On August 20, U.S. District Court Judge John Coughenour ruled that the lawsuit Washington State Republican Party v State will go to trial. This is the lawsuit that was filed in 2005 against the “top-two” system passed by the Washington voters in 2004. See this story. Here is the 29-page decision.
Although the U.S. Supreme Court had ruled in March 2008 that Washington state’s “top-two”, on its face, does not violate freedom of association for political parties, the Court had left open the possibility that “top-two” violates freedom of association for political parties, in practice.
Supporters of “top-two” have for the last 18 months been saying that the case against “top-two” is all over, but it is not over.
Judge Coughenour rejected the Libertarian Party’s ballot access and trademark arguments. He said that in Williams v Rhodes (the U.S. Supreme Court opinion that invalidated Ohio’s 15% of the last gubernatorial vote petition), the American Independent Party had no opportunity to reach the statewide electorate by any type of ballot. That is not true. The American Independent Party’s only candidate in 1968 in Ohio was George Wallace, running for president. The party made it clear that it had no interest in any candidate except George Wallace for President. Yet Wallace was free to have run for president in the Democratic presidential primary, and any Ohio voter was free to choose to vote in that primary.
Judge Coughenour also said “the Washington general election becomes, for all intents and purposes, a runoff election.” This may be true for state and local elections, but it is not true for Congressional elections. A federal law dictates that Congressional elections must be in early November, with run-offs permitted in late November, or December. That is why the U.S. Supreme Court unanimously ruled in Foster v Love that Louisiana could not hold its first round of Congressional elections in September, with a run-off in November.
Refresh my memory, Richard. Why is Judge Thomas Zilly no longer hearing this case?
Yes, some of the California backers of the “top two” (“open primary”)– such as Tom Elias– have stated that the US Supreme Court gave its complete OK to the “top two,” which is not true. Elias also said Louisiana’s “open primary” has been okayed, when in fact no suit has ever been brought against LA’s overall system.
Last year, Washington state had the first round of its “top two” in August and the second round on the first Tuesday in November. As I’ve previously argued, the second round is a runoff. This setup is definitely unconstitutional for congressional elections.
To be constitutional, Washington will have to conduct its “top two” congressional elections as Louisiana did following Foster v. Love: hold the first round in early November and the second round at a later date.
Click here to see the comments on the post about California’s “top two” proposal.
The later comments on this post were made after the post had dropped to pages 4 and 5.
Judge Zilly said he had a conflict, because (as I recall) his wife works for a Washington state agency.
Obvious remedy — since the various party hacks in the various States can NOT have / want the same nomination systems — then call each lunatic system – the [State X] system.
WA – OR – CA – etc.
———
Rational stuff –
MO party hack caucuses, conventions and primaries.
Ballot access via EQUAl nominating petitions.
P.R. and A.V.
SOOOO very difficult – ONLY for the party hacks and any marginal party hack MORONS on this list.
Any measure that limits the power and influence of the top two political parties is going to be a benefit to the citizens. There needs to be more variety of viewpoints put forth to provide more accurate representation.
The “top two” system cements the hegemony of the Ds and Rs. They don’t like it because it saps their ability to control the process, but they do like it because it squeezes out all third parties.
In November 2008, there were no minor party or independent candidates on the Washington ballot for Congress or any statewide state office. That was the first time since Washington has been a state (1889) that was true. “Top-two” eviscerates the ability of minor parties and independent candidates to campaign in the campaign season and to be listed on November ballots.
Total Votes / Total Seats = P.R. = EQUAL votes for each seat winner = REAL Democracy
Can even a third party win a P.R. seat in the U.S.A. — especially in the larger legislative bodies ???
See the many foreign P.R. elections electing 3-4 larger parties and 3-5 smaller parties. The regimes manage to survive – important stuff gets actually debated.
typos in 4 above-
NO party hack caucuses, conventions and primaries.
Ballot access via EQUAL nominating petitions.
2 U.S.C. Sec. 7. Time of election
-STATUTE-
The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.
-SOURCE-
(R.S. Sec. 25; Mar. 3, 1875, ch. 130, Sec. 6, 18 Stat. 400; June 5, 1934, ch. 390, Sec. 2, 48 Stat. 879.)
-COD-
CODIFICATION
R.S. Sec. 25 derived from act Feb. 2, 1872, ch. 11, Sec. 3, 17 Stat. 28. [a mere 137 years ago]
—-
THE day — THE election.
NO mention of any *runoff election* after such Tuesday.
