Washington State Grange

Voters win back primary

One simple line. Five little words. And history was made.

“Held: I-872 is facially constitutional.”

Nearly four years after Washington voters overwhelmingly approved Grange-sponsored Initiative 872, creating a top-two qualifying primary, the highest court in the land voted 7-2 March 18 to affirm the facial constitutionality of the initiative.

U.S. Supreme Court Justice Clarence Thomas, writing for the majority, wrote “...the I-872 primary does not, by its terms, choose parties’ nominees. The essence of nomination – the choice of a party representative – does not occur under I-872.”

In arguing to overturn I-872, the political parties had contended that voters would not be able to tell the difference between “official” party candidates and those just stating their party preference on the ballot as provided for in the initiative, resulting in “mass voter confusion.” To that, Thomas replied: “...respondents’ assertion that voters will misinterpret the party-preference designation is sheer speculation.” Further on, he writes “There is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate.”

In essence, the decision is based on the fact that, as written, I-872 does not burden the political parties’ rights of association as the parties had claimed. Because the top-two was never implemented, there is no way of knowing if there would be the voter confusion the parties claim will occur.

“As long as we are speculating about the form of the ballot – and we can do no more than speculate in this facial challenge – we must, in fairness to the voters of the State of Washington who enacted I-872 and in deference to the executive and judicial officials who are charged with implementing it, ask whether the ballot could conceivably be printed in such a way as to eliminate the possibility of widespread voter confusion and with it the perceived threat to the First Amendment,” wrote Thomas. He continues, “It is not difficult to conceive of such a ballot.”

Justice Thomas ends his opinion with:
“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. The judgment of the Court of Appeals is reversed.” (The Ninth Circuit Court of Appeals had previously sided with the political parties but the Grange and the State of Washington appealed that ruling to the U.S. Supreme Court.)

Chief Justice C.J. Roberts, in his concurring opinion, noted “...there is no general right to stop an individual from saying, ‘I prefer this party,’ even if the party would rather he not.”

Two justices dissented – Antonin Scalia and Anthony Kennedy. Scalia wrote the dissenting opinion, and in it he said, “...because it seems to me Washington’s only plausible interest is precisely to reduce the effectiveness of political parties – I would find the law unconstitutional.”

Reaction
At a celebration of the court victory held at Secretary of State Sam Reed’s office the evening of the decision, State Grange Director of Legislative Affairs Terry Hunt, who spearheaded this campaign from day one, reminded the staff to remember where they were that day, the day they were a part of not only state history, but national history as well. For more of his comments, see his column on page 3.

“We took the people’s case to the nation’s highest court and the people won,” said Reed. “This is a victory for the voters of Washington because our democracy belongs to them.”

“Washington voters have a long tradition of independent voting,” said Attorney General Rob McKenna. “They told us they wanted the freedom to vote for the candidate of their choice regardless of party, and the U.S. Supreme Court agreed with them.”

Gov. Christine Gregoire released a statement, declaring, “Today’s ruling by the United States Supreme Court is a new day for democracy in Washington state. The ruling upholds the will of the people who overwhelmingly supported changing our state’s primary system in 2004. Washingtonians are known for their independence, and I applaud today’s ruling allowing them to continue to voice their opinion. I recognize that both major political parties in our state feel strongly about their right to nominate their own candidates. I hope both parties find a solution that recognizes voters’ views.”

“This decision is great for voters,” said Grange attorney Tom Ahearne. “It reaffirms our government is one by the people, for the people, not by and for the parties.”
I-872 campaign coordinator Don Whiting said, “From the beginning the Grange position was simply that the voters in this state had the right to decide whether to have a party nominating primary or a top-two primary – and putting Initiative 872 on the ballot gave the voters that choice. It is very gratifying that the U.S. Supreme Court respects the preference of the people for a top-two primary and the right of each state to craft an election system that fits the voters in that state.”

What’s next?
The political parties were quick to point out that the U.S. Supreme Court decision left the door open, ever so slightly, for further litigation. To avoid that, the Attorney General and Secretary of State offices have been working to develop a ballot that ensures there will be no voter confusion and no grounds for legal action. They are also making sure the election laws are changed clearly and consistently.

The Secretary of State declared immediately after the decision that the top-two will be implemented in the very important August 2008 primary.

On a national level, the decision spells good news for states like Alaska and California, who had their own blanket primaries squashed by the Court in 2000. There has already been interest expressed by those states, as well as Oregon, in implementing a similar primary in the very near future.

© 2006 Washington State Grange - All Rights Reserved

This page and all contents therein are the sole property of the Washington State Grange and may not be reproduced or copied in whole or in part without the express prior written consent of the owner. Copyright and trademarks contained in the images and links embedded on this page are the property of their respective owners.