Kautzman's AP GO PO Blog

Matthew Daly
Associated Press
October 1, 2007

WASHINGTON — Supreme Court justices appeared skeptical today as they heard arguments on whether Washington state’s “top two” primary system is constitutional.

Washington voters passed a law three years ago allowing voters to pick their favorite candidate for each office, with the top two vote-getters advancing to the November general election, even if they are from the same party.

The major political parties challenged the law in federal court, asserting a First Amendment right for them to select their own nominees without outside forces interfering.

Several justices appeared wary of the state law, which has been struck down by a federal judge and a federal appeals court.

The law would allow candidates to associate themselves with a party but would not allow the parties to reject a candidate they oppose or simply do not like, said Justice Antonin Scalia.

“That seems to me a great disadvantage to the parties,” Scalia said.

State Attorney General Robert McKenna, defending the law, said there was no evidence that the parties would be harmed, since they can publicize through advertising and other means which candidates they support.

But Scalia pressed McKenna on the point, asking three times whether the proposed state ballot would indicate that a party does not prefer someone who self-identifies as a party member.

When McKenna began a lengthy response, Scalia cut him off. “Please answer yes or no,” he said.

McKenna finally said no; the ballot would not indicate whether a party endorses the person who identifies as a party member.

Chief Justice John Roberts compared the case to a trademark dispute. The two major parties are trying to protect their “brand” to ensure that only those who agree with the party’s principle are identified with that party, he said.

Under the law as approved, “people will be confused,” Roberts said. Candidates might “look like Republicans but aren’t.”

But Justice David Souter said candidates were unlikely to identify themselves with a party unless they agree broadly with its principles.

“’I really prefer the Democrats. I’m a Republican myself.’ That doesn’t happen,” Souter said.

“There’s the example of Senator Lieberman,” answered McKenna, referring to the Connecticut independent who lost a Democratic primary but later won a general election as an independent. Lieberman generally caucuses with the Democrats in the Senate.

“There’s always one,” Souter said, drawing laughter from the audience.

The Washington state government and the Washington State Grange have been sparring with the political parties since the Supreme Court threw out the blanket primary in a California case in 2000.

The blanket primary was adopted by an initiative drafted during the 1930s by the Grange, organized labor and other groups. It allowed voters to split their tickets, voting for one party for governor and another party for state senator, for instance.

The court said that system violated the parties’ right to nominate their candidates without outsiders taking part in the primary. The Legislature responded with the top-two system, but then-Gov. Gary Locke vetoed it and the state reverted to a Montana-style “pick-a-party” system that requires voters to restrict themselves to one party’s slate of candidates.

In 2004, Washington voters approved the Grange-sponsored Initiative 872.

The Republican, Democratic and Libertarian parties challenged the law, which was struck down by a U.S. District judge and the 9th U.S. Circuit Court of Appeals.

John White, arguing the case for Republicans, said the current law converts a party’s right to nominate a candidate “to a mere right to endorse,” which he said discriminates against the parties.

In recent history, David Duke has identified himself as a Republican, despite GOP repudiation of his racial views, and perennial presidential candidate Lyndon LaRouche has called himself a Democrat, despite wide disagreement with Democratic leaders, White said.