On October 1, the U.S. Supreme Court heard oral arguments in Washington State v Washington Republican Party. The issue is whether a state can hold a “top-two” primary with party labels on the ballot. The voters had passed an initiative providing for that system in 2004, but the U.S. District Court had struck it down in 2005. The 9th circuit had agreed with the lower court in 2006. It seems likely to this observer that the US Supreme Court will agree with the lower courts.
Chief Justice Robert and Justices Alito and Scalia pressed the state’s attorney very hard, but did not press the attorney for the Republican Party. Justices Kennedy, Breyer, Souter and Ginsburg had tough questions for both sides. Only Justice Stevens seemed clearly on the state’s side.
The very last question asked was perhaps the key question. Justice Kennedy asked the attorney for the state (who was in his four minutes of rebuttal) whether there is a state interest in weakening political parties. The attorney for the state replied, “No.” Since it is obvious that the Washington law does weaken political parties, the case will very likely be decided around that question. The Washington state system weakens parties by (1) making it likely that, sometimes, in the first round there will be many candidates from one major party, but perhaps only two from the other major party, so that the major party with the large split field may end up with no member running in the run-off; (2) by making it appear to voters that the party has no preference among all the candidates with its label who are on the ballot; (3) by permitting candidates who may even be hostile to a party and its idea to still use its label.
The attorney for the state tried to put stress on the idea that Washington ballots will probably carry disclaimers saying that just because a party label adjacent to a candidate’s name is there, it doesn’t mean that the person is really a member of that party and it doesn’t mean that the party supports him or her. Just Souter seemed to feel the distinction is meaningless. He asked, “Have you ever heard of anyone who says “I prefer Democrats but I am a Republican?” The quick-witted attorney for the state replied, “Senator Lieberman”, which evoked a good laugh from the court and from the audience.
Justice Stevens asked the attorney for the parties if the law would be constitutional if Washington state had registration by party, and said that no one could have a party label of a particular party unless he or she had been a registered member of that party for a year. The attorney for the parties said it would still be unconstitutional. He said the problem would still be that a candidate would be bearing a party label even though that party might not wish him or her to be the party’s representative.
Several justices asked the attorney for the state whether, if the party held endorsing conventions, that would get publicity to offset the impression left by the ballot. The attorney for the parties mentioned poll results which show, sadly, that as many as 85% of the voters are unable to mention any candidate for US House, in their district, only weeks before an election. He said voters depend on party labels when they vote, and no publicity about endorsements can counter that. A decision is likely sometime between late December and February 2008.
