On March 18, the U.S. Supreme Court upheld the Washington state Top-Two Initiative passed by the voters of Washington state in 2004. The vote was 7-2. Justice Clarence Thomas wrote the decision. Justices Antonin and Anthony Kennedy dissented. The Court said nothing about the points raised by the Washington Libertarian Party, which were that this type of primary in effect provides a November ballot with only Democrats and Republicans on the ballot, except that footnote eleven says the Court did not consider the Libertarian arguments because the lower courts had not ruled on them either (the lower courts didn’t rule on them either because the lower courts were invalidating the law for other reasons, so they said it wasn’t necessary to consider the Libertarian points).

The majority decision says parties are free to file a new as-applied challenge after the system has been used once. UPDATE: here is a link to the opinion.

On March 17, the US Supreme Court accepted Bartlett v Strickland, the North Carolina districting case.

On March 12, Dennis Kucinich filed this brief with the U.S. Court of Appeals, 5th circuit, in his Texas primary ballot access case.

Kucinich had been excluded from the Texas Democratic presidential primary because he wouldn’t sign an oath, pledging to “fully support the Democratic nominee for President whoever that shall be.” The Texas Democratic Party wrote this oath, but does not impose a similar oath for anyone running in its primaries for office other than president. No other state Democratic Party, and no state unit of the Republican Party, has a similar oath.

Among the points made by Kucinich are: “The oath is either meaningless and thus protects no interest, or it is so meaningful that it can be the sole basis for excluding a candidate from appearing on the ballot.” The District Court had said the oath is legally meaningless and that someone in Kucinich’s position therefore had no real complaint against the oath. Kucinich vigorously contests the idea that the oath is meaningless.

Kucinich also argues, “If left unchecked, the district court’s analysis would permit a nefarious state political committee to promulgate rules designed to exclude certain candidates from the opportunity to win any of the state’s convention delegates.”

Kucinich also points out that in Jenness v Fortson, the U.S. Supreme Court said in footnote 25 that anyone with any political views is free to run in any major party primary. Therefore, it wasn’t so serious that third parties and independent candidates couldn’t get on the general election ballot. Footnote 25 of Jenness v Fortson is completely outmoded, given the more recent U.S. Supreme Court decisions protecting the right of political parties to run their own nominations process. Kucinich is doing a great service by reminding the 5th Circuit (and, perhaps, ultimately the U.S. Supreme Court itself) about this outmoded part of Jenness v Fortson.