Just a few legal issues to wrap up.
I-872 destroys the existing presidential preference primary, the part about lists of participants, since it says that "no voter may be required to disclose political faith or adherence in order to vote." This statement of rights applies to all elections, not just the primary, so it must include the presidential preference primary, which explicitly allows party declarations, which is why the Democrats participate at all: to get the list of voters who participated in their primary. And if parties will no longer get lists of voters who participated in their primary, I doubt if they will participate at all (especially the Democrats).
So this very likely spells the complete end of the presidential preference primary. I think in four years, if I-872 still stands and there is not an exemption for this added to the law, Washington will be caucus-only in 2012.
And I noticed something else. The I-872 people said during the attempt to pass I-872 that a yes vote on it would "preserve the blanket primary." But this is patently false: what I-872 did was to destroy the old nominating primary, which included the system under which the previous blanket primary operated, and institute a new two-tiered general election system, where the first ballot is called a "primary." This is not a blanket primary any longer, it is a first ballot in a general election.
If our state Supreme Court cares so much about people knowing what they are voting for, and overturning initiatives where there was no confusion at all about what the initiative did, shouldn't they overturn this initiative for its proponents making clearly false statements about what it does?
Just a thought.
Finally, a thought about party preferences. About names. Why not create a new party, called "Republican Nominee"? That is the name of the new party. And if someone who is not the actual nominee of the party uses that name, well, they are falsely claiming to be the nominee. Now the confusion argument that Roberts, Alito, and Thomas said wasn't obvious, is perfectly obvious. So not only could I-872 be overturned on such grounds, but anyone not the nominee who uses that designation could be sued for misrepresentation.
Normally, you couldn't have a party called "Republican Nominee," because the Republican Party would sue over the confusion. But in this case, obviously, the party would choose to allow it, since it would be used for their benefit.
I am not advocating anything above. Just adding more fuel to the fire, erm, food for thought.
Cross-posted on <pudge/*>.
Posted by pudge at March 19, 2008 09:26 AM | Email ThisWe know, we know... ALL HAIL PUDGE AND HIS PCO FRIENDS for it is they and only they who have the supreme knowledge and foresight to determine who should represent the Republican Party in the general election for my state legislator. ALL HAIL THE PARTY APPARATUS for it is they and only they who actually make up the party, not us plebes who send them money or constantly vote Republican year after year in a solidly blue state.
Posted by: Doug on March 19, 2008 09:36 AMJust curious if this is possible for you.
I know, it's not all your fault: you have trouble understanding the basic principles involved. That's just a part of life. Nothing you can do about it, I suppose. But your lack of ability to understand shouldn't turn you into a raging dick.
Posted by: pudge on March 19, 2008 09:56 AMThis sinks having the State pay for it, but that was screwy in the first place.
Posted by: Al on March 19, 2008 10:11 AMThey didn't like that any of us could join both from time to time, so they sued to make us join only one at a time.
I think Pudge's solution is fine - the clubs can declare one of their own their candidate - and advertise it so when they put them on the ballot.
Anyone else that wants to say they're a club member can't carry the club's declaration and presumably the clubs will advertise this fact.
Regardless no individual (remember the GOP is the party of individual liberty) is prevented from running for office.
No club's right to association, or to not associate, is diminished. Each club should register their brand - takes care of anyone trying to use it without permission.
Posted by: BA on March 19, 2008 10:29 AMSure. So it won't happen.
This sinks having the State pay for it, but that was screwy in the first place.
That was the choice of the people. The presidential preference primary was created by initiative.
Doug: Pudge, just so you know, the true jackasses were the ones who sued the counties in the first place to get rid of the primary system we've been using for decades.
Riiiiiiiiight.. If you stand you for your constitutional rights, you are a jackass. Got it!
Either their paranoia, greed for power, or desire to get names and addresses for solitition
False on all counts. First, not greed or power: RIGHTS. You're just wrong.
Second: names and addresses? Once again, you have no idea what you are talking about, since the fall partisan primary produces no names and addresses beyond what the blanket primary did.
instead they got one that could be very problemic
Yes. Unfortunately, far more problematic for voters than for parties: the voters gave up a ton, and got nothing in return, except for that the feel better about it. Ignorance is bliss.
and to top it off - it's constitutional - 7-2
False. The Supreme Court does not define constitutionality. The Constitution itself is the hallmark of constitutionality, not what the Supreme Court says about it. They can declare something unconstitutional, but that does not make it so.
Further, a MAJORITY of the Supreme Court left the door open for this new primary system to be declared unconstitutional later.
BA: yes, while I think this new system is STUPID -- as noted in my last post, it wastes time and money, as it serves no legitimate or rational purpose, being merely a "pre-election" -- it does not violate rights IF candidates are not allowed to claim affiliations that are not reciprocal. As long as they are so allowed, it does violate rights. But there are ways of mitigating that violation.