2 U.S.C. Sec. 1 incorporates such Tuesday date for U.S.A. Senator elections.
I.E. Dec. 2008 — the so-called runoff elections for 2 U.S.A. Reps. in LA and a U.S.A. Senator in GA were ALL blatantly unconstitutional — more LAWLESS Banana Republic stuff in the regime.
What event will really cause the zombie corpse of the 1787 Constitution to be really over-thrown ???
This is the key part of the decision:
“Now that the Supreme Court has held that I-872 can be implemented without violating Plaintiffs’ right to association, Plaintiffs will not be able to strike down I-872 in its entirety. Instead, the best that Plaintiffs can achieve is to invalidate certain portions of I-872’s implementation and enjoin the State from implementing I-872 in specific ways that lead to voter confusion or other forms of forced association.”
I-872 had (re)defined a “partisan election” as one in which candidates could express a party preference. This effectively made the use of party labels non-severable. But now it narrowed down to quibbling over the precise manner in which a party preference is presented. Everything in Washington is in statute – nothing in the constitution, so that the legislature is fully capable of making changes in this regard, particularly with regard to campaign finance.
In California, the key element is that of a “voter-nomination primary election” is that a voter may vote for any candidate regardless of the disclosed party preference of the voter or the candidate. At worst, a court could strike down the manner in which a disclosed preference is presented on the ballot.
So in Washington, the parties will get a “win” on the election of precinct committee officers, even though that hasn’t really changed, and Sam Reed’s proposed legislation would have made the PCO elections the same as for the presidential preference primary, where a voter is forced to disclose a public party preference in order to vote for PCO. An interesting twist in Washington is that party officers were until recently elected at the November general election, and the Reed proposal would return to that schedule.
Reed’s proposed legislation on recognizing parties will ensure that candidates are expressing a preference for an actual party. And perhaps there will be some standards as to whom may express a preference for a party.
#1
Judge Zilly’s wife is a member of the Washington State Public Disclosure Commission. As a member of that body, she voted to refer a complaint against Washington Republican Party to the Attorney General for possible prosecution. Prior to that vote, the GOP had asked her to recuse herself, which she declined to do. The GOP is now suing the Public Disclosure Commision, including Zilly’s wife in her official capacity for violating their 1st Amendment Free Speech Rights.
I think you need to re-read Foster v Love where Justice Souter characterizes the November election as where a final decision is made. Louisiana was literally issuing its writs of election to winners after the canvass in October.
Louisiana’s current congressional election system where they employ lockout devices on their voting machines to prevent voters qualified to vote for members of the legislature from voting for congressional candidates is much more likely to be overturned than Washington’s primary in August.
In September 2008, the independent and 3rd party US House Candidates receives 95% more votes than they did in November 2006.
In September 2008, the 9 independent and 3rd party statewide candidates collectively received votes equivalent to 28.4% of turnout. In November 2004, the 10 independent and 3rd party statewide candidates collectively received votes equivalent to 28.7% of turnout.
#9 The provision for a congressional runoff is in 2 USC 8.
#9 See footnote 4 of Foster v. Love
#12: A series of federal court rulings has established that any congressional candidate who has met an earlier vote test of 5% should be listed on the ballot on the first Tuesday after the first Monday in November. The Washington “top two” sets a 30% threshold for a candidate to be on the November ballot.
#13: What state are you referring to here?
#16 Could you list this series of federal court rulings?
#16 Washington State (I should have written August 2008). We are comparing the initial election at which all voters could vote for any candidate on the ballot (the August 2008 Top 2 primary and the November 2004 or November 2006 general elections).
Independent and 3rd party candidates for statewide received just as large a share of the vote in 2008 as they had in 2004.
And comparing congressional candidates, independent and 3rd party candidates received 95% more total votes in 2008 vs. 2006.
#17: The August 2008 election in Washington state was, of course, the preliminary round, which you’re comparing to the final rounds in 2004 and 2006. As comment #7 states above, there were ZERO independents or small party candidates for Congress or statewide state office on the November 2008 ballot. This was the first time this had happened since Washington attained statehood in 1889.
Richard Winger can supply the list of federal court rulings. Since this post is now on page three, I would suggest that they be listed on a later “top two” post.
#18 They were the first election in which all voters could vote for any candidate on the ballot.
If you would like to compare November to November elections, there were many FIVE times as many independent and 3rd party legislative candidates in 2008 as there were in 2006. They averaged 28% of the vote in 2008 compared to 4.5% in 2006.