Washington voters have, for a long time, had a "blanket primary," where they could vote for any candidate for any party.
For perfectly valid reasons, the parties said this makes no sense: the party should get to determine its own candidates, not the average voter, unless those voters choose to identify with the party, even if it is only choosing to participate in that party's primary.
The state says that this new "top two" system to replace the closed primary does not choose the party's nominee, but in practice, that is exactly what it does, since the party's nominee can only be on the ballot if he is in the top two, so the party's nominee becomes a meaningless thing, and worse, the government is, in essence, lying to the people, saying that the person on the ballot who bears the party's name represents the party, even if he doesn't.
Justice Thomas says, well, the law SAYS it is not choosing the party's nominees. So therefore it isn't, and since we have no instances of voter confusion, we can't assume they will be confused (despite the fact that every change to the primary thus far in recent years has been greeted by far more confusion than lack of it).
But it is a specious claim, regardless of the potential for confusion: Thomas is saying that the party preference listed with the candidate's name has no meaning, but if it has no meaning, why include it at all? That it is included necessarily implies meaning, and that meaning is, quite unavoidably, that the candidate is claiming affiliation with the party, affiliation the party may or may not accede to. It is not merely about whether the candidate is nominated by the party, but whether the party agrees to any association with that candidate at all. This is at the very heart of the right to association.
I wrote this before reading Scalia's dissent, but he echoes the sentiment:
... it seems to me quite impossible for the ballot to satisfy a reasonable voter that the candidate is not "associated with" the party for which he has expressed a preference. He has associated himself with the party by his very expression of a preference -- and that indeed is the whole purpose of allowing the preference to be expressed.
Scalia finds a good analogy:
Washington's law is like a law that encourages Oscar the Grouch (Sesame Street's famed bad-taste resident of a garbage can) to state a "preference" for Campbell's at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations.
You may not care about any of this, but there are other problems. What happens when decide you want to put some independent or third-party candidate on the general election ballot? The way it used to be is that if you just got enough signatures and paid the fee, you would be on the ballot. Not anymore. Now you need to do all that AND be in the top two. Good luck.
This is catastrophic for all third parties and independents, who have always been on the general election ballot, but now, will never -- or almost never -- be. You will now have FEWER choices on the general election ballot. Congratulations.
Unfortunately, our primary system in Washington has become basically just a "pre-election." We don't have a primary in this state anymore, not for normal definitions of the word. It's simply the first phase of the general election: we are not picking nominees, we are actually voting for candidates, just like in the general election.
The real question should be at this point, why bother with a primary at all? As the "top two" system just creates a two-tiered general election system, we are wasting money by having it at all. Just put all the candidates on the general election ballot and be done with it. It is literally throwing away time and money, as the "primary" no longer serves any purpose. Indeed, it serves a negative purpose, since fewer people participate: indeed, in 2006, a Supreme Court Justice was elected in the primary, instead of the general! Which is better: 39 percent of voters voting for judges, or 65 percent? Such atrocities happen when there is no clear purpose for having a primary in the first place.
Further, now that the primary serves no purpose, the parties won't use them. They will endorse their candidates for office and throw all their money behind candidates at their conventions, before the primary, thus giving you less choice than ever in the primary. There may be more names there, but fewer people who have a chance of winning, because the parties will have already made their choices, and the money will already have moved to those candidates.
If you voted for I-872, you voted for the government to lie to you; to diminish the right of association; to abolish your right to put a candidate on the general election ballot; to have more names but less choice for the fewer who vote in the primary; and less choice in the general.
You got your blanket primary back, but you lost a lot more than you gained.
NB: Thomas, Alito, and Roberts -- who voted in favor of the top two system -- all explicitly (in Thomas' court opinion, and in Roberts' concurring opinion, joined by Alito) left room open for the top two primary to be overturned in the future, if confusion does occur. Further, while a candidate has the right to place his party preference on the ballot, that doesn't mean he -- and the state or county government -- can't be sued by the party, as the law includes no exemption from such a misrepresentation of affiliation.
Cross-posted on <pudge/*>.
Posted by pudge at March 18, 2008 02:58 PM | Email ThisIn past primaries ANY candidate that said he was a Democrat or Republican found his way into the respective party's primary.
Now, ANY candidate that says he is a Democrat or Republican finds his way on the primary ballot competing for the top two slots.