Posted by: pudge on March 19, 2008 10:55 AMIsn't one of those ways, which SCOTUS bought, putting the statement on the ballot that the designation is only the candidate's preference and is not necessarily reflective of the party's choice? I'm no lawyer, but it seems like this is how they got around the right to association arguments.
Posted by: Palouse on March 19, 2008 12:18 PMYes, and I believe they are wrong. I know it's what was ruled, and it is therefore holding, but I believe it is wrong. As Scalia noted, the PURPOSE of allowing a preference statement on the ballot is TO IMPLY an association. That is why it exists. It serves no other purpose.
Posted by: pudge on March 19, 2008 12:44 PMThat is, if you don't count lawsuit prevention. :)
I read an interesting post regarding voting shenanigans with this system. Why couldn't a party whose district is comprised of 60% of the opposition party let that other party take the top 2 spots on the ballot and then mount a write-in campaign for their candidate? That other party's candidates split their vote in the general and (if successful), the write-in candidate gets a winning margin with 40% of the vote. This might work in smaller local elections.
Posted by: Palouse on March 19, 2008 01:00 PM1) No political party has a constitutional 'right' to put a 'nominee' onto a general election ballot. Laws can be made or not made allowing a political party to have a nominee on the general election ballot.
2) Every individual has the right to declare his political party preference. That means if they choose to become a candidate, they still have a right to the freedom to show what their political party preference is.
Can a political party sue an individual who says they prefer their political party? I don't know, have you heard of a person being sued because they said they prefer the Catholic religion? Can the Freemasons sue because someone who wasn't a member of the masons wrote an op-ed saying they prefer the Freemason way of living? Can the Democratic party sue a candidate because they said their party preference was Democratic? They could try but I doubt they would get very far.
Seems to me that any exclusive right for a party to place a name on a ballot or to have a right to place a name would have to be granted, it's not in the US Constitution.
Posted by: Doug on March 19, 2008 01:31 PMHa. But really, NO primary of any kind would not violate anyone's rights ... at least, no moreso than the current system, regarding the preference/association issue.
As to the 60% thing ... awesome idea! I can't wait for someone to try. :D
Posted by: pudge on March 19, 2008 01:32 PMThis is the salient point, and I don't think so either. The key is going to be the ballot design. I'm willing to bet there's not going to be just a (D) or (R) next to anyone's name. It will explicitly say prefers Rep or prefers Dem, along with a clearly worded disclaimer elsewhere on the ballot.
And it's going to be very difficult for the political parties to prove there was widespread voter confusion that led voters to believe that a particular candidate was a member or nominee of their party with the above disclaimers.
Another potential side effect of this system will be candidate spam. If say the R's want to get a candidate on the ballot but don't think that person will have enough votes to be in the top 2, they can get 10, 15, 20 or more people to run as D's to dilute their vote percentages. Or vice versa. Fun times!
Posted by: Palouse on March 19, 2008 01:58 PMNo one contends otherwise. Not sure where you get that from.
Every individual has the right to declare his political party preference.
Not if that preference implies an association that the party wishes to disavow, no. You're wrong, and a majority of the Supreme Court agrees with me on that.
have you heard of a person being sued because they said they prefer the Catholic religion?
"The Catholic religion" is not a private organization. "The Roman Catholic Church" is, and yes: the RCC successfully prevented a church from claiming association with the RCC.
Seems to me that any exclusive right for a party to place a name on a ballot or to have a right to place a name would have to be granted, it's not in the US Constitution.
Wrong.
Posted by: pudge on March 19, 2008 02:09 PMPudge, you don't know how to read a statute. You are wrong. You are quoting RCW 29A.52.130, but you failed to read RCW 29A.52.111, which tells you which primaries are governed by the statute you are quoting. It only governs congressional offices, state races, and county offices. The presidential preference primary is governed by an entirely different chapter, RCW 29A.56.
Nice try. Try reading the entire statute before attempting to practice law.
Posted by: fred on March 19, 2008 03:02 PM"This section shall not apply to candidates for president of the United States, vice president of the United States, or an office for which ownership of property is a prerequisite to voting."
Posted by: flyonthewall on March 19, 2008 03:29 PMFalse.
You are wrong.
Also false.
You are quoting RCW 29A.52.130, but you failed to read RCW 29A.52.111, which tells you which primaries are governed by the statute you are quoting.
Nope. I am referring to RCW 29A.04.206, which is also a part of I-872, and has nothing to do with primaries, but covers ALL elections, and says, "The rights of Washington voters are protected by its Constitution and laws and include the following fundamental rights: (1) The right of qualified voters to vote at all elections; (2) The right of absolute secrecy of the vote. No voter may be required to disclose political faith or adherence in order to vote; (3) The right to cast a vote for any candidate for each office without any limitation based on party preference or affiliation, of either the voter or the candidate."
