Tacoma, Washington’s daily newspaper, the News Tribune, has this interesting story about labels on this year’s primary and election. The article discusses the possibility that some candidates may try labels such as “Endorsed GOP”, or other innovative “preferences” that try to suggest the candidate is endorsed by a particular party.
The article is slightly misleading when it says the US Supreme Court says “top-two” may be constitutional. The Court only said “top-two” may be constitutional, relative to the Political Party Freedom of Association argument. Other legal arguments against “top-two” were not evaluated by either the U.S. Supreme Court, or the lower courts, such as the argument that the system is unconstitutional for congressional elections under the ballot access precedents. Thanks to Steve Rankin for the link.
Any Aardvark Party in WA ???
As usual – NO need for any STONE AGE / obsolete primaries.
Direct ballot access in [general] elections via equal nominating petitions.
P.R. for legislative body elections.
Approval Voting for executive/judicial offices.
I don’t know abt Aardvarks; but we had an OWL Party (Out With Logic, On With Lunacy) in the 70s for an election. But in those days you only needed 1 or 2 hundred (?) sigs to get on the state wide ballot.
The OWL Party was on in 1976. That caused the 1977 legislature to revise the ballot access laws, and force minor party and independent candidates to run in the blanket primary and poll 1% in the blanket primary, as a condition of being on the November ballot. The US Supreme Court upheld that restriction in 1986, making an analogy to a 1% vote in the primary with a 1% petition. The case was Munro v Socialist Workers Party.
It’s because of that US Supreme Court analogy, that the top-two system is likely unconstitutional as applied to congressional elections. Congress has said since the 19th century that congressional elections are to be held in November of even-numbered years. Since the US Supreme Court made the analogy between a vote test in a preliminary screening election, and a petition, then it follows that the limits on petition requirements (5%) also apply to preliminary screening elections. But “top two” requires a candidate to poll, on the average 30%, to be one of the top two contenders. 30% is way too severe; 5% is the limit.
Ballot access for the top 2 primary is a filing fee / petition alternative.
Looks EQUAL for ALL candidates for the SAME office.
What part of the Constitution prohibits the alleged *sovereign* States from having a TWO step process to limit the number of candidates on the general election ballots ?
About 10 States have top 2 runoff primaries for the D/R major parties – mainly the pre-1964 one party Donkey southern State regimes.
What part of the Constitution has the 5 percent amount — i.e. one more numbers game number dreamed up by the party hack Supremes ?
I didn’t say the Constitution requires the states from having a 2-step process. In fact, I had pointed out that Washington state’s old 2-step process was upheld by the US Supreme Court. But in that case, the Court compared the petition precedents to the vote test in the first round, and said they are the same.
All courts that have evaluated petition requirements above 5% have thrown them out. That includes not only the US Supreme Court in Williams v Rhodes, and Lendall v Jernigan (summary affirmance), but lower courts in Arkansas, North Carolina, Illinois, and Ohio. There are no mandatory petition requirements left for general election ballot access in excess of 5%. So, whether 5% is mentioned in the US Constitution or not, that is what all the precedents agree is the limit.
For state office, Washington state is free to claim that the August primary is the election, and the November event is a run-off. But Washington state can’t do that for Congress, because Congress said in 1872 that the “election” for Congress is the November event. So the August event is not an “election” for Congress; it’s just a screening process.
Again – the MORON courts have not applied *separate is NOT equal* in Brown v. Bd of Ed 1954 to ballot access laws — starting with Williams v. Rhodes 1968 — a mere 40 years of totally SCREWED UP ballot access cases having UNEQUAL laws for different candidates for the SAME office in the SAME area.
Any AAA Party in WA State [Yet] ???
The Supremes routinely play some numbers game stuff in their MORON party hack opinions — i.e. X States have done such and such for Z years — therefore it must be legal — i.e. JUNK math and JUNK history.
Sometimes the party hack Supremes get a brain storm and OVERRULE long standing earlier party hack stuff — NO Federal common law in 1938 — after having alleged Federal common law since 1842 – a mere 98 years of UNCONSTITUTIONAL stuff.
