On October 1, 2007, the Court will hear the first case of the October 2007 term. Washington State Grange v. Washington Republican Party and its sister case, Washington v. Washington Republican Party, centers around the Washington state law that allows candidates to state their ‘party preference’ as opposed to an all-out party affiliation and its application to the Washington top-two primary system. In the state of Washington, all candidates are put on open primary ballots and the ‘top-two’ candidates are then placed on the general election ballot.
In their former system, the “Montana” system, candidates would state “I am a candidate of the _____ Party.” In the system currently in question, candidates are given the option to state that “my party preference is _____.” Washington’s election code specifically states that “Voters at the primary election are not choosing a political party’s nominees.”
The Court took on a similar case, California Democratic Party v. Jones in 2000. By a vote of 7-2, with Justices Stevens and Ginsburg in the dissent, the Court invalidated the California state law that proposed a similar election system. The California law that was struck down allowed candidates to declare themselves members of any party on the primary ballot. The candidate from each party that received the highest number of votes would win the nomination. The Court held, quite reasonably, that this type of declaration violated a political parties freedom of association.
In his dissent, Justice Stevens argues that political primaries are more than just tools for political parties:
The protections that the First Amendment affords to the “internal processes” of a political party do not encompass a right to exclude nonmembers from voting in a state-required, state-financed primary election.
I disagree. Political primaries are, first and foremost, tools for private organizations, political parties, to choose their nominee for the general election. It is important to remember that political parties are not only the huge ideological organizations that we associate with liberal and conservative, but a well-organized and well-defined organization of individuals who are very clearly established through filings and tax methods. Justice Stevens goes too far when he contends that “In an era of dramatically declining voter participation, States should be free to experiment with reforms designed to make the democratic process more robust by involving the entire electorate in the process of selecting those who will serve as government officials.” His utopian visions are wonderful and certainly not facially objectionable, but he suggests that his colleagues should adhere to these goals before adhering to the Constitution. States should try to increase voter participation, but not by abridging the freedom of association.
Going back to Washington State, political preference and political affiliation sound awfully similar. For purposes of stare decisis, if for no other reason, the Court should strike down the Washington state law that grants candidates the ability to declare an unofficial party preference.
You can always find more information about upcoming cases before the court at our 2007 Term Case Index