I do apologize for not being more specific about what I was referring to, but at the time, I did not know precisely where in the RCWs it was codified. I just knew it was in I-872, and that it was not in section 52, and that it covered all elections, not just the fall primary, and necessarily included the presidential primary, as there was no statutory exclusion.
In theory this is possible, as are other shenanigans under either the old or new system (e.g., Republicans voting for a weak Democrat in the primary, or vice versa). Your particular scenario would require an unrealistic amount of coordination as well as finding 2 candidates with nearly equal popularity. The ideal system would be a single election in which each voter rank-orders their preferences, but that's probably too complicated for most people to trust. A top-two runoff, as I-872 provides, is the next fairest system.
Posted by: Bruce on March 19, 2008 03:34 PMThe parts of I-872 referring specifically to the primary only apply to the fall primary, yes. However, there are other sections affected by I-872. This is one of them, as shown above.
Perhaps it's an old version.
Nonetheless, the Secretary of State has issued an FAQ on the court's decision that includes the following:
Does the U.S. Supreme Court opinion impact the Presidential Primary?
No. The Top Two Primary is for local, state and Congressional partisan races. The Presidential Primary is a separate system that only applies to the nomination process for President of the United States, and how the major parties allocate delegates to their national conventions.
First, the statute you cite (RCW 29A.04.206) purports to recite the rights of voters as found in Washington's "constitutions and laws." This statute by itself creates no enforceable rights, and the right to vote regardless of party faith or affiliation cannot be found in any other statute, much less the constitution.
More importantly, I-872 failed to amend chapter 29A.56 RCW, the presidential preference primary, which predates I-872 by many years. As I am sure you are aware, Article II, section 37 of the state constitution prohibits indirect amendments of prior statutes --- the statute to be amended must be "set forth at full length." Since I-872 failed to amend the presidential preference primary, the specific provisions of chapter 29A.56 RCW (allowing parties to restrict their ballots) will prevail over the later-enacted I-872. (See Flanders v. Morris, 1978, if you doubt me.)
Don't practice law, pudge.
Posted by: fred on March 19, 2008 04:04 PMNope. You are misinterepeting the clear language. It does not recite what is in Washington's constitutions and laws. Diagram the sentence out: it says (the rights of Washington voters are) ((a. protected by its Constitution and laws) AND (b. include the following fundamental rights)). The latter of the two dependent clauses independently modifies the subject.
As I am sure you are aware, Article II, section 37 of the state constitution prohibits indirect amendments of prior statutes
Yes. So you have two choices: either this DOES affect 29A.56, because it logically has to by its own language, or I-872 is unconstitutional, because it does not contain a severability clause, and this portion violates Section 37 of the state constitution. Take your pick.
Thank you for stepping into it. :-)
Posted by: pudge on March 19, 2008 04:41 PMYou have ALWAYS had that right. NEVER have you NOT had that right.
What you do NOT have the right to do -- and I-872 does not change this fact one iota -- is choose the nominee of the party, unless you associate yourself with that party.
I just love the statement last night on TV by the Republican party that "they" want to choose who represents their party and who doesn't.
Yes. It is their constitutional right. The Supreme Court absolutely upheld this right yesterday.
Like they are all mighty and voters are stupid.
That is an illogical deduction. If I say I want the right to choose who will mow my lawn, does that mean, since I don't want you to make that choice, that therefore I think you are stupid? It has nothing whatsoever to do with intelligence, but rights to make your own decisions for yourselves. If you are not in the party, then you don't get to choose the party's nominee. Simple as that.
Like the "parties" really scrutinize who they nominate.
Beside the point, of course. Whether they do a good job of selecting their nominees, it is still their right to do it, and not yours.
Posted by: pudge on March 19, 2008 04:44 PMShrug. I engaged in no such thing.
As flyonthewall has already told you, the Secreatry of State says your interpretation is wrong. So sue them. :)
Yes, I probably will, if the law remains the same four years from now. Of this there should be little doubt. You are quite wrong: this new section DOES create an affirmative right. And it lies in stark contradiction to the presidential primary law. If one or the other does not change, I will sue for my right to not sign a declaration in the presidential preference primary, and I will win.
Posted by: pudge on March 19, 2008 05:34 PMWe hold the election, a few candidates win that have been disavowed by their "declared" party.
Without them, their "declared" party doesn't hold a majority in the Statehouse. With them, they do.
I wonder if the party that disavows them has a change of heart?
No, they won't. The party will take this into consideration before taking such a step to "disavow" them.
Besides, it's not like either party will need the few candidates in that situation in order to hold a majority, since the chance that the GOP will challenge for a majority this year is ... slight.
I guess we are now going around in circles. Is it the right of the individual to associate oneself with a party or is it the party's right to associate itself with an individual? Your logic in the above sentence, that a voter has the right to help choose the nominee of the party if they associate themselves, is the same as a candidate having the right to be the nominee of a party if he associates himself with the party.