What sayeth the Supremes about what is going on in the top 2 August primary ???
See the slip opinion — the latest and greatest opinion at the moment on the subject — regardless of ANY earlier stuff.
Major Reforms — since party hack Supremes are clueless and statutory fixes are defective (such as the NPV scheme) —
1. EQUAL [general] election ballot access requirements for ALL candidates for the SAME office in the SAME area.
2. P.R. for legislative body elections.
3. Approval Voting for executive/judicial offices.
— pending some major public education about head to head math.
Demo Rep #4: Those runoff (or second) primaries are part of the nominating process. Almost all runoff primaries are in Southern states, and their purpose is to ensure that no candidate is nominated with a small percentage of the vote.
The winner of Washington’s “top two” runoff, in contrast, will actually be elected to office.
‘Munro’ was decided on the basis of an election in which a candidate who received 20% of the vote was denied a place on the 1983 special election ballot.
The reasoning of ‘Gralike’, ‘US Term Limits v Thornton’, ‘Foster v Love’, are more likely to be applied to outlaw state-mandated and operated partisan primaries for Congress than a non-partisan system like that used in Washington.
Here’s something to think about. Louisiana does not require party affiliation for an elector to qualify to vote for a member of the Louisiana House (the largest branch of the legislature). Is it not a clear violation of Article I, Section 2 and the 17th Amendment by introducing an extra qualification for participating in the election of Representatives and Senators?
‘Williams v. Rhodes’ concerned presidential electors in Ohio. Ohio has instituted a system where electors are chosen from slates put forward by each party. At issue were the ability of the American Independent Party and Socialist Workers Party to get a place on the November 1968 ballot.
Ohio actually required more petition signatures for new parties, than votes by existing parties to maintain ballot access, and required filing in February. It has nothing to do with election of individuals. Since getting on the Washington State primary ballot is several orders of magnitude easier than Ohio required in 1968, there is not the 14th Amendment equal protection issue that was decisive in ‘Williams v Rhodes’. In addition, Washington holds its Top 2 primary in September.
Alabama in 1960 used a party primary to determine which individual electors were placed on a party’s electors slate, with the result that electoral votes were cast for both Harry Byrd and John Kennedy. In the particular case of Alabama the electors were chosen in a runoff election due to a requirement of 50% support. There was nothing unconstitutional about this winnowing process.
# 7 ALL pre-general election stuff obviously limits the number of CANDIDATES on the general election ballots — party hack primaries, caucuses and conventions [by SUB-groups of ALL PUBLIC Electors], filing fees, independent nominating petitions, etc. and NOW the WA State top 2 primary.
Obviously there are Fed and State [general] election dates when a CANDIDATE is *elected* to a PUBLIC office.
If some MORON State regime is violating the Fed *election* date for Fed offices – i.e. U.S.A. Reps, Senators and Prez/VP 12th Amdt Electoral College folks [Art. II, Sec. 1, para. 4] — then it should be taken to court ASAP — to avoid even more chaos.
Since when is it somehow unconstitutional to have only 2 [general] election candidates for a single office — i.e. to most likely get a majority [Democracy] winner — with or without any party hack preference ?
The MORON party hack Supremes also have some major brain damage about 14th Amdt, Sec. 2 — back in the days of lots of write-in votes — when handwriting was much more legible.
The result of the growing election law INSANITY is the growing mystification of everything connected with elections — due to the EVIL in the gerrymander party hacks trying to control more and more of the U.S.A. population and economy for their EVIL party hack schemes.
Elector definition
Election dates
Elector registration
Ballot access – candidates and issues
Making ballots
Voting the ballots
Counting the ballots
Reporting results.
ALL SOOOOOO very mysterious ???
Will the Supremes start having to issue daily / hourly Bush v. Gore type hammer opinions about Election Law A to Z ???
Bush v. Gore — the 2000 entire FL MORON regime (legislative, executive and judicial) had NO definition of a *legal* vote for Prez Electors with the various voting methods — infamous punch cards, etc.
