http://electionlawblog.org/archives/006547.html
Breaking News: Ninth Circuit Strikes Down
Washington's "Top Two" Primary
This
unanimous opinion in Washington State Republican Party v. State
of Washington is a very important one, clarifying the reach of some
dictum in the Supreme Court's 2000 opinion in California
Democratic Party v. Jones.
Jones held that a blanket primary (where all voters could vote for any
party candidate, regardless of the voters' party affiliation) violated
the First Amendment associational rights of political parties that
objected to this form of primary. Jones in dicta held that a
truly nonpartisan primary, with the top two candidates going on to a
run-off, would not violate the parties' First Amendment rights.
In response to Jones (which caused Washington State's blanket primary
to be struck down), voters passed a measure imposing a top two primary,
but allowing candidates to use their party "preferences" on the ballot.
Today the Ninth Circuit held that this form of primary violated that
First Amendment rights of parties under Jones, because the use of the
party label still forced association on parties that did not want it.
I was involved in the drafting of Proposition 62 in California,
which---had it passed---would have imposed a similar system for
California primaries. But there was a crucial difference. Parties that
objected to the use of party labels would have the option of not using
those labels on the ballot. (It would be a global choice---a party
could not give Candidate A, but not Candidate B, the right to use the
party label.) The Ninth Circuit's opinion does not opine on whether or
not such a system would survive a challenge under Jones---a question
the court may eventually face if Washington voters try again with such
a system
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
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