Your suit against the state will not go far if you deny a candidate the right to have an 'R' by his name because the party disassociates, while at the same time advocating the voter alone has the right to associate. Once again it comes down to the observation of just who is the party. On one hand you are saying it is any voter who associates themselves with the party and on the other hand you are saying that it is only those who the party associates with.
I see from the ruling that Thomas is struggling with this and is willing to look to change a prior mistake (in the CA case) at some point in the near future.
Posted by: Doug on March 20, 2008 12:19 AMThe proposed lawsuit I mentioned has nothing whatsoever to do with the issue of candidates' preferences on the ballot.
I see from the ruling that Thomas is struggling with this and is willing to look to change a prior mistake (in the CA case) at some point in the near future.
Where did you get that from? I don't think you got it from the actual decision.
Posted by: pudge on March 20, 2008 12:45 AM"It is no mystery what is going on here. There is no state interest behind this law except the Washington Legislature's
dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates."
Scalia has no clue what is going on politically in this state.
Posted by: Doug on March 20, 2008 08:21 AMNo, it's really not. Thomas explicitly affirms Jones and takes it as correct in its entirety, and goes on to show why this case does not meet the criteria of Jones. You are seeing things that do not exist.
"It is no mystery what is going on here. There is no state interest behind this law except the Washington Legislature's dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates."
Yes. That is absolutely correct. I am not sure which part you disagree with.
By "no state interest" he means it in the legal sense. Even McKenna agreed there is no state interest here: it is the simply the will of the people. The state could have this primary system, or some other, and has no interest either way beyond that will.
And clearly, that will is driven by a dislike of party control for what the parties, by right -- as agreed to by EVERYONE on the Supreme Court -- control. This is beyond dispute.
Perhaps you disagree with the notion of the Legislature vs. Initiative? But this came about initially because of a change the LEGISLATURE made. When that was overturned, the Grange filed I-872. Apparently, YOU do not know how this law came about ...
Allowing candidates to list their party preferences on the ballot is, in my view, mainly for the voters' information. A candidate has a party preference whether that party likes it or not. Suppose a candidate is asked by a voter whether he has a party preference, and the candidate says, "Well, yes I do, but I'm not allowed to say what it is." How ridiculous is that?
Louisiana, which has used its "top two" since 1975, has always put party affiliations on the ballots. I would have thought that the US Supreme Court (SCOTUS) would have studied LA's experience with it. The LA parties sometimes do endorse candidates. I've never known of any problems with more than one candidate from the same party being on the "top two" ballot.
Prior to Judge Zilly's ruling against the "top two" in 2005, Washington's 2 major parties had begun a caucus/convention process to ENDORSE candidates; I'm assuming they will use this process now that party primaries have been eliminated. It will be interesting to see whether the parties require candidates seeking their endorsement to pledge not to run in the ensuing election if they do not win the endorsement.
Posted by: Steve Rankin on March 20, 2008 05:29 PM
No, the state has no power whatsoever to require the party to participate in any nominating process of any kind. The Supreme Court has ruled on this, and re-affirmed it this week. The Supreme Court *unanimously* agrees that the state may not mandate whether the party nominates, nor take from the party's control who is nominated.
... and to limit the general election ballot to one candidate per party
They do not do this. The current "top two" has nothing to do with parties. However, yes, they do have the right to limit the ballot in such a way.
the "top two" is actually a general election with a runoff
Yes, which means it a. serves no purpose and b. violates federal law by having elections for Congress before the second Tuesday of November.
If the state does mandate that the parties nominate candidates, the state must then specify the method(s) of nomination.
As noted above, the state absolutely may not mandate any such thing.
Allowing candidates to list their party preferences on the ballot is, in my view, mainly for the voters' information. A candidate has a party preference whether that party likes it or not.
If that preference amounts to a claim of association, in fact or in appearance, it is unconstitutional. A majority of the Supreme Court ruled that way on Tuesday. They simply disagreed on whether the current situation demonstrates such an associational link.
Suppose a candidate is asked by a voter whether he has a party preference, and the candidate says, "Well, yes I do, but I'm not allowed to say what it is." How ridiculous is that?
That is a poor analogy. This is not a question posed by a voter, it is a statement, without opportunity for rebuttal, on official government documents, indeed, on the last thing a voter sees before he casts his ballot.
A better analogy, offered by Justice Scalia, is that Oscar the Grouch (who, in the analogy, is seen as having very bad taste) is allowed to advertise at the point of sale that he prefers Campbell's Soup, and Campbell's Soup is not allowed to reject the association. Yes, Oscar can say he prefers Campbell's Soup, but to have special protection to do it at the point of sale, without Campbell's even being able to give its side, violates Campbell's rights.
Prior to Judge Zilly's ruling against the "top two" in 2005, Washington's 2 major parties had begun a caucus/convention process to ENDORSE candidates
No. It was a nominating process, not an endorsement process. In 2005, we nominated John Koster for the 1st County Council District in a small building north of Arlington.
