In a 7-2 decision, the Supreme Court of the U.S. upholds the "will of the people" by having a primary system that allows anyone to vote for any candidate of any party, and allows any candidate to list any party affiliation, thereby taking away the right to association.
As usual, I agreed with Justice Scalia.
The article notes that our state attorney general Rob McKenna "argued there was no evidence that the parties would be harmed, since they can publicize through advertising and other means which candidates they support." Perhaps the GOP will use their limited money to advertise for candidates other than Reed and McKenna, then ... ?
This will likely result in the process becoming MORE closed, as the parties will choose their candidates in convention, instead of the primary, and will likely sue the county/state if a non-sanctioned candidate appears on the ballot. Your tax dollars will be wasted, and you will have less voice in the primary. How's that feel?
Cross-posted on <pudge/*>.
Posted by pudge at March 18, 2008 01:03 PM | Email ThisThe beauty of how we do things around here is that if the law we now have becomes cumbersome or the people don't like it... if it become the nightmare you portray... then we can change it again.
This is the will of the people. It applies here exactly like the smoking ban nonsense.
The parties engaged in all this crap entirely to get a list. Any other platitude they now mouth is crap.
So now, what do they have to show for it?
A record of ignoring the will of the people; a record of wasting hundreds of thousands of dollars on self-centered plans that have now availed them nothing.
This decision was ordained, given the like systems in place that have already passed Constitutional muster.
It never should have come to this, and I for one, even as a former party E.D., am glad it did.
Posted by: hinton on March 18, 2008 01:28 PMI say the hundreds of thousands of dollars wasted are at the feet of the Grange and the voters who voted for their initiative. That's a lot of money to spend to take away my rights. You're right that it never should have come to this: our elected officials should have more respect for our Constitutional right to association.
Yes, it is the will of the people, and it denies the right of the people. In a republic, this must not be allowed. What other fundamental rights shall we open up to a vote? Guns? Speech? Religion? Due process? How about the right to vote at all, or is that the one right that is truly absolute?
And no, there is no other system like this that has passed Constitutional muster. This is the first time where the Supreme Court has said that THERE IS NO RIGHT TO ASSOCIATION, plain and simple. Now, I would actually have found this system acceptable IF it allowed parties to define who their candidates are. But it does not (and does not allow for severability), so it therefore is not Constitutional, no matter what the Supreme Court says. Once again, the Supreme Court is wrong.
One more thing, you said, "The parties engaged in all this crap entirely to get a list." You humourously add, "Any other platitude they now mouth is crap," but ... you're provably, objectively, and absolutely, wrong.
This case is about the fall primary: and NO PARTY gets ANY LIST from this primary. Your party choice in this primary is a SECRET. The presidential preference primary we had last month provides lists, not the fall primary. And this case had nothing to do with the presidential preference primary.
You were conflating two completely different things. In point of proven fact, this case had not one thing to do with getting any lists.
Posted by: pudge on March 18, 2008 01:45 PMI hate the top-two primary as a policy matter, but it is certainly not unconstitutional. The court decision was correct. There is no constitutional prohibition against the people doing stupid things.
Posted by: ScottM on March 18, 2008 02:03 PMAnd the greatest laugh of all is that liberals will think they are getting one of their own!!
Posted by: Ronny on March 18, 2008 02:05 PMSelect one, in any process you wish except for a taxpayer funded election, and enter them in the first vote.
If they have more support than all other candidates save one, they're in for the second final vote.
What right did you just lose?
Posted by: BA on March 18, 2008 02:23 PMWoohoo! I am gonna run as a McDermott Democrat, promise free weed for everyone in King County.
Go for it!! Ronny is going to help take those pesky (R)'s off the ballot come November. =P
I disagree, and I addressed this in my follow-up post.
BA: What right did you just lose?
The right to association. I went into further detail in the follow-up post linked to above.
You should also be concerned about the rights YOU lost, also addressed in that post.
tc and Cato: yes. This represents the will of the people. In the U.S.A., the right of the people is more important than the will of the people. Simply repeating "will of the people" will get you nowhere, as you are simply arguing for abolishing the Bill of Rights by a mere majority vote. You are arguing for the rule of men over the rule of law: we dislike the constitutional principle, so we'll just ignore it.