Your right, and mine, to place a candidate on the ballot is not abolished.
What is abolished is either the Democrats or Republican's from having a candidate survive to the final ballot by virtue of their party, rather than their popularity.
"...More names there, but fewer people have a chance of winning..."
Nope, same as before - only one candidate can win office.
Posted by: BA on March 18, 2008 03:57 PMI said your right to place them on the GENERAL ELECTION ballot is abolished. Please address what I actually wrote.
What is abolished is either the Democrats or Republican's from having a candidate survive to the final ballot by virtue of their party, rather than their popularity.
Every candidate could only get to the "final ballot" by getting enough signatures, or getting enough votes for that party in a previous election, which is taken to count as signatures. That's always been the only requirement, other than filing fee: signatures, or enough votes in the previous election, which count as signatures.
Now the only way to do it is to take top two in the primary.
Please don't try to deny this obvious fact. You might think getting on the general election ballot by signatures is not important, but at least acknowledge that many people DO find value in this, and acknowledge the fact that this ability is now gone.
Nope, same as before - only one candidate can win office.
Huh. I can't figure out why you think I said more than one candidate could win an office. I certainly did not.
Posted by: pudge on March 18, 2008 04:07 PMDoes it make you feel better to think that the people simply cannot understand what is going on?
You seem to think the "party" consists of the members of the elite group who would apparently like to steer things their preferred direction.
Well, you still have that opportunity to steer things -- but you will have to find a way to do it without a privileged place reserved for you on the general election ballot.
Posted by: Micajah on March 18, 2008 04:09 PMAbsolutely not. I am distinguishing the two. Take our beloved hinton, who said today that the fall partisan primary provided lists of voters who pick their party. It's just not true. Many, many people falsely believed that which party you picked was recorded, or that there was some requirement for picking one party or the other, or that the presidential primary party selection WAS secret, or ... the list goes on.
There was a ton of confusion, even among party people, like Peter Jackson (Scoop's son) who did not know that voting for McCain in the primary meant he was giving his word to not support Obama in the caucus.
I am not dismissing the anger. But it is not what I was referring to in that particular passage.
Does it make you feel better to think that the people simply cannot understand what is going on?
No. I am not sure why you ask that question. I post on SP solely because I do think people can understand what is going on, and I want to contribute to that.
You seem to think the "party" consists of the members of the elite group who would apparently like to steer things their preferred direction.
Nope. I not only think no such thing, but I also seem to think no such thing. There is nothing "elite" about the people who make up the party: they are just people who show up. Anyone can participate.
But yes, the party should go in the direction that those people choose. That is a given, isn't it? It is a private organization with members, and those members get to direct that organization.
This is how all private organizations work. YOU seem to think that you should have fewer rights in a political party than any other private organization.
Well, you still have that opportunity to steer things -- but you will have to find a way to do it without a privileged place reserved for you on the general election ballot.
You are making things up that never existed. No one had a place reserved for them on the ballot, unless the people choose for them to be there, by signing for them or their party, or voting for their party in a previous election. And I could not care less whether the GOP needs to get signatures to get on the ballot or not. If you think that is my goal, you misunderstand nearly everything I quite clearly wrote. Or perhaps you think I was being dishonest, that I have ulterior motives than those I stated. That is never the case with me, and it is sad for you that you would assume so.
Where and when was that right established?
I understand your angst over this - but our tradition of NOT declaring party affiliation is stronger (apparently) than the our desire to see both parties represented in the general election.
As for me saying "only one candidate can win" - I was reacting to your comment that "fewer people have a chance of winning" - and yanking your chain...
Posted by: BA on March 18, 2008 04:49 PMCould this be the same Chris Vance who sued to invalidate the blanket primary, thereby starting all of this litigation? Why is he opposed to litigation only when he loses?
How do you spell "hypocrite"? Or "sore loser"?
Sure. If you also include the Democratic Party along with the GOP when spelling.
Both parties sued.
Posted by: jimg on March 18, 2008 05:22 PMIn the RCWs.
I understand your angst over this - but our tradition of NOT declaring party affiliation is stronger (apparently) than the our desire to see both parties represented in the general election.
Perhaps. Many people didn't realize all of what they were getting (as I have learned by explaining the process to people and having them tell me so). So I am pointing it out.