I'm assuming they will use this process now that party primaries have been eliminated
Yes, that is certain. The state has nothing to say about this in any way.
It will be interesting to see whether the parties require candidates seeking their endorsement to pledge not to run in the ensuing election if they do not win the endorsement.
Such a "requirement" would not be legally binding, of course.
I would be against such a pledge, personally, and as a member of the county executive board would fight against it. I *would* however be in favor of a pledge that anyone not winning the nomination not run in the election AS A REPUBLICAN. I am not so much a party man that I am against people running: I am just against them running as a member of my party when my party has endorsed someone else.
Posted by: pudge on March 20, 2008 06:43 PMWrong, if the Republican party nominates a Democrat who clearly wants no association with the Republican party, I don't think the Supreme Court would say the Republican Party has complete control.
Pudge: "If that preference amounts to a claim of association, in fact or in appearance, it is unconstitutional. A majority of the Supreme Court ruled that way on Tuesday. They simply disagreed on whether the current situation demonstrates such an associational link."
-Simply Disagreed- hmmmm, what a really nice way to say that they ruled 7-2 that the law as written doesn't mean there is an associational link. The Supreme Court also 'simply disagreed' on whether mothers can kill a father's baby before it leaves the womb.
Oscar the Grouch was really a pathetic analogy. Comparing a commercial product situation to a political party one doesn't work - they have different rules governing them. Heck, Scalia even put down Roberts in his opinion for doing the exact same thing. A Dodge representative doesn't have the right to defend his company's product at the point of sale in a Ford dealership either. Customer walks into a Ford dealership and another customer says he works for Dodge and these Ford trucks are better. That doesn't give Dodge the pre-emptive right to be on Ford property at the point of sale to disassociate themselves from the supposed Dodge employee.
In the case of the primary, the parties actually have a pre-emptive option.
As for your idea that the Parties will switch to conventions and caucuses, you have to remember that even if they do, they must put their nominee on the primary ballot to ensure they have a spot in the general election. They still cannot limit other party members from placing their names on the primary ballot, even after losing in the caucus prior to that. This ruling really puts the power back into the hands of the party members (or those who associate with the party) rather than granting more power to the party apparatus (i.e. you as a member of the county board).
Once again, who really entails the Republican Party, is it the PCO's and the party apparatus, or is it the tens to hundreds of thousands who give money to promote the Republican Party, or is it those people who associate themselves with the Party?
Seems to me the people of the state have spoken and they say the party apparatus is not representative of their views and as such they haven't found a way to change the party apparatus who make the decisions so instead they will change the laws governing them to more closely resemble what they wish......sort of what we all like to see in a regular state initiative when the legislature ignores the will of their constituents.
Posted by: Doug on March 20, 2008 08:14 PMFalse.
As for your idea that the Parties will switch to conventions and caucuses
It's not my idea. It's a fact. It is already set up to do it, and has been set up for a few years now. We've already done it. It is the way it is. Why you don't believe this fact is bizarre.
you have to remember that even if they do, they must put their nominee on the primary ballot to ensure they have a spot in the general election
This is not hard to understand, and no one has denied it; what is hard to understand is how you could possibly think anyone found this hard to understand.
This ruling really puts the power back into the hands of the party members (or those who associate with the party) rather than granting more power to the party apparatus (i.e. you as a member of the county board).
You appear to be implying falsely that the nomination process is not controlled by "the party members" but some party "boards." You have already been told this is not true. Why do you persist in spreading this misinformation?
Seems to me the people of the state have spoken and they say the party apparatus is not representative of their views, and as such they haven't found a way to change the party apparatus who make the decisions
False. The decisions are always made by the party members, not the "party apparatus," and they DID have an OBVIOUS way to change that apparatus or affect the decisions: show up and participate. That is all. So any whining about the decisions made by people who do NOT participate is just that: whining.
And in FACT, the NEW partisan primary system put MORE power in the hands of ALL the party members, especially those who did not wish to actively participate. But that is now gone: now the only way to participate is at the party level, instead of the primary.
Almost all of the time, the nominee of each of the two major parties party is, and will be, the one who gets most of the money, and therefore has most of the chance to win. The people have given up the right to participate in that process through the primary. This makes the "primary" much less important, because fewer of the people on the "primary" ballot will have a significant chance to win.
So yes, they wanted more of a say in the process. But instead, they got LESS of a say. Caveat votor. Hell, the Democrats are probably loving this: they hate primaries anyway, and prefer everything is done at caucus and convention. This means they don't have to care about the average voters anymore for the sake of picking their candidates, so they are probably having a party.
Posted by: pudge on March 20, 2008 10:08 PMThe state-- any state-- has the power to require parties to nominate candidates and to limit the general election ballot to one candidate per party. If the state does mandate that parties nominate candidates, the state must then specify the method(s) of nomination. These mandates can be enacted either by the legislature or by a popular initiative.