The will of the people expressed through the ballot box is irrelevant if that will is to take away someone's rights.
Posted by: pudge on March 18, 2008 03:05 PMBut non-candidates cannot self-identify as party members should the party desire them not to.
Should a random real-estate agent, or lawyer, or CPA, or Doctor, or whatever, decide to put on his ads, "I am a member of the Democratic Party," so as to attract the Kos crowd to his business, the party would be free to say "He is not a member of our party, and may not identify himself as such."
The idiotic word trick that the court apparently fell for, was saying that putting an "R" or "D" next to the name on the ballot DID NOT MEAN that they were members of the party (because, clearly, some people who are going to run are not members of the party), only that they 'preferred' that party, and were not identifying as members of that party.
Clearly, virtually nobody that isn't a total political geek will understand the difference, there is no practical difference, and if the parties are forced to allow it, which the ruling seems unclear on, it will be the grossest violation of freedom of association in quite some time.
I suspect, however, that when this goes up to court, AGAIN, it will be found that while the top-two system is constitutional, based on this ruling, that they cannot have the party label next to their name if they chose not to allow it. Thus, this will basically end party primaries in Washington State. Parties will chose their nominee by convention, and that will be the end of it.
I hope the Grange is pretty goddamn proud of its self.
Posted by: cliff on March 18, 2008 03:14 PMNope. Sorry, but you are missing the point. However, now I think I see how:
The people spoke through the initiative process, twice. The initiative process is a constitutional process here in Washington state.
That is irrelevant because the state cannot override the federal constitution. We cannot have an initiative that says "no one may practice Islam," because that violates the First Amendment of the U.S. Constitution, as incorporated to the states via the Fourteenth Amendment. Similarly, we cannot have an initiative that says "the state may allow any candidate to affiliate themselves with any political party they choose," as this also violates the First Amendment.
Note that ALL of the Supreme Court agrees with what I just said. What they do NOT agree upon is whether this law represents such a state-sanctioned affiliation. I think the evidence clearly, as Justice Scalia argues, shows that it does. The Supreme Court did not disagree with the legal principle leading the lower court to rule as it did, only in whether this law in particular violated that principle.
But either way, none of what you say about the will of the people is in any way relevant. It is only about whether this violates constitutional rights. If it does, the law does not stand. It it does not, it does. Whether this was an RCW or constitutional amendment, whether it was from the legislature or initiative, does not matter to the outcome.
Posted by: pudge on March 18, 2008 03:58 PMWell, I remember at a meeting back in 2004 (about the Rossi thing) hearing then-chairman Chris Vance say that the only actual Republican Party members were PCOs, but that anyone who considered himself a Republican was a Republican. So the GOP hasn't always considered that position so ridiculous. Frankly, I have no interest in semantic games. Party member, party preferrer, I really don't care. People self-identify as Democrats or Republicans, and there's nothing the party can do about it. After all, could Luke Esser come to my house and order me not to vote the GOP primary ballot? Of course not. Putting an "R" next to your name on the ballot is no more than that--a matter of political self-identification.
If putting an "R" or "D" next to your name on the ballot or in your ads indicates that you are that party's nominee or representative, why did the parties never try to stop partisan primary candidates from using party identification? After all, that is also purely a matter of self-identification and does not require the approval of the party. Why haven't they tried to force the substitution of some formula such as "seeking the Republican nomination" for the simple party identification?
This seems to be less a hard-and-fast principle and more an ad hoc justification for judicial policy-making.
The real issue here is that the ballots no longer have anything to do with the choices made by the parties. The parties are still free to nominate official candidates, but that's now purely an internal party matter and does not have anything to do with the official election process. The party designations on the ballot now represent solely the stated preferences of the candidates. If people are confused, tough. I don't see a non-confusion clause in the Constitution. (Of course, anyone who falsely claims to be the official nominee of a party should be punished under the election laws.)
Now, there may be a perfectly good argument for restricting party designations to official candidates (or removing them from the ballot entirely), but it's a policy argument, and it needs to be made to the legislature.