As for me saying "only one candidate can win" - I was reacting to your comment that "fewer people have a chance of winning" - and yanking your chain...
I don't get it, but OK. :-)
Let's extend this out: if we vote on a statewide initiative that says you are no longer allowed to post online, because we don't like what you have to say, and you negotiate and lose, would you litigate? I should hope so.
Would you be a "sore loser" by doing so? Of course not.
This is about defending constitutional rights. If this were just about an arbitrary law people didn't like, fine, that is being a sore loser. But it is NEVER being a sore loser to sue to protect your constitutional rights.
Well, I can't disagree with that, since I never said (wrote?) that.
What I wrote was this: "The parties engaged in all this crap entirely to get a list."
I never equated primary or anything related to primaries to that list.
The entire reason for all of this was to implement party registration. Party registration is to.... get a list. That's all ANY of this was EVER about. But then, what do I know, outside of being there at the time, I mean?
Let's remember who got the ball rolling on this, OK? Berendt and his crew were going to file suit (along with the libertarians), and that moron running the KCGOP PUBLICLY stated to the paper that HE, PERSONALLY, would take KCGOP money to HELP the democrats get rid of our wildly popular primary system.
MY position was to let the democrats take the lead... and the flack... for getting rid of what the people of this state have now repeatedly proven that they want: the same kind of primary we've had for decades. We could have (and should have) banged the d's like a gong for, once again, ignoring the oft-expressed will of the people on this issue. I believed then, as now, that some version of an open primary would survive and that anything else was a colossal waste of money and good public will.
I'm somewhat gratified to have been shown to be correct.
There are "association" issues. But as long as the parties depend on the people of this state in the form of taxpayers to PAY for their primary, then the will of the people in that regard, as expressed at the ballot box, must reign supreme. And in this instance, that will was reinforced by a 7-2 vote.
I would, however, support a closed primary if the parties were to PAY for it. In this instance, I expect some retaliation against the voters of this state by the parties... but that would be disastrous for them... since the natural result would be a referendum to make every elected position in this state non-partisan. Kind of a tit-for-tat.
As a result, I am willing to give this system a try, and see how it works. As I indicated earlier, if the implementation proves to be problematic, then the people will address that as well... precisely like they addressed the party's efforts to muscle us into a party system that would have only benefited the parties... and not the people.
The parties paid a price... and all they accomplished... all along... was to piss people off while wasting a relative fortune on legal fees that they should never have had to pay.
Posted by: hinton on March 18, 2008 06:32 PMBut ... they did not.
I never equated primary or anything related to primaries to that list.
Then what is "all this crap"? Since the topic is primaries, then ... then why were you talking about something completely different?
The entire reason for all of this was to implement party registration.
No, it wasn't.
That's all ANY of this was EVER about. But then, what do I know, outside of being there at the time, I mean?
Maybe for SOME people it was about that, but for many many others, it was not. Just because this was the KCGOP's reason for getting invovled doesn't mean it was the WSRP's reason, let alone the reason of many of us who have been vocally supporting for a few years now.
There are "association" issues.
Yes. Just like when Adams signed the Sedition Act, there were "speech" issues.
But as long as the parties depend on the people of this state in the form of taxpayers to PAY for their primary, then the will of the people in that regard, as expressed at the ballot box, must reign supreme.
False. That just makes no sense. The party will reigns supreme PERIOD. They are a private organization and NOTHING can justify removing their rights arbitrarily. If the people dislike the terms of the party, they can choose to not pay for it. THAT is their power. Their power does not extend to forcing the party to accept the candidate chosen by the electorate.
Futher, there IS no party primary anymore, as of today. The people no longer pay for any party's primary (except the presidential preference primary). So even if you were right, it could not possibly justify forcing the parties to accept whomever the people vote for, since the people no longer pay for their primary.
And in this instance, that will was reinforced by a 7-2 vote.
But not for ANY of the reasons you are giving: the only reason why is because three conservatives said that they did not believe this amounts to selecting the party's endorsement. If they thought it had, then they would have ruled AGAINST "the will of the people." Make no mistake: a majority of the court agrees with me on this whole thing about rights of the party being more important than the will of the people.
I would, however, support a closed primary if the parties were to PAY for it.
