On May 21, the state of Washington and its ally, the Grange, filed their main briefs with the U.S. Supreme Court, in the case over whether a state can hold a “top-two” primary and put party labels on the ballots. The case is State of Washington v Washington State Republican Party, no. 06-713/06-730.

The state’s brief tries to rebut the Libertarian Party’s earlier brief on ballot access. The state says that the U.S. Constitution permits states to require a modicum of support before printing a party or its nominees on the general election ballot. The state is correct. But what the state fails to acknowledge is that there is a limit on how much support the state can require. That limit is 5% of the electorate. The top-two system in Washington requires, on the average, 30% support for a candidate to win a place on the November ballot. This is based on empirical data, showing that the average 2nd place finisher polls 30% in the old blanket primary. Ergo, the “top-two” system requires a candidate to show support of, on the average, 30% to get on the general election ballot.

In 1968, George Wallace was running for president in the general election. He could have qualified for the Ohio presidential primary in 1968 with only 1,000 signatures. After all, he was a Democrat, so he was free to run in the Democratic presidential primary. But he didn’t want to run in primaries; he wanted to run in the general election. And the U.S. Supreme Court put him on the November ballot in Ohio, in Williams v Rhodes, and struck down the 15% petition requirement for new parties. General election ballot access is protected by the U.S. Constitution. This is especially true in congressional elections, because a federal law provides that congressional election day is in November, and any congressional run-off must be after the November election day. By contrast, Washington state’s “top-two” system would confine minor party and independent candidates to the September primary.

The Grange’s brief completely ignores the Libertarian Party’s ballot access argument.