Posted by: ScottM on March 18, 2008 04:02 PMWhat right am I taking away? Please tell me where the Constitution it says there must be two candidates of opposing parties on a voting ballot?
Half the time people don't even bother to challenge the incumbent. I hate to use this example but it clearly illustrates my point, Michael Moore's ficus campaign.
I don't see what right we're loosing here especially since you can still write-in the name of the missing candidate(s) on your ballot should you choose to do so.
False comparison. Calling yourself a Republican for the sake of voting in the primary is not the same as calling yourself a Republican actually ON THE BALLOT.
Frankly, I have no interest in semantic games.
But that is precisely what you did above.
Party member, party preferrer, I really don't care.
Every member of the Supreme Court disagrees with you.
People self-identify as Democrats or Republicans, and there's nothing the party can do about it.
That's not true.
After all, could Luke Esser come to my house and order me not to vote the GOP primary ballot?
No. But he could come to your house and order you to not put "Republican Party" on your business cards.
Putting an "R" next to your name on the ballot is no more than that--a matter of political self-identification.
I addressed this in the other post that I already pointed you to. You will find the arguments proving you wrong there.
If putting an "R" or "D" next to your name on the ballot or in your ads indicates that you are that party's nominee or representative, why did the parties never try to stop partisan primary candidates from using party identification?
Um. The purpose of the primary used to be TO SELECT the nominee. It's odd that you would even ask such a silly question.
This seems to be less a hard-and-fast principle and more an ad hoc justification for judicial policy-making.
No, it seems to be no such thing.
The real issue here is that the ballots no longer have anything to do with the choices made by the parties.
False. That is not in any way related to any issue that I care about.
The parties are still free to nominate official candidates, but that's now purely an internal party matter and does not have anything to do with the official election process. The party designations on the ballot now represent solely the stated preferences of the candidates.
I proved this to be false in my other post.
If people are confused, tough. I don't see a non-confusion clause in the Constitution.
A majority of the Supreme Court disagrees with you, as I explained in the other post.
(Of course, anyone who falsely claims to be the official nominee of a party should be punished under the election laws.)
Anyone who claims, on a ballot or other electioneering material, any affiliation with a party that has denied that affiliation, should be sued. This also includes the state or county government that publishes that false affiliation.
Now, there may be a perfectly good argument for restricting party designations to official candidates (or removing them from the ballot entirely), but it's a policy argument
False, as I proved in my other post.
Posted by: pudge on March 18, 2008 04:19 PMAll of this comes from our idiotic system to begin with. In most states, you have to register with the party to be a member, and most people do. Ours is one of the few that doesn't.
Vance was making a pragmatic, realistic argument about the practical effect of things in the political world, not a legal definition. Which, of course, proves my point.
Frankly, I have no interest in semantic games. Party member, party preferrer, I really don't care.
You may not care, but the legal difference is profound. The court would have struck down the system if it had been party member, it's done it before twice. It bought the party perfer argument this time. Which was stupid, because on the ballot, there is no way of telling the two apart, although the difference is profound.
People self-identify as Democrats or Republicans, and there's nothing the party can do about it.
I can tell you I'm a a Navy Seal if I feel like it, it doesn't make it so. Still, I might like Navy Seals, and might chose to support the Navy Seal party should one of them run for office. But that still doesn't make me a Navy Seal.
After all, could Luke Esser come to my house and order me not to vote the GOP primary ballot? Of course not.
Actually, yes, he could, in the sense that he can chose not to submit the nomination process of the Republican party to the public at all should he so choose. And actually, that's exactly what is likely to happen here. They'll choose their nominee by convention, and forbid anybody other then the endorsed candidate from having their label on the ballot. The court said that was their right.
Putting an "R" next to your name on the ballot is no more than that--a matter of political self-identification.
No, it's more like using a trademark. If you wanted to say "I perfer the Democratic party" in your voters statement, that might be one thing. Putting the party trademark by your name is something different entirely.
