Supreme Court to Consider Primary Law

Posted September 28, 2007 at 6:29pm

Sam Reed wants to make it OK for political love to be a one-way street. And this week, he’ll have a chance to make his case.

On Monday lawyers for Reed, the state of Washington’s Republican secretary of state, will ask the U.S. Supreme Court whether the state’s quirky primary system is constitutional. But many court watchers say the case may have far-reaching implications outside the Evergreen State, delving into whether major political parties have a First Amendment right to anoint their candidate and whether they have a right to say who is and is not a candidate — by keeping their primaries closed to unaffiliated voters and those registered in other political parties.

In an interview Friday, Reed said the central issue in the combined case, Washington State et al v. Washington State Republican Party et al, involves whether an electoral primary system for the state, approved by voters in a 2004 ballot initiative, passes legal muster.

In a 2000 case involving California’s primary system, the high court ruled against “blanket” primaries, where voters chose from a multiparty list of all candidates, a system Washington had used since the 1930s.

In response, open-primary advocates designed a new primary system, which passed with about 60 percent in 2004 but has not been put into place because the political parties got a court injunction to block its implementation. Reed said new polling suggests that almost 80 percent of voters like the new system, which allows “each voter to vote for any candidate for any office on the primary ballot, without regard for party affiliation of the candidate or the voter,” according to court documents.

To date, Reed and other supporters of his primary system have yet to argue their side successfully in court, and most experts agree he faces an uphill battle at the Supreme Court, which likely will agree political parties have a First Amendment right to pick their candidates in closed primaries.

But with new faces on the high court since the issue was previously addressed more than five years ago, court watchers will closely monitor conservative newcomers — Chief Justice John Roberts and Associate Justice Samuel Alito — and their view on how parties are able to brand themselves.

“The parties also think they should have a right to decide who can run as a Democrat or Republican,” Reed said. “That [issue], frankly, most elected officials find very scary, the idea that you could use a litmus test: you’re not really a Democrat or you’re not really a Republican.”

“We think that has huge implications,” he added.

Rick Hasen, an elections expert at Loyola Law School Los Angeles, said Reed’s is the fourth in a series of recent high court cases involving the states, political parties and who controls the ballot. Particularly in the West, Hasen said, voters tend to shy away from party affiliation. If the Washington system is found constitutional, he said more states may consider opening up their primaries, much to the Democrats’ and Republicans’ chagrin.

“This case is the latest in a series of cases the Supreme Court has heard where there’s a conflict between the way a state wants to run primaries and the way the parties want those nominations to be,” Hasen said. “In places like Washington and California, people are not as associated with parties and they want more choice. They want moderation.”

“But the parties are saying, ‘you’re cheapening our brand,’” Hasen added.

Joe Birkenstock, a Democratic election law lawyer at Caplin & Drysdale in Washington, D.C., has studied the case extensively. Unlike recent prominent election law cases involving campaign finance, he said the high court’s decision in Reed’s case may offer few bright lines, but will have a clear winner or loser.

“Unlike Wisconsin Right to Life, there’s not a clear deregulatory answer on this,” Birkenstock said. “You’re either going to hamstring the parties’ interest or the direct democracy interest.”

Washington state political parties are not mincing words about the potential fallout for vague court guidance on parties’ right to brand themselves. Luke Esser, chairman of the Washington State Republican Party, said the nation’s two mainstream political parties have spent centuries stockpiling good will.

“Republicans don’t like the idea of non-Republicans playing games in the selection of Republicans and the Democrats feel likewise,” Esser said. “Folks who take the time to form political parties, build political organizations and back political candidates take their politics very, very seriously and don’t like the idea of those who not only might not support our principles, but maybe antithetical to them, helping to decide who our candidates will be in general elections.”

Birkenstock said the high court’s decision may turn on the fact that many voters make their choices on election day strictly by a candidate’s political affiliation, a reality the court has acknowledged in earlier cases is an important consideration.

“The voters have an interest in knowing that the party label is a bi-directional process: they’ve chose the party, but also the party has a chosen [the candidate],” Birkenstock said. “There’s other information captured in party identification [showing] that they have survived a vetting process.”

And should the Supreme Court agree with Reed that parties cannot have a “litmus” test for candidates, Birkenstock predicted that the terms “Republican” and “Democrat” will become the political equivalent of a public park.

“Then David Duke can go out and say he’s a Republican or Lyndon LaRouche calls himself a Democrat on the ballot,” he said. “And there’s nothing the party can do about it.”