I disagree with the MORON Supremes – they should just have declared the FL Prez election unconstitutional and remanded the case — taking note of the Fed *election* date for Prez electors — sorry — too late to do something legal — even by the FL legislature — I.E. NO LEGAL Electoral College votes in FL — for Bush II or Gore — I.E. Gore gets a majority of the LEGAL 12th Amdt votes.
See the later Fed HAVA law requiring even MORON State regimes (like FL) to have a YES/NO definition of a *legal* vote — so even mere mortals can count *legal* votes.
Washington has not asserted that the August primary is “the election” and that the November election is “the runoff”.
In the only case strictly dealing with the date of congressional elections, ‘Foster v. Love’, Louisiana in its oral arguements asserted that they could hold the primary in August and the runoff in September – that Congress in 1872 had not anticipated different forms of elections, so the date regulation didn’t apply at all, and it was just coincidence that the runoff was on the general election day. The Love lawyer agreed that the Louisiana system would have been constitutional if write-in votes would have been allowed on the November election day.
The Supreme Court ruled that when as a matter of law, the election was concluded prior to the November date (ie the governor would issue his certificates of election prior to the date set for election by Congress) that was in violation of 2 USC 7 and 2 USC 1.
If you go to the polling place on election day and find that the building is being used for educational, religious, government, or commercial purposes, and there are no yard signs in evidence, no partisans passing out leaflets, no poll workers and no voting machines, that is not an election.
That will not be the case in November in Washington.
#5, 7 and 10 —
The WA regime seems to be one of the few State regimes to permit a variable *election* date for WA State officers — SUPER-dangerous for rigging purposes.
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http://www.leg.wa.gov/LawsAndAgencyRules/constitution.htm
WA Constitution
Art. II, SECTION 5 ELECTIONS, WHEN TO BE HELD. The next election of the members of the house of representatives after the adoption of this Constitution shall be on the first Tuesday after the first Monday of November, eighteen hundred and ninety, and thereafter, members of the [WA State] house of representatives shall be elected biennially and their term of office shall be two years; and each election shall be on the first Tuesday after the first Monday in November, unless otherwise changed by law.
Art. VI, SECTION 1 QUALIFICATIONS OF ELECTORS. All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote, except those disqualified by Article VI, section 3 of this Constitution, shall be entitled to vote at all elections. [AMENDMENT 63, 1974 Senate Joint Resolution No. 143, p 807. Approved November 5, 1974.]
Art. VI, SECTION 8 ELECTIONS, TIME OF HOLDING. The first election of county and district officers not otherwise provided for in this Constitution shall be on the Tuesday next after the first Monday in November 1890, and thereafter all elections for such officers shall be held bi-ennially on the Tuesday next succeeding the first Monday in November. The first election of all state officers not otherwise provided for in this Constitution, after the election held for the adoption of this Constitution, shall be on the Tuesday next after the first Monday in November, 1892, and the elections for such state officers shall be held in every fourth year thereafter on the Tuesday succeeding the first Monday in November.
Cf. Art. 27 Section 14.
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Some election law sections —
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http://apps.leg.wa.gov/RCW/default.aspx?cite=29A.52
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RCW 29A.04.043
Election.
“Election” when used alone means a general election except where the context indicates that a special election is included. “Election” when used without qualification does not include a primary.
[2003 c 111 § 108. Prior: 1990 c 59 § 5; 1965 c 9 § 29.01.050; prior: 1907 c 209 § 1, part; RRS § 5177(c). See also 1950 ex.s. c 14 § 3. Formerly RCW 29.01.050.]
Notes:
Intent — Effective date — 1990 c 59: See notes following RCW 29A.04.013.
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RCW 29A.04.073
General election.
“General election” means an election required to be held on a fixed date recurring at regular intervals.
[2003 c 111 § 113. Prior: 1965 c 9 §29.01.070 . Formerly RCW 29.01.070.]
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RCW 29A.04.321
State and local general elections — Statewide general election — Exceptions — Special county elections.