If I were to say in an interview, "I perfer Chips Delux to Chips Ahoy," I can do that. If I want to publish a photo of myself with the Chips Delux logo, I cannot do that without unlawfully infringing on their trademark.
Posted by: cliff on March 18, 2008 04:24 PMI already told you, many times: the right of association.
Please tell me where the Constitution it says there must be two candidates of opposing parties on a voting ballot?
Since that has nothing to do with anything I said, I will not. Nothing I ever said in any way links any Constitutional rights to this. I did mention rights given up in regards to this in my other post, but that was a statutory right taken away (obviously), not a Constitutional one.
I don't see what right we're loosing here
It is right there in the beginning of the post: the law "allows any candidate to list any party affiliation, thereby taking away the right to association." If you claim on the ballot to be a Democrat, and the Democrats say you are not a Democrat, their right to association is taken away by your state-sanctioned misrepresentation.
Posted by: pudge on March 18, 2008 04:34 PMThen quit whining and form your own party. This way you have the right to choose yourself as the "official" representative of your own party. Win enough votes in the primary and you get to bump a bigger parties "official" candidate off the ballot.
I can see how it will be a disaster, but the the voters have spoken. Until that disaster comes nothing will change.
Um.
What?
This way you have the right to choose yourself as the "official" representative of your own party.
Um ... no. This law applies to all parties. That's the point. I could make my own party, of which I am the sole member, and someone else could STILL claim to be the de facto representative of my party.
I am not sure what you are not understanding.
I can see how it will be a disaster, but the the voters have spoken.
Again, this is completely irrelevant. The voice of the people cannot matter when it contradicts the Constitution.
Posted by: pudge on March 18, 2008 05:23 PMWell, then what are you bitching about? I thought your problem was that any candidate could choose any party affiliation. Now you say that the court said that parties could restrict the use of their letter designation (I have only read the media accounts, which are always superficial at best, so I didn't know that).
So now I have no idea what your gripe is.
Incidentally, I'm still not at all sure that parties should legally be able to restrict the use of party identifiers (as opposed to their trademarked logos, which they certainly have the right to control). If they can restrict their use on the ballot, surely they can restrict their use in voter's pamphlet statements. In spite of what you seem to believe, there is nothing inherently different about those uses. The party designation on the ballot only means something else if it is defined in law to mean something else.
Would it make you happy if the legislature passed a law explicitly stating that "Party designations on all ballots are hereby defined to be statements of a candidate's own party preference and not an indication of a party's declared support for a candidate"?
Surely the legislature has the power to define what the symbols on a ballot mean. And then it wouldn't be an issue, since it would be legally defined as a preference statement, not a statement of "membership." Right?
Posted by: ScottM on March 18, 2008 05:47 PMI'm bitching about the fact that:
A. There is a small chance Icould be wrong about that fact. The court seemed to say that, and the lawyers who argued the case seem to think that's what the court is saying, but there seems to be enough ambiguity that we will likely have to go to court, AGAIN, to prove this. If this is NOT the case, then its a gross violation of freedom of association.
B. If it is right, they effectively banished the parties from the public primary system by forcing them to associate with people they don't want to associate with in order to participate. Which is also a violation of freedom to associate IMHO.
If they can restrict their use on the ballot, surely they can restrict their use in voter's pamphlet statements.
No, no, no, you are missing the point. Someone could TALK about what party they PREFER in the voters guide, that's not a problem. However, they could not say they were a MEMBER of that party unless they actually WERE a member. If they did, they could be sued for all kinds of things.
Effectively, if you want to put an R or D or G or L next to your name, it's understood to mean that you are the representative of that party. However, now, that's not the case, which I think violates freedom of association.
No, the parties CANNOT restrict the use under this law. The party preference under the law WILL BE on the ballot, and the parties cannot restrict or prevent that.
However, that doesn't mean the candidates, and the state/county, cannot be sued for it. You can print anything you want to in a newspaper, no law allows you to be prevented in any way. But you can still be sued for what you print.
