly legislating, and now me disagreeing with you is shifting my ground.
How boring.
This is because of a federal law (on the books since 1872) that tells the states to hold congressional elections in November. The federal law also says that if a state demands that the winner get 50%, that run-off may be later than November. Louisiana holds these run-offs in early December.
Posted by: Richard Winger on June 18, 2005 01:41 PMRichard Pope said, oh, well, then you have a free-for-all in the general election if you don't weed out people in a primary first! But a. that's what we've always had before, and b. that is what the new system is, it just happens earlier, and has a mandatory run-off, because of some nonsensical notion that we must have a majority pick the winner.
Thanks though, I'd not thought about the fact that Congressional elections must be held in November. That is an excellent point. So now we have *two* very significant ways in which the Top Two on the books is clearly illegal.
If I were a judge, I'd see little choice but to nullify the whole thing (sending it back to the way it was before it took effect) rather than try to rewrite it into something there's no reason to believe the people wanted.
The Slate article's history of the Louisiana system is erroneous: the LA system is an extension of the old one-party (truly no-party) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary.
There have been 2 federal suits against the LA system, neither of which challenged the overall system.
While a party can certainly endorse (central committee, caucus, and/or convention) candidates, it cannot officially nominate candidates unless state law so provides. (I note that in one WA county, the Democrats are backing 2 candidates for each of 2 council seats.)
WA's Top Two is a non-partisan general election, followed by a runoff general election.
As Richard Winger notes, the Top Two definitely violates the 1872 federal law on the timing of congressional elections. As to each candidate being allowed to list his party preference, I'm still contemplating that. (LA does this for the voters' information.)
There have been (and are now) efforts in the LA legislature to change that system.
The WA state parties would be wise to require anyone seeking their endorsement to pledge (in writing, if necessary) to support the candidates endorsed by the party.
On my blog, I detail the history of the LA system, as well as WA's history from 1907. See the posts of 10/15/04 and 8/25/04.
Other than what I've noted above, I believe the Top Two is constitutional. Near the end of his ruling in California Democratic Party v. Jones, Justice Scalia says as much. (This was the blanket-primary decision of June 26, 2000.)
I will continue to watch with great interest.