Redstate

When Is It Unconstitutional?

By Dan McLaughlin Posted in Justice Scalia | Law | Supreme Court — Comments (5) / Email this page » / Leave a comment »

Yesterday's Supreme Court decision in Washington State Grange v. Washington State Republican Party is interesting on a couple of levels. Coupled with the Court's January decision in the case involving New York's system for nominating candidates to run for judicial elections, the Court seems to be signalling pretty clearly that it's not eager to get into overturning state primary election procedures - a signal the national Democrats are hopefully receiving, not that there's been any move just yet for the loser to follow the Al Gore plan.

Anyway, the short summary is that the Court ruled 7-2 to uphold a state open election system that allowed candidates from all parties to run in an initial election with their chosen party listed, without having been nominated by the party, followed by a runoff for the top two candidates; the major parties challenged the constitutionality of this procedure under a 2000 decision invalidating California's "blanket primary" under the First Amendment's right to freedom of association. The crux of the Washington case was whether the parties have a right to prevent candidates who have not been nominated by the party from using the party label on a ballot open to the general public.

Justice Thomas, writing for the Court, said no:

The flaw in this argument is that, unlike the California primary, the I-872 primary does not, by its terms, choose parties’ nominees. The essence of nomination - the choice of a party representative - does not occur under I-872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. ...

[R]espondents' assertion that voters will misinterpret the party-preference designation is sheer speculation. It "depends upon the belief that voters can be 'misled' by party labels. But '[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.'"... There is simply no basis to presume that a well-informed electorate will interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee or representative or that the party associates with or approves of the candidate.... This strikes us as especially true here, given that it was the voters of Washington themselves, rather than their elected representatives, who enacted I-872.

(Citations omitted). Chief Justice Roberts, joined by Justice Alito, concurred but stressed a point touched on by the majority: that the issue of voter confusion really could not be assessed without examining the ballot, which has not been designed yet:

Voter perceptions matter, and if voters do not actually believe the parties and the candidates are tied together, it is hard to see how the parties' associational rights are adversely implicated. ...After all, individuals frequently claim to favor this or that political party; these preferences, without more, do not create an unconstitutional forced association.

...[T]here is no general right to stop an individual from saying, "I prefer this party," even if the party would rather he not. Normally, the party protects its message in such a case through responsive speech of its own.

Justice Scalia, joined by Justice Kennedy, dissented, arguing that the parties have to have greater control over their own message, including their membership, alluding even to the hot issues of the day:

The views of the self-identified party supporter color perception of the party's message, and that self-identification on the ballot, with no space for party repudiation or party identification of its own candidate, impairs the party’s advocacy of its standard bearer. ...

...[T]hrusting an unwelcome, self-proclaimed association upon the party on the election ballot itself is amply destructive of the party’s associational rights. An individual's endorsement of a party shapes the voter's view of what the party stands for, no less than the party's endorsement of an individual shapes the voter’s view of what the individual stands for. That is why party nominees are often asked (and regularly agree) to repudiate the support of persons regarded as racial extremists.

Not only is the party’s message distorted, but its goodwill is hijacked. There can be no dispute that candidate acquisition of party labels on Washington’s ballot - even if billed as self-identification - is a means of garnering the support of those who trust and agree with the party. The "I prefer the D's" and "I prefer the R's" will not be on the ballot for esthetic reasons; they are designed to link candidates to unwilling parties (or at least parties who are unable to express their revulsion) and to encourage voters to cast their ballots based in part on the trust they place in the party’s name and the party’s philosophy.

...Is it enough to say on the ballot that a notorious and despised racist who says that the party is his choice does not speak with the party’s approval? Surely not. His unrebutted association of that party with his views distorts the image of the party nonetheless.

...It is no mystery what is going on here. There is no state interest behind this law except the Washington Legislature's dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates. That was the purpose of the Washington system that this enactment was adopted to replace - a system indistinguishable from the one we invalidated in Jones, which required parties to allow nonmembers to join in the selection of the candidates shown as their nominees on the election ballot.... And it is the obvious purpose of Washington legislation enacted after this law, which requires political parties to repeat a candidate's self-declared party "preference" in electioneering communications concerning the candidate - even if the purpose of the communication is to criticize the candidate and to disavow any connection between him and the party.

It's a close case; Justice Scalia, as usual, has the firmest grasp of political theory and practice on the Court, although that doesn't necessarily mean that what is politically bad is also constitutionally bad; I think I would be inclined to side with the majority's view that as long as the ballot itself is not actively deceptive, the party's ability to engage in pre-election speech should be able to cure the possibility of a David Duke, a Lyndon LaRouche or an Al Sharpton hijacking its reputation and good name.