Posted by: pudge on March 18, 2008 07:26 PMThe individuals in the parties have rights. Those individuals are still able to participate in the primaries, and still able to freely associate. If a candidate falsely claims to be the official representative of a party, he should be punished. But for him simply to say that he is "a Republican" or "a Democrat" violates no one's rights. Anyone can identify himself with whatever party he pleases, and any other member or group of member has the right to disassociate themselves from him. No one loses his rights when he runs for office. If he has the right to call himself a Republican when he is not a candidate (and he does), he has the same right when he is a candidate.
Unless, of course, you're willing to claim that 90+% of people who call themselves "Democrats" and "Republicans" are committing some sort of fraud because they are not approved "party members."
Yes, the parties as organizations have been "banished" from the primary system, which violates no clause of the Constitution and no principle of justice. There is no constitutional right for parties to have anything to say about how elections are conducted.
Let me reiterate that I prefer a partisan primary.
"No, no, no, you are missing the point. Someone could TALK about what party they PREFER in the voters guide, that's not a problem. However, they could not say they were a MEMBER of that party unless they actually WERE a member. If they did, they could be sued for all kinds of things."
Who is a "member" of the Republican Party, apart from a PCO? We don't even have partisan registration in this state. How does one become a "member" of the party? I've spent a few minutes clicking arond the WSRP website, and for an organization which places such a high premium on "membership," they manage quite nicely to avoid ever mentioning it.
You tried to snark away the issue of partisan primary elections above, but anyone could run in a primary election with whatever designation he chose next to his name, and it was never understood to apply only to "party members," whoever they are. Now, suddenly, that letter indicates "membership"? I think not. It simply means that they identify themselves with a certain party.
Formerly (though no longer, of course), it also indicated that a general election candidate had secured his party's nomination, but even then, it did not indicate "membership," merely victory in the primary process.
This is why I laughed off the distinction between "membership" and "preference" above. "Membership" doesn't mean anything in this context.
"Effectively, if you want to put an R or D or G or L next to your name, it's understood to mean that you are the representative of that party."
"Understood" by whom? As I say, if the law defines a certain mark on the ballot to mean a certain thing, then that's what it means. If anyone "understands" it otherwise, then they are simply wrong. General election candidates simply no longer represent parties as their nominees. This isn't a matter of opinion; it is so, because the law says it is so.
If the parties wish to choose nominees and publicize their choices in an effort to influence the election, they are free to do so, but that process no longer has any official relevance to the general election ballot.
Posted by: ScottM on March 18, 2008 08:26 PMYou mean, OUR Constitution? It is necessarily derived from the First Amendment. Read more about it if you like.
seems to me that it is the paramount right in your mind
Yes, as it is with the Supreme Court. The entire Supreme Court recognizes, without qualification, the freedom of association. The only question is whether that right is affected here. I say it is, Scalia and Kennedy agree. Thomas, Alito, and Roberts say it COULD be, depending on how it is implemented.
I've had problems with the 'right' of association for some time - especially how unions abuse the so-called 'right'.
I've never seen an abuse of this right by the unions. They make the right into something it isn't, and abuse that, but it's not the same thing. Take the recent education union flap: the union said, hey, freedom of association, we can do what we want with our money. The problem is that teachers were FORCED to give them that money, so it was those teachers whose freedom of association was being denied, by being forced to associate themselves with a union!
True freedom of association is what should protect workers FROM the unions.
Anyhow, sometimes Scalia gets a bit political in his rulings so when in doubt, if Scalia and Thomas disagree you have to go with Thomas.
No, I really do not have to do any such thing. Scalia was right about this, as he usually is.
It was a simple case, decided correctly.
No, it was not. Thomas ignored the fact that the preference statement on the ballot NECESSARILY implies an association. This is why it is on there. Thomas tried to jump through many hoops to say "this doesn't imply association," but he's wrong. Its PURPOSE is to imply association and it necessarily does precisely that.
Posted by: pudge on March 18, 2008 10:25 PMThe parties WILL (most of them) nominate candidates by convention. They have no other procedure for nominations, since there is no longer a nominating primary. It is possible that a party could change its rules to use this new primary as a nominating primary, but none of them have, that I am aware of. So it's either conventions, or nothing.
