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

[Scarberry, Mark]

If the process puts forward candidates based on their affiliations or claimed affiliations as in Richard's hypo (in which one person identified with each party goes forward to the general election), then the system is a party nominating system.

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667


-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein, Daniel
Sent: Monday, April 16, 2012 5:39 PM
To: richardwinger at yahoo.com; law-election at uci.edu
Subject: Re: [EL] question for those interested in primary types & law

        The underlying question is whether the system entails party nominations.  If so, the party has an associational right to control its nominating process.  If not, the party has nothing to say about it.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148


________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Richard Winger [richardwinger at yahoo.com]
Sent: Monday, April 16, 2012 1:08 PM
To: law-election at uci.edu
Subject: [EL] question for those interested in primary types & law

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

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