The approval of the "top two" makes Washington the only state that does not require parties to nominate candidates for local, state, OR congressional offices.
But Washington's parties still have the First Amendment right to ENDORSE candidates. This can be done by caucus, convention, or the party's central committee. A party could even conduct a primary, which, of course, the party would have to finance. But regardless, a party cannot legally prevent other candidates from that party from running in the ensuing election.
In Louisiana, there have been instances of the national Republicans and the state Republicans endorsing opposing candidates in the same election. This is one reason that the "top two" is, in my view, a terrible idea for state and congressional elections-- a bad idea that is nevertheless constitutional.
"[Having two rounds in the "top two"] a. serves no purpose and b. violates federal law by having elections for Congress before the second Tuesday of November."
Having a second round ensures that no candidate is elected with a small plurality. The 1872 federal law designates "the Tuesday next after the first Monday in November" of even-numbered years as federal election day.
My analogy about a voter asking a candidate his party preference was to illustrate how ridiculous it would be for a candidate not to be allowed to make known his party preference. I am aware that Washington's "top two" ballots, like Louisiana's, will include party labels.
"... when my party has ENDORSED someone else." (Caps added.)
"Endorse" is correct. When the state does not (1) mandate party nominations, (2) limit the general election ballot to one candidate per party, and (3) specify the method(s) of nomination, the parties may nevertheless ENDORSE candidates through whatever means they choose.
Posted by: Steve Rankin on March 21, 2008 10:29 AMThe state-- any state-- has the power to require parties to nominate candidates
This IS NOT TRUE. The Supreme Court unanimously agrees the state has NO AUTHORITY to force a party to nominate any candidates. Repeating your claim won't make it true.
But Washington's parties still have the First Amendment right to ENDORSE candidates.
And to nominate. Those are two different things, and both are decisions left up entirely to the party; it is utterly unconstitutional to prohibit a party from nominating a candidate. The Republican Party in Washington WILL nominate various candidates this year, including Dino Rossi, Val Stevens, Dan Kristiansen, Kirk Pearson, and so on. It may also endorse other candidates, such as those for nonpartisan office.
I don't know where you get that the party has no right to nominate candidates. Perhaps you think that there is some link between nomination and being on the general election ballot. There is not. All that it means is that, as far as the party organization is concerned, the official candidate for that party is that person, the nominee. Endorsement simply means that the party favors a particular candidate. We will nominate, like we always do, but this time without the primary.
But regardless, a party cannot legally prevent other candidates from that party from running in the ensuing election.
It can prevent them from claiming to be candidates for that party, from claiming some association -- either expressed or implied -- that does not exist.
Having a second round ensures that no candidate is elected with a small plurality.
I don't care, and neither do Washingtonians in general. This never bothered them before, to have a half dozen or more candidates on the general election ballot. Besides, the people have already shown they care more about choice than anything else. And now they have LESS choice. They got what they didn't want.
The following was written at Ballot Access News during the 2004 "top two" initiative campaigns in Washington and California:
The California and Washington initiatives provide for the first round in June (California) and August (Washington). To avoid the Foster v. Love problem, both initiatives provide for a second election in November, even if someone gets over 50% in the first round. Even if someone gets 98% in the first round, or even 100%, he or she would not be elected, and would run again against a solitary opponent, or alone against a potential write-in candidate, in November.
The problem with that is: the U.S. Supreme Court has ruled that congressional candidates who (1) enjoy a modicum of voter support; (2) meet the constitutional requirements to sit in Congress; and (3) have not sabotaged their own party, cannot be kept off the November ballot. "Modicum of support" means 5%. The Court has said it doesn't matter whether "modicum of support" is measured with a 5% (of the number of voters) petition, or whether it is measured by a vote test in a preceding primary.
Since it takes approximately 30% to place second (according to actual primary election returns in past California and Washington blanket primaries), the two initiatives are telling candidates they cannot qualify for "the" congressional election (which Congress says must be in November), unless they show 30% voter support some months in advance. This is something that the states may not do. The congressional election belongs to all the people, not just the supporters of the two most popular candidates in the district (as determined months in advance).
Posted by: Steve Rankin on March 21, 2008 11:57 PMAny lawsuit dealing only with whether a candidate should be granted a spot on the November ballot arising from this law could only get as far as a the first federal court which would have to strike it down - an appeals court wouldn't take it up.
A minor party candidate would have a case if the State required them to gather so many signatures in order to be placed on the primary ballot. However, the state doesn't require them to show an excess of modicum voter support before allowing them to be put on the primary ballot. The court has consistently ruled that the state has a strong interest in maintaining the stability of its political system and this system that is set up doesn't deny any candidate who has a modicum of voter support to have the opportunity to get elected - heck this system doesn't deny any candidate who doesn't have any support at all to have the opportunity to get elected.
