Argument Preview: Washington State Grange v. Washington State Republican Party

Argument Preview

By Dan Geldon

In Washington State Grange v. Washington Republican Party and Washington v. Washington Republican Party – two consolidated cases involving the same set of facts and issues – the Supreme Court is set to consider the extent to which states can regulate primary elections without infringing on the associational rights of political parties.

Background

In California Democratic Party v. Jones (2000), the Supreme Court struck down California’s partisan blanket primary, which allowed citizens to vote in any party’s primary regardless of their partisan affiliation. In invalidating the partisan blanket primary, the Court reasoned that: 1) a political party’s right to associate necessarily includes the right to exclude, or the right not to associate; 2) political parties thus have a right to choose their “ambassadors” to the general public and message without interference from outsiders; and 3) California’s system created a “clear and present danger” that a party’s nominee (and therefore message) could be determined by members of a rival party.

Although the Jones Court struck down the partisan blanket primary, in dicta it endorsed a nonpartisan blanket primary that would allow top vote getters to advance to the general election regardless of party affiliation. A nonpartisan primary passed constitutional muster because primary voters would not be “choosing a party’s nominee.”

In September 2003, the Ninth Circuit held in Democratic Party of Washington v. Reed that Washington’s partisan blanket primary, which had been in effect since 1935, was “materially indistinguishable from the California scheme held to violate the constitutional right of free association in Jones.” In response, the Washington State Grange – a civic organization with roots as a nineteenth-century farm organization – rallied voters to enact (through an initiative) a modified blanket primary a year later. While under the invalidated system the top vote-getter from each party advanced to the general election as that party’s nominee, now the top two vote-getters for each office advance regardless of their party affiliation. However, candidates for “partisan” offices may indicate the party they “prefer”; if a preference is expressed, it appears on the ballots.

In May 2005, the state’s Republican, Democratic, and Libertarian parties challenged the constitutionality of the modified blanket primary system. Finding the system indistinguishable in “all constitutionally relevant aspects” from the system invalidated in Jones, the district court issued a permanent injunction against its implementation. The Ninth Circuit affirmed, holding that the modified primary still “severely burdened” the associational rights of the parties and thus triggered strict scrutiny.

Petitions for Certiorari

Washington and Washington State Grange filed petitions for certiorari, which the Supreme Court granted in February 2007.

In their petitions for certiorari, the appellants focused largely on the merits of the Ninth Circuit’s decision. Although no conflict exists among lower courts on the questions presented, Washington emphasized that the Court had previously granted cert. in several election law cases notwithstanding the absence of a circuit split.

Opposing certiorari, the political parties emphasized that: 1) the Court had previously refused to grant certiorari to review the Ninth Circuit’s invalidation of Washington’s prior blanket primary in Reed; 2) the Court had already provided “clear guidance on the right of associations”; and 3) the Ninth Circuit’s holding was correct on the merits.

Merits Briefs

In its merits brief, the state argued that the modified blanket primary “represents a major paradigm shift” from the invalidated system. Specifically, the state argued that the modified primary: 1) constitutes a permissible nonpartisan primary as defined by Jones because primary voters do not choose the nominee of a political party but instead merely “winnow the number of candidates who will advance to the general election”; 2) infringes on the associational rights of parties even less than traditional open or closed primaries because it “removes the state entirely from the nominating process”; 3) creates no “impression of associational ties” – contrary to the holding of the Ninth Circuit – because the state makes clear to voters that a candidate’s partisan preference does not constitute a nomination; 4) does not trigger strict scrutiny because it imposes no severe restriction on associational rights; and 5) furthers the right of individual candidates to associate and the right of voters to obtain information about the candidates.

Washington State Grange’s brief similarly emphasized the state’s legitimate interests and the nonpartisan character of the modified primary. In addition, the Grange’s brief accused the Ninth Circuit of violating the principles of federalism by re-writing state law and interpreting party “preference” to mean “nominee.” Moreover, the brief criticized the Ninth Circuit for focusing on the procedures of other states and thereby constraining the ability of Washington to function as a “laboratory of democracy.”

In their merits briefs, the Washington State Republican and Democratic Parties argued that: 1) the listing of party “preference” on the ballot constitutes the selection of a standard bearer even if not a technical nomination; 2) the party “preference” listing interferes with the rights of parties to determine their own message; 3) parties have a right not just to endorse but to nominate; 4) because it still includes “preferences,” the modified system offers only cosmetic changes to the kind of primary invalidated in Jones; 5) the state has insufficient interests in forcing these unwanted associations; and 6) the lower courts’ actions did not violate principles of federalism because laboratories of democracy have no right to abridge First Amendment freedoms.

The Washington State Libertarian Party further argues that: 1) the modified primary impliedly repeals the state’s procedures for minor party nominations and in the process denies it reasonable access to the ballot; 2) the listing of “Libertarian Party” as a candidate’s party preference infringes on its trademark rights; and 3) the modified system invites ballot crowding and voter confusion at the primary level and has no legitimacy under the Election Clause.

Analysis

In resolving this case, the Court must balance the rights of states to regulate elections with the rights of political parties to refrain from associating with non-members. The Court’s judgment will ultimately depend on how it approaches the central question in this case: is Washington’s modified primary partisan because of its treatment of party preference, or nonpartisan because candidates advance to the general election without regard to party affiliation?

The petitioners can take solace in the likely receptiveness of Justices Stevens and Ginsburg, the two dissenters in Jones. In that case, Justice Stevens emphasized that the “associational rights of political parties are neither absolute nor as comprehensive as the rights enjoyed by wholly private organizations,” and he questioned the application of the “so-called right not to associate” in the context of parties. Moreover, Justice Stevens challenged the Court’s finding that California lacked a compelling interest in adopting its blanket primary.

Nonetheless, the Court’s decision to grant certiorari surprised many observers, and the petitioners are probably fighting an uphill battle. Although the Court took a step back in Clingman v. Beaver, which upheld an Oklahoma law that limited whom a party could allow to participate in its primary, that case is inapposite to the “right not to associate” at issue here. Ultimately, the Washington State Republican Party made a compelling argument in its brief in opposition that the case comes down to whether the Court “really meant what it said in Jones.” Given the strong concern of at least five sitting justices for the associational rights of parties, it probably did.