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

Mon Apr 16 21:51:45 PDT 2012

Well, then, on what basis would the state decide that one of each should advance? If they aren't different in some relevant way, such as by identifying with a party, then how could the state justify advancing a Green, for example, as opposed to the second largest vote getting Democrat? Isn't the whole notion one of allowing a representative of each party to advance, or at least a person who presents himself or herself as the candidate of that party? If advancement depends on identification with a party, then it looks like it's a party-based primary in which anyone can vote in any party's primary. What if I said I was a member of the Martian party and asked to advance to the general election because I got the most votes (1) of any candidate self-identifying with the Martian party? The state would ask whether there really was such a party, because it is interested in having one person associated with each real political party move on to the general election. That is a clue that the parties matter and that this is simply an unconstitutional blanket primary.

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard Winger
Sent: Monday, April 16, 2012 8:45 PM
To: Election Law; Thomas J. Cares
Subject: Re: [EL] question for those interested in primary types & law

Because the ballot, and the voter handbook, would all instruct voters that party labels don't mean that the party nominated the person, or approves of the person.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147

--- On Mon, 4/16/12, Thomas J. Cares <Tom at TomCares.com<mailto:Tom at TomCares.com>> wrote:

From: Thomas J. Cares <Tom at TomCares.com<mailto:Tom at TomCares.com>>
Subject: Re: [EL] question for those interested in primary types & law
To: "Election Law" <law-election at uci.edu<mailto:law-election at uci.edu>>
Date: Monday, April 16, 2012, 8:18 PM
Orchids don't have first amendment rights of association. That would be the key distinction.

Republicans are entitled to control who is to be the standard-bearer of their party; in your hypothetical, one would be "the republican candidate" rather than "a candidate who happens to prefer the republican party." How would you defend that as not violating Republicans' rights of association?

On Mon, Apr 16, 2012 at 8:01 PM, Richard Winger <richardwinger at yahoo.com</mc/compose?to=richardwinger at yahoo.com>> wrote:
I don't see why a "voter-nominated system" can't provide that all the voters can't nominate their favorite Republican, their favorite Democrat, their favorite Green, their favorite Libertarian.

The whole phrase "voter-nominated" is a new phrase, without clear definition or roots.

If it were a flower show, why couldn't the judges "nominate" their favorite rose, and their favorite orchid, and their favorite poppy, and send them into the last round of the flower show?

Or a dog show, why couldn't the judges nominate the best poodle, the best terrier, the best hound, and then send those into the final round?

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
--- On Mon, 4/16/12, Scarberry, Mark <Mark.Scarberry at pepperdine.edu</mc/compose?to=Mark.Scarberry at pepperdine.edu>> wrote:

From: Scarberry, Mark <Mark.Scarberry at pepperdine.edu</mc/compose?to=Mark.Scarberry at pepperdine.edu>>

Subject: Re: [EL] question for those interested in primary types & law
To: "law-election at uci.edu</mc/compose?to=law-election at uci.edu>" <law-election at uci.edu</mc/compose?to=law-election at uci.edu>>
Date: Monday, April 16, 2012, 5:58 PM

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<http://mc/compose?to=law-election-bounces@department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<http://mc/compose?to=law-election-bounces@department-lists.uci.edu>] On Behalf Of Lowenstein, Daniel
Sent: Monday, April 16, 2012 5:39 PM
To: richardwinger at yahoo.com<http://mc/compose?to=richardwinger@yahoo.com>; law-election at uci.edu<http://mc/compose?to=law-election@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<http://mc/compose?to=law-election-bounces@department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<http://mc/compose?to=law-election-bounces@department-lists.uci.edu>] On Behalf Of Richard Winger [richardwinger at yahoo.com<http://mc/compose?to=richardwinger@yahoo.com>]
Sent: Monday, April 16, 2012 1:08 PM
To: law-election at uci.edu<http://mc/compose?to=law-election@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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