Washington State, and Washington Grange, Ask U.S. Supreme Court Not to Hear Top-Two Open Primary Case

On June 22, Washington State, and also the Washington State Grange, each asked the U.S. Supreme Court not to hear the Democratic Party and the Libertarian Party lawsuit against the top-two open primary system. The case is Washington State Democratic Central Committee v Washington State Grange, 11-1263 and 11-1266. Here is the state’s brief. Here is the Grange brief.

The briefs are more notable for what they omit than for what they say. Neither brief acknowledges the existence of footnote eleven in the first U.S. Supreme Court’s opinion in this case. That opinion, issued in March 2008, said in footnote eleven, “Respondent Libertarian Party of Washington argues that I-872 is unconstitutional because of its implications for ballot access, trademark protection of party names, and campaign finance. We do not consider the ballot access and trademark arguments as they were not addressed below and are not encompassed by the question on which we granted certiorari: ‘Does Washington’s primary election system…violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?’ Petition for cert. in No. 06-730, p. i. The campaign finance issue also was not addressed below and is more suitable for consideration on remand.”

The Grange brief ignores footnote eleven. The state’s brief not only ignores footnote eleven, the state asserts repeatedly that the ballot access and trademark issues were already decided by the U.S. Supreme Court, which is not true.

The state’s brief does talk about the ballot access issue, however. It quotes dicta from the 1986 U.S. Supreme Court decision Munro v Socialist Workers Party, but it never quotes that decision’s holding. In Munro v Socialist Workers Party, the U.S. Supreme Court upheld Washington state’s old system, in which all candidates ran in the blanket primary, and the top vote-getter from the ranks of each party advanced to the November election. The U.S. Supreme Court in the Munro decision was not deciding the constitutionality of blanket primaries, but instead was only deciding whether another feature of that old blanket primary was constitutional. The special feature was that no candidate could advance to the November election unless he or she polled at least 1% of the blanket primary vote. The holding said that there is no constitutional distinction between a petition requirement for general election ballot access, versus a prior vote test for general election ballot access. The dicta in that case, at the very end, said the burden on a minor party from being kept entirely off the general election ballot is “slight” if it may participate in the primary.

In the old Washington state system, a large majority of minor party candidates were not kept off the November ballot. Most of the minor party candidates under the old system met the 1% vote test, and the Munro decision notes that. That is why the unfortunate statement at the end of the Munro decision, that even if the system did keep all minor party candidates off the November ballot, that would only impose a “slight burden”, is dicta; it is a statement about a hypothetical system that did not actually exist.

The Grange brief, on page 17, refers to the November election as a “run-off”, but the U.S. Supreme Court already rebutted the idea that November could ever be a run-off election in congressional elections, in its unanimous decision in 1997, Foster v Love. Neither the Grange nor the State mention Foster v Love. Congressional run-offs, which exist only in Georgia and Louisiana, must be held after the November election.

The state’s brief, in footnote 12, says that the Court should not consider the evidence submitted to the U.S. District Court that in reality, top-two systems always mean minor party candidates are excluded from the November ballot, when there are at least two major party candidates in the same race. The state says this evidence should be excluded because it was submitted to the U.S. District Court after the U.S. District Court had already issued a preliminary opinion against the ballot access argument. However, the U.S. District Court did accept that evidence, so it is in the record.

The state’s brief does not directly challenge the experimental evidence in this case that most voters interpret party labels on the ballot to mean that there is a connection between the party and the candidate who uses that party’s label. Instead, the state attempts to avoid this problem by indirectly and repeatedly asserting that the only voters who matter are the well-informed voters.

The Grange’s brief is somewhat misleading because it reprints the ballot language (concerning what party labels mean) in very large type. In the actual ballots, that language is much smaller.


  1. Peaceful Revolution · · Reply

    “I-872 is unconstitutional because of its implications for ballot access, trademark protection of party names, and campaign finance.”

    Who wants to perpetuate the LP’s methods anyway? If they can’t take the heat of fair competition of and equality across the board in the marketplace of ideas, then they should get out of the kitchen and quit trying to proclaim they’re for more liberty.

    The LP is so democratically illegit, why should anyone WANT them to have “trademark protection” for their bogus party bosses?

  2. If it ain’t broke, don’t fix it! Time and again, we see attempts to re-visit Court rulings because certain groups are upset with the original Decision! Vote down Bring it back #1,#2,#3….. IT is next to CRIMINAL to keep HAMMERING AWAY AT COURT DECISIONS just because of THE ADMINISTRATIVE FLAVOR at the time!!!

  3. #2, the US Supreme Court upheld segregation in public facilities in 1896. Was it wrong for the NAACP to keep bring new cases against segregation in schools and other public facilities all during the 20th century?

    In 1986, the US Supreme Court upheld Georgia’s law that made it a felony for any two people to have oral or anal sex, even in private, even if they were married to each other. Was it a mistake for opponents of that ruling to keep bringing new lawsuits, until finally the US Supreme Court ruled in 2003 that it had been wrong in 1986?