Further, that nomination WILL NOT have any direct impact on whether that candidate will be on the general election ballot. Of course, the majority of the time, the candidates on the general election ballot will be those nominated by the party, but not every time.
Obviously false.
Let's say you start up a club. Call it "ScottM's Club For Doing Stuff." Now I go around and say, "I am a member of ScottM's Club For Doing Stuff." I put it on my business cards. But you think I am the most evil person on earth, and you believe this will damage your club's reputation.
What I did ABSOLUTELY violates your right of association: you choose to not associate with me, yet I force my association upon you. As the Supreme Court has upheld many times, the right to associate also necessarily implies the right to NOT associate.
If he has the right to call himself a Republican when he is not a candidate (and he does), he has the same right when he is a candidate.
Yes, he can call himself a Republican. I can call myself a member of "ScottM's Club For Doing Stuff." But I can't put it on my business cards, and he can't put it on a ballot.
Yes, the parties as organizations have been "banished" from the primary system
False. The primary system ITSELF has been "banished." It ceased to exist, as we knew it, today. It existed to nominate candidates for parties; it no longer does that.
... which violates no clause of the Constitution and no principle of justice. There is no constitutional right for parties to have anything to say about how elections are conducted.
No one ever said it did, except insofar as whether those elections falsely represent the parties, thus violating their freedom of association.
Who is a "member" of the Republican Party, apart from a PCO? We don't even have partisan registration in this state. How does one become a "member" of the party?
You're missing the point. Anyone is a member who says they are a member, by default. That is what the party has said. But the party can choose to remove the right of membership from anyone. It can choose to disassociate itself from anyone.
Further, this isn't about membership. Just association. You're right that membership is irrelevant here.
If the parties wish to choose nominees and publicize their choices in an effort to influence the election, they are free to do so, but that process no longer has any official relevance to the general election ballot.
Then the "party preference" should not be on the ballot. If that were the case, we would not be having this discussion. But instead, the state is enabling candidates to lie about private organizations, claiming an affiliation that may not exist.
Note also that, building off what Bob Clark said, this could spell the end of Sam Reed and Rob McKenna as Republican candidates ... I would still vote for them, barring a better alternative, as I like much of what they have done. But I also dislike much of what they have done. And no longer can they rely on a primary to win them a nomination. Winning the nomination at convention could prove much more difficult, and without that nomination, most of their campaign money will dry up.
It would be the same to pass a law, by initiative, that gave anyone the right to build a car and sell it as a "Ferarri." It obviously takes away rights Pudge has correctly identified as Constitutional, rights that acrue to the minority, to wit, a political Party (since in all cases at least half our Parties are a minority). Those rights are fundamental and should be protected against the majority, just like blacks are prevented from becoming slaves, even by the initiative process.
The interesting thing to me is that so few Republicans are aware of the right or its loss. The reason for this is that the GOP (in Wa. State) has not, for at least a quarter century, acted like a political Party.
The slow dissolution of our Party by separating its practices from its principles, pressed forward by men like Chris Vance and Rob McKenna and Sam Reed and Ralph Munro and John McCain is the primary reason for the continued erosion of our freedom and prosperity and the corresponding growth of Government. These men have done worse to us than the Democrats by removing our power to fight back against socialism.
The Republican Party has acted as the temperature control valve that keeps the frog from jumping out of the water before it has a chance to boil.
Posted by: Doug Parris on March 18, 2008 10:43 PMThe whole question of who has what rights is kind of tricky. Pudge says he has the right to freely associate with other Republicans and choose the R nominee and that allowing independents to vote in those contests violates the collective rights of the party. Independent voters claim that they should have a right to vote in the primary regardless of their party. So: IT'S A CLASSIC RIGHTS CONFLICT. You cannot protect the rights of one group without curtailing the rights of the others and vice versa.
The parties say the primaries exist for the parties and the independent voters (and the state) say the primary exists for the voters. The constitution says nothing about either of these positions.
With two legitimate competing claims and a constitution that's silent - how does a democracy solve a problem like this? Um... democratically, which we already did. I'm GLAD the SCOTUS deferred to the people. If only they'd do it more often.
