On July 3, the 9th circuit issued an order in the lawsuit involving Washington state’s “top-two” primary system, called Washington State Republican Party v Logan, no. 05-35774 and 05-35780.
The Republican, Democratic and Libertarians Parties are invited to submit briefs on the ballot access issue, and the trademark issue, in the case. Each brief is due August 2, and cannot exceed 15 pages.
When the three political parties first filed their lawsuit against “top-two” back in 2005, the U.S. District Court, and the 9th circuit, both agreed that the law violated the associational rights of political parties. But earlier this year, the U.S. Supreme Court disagreed with that conclusion. The lower courts had not considered the other arguments against “top-two”, but now the 9th circuit seems ready to hear those other arguments for the first time. The Libertarian Party of Washington state is in the best position to raise these other two issues. The Libertarian Party is the only party in the case that has trademarked its name. The party thus has a plausible argument that the Washington system, which lets anyone appear on the ballot with the label “prefers Libertarian Party” (regardless of that individual’s relationship with the Libertarian Party), violates the party’s trademark of its name.
The ballot access issue is also one that the Libertarian Party can best raise. Data from primaries in Washington state during the blanket primary years (1936-2000), and Louisiana experience 1975-present, and California experience with the blanket primary (1998-2000), shows that virtually no minor party or independent candidate ever places first or second, unless there is only one major party member running. Even minor party candidates who won, such as Jesse Ventura (who only polled 3% in Minnesota’s open primary in September 1998) and Audie Bock (who only polled 8% in California’s blanket primary for a legislative seat in 1999), do badly in first rounds.