  4. […] Winger has links to the briefs and commentary here. This entry was posted in political parties, third parties. Bookmark the permalink. ← […]

  5. Demo Rep · · Reply

    Top 2 = a mere TWO plurality extremists are nominated

    — instead of one plurality extremists for each robot party hack gang – with some independents thrown in – in most current State systems.

    Top 2 party hack runoff primaries in about 10 southern States – to have 1 *majority* robot party hack get on the general election ballots.

    BIG DEAL. Gerrymanders control.

    Sorry — 0.0 to 4.0 percent votes for all 3rd parties and independents means about ZERO in political history.

    How about a mere reality check on what in Hell is going on in U.S.A. gerrymander politics ???
    The CRISIS is N-O-W.

    The U.S.A. is a STONE AGE / DARK AGE regime of EVIL robot party hack extremist gerrymander monsters – esp. in the gerrymander Congress and in the larger States – CA, TX, FL, etc.

    P.R. and nonpartisan App.V.
    NO moron primaries.
    ONE election day.
    EQUAL nominating petitions.

    P.R. = ALL voters elect a legislator = both majority rule and minority representation — even for many third parties and perhaps even for some independents.

    See the circa 95 percent accurate P.R. systems in Germany, Israel, New Zealand, etc.

    However such missing circa 5 percent is/should be the controlling difference in ALL regimes.

  6. Demo Rep · · Reply

    # 2 SCOTUS invented some sort of alleged *federal common law* in 1842.

    In 1938 a new gang of SCOTUS ruled that such mere 98 years of stuff was UN-constitutional – overruling scores of cases.

    See the Erie R.R. case.

    SCOTUS now has nonstop legal history MORONS — appointed now ONLY because they are robot party hacks of the Prez who appoints them

    — now super-especially since the Elephant Bork failure in 1989 — a mere 23 years ago.

    i.e. there is a MAJOR problem with ANY 5-4 SCOTUS opinion — one side or the other is TOTALLY wrong about the LAW involved — due mainly to earlier messed up *precedents*.

    i.e. it would likely be better to have perhaps 100 25 year old somewhat literate folks ruling on stuff — who would be very happy to overrule earlier junk opinions – based on wrong / arbitrary / irrational hair splitting classifications.

    The U.S.A. Constitution did not come from outer space or out thin air — regardless of SCOTUS mystifications of it.

    See the 1776 era State Constitutions and Bills of Rights, the 1777 Articles of Confederation, the 1787-1788 Federalist and the Records of the Federal Convention of 1787 edited by Max Farrand.

    ALL later amendments have a connection with the time events involved — 12th Amdt – election of 1800,
    13th Amdt – 1776-1865 slavery, etc.
    Elect SCOTUS folks NOW using nonpartisan App.V. — Save the U.S.A.

  7. Demo Rep · · Reply

    I ask again — how much FREE advertising for each party hack group listed on the PUBLIC ballots ???

    How many Hitler clones will say – Prefer Communist Party ???

    How many Stalin clones will say – Prefer Nazi Party ???

    How many Hitler or Stalin clones will say – Prefer Libertarian Party ???

    Will this case END the top 2 mess — so that there can be major progress towards —

    P.R. and nonpartisan App.V ??? — before it is too late.

  8. partiesarelame · · Reply

    Why should government be in the business of paying for the selection process of ANY political party? I say we abolish primaries altogether, save some money, let the parties organize however they want, and may the best candidate of each party win.

    There is nothing in the Constitution that mandates “primaries” and they are a waste of money for strapped governments. Take the money spent on primaries and spend it on education. Or tax refunds.

  9. I think the main issue is still who is allowed on the November ballot, the November ballot is the one where people are elected to office. Primaries or not, it’s who can get on the Novmember ballot. Leave to political party conventions.

  10. Jim Riley · · Reply

    Foster v Love is based on current federal law. There is nothing to prevent Congress from changing the law, or even mandating Top 2 elections.

    Louisiana was issuing certificates of election before November. This is the salient finding of Foster v Love

    We hold today only that if an election does take place, it may not be consummated prior to federal election day.

    The US Supreme Court confirmed its finding in US v Classic that an “election” includes any preliminary elections that goes into the process of making the final choice.

  11. DR is right Any systems other than PR and Approval/Range Voting simply reinforce the dysfunctional status quo. PR should be low threshold like Netherlands.

    Not that the US citizenry can vote itself out of this mess- but the sham two-party system just makes it too easy for the current defective elites to maintain an illusion of invulnerability.

  12. Jim Riley · · Reply

    #3 Was it wrong for the NAACP to keep bringing cases like Smith v Allwright that brought primary elections under the 14th and 15th Amendments?

    Wasn’t Thurgood Marshall the attorney for the plaintiffs in Smith v Allwright?

    In reality, the partisan primary system effectively disenfranchises voters on the basis of their political beliefs.

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