On November 29, the 9th circuit held oral arguments in Washington Republican Party v Washington State, the case originally filed in 2005 by the Republican, Democratic and Libertarian Parties against the Washington state top-two primary system.
The three judges are Raymond Fisher, a Clinton appointee from California, Dorothy Nelson, a Carter appointee from California, and Milan Smith, a Bush Jr. appointee originally from Oregon, but now also a Californian. The argument lasted for one hour. The entire hour was consumed by the freedom of association issue. There was no discussion of the ballot access issue, which is based on the U.S. Supreme Court’s holding in 1986 in Munro v Socialist Workers Party that there is no constitutional distinction between a petition to get a candidate on the November ballot, and a prior vote showing in a preliminary election. Because the U.S. Supreme Court has long ago established that petitions for a candidate to get on the November ballot can’t exceed 5%, the Munro decision ought to mean that vote tests in prior elections also can’t exceed 5%. But requiring a candidate to place first or second usually means that a candidate must poll 30% (on the average) to qualify for the election itself.
The freedom of association issue, in the judges’ eyes, appears to turn on whether they are permitted to evaluate all the evidence in the case on the ballot label “Candidate (whomever) prefers the (whichever) party.” The three political parties in the case had submitted social science experimental evidence that indicates a large share of the voters, after they see the ballot, then believe either that the party named on the ballot nominated the candidate, or approves of that candidate, or that the candidate is affiliated with the party. The state of Washington, and its ally the Washington State Grange, tend to argue that the judges should only determine whether the ballot language is as clear as the state can make it.
Washington state ballots say at the top, “Each candidate for partisan office may state a political party that he or she prefers. A candidate’s preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate.”
The political parties also submitted evidence that even sophisticated reporters who cover politics constantly refer to various Washington state politicians as “Democrats” or “Republicans”, never as individuals who “prefer” one of those parties. The state and the Grange ridiculed the idea that a law might be unconstitutional just because of what newspapers say. However, one of the judges noted that this case bears some similarity to trademark disputes, and that when courts hear a case on whether one company has infringed on the trademark of another company, the courts are supposed to look at all available evidence about public opinion. A decision will probably be out in the next three months.