(1) All state, county, city, town, and district general elections for the election of federal, state, legislative, judicial, county, city, town, and district officers, and for the submission to the voters of the state, county, city, town, or district of any measure for their adoption and approval or rejection, shall be held on the first Tuesday after the first Monday of November, in the year in which they may be called. A statewide general election shall be held on the first Tuesday after the first Monday of November of each year. However, the statewide general election held in odd-numbered years shall be limited to (a) city, town, and district general elections as provided for in RCW 29A.04.330, or as otherwise provided by law; (b) the election of federal officers for the remainder of any unexpired terms in the membership of either branch of the Congress of the United States; (c) the election of state and county officers for the remainder of any unexpired terms of offices created by or whose duties are described in Article II, section 15, Article III, sections 16, 17, 19, 20, 21, 22, and 23, and Article IV, sections 3 and 5 of the state Constitution and RCW 2.06.080; (d) the election of county officers in any county governed by a charter containing provisions calling for general county elections at this time; and (e) the approval or rejection of state measures, including proposed constitutional amendments, matters pertaining to any proposed constitutional convention, initiative measures and referendum measures proposed by the electorate, referendum bills, and any other matter provided by the legislature for submission to the electorate.
(2) A county legislative authority may call a special county election by presenting a resolution to the county auditor prior to the proposed election date. Except as provided in *subsection (4) of this section, a special election called by the county legislative authority shall be held on one of the following dates as decided by such governing body:
(a) The first Tuesday after the first Monday in February;
(b) The second Tuesday in March;
(c) The fourth Tuesday in April;
(d) The third Tuesday in May;
(e) The day of the primary as specified by RCW 29A.04.311; or
(f) The first Tuesday after the first Monday in November.
(3) A resolution calling for a special election on a date set forth in subsection (2)(a) through (d) of this section must be presented to the county auditor at least fifty-two days prior to the election date. A resolution calling for a special election on a date set forth in subsection (2)(e) or (f) of this section must be presented to the county auditor at least eighty-four days prior to the election date.
(4) In addition to the dates set forth in subsection (2)(a) through (f) of this section, a special election to validate an excess levy or bond issue may be called at any time to meet the needs resulting from fire, flood, earthquake, or other act of God. Such county special election shall be noticed and conducted in the manner provided by law.
(5) In a presidential election year, if a presidential preference primary is conducted in February, March, April, or May under chapter 29A.56 RCW, the date on which a special election may be called by the county legislative authority under subsection (2) of this section during the month of that primary is the date of the presidential primary.
(6) This section shall supersede the provisions of any and all other statutes, whether general or special in nature, having different dates for such city, town, and district elections, the purpose of this section being to establish mandatory dates for holding elections except for those elections held pursuant to a home-rule charter adopted under Article XI, section 4 of the state Constitution. This section shall not be construed as fixing the time for holding primary elections, or elections for the recall of any elective public officer.
[2006 c 344 § 2; 2004 c 271 § 106.]
Notes:
*Reviser’s note: This section was amended by 2006 c 344 § 2, changing subsection (4) to subsection (5).
Effective date — 2006 c 344 §§ 1-16 and 18-40: See note following RCW 29A.04.311.
I agree with comment #10. I am not saying the Washington system for congressional elections is unconstitutional because of Foster v Love. I am saying it is unconstitutional because of Williams v Rhodes, and Lendall v Jernigan, and Munro v Socialist Workers Party. And I am depending on the fact that federal law requires congressional elections to be in November. Williams v Rhodes said the constitution protects the right of a candidate to have a reasonable chance to go directly to the November election itself, without bothering to run in a primary. George Wallace in Ohio in 1968 won that case, even though he would have been free to run in the Ohio Democratic presidential primary with only 1,000 signatures. A November ballot in which the voters always have only two choices is not constitutional. Voters must have an opportunity to have more choices on the election ballot itself.
How many top 2N nonpartisan primary election systems in local regimes in the U.S.A. — producing 2N general election candidates for local offices — generally producing majority winners (aka Democracy winners) ???
I will rashly predict that the Supremes will rule 9-0 that having only 2 candidates on general election ballots for a single office is super-constitutional — as if the WA top 2 primary opinion is not enough.