False. Parties can no longer have anyone on any ballot.
Posted by: pudge on March 22, 2008 10:36 AM!!!!??????????!!!!!????????!!!!
Please parse your comment Pudge, you must be laying a trap.
If the Republican leadership decided to endorse or nominate a candidate prior to the primary, does I-872 say they can't? Can, then, the Republicans have that candidate, if the candidate agrees, placed on the primary ballot? If the Snohomish County Beekeepers party wanted to put a candidate for Congress on the primary ballot, what is stopping them from doing so?
How's this, what in I-872 denies any party whatsoever from having a member from being on the primary ballot?
Posted by: Doug on March 22, 2008 03:34 PMWhat it boils down to is this: In 1872, Congress set the first Tuesday after the first Monday in November of even-numbered years as federal election day. Through a series of rulngs, the US Supreme Court has established that 5% is the modicum of support for a congressional candidate to have a place on the November ballot.
Since it sets 30% as the modicum of support, Washington's "top two" is unconstitutional for congressional elections.
BTW: My comment #40 above mentions a candidate sabotaging his own party. Many states have "sore loser" laws, which prohibit candidates who lose a party primary from then running in the general election under another label. This obviously does not apply to Washington, since you no longer have state-mandated party primaries.
Posted by: Steve Rankin on March 22, 2008 03:57 PMI assume you mean the US Supreme Court. Please cite the case to which you're referring.
In American Party of Texas v. White (1974), the US Supreme Court said, "It is too plain for argument... that the State may limit each political party to one candidate for each office on the ballot and may insist that intraparty competition be settled before the general election by primary election or by party convention" (bold added).
"I don't know where you get that the party has no right to nominate candidates."
Washington law says that there are no party "nominees."
"[A party] can prevent them from claiming to be candidates for that party..."
It's my understanding that each candidate has the right to list his party preference on the "top two" ballot.
Posted by: Steve Rankin on March 22, 2008 08:36 PM
Because PARTIES no longer have ANYTHING to do with the primary. Candidates place themselves on the ballot, not the parties.
Posted by: pudge on March 23, 2008 10:50 PMCalifornia Democratic Party v. Jones, although previous cases are referred to. Who a party nominates, Scalia (IIRC) writes, is the purpose for a party existing, the reason why a party exists, and to force a party to do it is to put state power over who, or even whether, a candidate represents that party. The state has no such authority.
Washington law says that there are no party "nominees."
No, it does not. It merely says those party nominees are not recognized for the purposes of holding elections for public office. It never, anywhere, says that there are no party nominees. Indeed, that would be wholly unconstitutional for it to do so. A party is a private organization and has every right to nominate, or not, any candidate it wishes. Whether that candidate is on the ballot -- primary or general -- is a separate issue.
It's my understanding that each candidate has the right to list his party preference on the "top two" ballot.
Yes. Claiming a "party preference" is not "claiming to be a candidate for that party." A majority of justices last week agreed that the latter is unconstitutional. If the "party preference" amounts to an implication of association -- which is what being a candidate for a party implies, that the party somehow backs you -- then that is unconstitutional, unless that party actually DOES consider you their candidate.
Posted by: pudge on March 23, 2008 10:57 PMFalse.
There is nothing in I-872 that denies the Republican Party or any minor party from having one or more of it's members listed on the primary ballot.
Yes, there is: the fact that there is no connection between party and candidate on the primary ballot. Parties no longer have candidates on the ballot, at all. They may have a connection to a candidate that happens to be on the ballot, but that's not the same thing.
Posted by: pudge on March 23, 2008 11:24 PMIf a party nominates a candidate, the State may or may give recognition to that nomination. If the State does recognize the nomination, (1) that's the only candidate on the ballot from that party, and (2) the party is assured of having its candidate in the final election.
In the 1991 Louisiana governor's race, the national Republicans and the state Republicans endorsed different candidates, neither of whom finished in the "top two."
Chief Justice Roberts said that he's confident that Washington can design a "top two" ballot that passes constitutional muster.
Posted by: Steve Rankin on March 25, 2008 08:12 AMI didn't claim that; you and I misunderstood each other. I said they unanimously agree that a party controls its own nominations. That is through a combination of Jones and WSRP: Stevens and Ginsburg dissented in Jones, but agreed in WSRP (and of course Scalia and Kennedy agreed with the principles in Jones).
Thus, the State not only may require that parties nominate candidates, it may also mandate HOW those candidates are nominated.
False on both counts. Also Scalia in Jones:
"Proposition 198 forces petitioners to adulterate their candidate-selection process--a political party's basic function--by opening it up to persons wholly unaffiliated with the party, who may have different views from the party. Such forced association has the likely outcome--indeed, it is Proposition 198's intended outcome--of changing the parties' message. Because there is no heavier burden on a political party's associational freedom, Proposition 198 is unconstitutional unless it is narrowly tailored to serve a compelling state interest."