That's a red herring. The parties never demanded that the people pay for it. The people choose to pay for it. They could have said they would not pay for it. Further, who cares if you would support it? If the parties pay for it, it has no need of your support. They can hold a primary THIS YEAR if they want to. The problem is that even someone not elected by that primary will still get to say his "party preference" is of that party, creating an affiliation that violates that party's right to association.
In this instance, I expect some retaliation against the voters of this state by the parties...
I expect none at all. They will not retaliate in any way whatsoever. What they will do is choose their nominees via convention. This cannot possibly be viewed as retaliation, since the people voted to eliminate the nominating primary. So how else could the parties nominate, if not by convention? That makes no sense of any kind. Perhaps you had some other sort of "retaliation" in mind.
Maybe you think of the misrepresentation lawsuits that are possibly to come. Again, this can't be viewed rationally as "retaliation": defending your name from misuse? Retaliation? Flummery.
but that would be disastrous for them... since the natural result would be a referendum to make every elected position in this state non-partisan. Kind of a tit-for-tat.
So be it. I can't see the people doing that. If they did, they would switch back soon enough.
Posted by: pudge on March 18, 2008 07:41 PMThe case was simple, was the state's law unconstitutional - no it wasn't. Was it perfect? No, it wasn't, however, it wasn't unconstitutional - anyone could see that a mile away, except for people (well not really people, but organizations) who believe they have an absolute right to association that trumps all other rights.
Posted by: Doug on March 18, 2008 08:27 PMThat being the case, my next question is, that, the reality of the situation being what it is, does it make any difference to you?
Just wondering.
Posted by: Hinton on March 18, 2008 08:54 PMYes. Because the primary was for the purpose of CHOOSING the nominee.
But they were not on the general election ballot. Now they could be. This is where your confusion lies: I am talking about someone who isn't the party nominee claiming affiliation in the general election, not the primary.
Hinton: I WAS THERE. You, of course, were not.
You were where? You talked about KCGOP. Were you in all the WSRP meetings? Were you on the exec board? How about the board of the EFF, one of the parties to the lawsuits? Were you there, too? You said: "The parties engaged in all this crap entirely to get a list." That necessarily means there were NO OTHER motivations. And I would like you to tell me all the places you were to back up the claim that you know this.
So, when I say "this is the reason," as much as you may protest that it wasn't... the FACT is that it was.
The fact is that I don't believe you could possibly know this. The fact is that I know for a fact that it wasn't, because I know for a fact that many of us IN the party, who participated in engaging in this "crap," did it for other reasons. I know that during legal actions, when we discussed the issue with our representatives to the state exec board, that we had other reasons.
That being the case, my next question is, that, the reality of the situation being what it is, does it make any difference to you?
Truth always makes a difference to me. Doesn't it to you?
Posted by: pudge on March 18, 2008 10:16 PMBut there is at least one potentially good consequence of the new law. Imagine the demolition derby that is the Democrat presidential nominating process being acted out at the local level in races all over the state. Imagine how much trouble dems can do to each other all the way to November. This could be a blessing in disguise for pubbies in the western part of this state.
Now if Roberts could mention Hamburgler in his next dissenting opinion...
Posted by: Chad Minnick on March 19, 2008 01:16 AMThe parties nominate their candidates at convention, and then those candidates appear on this top two primary ballot along with everyone else who chooses to put an (R) or (D) next to their name? And the parties can choose to sue those other candidates for association with their party when they aren't the party's nominee? Or would the lawsuit only happen if that other candidate who has associated with the given party made it to the general election ballot over the party's convention nominee?
Posted by: Palouse on March 19, 2008 08:29 AMPalouse: well, as far as I am concerned, we have already switched to nominations via convention, since we have no other method available at this point.
And yes, the nominee will be on the "primary" ballot like any other, probably. I just had a thought: adding it to the next post.
As to the liklihood that a party will sue otherwise, I don't know. I just believe it is possible. And yes, I think it is unlikely the lawsuit would occur unless the candidate got to the general election ballot. Say Republican Steve Beren ran against Jim McDermott as a Democrat, both advance to the general election ballot, and now you have two "Democrats," one clearly supported by and nominated by the Democratic Party, the other supported by the Republican Party.
Even worse, a Republican named "Jim MacDermott" does this instead of "Steve Beren." Lawsuits would likely in such a case, I'd think.
