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Chief political reporter David Postman explores state, regional and national politics.

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March 19, 2008 10:57 AM

Court decision on primary likely not the last word

Posted by David Postman

I was sorry to not have been here yesterday for the big news of the U.S. Supreme Court decision on Washington’s top-two primary. But there’s a pretty good chance the issue will be back in the courts before too long.

Here’s the court’s conclusion:

Respondents ask this Court to invalidate a popularly enacted election process that has never been carried out. Immediately after implementing regulations were enacted, respondents obtained a permanent injunction against the enforcement of I-872. The First Amendment does not require this extraordinary and precipitous nullification of the will of the people. Because I-872 does not on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates, and because there is no basis in this facial challenge for presuming that candidates' party-preference designations will confuse voters, I-872 does not on its face severely burden respondents' associational rights. We accordingly hold that I-872 is facially constitutional.

So it’s constitutional on its face, but maybe not in practice. Rick Hasen, a law professor at Loyola Law School and proprietor of the excellent Election Law Blog, says the ruling was a shocker. And he explains that if the parties can show voters couldn’t understand the new system they might still be able to throw out the top-two.

The Court, and particularly Justice Roberts, leaves open the possibility of an as-applied challenge to the law later upon proof that voters are actually confused by the designations of the candidates' party preferences on the ballot (thinking that this is really a party primary).

The ruling has one legal expert stumped. Bob Bauer, the Perkins Coie attorney who writes the More Soft Money Hard Law blog, says he is trying to figure out “by what set of discussions, bargains or trade-offs did the Court produce a majority for the opinion.”

The Court decided, seven joining but with Roberts and Alito seemingly apologetic about it, that states can deny parties the right to designate their nominees on the ballot while inviting any and all candidates to associate explicitly with that same party, on that same ballot, by their own statement of party preference. Application of precedent does not explain this outcome; close reasoning has scant part to play. It is a dodge, it seems: a decision to put off a decision without admitting it, on the excuse that the challenge to the statute is only a facial challenge and as such insufficient.
Bauer said Roberts’ work was not the chief’s best.
Here his aptitude for pithy analogies or striking phrases fails him. The self-designation allowed to candidates strikes him as little different and no more susceptible to confusion than the statement “I like Campbell’s soup”: the preference reflects a taste for the soup but it does not indicate sponsorship by or affiliation with the company.

In reading about the decision this morning I came across a blog written by a non-practicing attorney with a libertarian bent, Christopher Tozzo. He questions the ruling’s reliance on the question of whether voters will be able to understand the top-two primary.

I would love to believe, as Justice Thomas seems to, that voters are not morons. But it is hardly "sheer speculation" to think otherwise. There is a mountain of evidence to suggest that voters, to put it euphemistically, need help at the ballot box. Sad, perhaps even existentialist, but undeniably true.

Washington state partisans are unhappy with the decision. Clark County Democrat Jon DeVore says
there’s a Clark County Commission race that currently has three Republicans and one Democrat in the race. And it’s possible that in the conservative District One that two Republicans end up on the November ballot.

Of course, the opposite might hold true in liberal parts of King County, where one would imagine any long-suffering Republicans might be considering simply disbanding.

I'm all for giving power to regular people, but I'm not so sure everyone is going to be pleased if they find their choices in November offer them only one party choice in certain races.

In short, this is insane, but at least responsible newspaper boards can stop kvetching about the evil political parties. When the whole thing turns into an exploding cigar, they can go talk to Sam Reed about it.

And on the eastside of the Cascades, conservative Tom Forbes at Palousitics doesn’t like it any better than DeVore does.

And in Republican Eastern Washington, Democrats will masquerade as Republicans without obtaining the party's approval, thus confusing voters and sneaking into office. Conversely, Democrats in the very conservative 9th Legislative District that includes Whitman County may face a situation where their candidate may not appear on the ballot for statewide office if two Republicans gather the most primary votes. Over a third of the statewide and congressional candidates who appeared on the general election ballot in 2000 would have been eliminated in the primary if the "top two" primary system had been in place then. We could be faced with "good ol' boy" popularity elections contests or faceoffs between the two wealthiest candidates versus honest discussions of the issues.

Randy Stapilus at Ridenbaugh Press guesses that the top-two primary “could move Washington politics toward the center.” And he says it could also be a boost for those in Idaho looking for a new primary system.

In California, too, the decision is being read carefully. It was a court decision striking down California’s blanket primary that began the chain reaction which begat yesterday’s ruling. Dan Walters of the Sacramento Bee thinks the decision is an opening for reform in California.

And it's a door the state should enter, because the current "closed primary" system has contributed mightily to California's political dysfunction.

The two major parties are continuing to lose traction among voters, while the ranks of independents are continuing to expand. But when coupled with gerrymandered legislative and congressional districts, the closed primary tends to create more ideological polarization in the Legislature and freeze moderates and independents out of meaningful roles in choosing officeholders.

The state's ongoing budget crisis and lack of progress on issues such as water and education reform attest to the dysfunction - and to the disgust and alienation that Californians increasingly express toward politics.

If there is a push for a new open primary in California it’ll come from an initiative, says Douglas Johnson, a consulting fellow at the Rose Institute of State and Local Government at Claremont McKenna College.

This opens the door to an expected revival of California’s open primary law. Expect drafting and fundraising to start in many corners of the state within 24 hours!

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