ANY forced nomination process NECESSARILY takes away the right of association and is unconstitutional unless narrowly tailored to serve a compelling state interest. It is true that Jones refers to White, and does not explicitly strike it down, but the plain language of Jones does, in fact, do precisely that, because EVERY primary "opens the process up to persons ... who may have different views from the party."
Further, NOTHING in Jones OR White -- or anywhere else -- says that a state can force a party to nominate a candidate! Let's say that the Democratic Party believes the State Auditor position is fundamentally opposed to their beliefs and they do not wish to run a candidate for that position. There is no sense in saying that the state has a right to force the Democratic Party to nominate a candidate for that position. (And yes, this also shows quite clearly that White was nonsensical when it said that a party has a right to force nominations by primary.)
If a party nominates a candidate, the State may or may give recognition to that nomination.
Correct. A state has no obligation to recognize party nominations.
If the State does recognize the nomination, (1) that's the only candidate on the ballot from that party, and (2) the party is assured of having its candidate in the final election.
False. A state has no obligation to do either one, even if it recognizes the nomination. �For example, it could say that the nominee gets to have a denotation of "nominee" on the primary ballot, but other candidates also could list their party "preference" from the same party; this would have passed the current Court. As to the latter, also in this scenario, there is no obligation for that state to mandate that nominee get to the final election.
Posted by: pudge on March 25, 2008 08:54 AMI personally wouldn't care except that it would become a huge mess if as Mr. Rankin pointed out, the state party nominates one, while the county another and the national party a different candidate. Maybe it's best to leave them off and force the parties to advertise in a separate mailing. However, I really don't see that there is any constitutional 'right' for a political party to be able to advertise on the ballot itself, who they are supporting or who they nominated. Can the state allow them to if they wish? Yes. Can the state allow a candidate to list which party he prefers? Yes. Can a state put on the ballot which fast-food restaurant the candidate likes the best? Yes. Can a state put a 100 page biography of each candidate on the ballot if they wish? Yes. But the state can also exclude all that if they wish as well.
False.
The only thing you are arguing is that no longer can a Political Party use the election ballot as a place to do electioneering
False. The party had a role in determining who was on the ballot before, representing them. The party got a "free spot" on the ballot for its nominee, based on the amount of votes they got in previous elections. This is no longer the case. The party no longer puts anyone on the ballot, as they previously were able to do.
They still can have the candidate they are backing on the ballot
False. They can back a candidate that is on the ballot. Not the same thing as what you said.
I personally wouldn't care except that it would become a huge mess if as Mr. Rankin pointed out, the state party nominates one, while the county another and the national party a different candidate
No it wouldn't. That would be just fine. It's called democracy.
Maybe it's best to leave them off and force the parties to advertise in a separate mailing
That is what I-872 requires, according to the Supreme Court. The party affiliation IS left off the ballot.
However, I really don't see that there is any constitutional 'right' for a political party to be able to advertise on the ballot itself, who they are supporting or who they nominated
NO ONE EVER SAID IT WAS. NO ONE. NOT A SINGLE PERSON.
I used caps because you apparently aren't understanding this basic fact.
Can the state allow a candidate to list which party he prefers? Yes.
Not if it constitutes an implication of association, which is what it DOES do, which is why we'll see this in court again.
Posted by: pudge on March 25, 2008 04:35 PMObviously, pudgy, there are lots of races in which one or more parties do not field a candidate-- especially small parties.
With the implementation of the "top two," Washington becomes the only state in the nation that does not recognize party nominations for any offices-- local, state, or congressional.
On the "top two" ballot, the state could note any party nominee. BUT Washington-- through I-872-- does not provide for this. I-872 says each candidate may list a party preference next to his name.
Doug says, "I personally wouldn't care except that it would become a huge mess if as Mr. Rankin pointed out, the state party nominates one, while the county another and the national party a different candidate."
pudge replies, "No it wouldn't. That would be just fine. It's called democracy."
pudge says, ... "we'll see this in court again."
Absolutely. (1) Justice Thomas, in the majority opinion, left the door open for an "as-applied" challenge after the "top two" has been used once; (2) in Footnote 11, there are listed several grounds on which the Libertarian Party challenged I-872. Since neither the 9th Circuit nor the Supreme Court considered these grounds, there's another possible challenge; and (3) I-872 is unconstitutional as applied to congressional elections.
Having multiple candidates from the same party dilutes the party's message, and it's one thing that Justice Scalia expressed concern about in his dissent in the "top two" case.
Doug says, "I personally wouldn't care except that it would become a huge mess if as Mr. Rankin pointed out, the state party nominates one, while the county another and the national party a different candidate."
pudge replies, "No it wouldn't. That would be just fine. It's called democracy."
Having multiple candidates from the same party dilutes the party's message, and it's one thing that Justice Scalia expressed concern about in his dissent in the "top two" case.