Posted by: AD on March 18, 2008 10:45 PMDoug's pipe dream of a Washingtonian fundamentalist Christian theocracy just got flushed down the toilet. :(
Posted by: AD on March 18, 2008 10:49 PMThe supposed right of freedom of association goes both ways. An individual has the 'right' to association just as much as the group has the right to act like an association. The parties in this case were saying that their right to act and exist in their group form was more important than an individuals right to freely associate - that flies in the face of our constitution. So long as the individual right doesn't significantly agrieve on the group's there is no way they are going to take the individual's right away.
In the case of this type of primary, and actually, the previous one as well, the only group that had a significant disadvantage was the central party apparatus, not the state Republican or state Democratic party in the form of all the people who consider themselves part of those parties, but rather the apparatus itself. This created a situation where the damage to the agrieved was not commiserate with the damage to the actual electorate that chose to associate with the party, or vice-versa. Hence, the individual's right to freely associate in the case of a primary was greater than the party apparatus' right to limit those individuals ability to associate.
That has nothing to do with our current situation. The PEOPLE chose to do away with the primary. The now-current primary DOES NOT nominate. There is no other option right now for nominating, but the convention.
How do YOU propose the parties should nominate, since the nominating primary does not exist any longer?
The whole question of who has what rights is kind of tricky.
It's really not. :-)
Pudge says he has the right to freely associate with other Republicans and choose the R nominee and that allowing independents to vote in those contests violates the collective rights of the party.
I said no such thing. I said FORCING the party to accept the votes of independents as part of their nominating process violates the rights of the party. That's an important distinction.
Independent voters claim that they should have a right to vote in the primary regardless of their party.
They do not have any right to participate in the nominating process of any party that they do not associate themselves with. If the state grants them the right to participate in the primary, then the party has no obligation to accept the result of that primary as meaningful.
And because they forced the issue, they now have LESS than they had yesterday. No participation in the nominating process, no right to place a candidate on the general election ballot, less choice in the general election, less MEANINGFUL choice in the primary ... the voters shot themselves in their collective foot by trying to claim what they cannot have.
So: IT'S A CLASSIC RIGHTS CONFLICT.
Nope. For it to be such a thing, independent voters would actually have to have some claim to a right to participate in the nominating process of a private organization they do not associate themselves with. They do not.
The parties say the primaries exist for the parties and the independent voters (and the state) say the primary exists for the voters. The constitution says nothing about either of these positions.
Common sense does, however. If the primary is not a nominating primary, it serves no purpose. The primary we have today serves absolutely no purpose whatsoever. It is a complete waste of time and money. They would have been better off just abolishing the primary altogether.
With two legitimate competing claims and a constitution that's silent - how does a democracy solve a problem like this? Um... democratically, which we already did. I'm GLAD the SCOTUS deferred to the people. If only they'd do it more often.
You COMPLETELY skipped the MAIN POINT of the Supreme Court decision. None of what you said had anything to do with the point of that decision: whether the name of the party preference on the ballot violates the right of the party. And therefore none of what you said defends that decision.
Oh, and Doug Parris is opposed to top-two primaries because it helps candidates that have cross-party appeal.
I can't speak for Doug, but it's not true. The partisan primary still favored people like McCain (who, um, WON a partisan primary last month in Washington) and Sam Reed. The system we changed to today -- which forces all nominations to happen solely within the convention system -- is much more of a danger to people like Reed and McCain. You have it backward.
The parties in this case were not making that argument, because EVERYONE in the case -- all the justices, and both sides of the case -- agree that the party absolutely does have a right to reject the association of a candidate. That is a Given. The only question is whether this statement of preference constitutes such an association.
So you're just barking up the wrong tree here.
Posted by: pudge on March 18, 2008 11:57 PMAnd, once again, the reason everybody doesn't instantly recognize the problem is that we've so devalued our own brand over the years it hardly means anything anyway.
If we have no problem with Dan Evans calling himself a Repubican, while opposing, philosophically, everything we stand for, why should we complain if Fred Jarrett or Jane Hague or anyone else does it?