Again — ALL ballot access cases in the Supremes since Williams v. Rhodes in 1968 did NOT bring up separate- is- NOT- equal from Brown v. Bd of Ed in 1954 — due to armies of MORON lawyers.
Result — ALL 1968-2008 ballot access cases are quite a large illogical mess having about zero to do with EQUAL protection of the laws in 14th Amdt, Sec. 1.
In ‘William v. Rhodes’, Ohio required that presidential candidates be nominated by political parties. Moreover it required more signatures for a new party than votes for an old party to maintain its ballot status (15% vs. 10%). It also required a new party to establish a statewide party structure of 1200 party officers, who had not been affiliated with another party for 4 years.
It was Ohio that set the requirement of parties going directly to November presidential ballot, and then made it impossibly hard for any new party to actually do so, as well as making “independent” candidates create a whole party apparatus in the State. The Supreme Court ruled that this violated the equal protection clause of the 14th Amendment.
Washington does not use the Top 2 system for Presidential elections. But this may not be that relevant – the Supreme Court would have ruled the same way in ‘Williams v. Rhodes’ if it had concerned gubernatorial elections in May of odd years.
Washington’s scheme for “partisan elections”, which is defined by Washington law as elections in which candidates may state a party preference, provides for a two-stage process. The method of securing a place on the primary ballot is quite modest, and the same for all would-be candidates. Moreover, all voters are eligible to vote. No equal protection concerns here. Washington has reasonably late primary, and reasonable filing deadlines. Moreover, it has reasonable write-in filing.
The standard for qualification to the general election ballot is the same for all candidates, finish in the Top 2. All voters are qualified to vote in the general election. If it is for Congress, the election is held on the correct date. The equal protection clause of the 14th Amendment simply doesn’t apply.
Federal law requires congressional elections to be on the first Tuesday after the first Monday in November of even numbered years.
Washington will hold its general election for Congress on that date in 2008.
Here are the primary election results from the 1983 election that were at issue in ‘Munro’. Which of the following 31 candidates should have been on the November 1983 election ballot, and why?
Dan Evans R 250046 36.68%
Mike Lowry D 179509 26.33%
Lloyd E. Cooney R 133799 19.63%
Charles Royer D 103304 15.15%
Larry Penberthy R 1642 0.24%
James (R.F.) Curdy D 1206 0.18%
Mike Olmer D 1032 0.15%
Eunice I. McKinney D 964 0.14%
Jo Anne Marshall Yohey D 763 0.11%
Cheryl Schilling D 743 0.11%
Andrew B. (Butch) Higgins R 730 0.11%
Ted P. Fix R 701 0.10%
Kenneth J. Staloch D 620 0.09%
Dean Peoples SW 596 0.09%
Dave Peterson R 574 0.08%
Leonard W. Fuller D 495 0.07%
James E. Chappelle D 473 0.07%
Timothy Joseph Blair D 428 0.06%
J. Gunnar Thompson R 382 0.06%
Omari Tahir Garrett D 362 0.05%
Victor Alfred Gee D 341 0.05%
Wendell D. Maze D 341 0.05%
Gary Stuart Siebel D 339 0.05%
Howard Landon R 324 0.05%
Duke Stockton D 312 0.05%
Charles H. Hetrick R 269 0.04%
Don Pilson D 266 0.04%
Arthur Bauder D 240 0.04%
Clarice (Tops) Privette D 223 0.03%
John (Hugo Frye) Patric R 211 0.03%
Glenn L. Blubaugh R 188 0.03%
C.E. (Ed) Stites R 162 0.02%
Stan Maine R 105 0.02%
What would be the reason for including Dean Peoples? “All are equal, but some are more equal than others”? “2 legs bad, 4 legs good”?
#14 What would be the reason for including Dean Peoples?
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By having different party hack initials — D, R and SW ???
Separate is NOT equal.
WA should junk the *partisan elections* label since it is CANDIDATES (partisan or independent) being chosen in the top 2 primary — as noted by the Supremes opinion.