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.