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October 1, 2007 12:35 PM

Justices hear state's top-two primary case

Posted by David Postman

The U.S. Supreme Court posted the transcript of this morning's hearing on Washington state's primary election case. The court is hearing an appeal on Washington's top-two primary system that would move the top two vote-getters to the general election ballot, even if they are of the same party. The state's political parties sued, and won at the 9th Circuit, to stop that voter-approved method. Candidates could call themselves Republicans or Democrats no matter what the parties said.

In today's hearing, state Attorney General Rob McKenna told the justices:

There is no evidence in the record that the parties will be harmed by the expression of party preference.

JUSTICE SCALIA: We know what -- what it's going to be like. We don't know the exact phrasing on the ballot, but we do know that a candidate is allowed
to associate himself with a party, but a party is not allowed to disociate itself from the candidate. I am less concerned about the fact that the
candidate can't say I'm the — I'm the no-taxes candidate, than I am about the fact that he can associate himself with the Republican Party or the Democratic Party on the ballot and that party has no opportunity on the ballot to say, we have nothing to do with this person. That it seems to me is a great disadvantage to the parties.

MR. McKENNA: Justice Scalia, there may be an association in the dictionary sense, in the same way that a candidate who expressed a preference for one
public policy versus another may be associated. But in the constitutional sense, this Court has found that there is a forced association only when the objecting
party is compelled to speak it or when the objecting party is ...

JUSTICE SCALIA: I'm not talking about a First Amendment forced association. I'm talking about an association for purposes of making this a fair election at which the parties have an opportunity to nominate and support their own candidates. And what this system creates is a ballot in which an individual
can associate himself with the Republican Party, but on the ballot the Republican Party is unable to dissociate itself from that candidate.

Scalia was clearly concerned about the political parties ability to say whether they approve of any candidate running with a party label. He asked McKenna about what the ballot would look like in a top-two primary.

JUSTICE SCALIA: Will, will it say whether the party that is preferred likes this candidate?

MR. McKENNA: It will say, Your Honor, if you would look to the sample ...

JUSTICE SCALIA: I think you can say yes or no to that. Will it say whether the party for which he expresses a preference claims or disclaims him?

MR. McKENNA: It will stay that it is not a statement by the political party identifying that candidate.

JUSTICE SCALIA: Please answer yes or no. Will it say whether the party for which he has expressed a preference claims or disavows him?

MR. McKENNA: It will not, Your Honor.


McKenna told the court that Washington voters chose the top-two primary "which vindicates both the rights of the parties and the people." But in this exchange, Chief Justice John Roberts says the parties' interest in protecting who calls themselves a Democrat or Republicans is like a trademark case.

McKenna said:

The parties can select their standard-bearers without any state interference, adopting their own nomination process.

And the people are not limited to candidates selected by the parties. They have more choice, which is a value that was validated in the Jones decision, albeit holding that you can't do that with nonmembers selecting the party's nominees. The parties, though, argue that no candidate can even state an expression of party preference, cannot make an expression of party preference on the ballot without the party's consent. Taken to its logical conclusion, the parties are really claiming they have a First Amendment right to require the state to place a
single candidate of their choosing on the ballot. If you look at the joint appendix, page 13 ...

CHIEF JUSTICE ROBERTS: But clearly, it's just like a trademark case. I mean, they're claiming their people are going to be confused. They are going to think this person is affiliated with the Democratic or Republican Party when they may, in fact, not be at all.

MR. McKENNA: Mr. Chief Justice, they make that claim without the benefit of any evidence. The Ninth Circuit and the district court and the parties simply assume this will happen, and they assume, for example, that ballot looks just like the old nominating primary ballot, when, in fact, as we've shown, it clearly will not. And, of course, we don't believe trademark law applies here in this case, although I can address that if you wish.

CHIEF JUSTICE ROBERTS: I didn't suggest it would be a trademark violation. I think I said it was just like the same analysis. And I don't know why you would give greater protection to the makers of products than you give to people in the political process.

MR. McKENNA: They deserve protection, of course, Mr. Chief Justice. The question is whether or not merely allowing someone to express their party preference somehow will mislead the voters. This Court has shown more faith in the voters than that.

Republican Party attorney John White represented the political parties in this morning's hearing. He said the parties have a right to put their stamp on nominees.

JUSTICE SOUTER: Well, they will pay no attention, I take it, in the sense that there will be nothing indicating an official nomination on the ballot itself. But as I — I am also assuming that the parties through a convention, or whatever other scheme they can come up with, can — can designate an official nominee quite independently of this ballot. And if they do so designate, they can campaign on that person's behalf.

The person in campaigning can say, I am the official nominee of the X party. And those facts are true, aren't they?

MR. WHITE: They are, your honor, but that converts the right to nominate to a mere right to endorse, and this Court has recognized that the ability to endorse a candidate is no substitute ...

JUSTICE SOUTER: You're saying that a right to nominate has to be a right to exclude everyone from the ballot except the nominee — everyone from the ballot under that banner, from the nominee.

MR. WHITE: To be — to be a meaningful right to nominate, yes, Your Honor. It ...

JUSTICE GINSBURG: Where does that right come from? I thought in Jones, the Court had said if you had just a blanket primary, with no indication of party affiliation, that that would be constitutional.

And if that's so, then parties don't have any right to have a candidate.

MR. WHITE: I'm not suggesting that the parties have a constitutional right to place their party name on a truly nonpartisan ballot, and I think what the Jones Court was hypothesizing was the true nonpartisan primary where there are no party identifications. Our objection is not to a — necessarily to a nonpartisan ballot. It's to a partisan ballot where the state is going to put someone else on that ballot using our party's name and competing against our nominee under ...

JUSTICE GINSBURG: So you would have no objection if this — everything was the same, except no party affiliation were shown.

MR. WHITE: That ...

JUSTICE GINSBURG: That would be constitutional?

MR. WHITE: That would not violate our First Amendment rights, your honor.

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