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SCOTUS Surprises WA Parties

In a decision that took the Washington State Democratic and Republican Parties by surprise, the Supreme Court reversed an Appeals Court decision to uphold a controversial new method for choosing general election candidates. The move rejected party lawyers' arguments that they retain First Amendment rights of association when nominating a candidate. The 7-2 decision upheld a voter-approved top-two primary system wherein the two candidates with the most votes in a primary would advance to the general election, regardless of party affiliation.

The method for choosing candidates, passed by voter initiative after the Supreme Court struck down the previous system, known as the blanket primary, has been tied up in courts since it was passed in 2004. The Court ended the blanket primary, under which a voter could vote for a Republican for governor and a Democrat for Congress in the same primary, as parties argued the process robbed them of control over their own nominating contests.

Under the system, party attorneys argued, David Duke had been allowed to run as a Republican in Louisiana even as the GOP rejected his white supremacist beliefs, and Lyndon LaRouche was allowed to run as a Democrat for president, though party leaders rejected his beliefs as well. It is the domain of the parties, the Court agreed during the blanket primary debate, to control who their nominee is by controlling who votes in their primaries.

Justice Clarence Thomas, writing for five of the seven-member majority, said the voter-approved method was sound, and that it is the domain of the states to control elections. Therefore, the initiative passed muster as the will of the voters. A top-two system, Thomas wrote, would be constitutional because the primary does not actually nominate candidates from a particular party, it simply advances those who have won. Initiative 872 was widely popular, by Washington State standards, garnering almost 60% of the vote in 2004.

Justices Antonin Scalia and Anthony Kennedy dissented, saying the rights of the parties were being infringed. "The electorate's perception of a political party's beliefs is colored by its perception of those who support the party," Scalia wrote for the pair. "[A] party's defining act is the selection of a candidate and advocacy of that candidate's election by conferring upon him the party's endorsement."

That view meshed perfectly with the argument Washington State Republican Party attorney John White told Politics Nation after he spoke before the court. "The ability of a political party to select its message and messengers is really what a political party is all about," White said in October. White had voiced optimism given the reactions from justices, as had a top lawyer for the State Democratic Party.

Chief Justice John Roberts and Justice Sam Alito joined the majority with a concurring opinion, though they helped narrow the scope of the decision. Washington State Democratic Party attorney David McDonald said the ruling maintains that the party keeps the right to bestow its blessings on certain candidates. The ballot voters will actually see will simply list the parties each candidate prefers, instead of adopting a party identifier. "Clearly, they're saying we have a right to nominate our candidates," McDonald said after reading today's opinions. "The existing ballot form [in which candidates are listed along with their party of choice] doesn't work."

McDonald painted that as at least a partial victory for the parties, and said the ruling shows the Court is still skeptical of the state's ability to come up with a ballot design that passes constitutional muster. "Roberts and Alito were skeptical that they could come up with a ballot design," he said. The decision "is actually pretty narrow."

The decision could alter several states' election methods. The Washington State blanket primary was ruled unconstitutional as part of a suit that challenged California's identical system, in California Democratic Party v. Jones, which was argued in 2000. Alaska also lost their primary in the case.

The impact, for California, was minimal: Voters had only been allowed to cast ballots for any primary candidate since 1996. But the Washington State system had been in place since 1935, and the method under which parties have held primaries since the Jones case has stirred voter dissatisfaction with both parties, as they are now required to register by party on the day of the primary.

Now, Washingtonians will again be able to vote for any candidate they choose in the first step of balloting. It will be a rare occurrence in which two members of the same party make it to the general election together, but it's not out of the question: In 1980, now-U.S. Rep. Jim McDermott ousted Democratic Governor Dixie Lee Ray in the primary, then went on to lose the general election to Republican John Spellman. Ray, the second-place finisher in the primary, received 70,000 more votes than Spellman did in the GOP primary.

The "Cajun primary," so-called because it is derived from a system Louisiana still uses, will begin with this year's primary contests, which will happen in August, Secretary of State Sam Reed told the Associated Press. Reed has been an outspoken advocate of the new system, to the chagrin of both his own Republican Party and the opposing Democrats.