[EL] question for those interested in primary types & law

[Richard Winger]

In 2000, the US Supreme Court ruled in Cal. Dem. Party v Jones, 530 US 567, that blanket primaries are unconstitutional as applied to political parties that don't want to participate in blanket primaries.

In 2008, the US Supreme Court ruled in Washington Stage Grange v Washington State Republican Party, 552 US 442, that top-two primaries are not unconstitutional on their face, at least as applied to freedom of association.

There are two differences between the California system invalidated, and the Washington state system that was upheld on its face, at least as to freedom of association:  (1) in California, parties had nominees whereas in Washington the ballot language tells voters that parties don't have nominees and the party labels are preceded by "I prefer the (whatever) party."; (2) in the California system invalidated in 2000, the top vote-getter from the ranks of each party advanced to the general election whereas in Washington only the top two vote-getters advance to the general election.

My question is, suppose a state establishes blanket primaries and prints ballots and other official campaign material that tell the voters that parties don't have nominees.  This hypothetical state law provides that party labels on the ballot are preceded by "I am registered in the (whatever) party."  Furthermore, this hypothetical law also provides that the top-vote getter from the ranks of candidates registered in each particular party advance to the November ballot.  Would that system be constitutional?

In other words, Washington state escaped the fate of California' blanket primary by using the magic words, "I prefer (whatever) party" on the ballot.  Could Washington state return to the blanket primary if it used the "I prefer" language and all the other verbiage on ballots saying parties don't have nominees?

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120416/d9923cb4/attachment.html>