On July 7, the attorney for the Washington state Democratic Party sent this letter to the Washington Attorney General:

“Last Thursday all counsel received an order from the 9th Circuit requesting supplemental briefing in connection with the State’s pending appeal of the injunction against implementation of I-872 that was entered by Judge Zilly in 2005. As is evident, the appeals of the State and Grange have not been fully resolved. The State has not requested Judge Zilly to modify his earlier injunction.

“When Secretary of State Reed first proposed to implement the Top Two Primary via emergency powers and without regard to Judge Zilly’s injunction, the Democratic Party responded on April 22, 2008 by noting: ‘It seems to us that it would have been better had you decided to wait until Judge Zilly had decided how to modify the existing injunction related to I-872 and then determined what, if any, steps to implement I-872 in 2008 would be appropriate. We hope that you will reconsider whether you have committed the resources of your office in a prudent fashion in connection with I-872.’

“Unfortunately, the Secretary elected to continue on his course of action asserting that the challenge to I-872 had been fully resolved. The 9th Circuit’s order confirms that the litigation pending since 2005 is not over. The injunction entered in that case against implementing I-872 is still in effect. The State has made no effort to modify or vacate it. Proceeding with the planned August primaries and November elections in violation of this injunction will expose all of the results to challenge, potentially wasting significant taxpayer resources on elections that have to be redone.

“We urge you once again to reconsider the course of action the State is taking and continue to follow the existing Open (Montana) Primary law until such time, if ever, as the validity of I-872 is fully and finally upheld.”

Although the U.S. Supreme Court is on summer recess, it will return in October. One election law case is scheduled for oral argument at that time. It is Bartlett v Strickland, 07-689, and concerns North Carolina’s legislative redistricting plan. It will be argued October 14.

The North Carolina Supreme Court had invalidated the legislative districting plan, and had said the legislature should pay more attention to following county boundaries, than in creating a district in which it is plausible that African-Americans could elect someone. Normally the federal Voting Rights Act would have said that the goal of creating a Black district is more important than following county lines. However, the North Carolina Supreme Court said the Voting Rights Act does not apply in this instance, because the district in question is only 49% African-American. The North Carolina Supreme Court said the Voting Rights Act would only apply if the district were majority African-American. The U.S. Supreme Court will review that decision. An Amicus Curiae brief against the North Carolina Supreme Court’s position has already been filed by the Attorneys General of 14 states, all of whom have Democratic Attorneys General. They are Arizona, California, Connecticut, Georgia, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New Mexico, and Ohio. Other organizations that have filed an amicus brief against the North Carolina Supreme Court’s position include the NAACP, MALDEF (Mexican American Legal Defense & Education Fund), the League of Women Voters, the Campaign Legal Center, and the Lawyers Committee for Civil Rights Under Law.

Briefs on the side of the North Carolina Supreme Court opinion are due August 11. It will be interesting to see if any state Attorney Generals file briefs on that side.