No, I didn't, and no, they didn't. They reaffirmed CDP v Jones: they said in that decision that a primary such as we have now might be constitutional. Now they have affirmed yes, it is.
The Supreme Court simply disagreed with whether having the NAME of the party "preference" constitutes association.
After all you can't have a party who asks millions to associate with them on one hand, then tries to disassociate them on the other.
Yes, you absolutely can, and it's Silly that you imply Thomas supports this view, because he does not. He stated quite clearly that if this "preference" DID constitute association, then it would NOT be association. Thomas even said that in the future, if confusion arose among the voters as to whether this "preference" was a statement of association, that our primary law STILL could be ruled unconstitutional.
Posted by: pudge on March 19, 2008 08:39 AMNo one thinks that. Not sure where you came up with this.
Sorry Pudge - most of your arguments were struck down
No, that isn't true. The only argument I had that was "struck down" was that the preference on the ballot constitutes an association (an opinion shared by Scalia and Kennedy), and a MAJORITY of the Supreme Court left the door open for that issue to be revisited in the future.
Read the opinions. Thomas and Roberts specifically, with Alito concurring with Roberts' opinion, said that depending on how this is implemented it COULD constitute unconstitutional forced association. I simply agree with Scalia and Kennedy that it already does, because the whole POINT of the preference being on the ballot is TO IMPLY association.
deal with it and learn to work with the new system
First, I didn't say the law should be rejected. I have simply given my analysis of the situation at hand, and I in fact DID give my thoughts about how to work with the new system. You're confused.
But perhaps more importantly, your implication is extremely odd. If we passed a law that said you were not allowed to post any comments on the web, and it was upheld by the court, you should just deal with it. Right? Because that is the precise argument you are making here.
Posted by: pudge on March 19, 2008 12:42 PMI was responding to Mr. Clark - 26. GOODBYE WASHINGTON STATE PRIMARY! Well that will be the end of primaries in this state! From now on all candidates for the general election will be selected at the party convention at the state level with delegates elected down at the District to County level. I have no idea what Rob McKenna and Sam Reed were thinking by trying this 'cajun' approach, but there will no longer be a primary election. That will include Presidential primaries as well.
Posted by: Bob Clark on March 18, 2008 09:25 PM
I think what Bob was saying is that the nominees chosen by the parties will end up being the ones who win the "top two" primary. I know Bob, and I am pretty sure he knows that the winner of the nomination does not automatically get on the general election ballot, but predicting that they will be the ones elected in the "primary."
Posted by: pudge on March 19, 2008 03:01 PMThe only state that has used the "top two" system for all of its state and congressional elections is Louisiana-- where most of my relatives live. And Louisiana is restoring party primaries this year for its congressional elections.
I'm not clear on whether Washington will list congressional candidates on your August 2008 "top two" ballot. If so, the state will run afoul of the Supreme Court's ruling in Foster v. Love, which essentially said that the first round of a "top two" for congressional elections must occur on the first Tuesday after the first Monday in November.
Posted by: Steve Rankin on March 20, 2008 04:25 PMWrong again:
Foster v. Love decision was made because Louisiana's pre-November election law stated that if a candidate had over 50% of the vote in the primary, they were elected and didn't have opposition on the General Election ballot. Washington state law does not allow that for Federal Offices - I think Judges and maybe one or two other positions, but not Congressional or US Senate seats. The opinion in Foster v. Love clearly allows this top-two rule on those grounds.
Posted by: Doug on March 20, 2008 11:22 PMOK, so if an initiative passes that says Dale in the Corner has no right to post comments on the Internet, he should defend that initiative?
This is your argument.
Posted by: pudge on March 22, 2008 10:34 AMFalse. It is the job of the A.G. to uphold all law in the state, including certain rights of the people such as the right to free speech, which necessarily take precedence over initiatives.
In my scenario, it would absolutely clearly be the job of the A.G. to refuse to enforce the law, and certainly not fight to protect it.
I don't know where you get this idea that you have asserted several times, that voter initiatives are in some way higher than the U.S. Constitution. It is not true. The opposite is, in fact, true.
Posted by: pudge on March 23, 2008 11:32 PM