But even in the primary, it is possible. Say Rodney Tom does run against Darcy Burner. Both are Democrats, both liked similarly by CD1 constituents. No lawsuit. But now say Ralph Nader moves to Washington and also files as a Democrat for that race. Democrats clearly favor Burner or Tom, and maybe nominated one of them, or even both of them (at convention they chose to "endorse" both as viable options), but Ralph Nader threatens them both because of his misrepresentation, as voters think, "oh, he's a Democrat now? I guess I can vote for him!" And Nader comes in second to Reichert, appearing on the ballot instead of Tom or Burner.
I can see a potential lawsuit there, too.
Now, it is possible I am wrong, and that the language of I-872 necessarily implies such things are not actionable. I don't believe so, though.
Posted by: pudge on March 19, 2008 09:24 AMNow, let's say we are nominating state legislators or state senators. Again, what if the state party disagrees with what the county party considers as being the best republican candidate for the state legislative position?
It very well could be that the King County Republicans and the Asotin County Republicans have different views on which Republican Candidate is best to be put on the ballot for a state legislative position. Your example would dictate that maybe it's the Republican National Committee who has ultimate knowledge - or at least the most conservative aspect of the party has the control of who should be the nominee.
That's the problem with the Party determining the nominee....at some point you have to figure out who in the party has the best interest at heart of who should be the nominee.
As for your example of Ralph Nader, again you say he doesn't have the right to associate himself with a party. If Nader was a Washingtonian and he had the right to participate/vote in the Democratic Caucus there is no we he could similarily be denied (or sued) for participating as a candidate with a 'D' for party preference. The threshold is the same.
The biggest threat from a 'top two' primary comes in a different form. Say the Democrats decided to put 50 well known names on the Governor Primary as 'Republicans' and attempt to have only 2 as Democrats. There is a possibility that all them R's split and the General election has 2 democrats on the ticket. That might be worth the entrance fee for the Democrat party to do.
Posted by: Doug on March 19, 2008 09:58 AMUm. Are you serious, that you really, really don't know this? The rules of the party dictate it. And the rules are very clear. For a county office, it is the county convention. For a county district office, it is the county district caucus. For an LD, the LD caucus (for LDs that cover multiple counties, probably would take place at state convention). For the CD, it is the CD caucus at the state convention. For state office, state convention.
Indeed, we've already gone through this a few times. While the top two was still up in the air, in KC and Snohomish Counties in 2005 we held county council caucuses to nominate our candidates.
The RNC and state committee never ever nominate anyone. That is left to the participants of the caucuses and conventions.
When I say "the party nominates" I do not imply "the state or national or county executive committees." I mean the party organization according to its rules, which state that it is the participants in the relevant caucuses and conventions that do the nominating.
It very well could be that the King County Republicans and the Asotin County Republicans have different views on which Republican Candidate is best to be put on the ballot for a state legislative position.
No, it could not, since King County and Asotin County share no legislative districts. They have nothing to do with one another.
Your example would dictate that maybe it's the Republican National Committee who has ultimate knowledge - or at least the most conservative aspect of the party has the control of who should be the nominee.
No. Not in any way whatsoever. I never mentioned the RNC, and the RNC has absolutely nothing to do with any of this.
That's the problem with the Party determining the nominee....at some point you have to figure out who in the party has the best interest at heart of who should be the nominee.
Nope. This is not a problem at all.
That would be illegal.
The parties, as is their right, gave the people a couple of big middle fingers to the face, said "screw you", and sued to be able to kill the blanket primary.
Yes, because their rights were being violated.
So this is the people, as the SC now agrees is their right, giving the finger back to the parties.
Shrug. The people hurt themselves a lot more than they hurt the parties. They lost the right to participate AT ALL in party nominations through the primary; they lost the right to place candidates on the general election ballot; they WILL lose the right to participate in the presidential preference primary (unless that law is changed in the next four years); and so on.
Further, the Supreme Court very well will hear this again, and overturn it. Again. Five of the justices agreed that significant voter confusion over "preference" vs. "affiliation" would violate the Constitution. This isn't over.
I-872 was a terrible law. People voted for it only because they (mistakenly) thought they would get their blanket primary back, not realizing what the law actually did, and now they are having to pay in time and money to defend their poor choice, which gives them something they don't even want.
Posted by: pudge on March 19, 2008 07:07 PM