POLICY BRIEF After the Blanket Primary Reforming Washington's Primary Election Sytem By Richard Derham Research Fellow November 2003 P.O. Box 3643, Seattle, WA 98124-3643 888-WPC-9272 www.washingtonpolicy.org
November 2003 After the Blanket Primary: Reforming Washington s Primary Election System By Richard Derham Research Fellow Summary The federal courts have struck down Washington s blanket primary election system. In the coming session, the state legislature must enact a new primary system, one that is consistent with the First Amendment right of the state s political parties to choose their candidates for elected office. If the legislature does not recognize their right to choose their own candidates, the state Democratic and Republican parties have indicated they will not participate in a primary election, and will instead choose their candidates at party conventions. This Policy Brief reviews the recent court case, analyzes the options open to policymakers, and reviews how Washington s major political parties are choosing to exercise their constitutional rights now that the court has ended the blanket primary. I. Introduction It is always best to start with first principles. In a free society, the state is directed by political doctrine, not the other way around. 1 1 California Democratic Party v Jones, 530 US 567, 147 L. Ed 2d 502, 519 (2000) (Kennedy, J., concurring). Washington Policy Center 1
Thus, the purpose of elections in a democracy is to allow citizens to choose the philosophy that will direct their government. And political parties are groups of citizens who voluntarily band together to advocate their philosophies. Vibrant political parties form the essential infrastructure of democracy. In September, the Ninth Circuit Court ruled that Washington s blanket primary violates the constitutional rights of Washington citizens. That decision eliminates a longstanding obstacle to effective party functioning in Washington. Political leaders are now moving to bring Washington s primaries in line with that of most other states. II. Parties are about Political Ideas not Cocktails and Canapés When California sought to impose its blanket primary on the political associations (parties) in the state, the law was immediately challenged by major and minor parties alike seeking to defend their right to determine their own membership and to advance candidates true to their philosophy. 2 Although the Ninth Circuit Court of Appeals sided with California, the last word was spoken by the U.S. Supreme Court in 2000 when it held that a blanket primary was unconstitutional because it forces political parties: to associate with -- to have their nominees, and hence their positions, determined by -- those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival. 3 When the decision invalidating the California blanket primary was announced, the Democratic Party of Washington promptly sued to apply it to Washington s virtually identical primary system, and the Republican and Libertarian Parties joined in the suit. Washington s Secretary of State, through the Attorney General, stipulated that the Washington system was unconstitutional and agreed with the political parties that it would not be used for any election after January 1, 2001. 4 Despite having acknowledged that the blanket primary violated the constitutional rights of Washington citizens, the State reversed its position after the 2000 general election and vigorously argued that Washington s blanket primary was not the same as California s because Washington voters do not register by party. 5 2 For the history of the California case and an analysis of the decision see Beyond the Blanket Primary, by Richard Derham, Washington Policy Center Policy Brief, December 2000, at www.washingtonpolicy.org. 3 147 L Ed 2d at 511. 4 Order on Motion of Democratic Party for Preliminary Injunction, in Washington State Democratic Party v Reed, July 20, 2000. 5 One consequence of this reversal of positions is that Washington State is now exposed to claims for attorney fees from the ultimately prevailing parties, fees that are said to be approaching one million dollars (and still climbing as the state pursues further appeals). While attorney fees would normally be awarded in a case where the constitutional rights of citizens are violated, the court s 2000 stipulation supports the claim that after that year the state was willfully violating the rights of its citizens. Washington Policy Center 2
The trial judge ruled in favor of the State. On appeal the Ninth Circuit reversed that decision and ordered entry of a Summary Judgment in favor of the political parties, holding that the Washington primary system is materially indistinguishable from California s. 6 The court continued: [T]hose who actively participate in partisan activities, including activities such as holding precinct caucuses in their homes, serving on local and state party committees, contributing money to their parties, have a First Amendment right to further their party s program for what they see as good governance. Their right to freely associate for this purpose is thwarted because the Washington statutory scheme prevents those voters who share their affiliation from selecting their party s nominees. The right of people adhering to a political party to freely associate is not limited to getting together for cocktails and canapés. Party adherents are entitled to associate to choose their party s nominees for public office. 7 [emphasis added] The Ninth Circuit could not have put it more plainly: Put simply, the blanket primary prevents a party from picking its nominees. 8 And that, the court concluded, is unconstitutional. As Washington s decision makers proceed to implement the results of this case, one principle comes through clearly: the members of political parties have the constitutional right to determine the process by which their views will be advanced in the election the process by which their spokesmen and candidates for office will be selected. Anything less would be unconstitutional. 6 Democratic Party of Washington v Reed, 343 F3rd (9th Cir, 2003) slip opinion at 13656. 7 Id at 13757. 8 Ibid. Washington Policy Center 3
Who Decides: The Parties or the Legislature? Over the years, legislatures in many states have presumed to answer the question: Who decides what form primary elections shall take? Time after time, though, the courts have ruled that political parties must be allowed to choose their own candidates. Closed Primary. The Wisconsin legislature determined that primaries should be open. The Democratic Party wanted a closed primary. The U.S. Supreme Court sided with the party. 9 Open Primary. The Connecticut legislature decided that primaries should be closed. The state s Republican Party wanted an open primary. The U.S. Supreme Court sided with the party. 10 Nomination by Petition. The Massachusetts legislature decided that any candidate should be able to run in a party s primary if he filed a nominating petition signed by a requisite number of that party s registered voters. The Democratic Party wanted to limit its primaries only to candidates who received 15% of the vote at a party convention. The Supreme Judicial Court of Massachusetts sided with the party. 11 Blanket Primary. The voters in California by initiative adopted a blanket primary. The Democratic, Republican, Libertarian and Peace and Freedom parties wanted closed primaries. The U.S. Supreme Court sided with the parties. 12 Thus, in a consistent series of decisions over a quarter of a century, the free speech and associational rights of members of political parties to determine how they choose their spokesmen and candidates have prevailed over efforts by legislatures to restrict those freedoms. 9 Democratic Party of the United States v Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981). 10 Tashjian v Republican Party of Connecticut, 479 U.S. 208 (1986). 11 Opinion of the Justices to the Governor, 385 Mass. 1201, 434 N.E. 2d 960 (1982). 12 California Democratic Party v Jones, 530 U.S. 567, (2000). Washington Policy Center 4
III. What Have The Parties Chosen? Political parties have two considerations as they determine how to select their spokesmen and nominees: Who gets to seek to represent their party? (Who may run?) Who gets to participate in the selection process? (Who may vote?) A. Who May Run? It is settled law that a political party has a right to exclude a candidate from seeking election under its name. In other words, a party has a right not to associate with someone. When the notorious segregationist David Duke sought to run for President as a Republican in 1992, the Georgia Republican Party excluded his name from the primary ballot. Duke s lawsuit challenging the Georgia Party reached the Eleventh Circuit. The court rejected his claim, saying: The Republican Party has a First Amendment right to freedom of association and an attendant right to identify those who constitute the party based on political beliefs. 13 Nor could the right of Duke or voters seeking to vote for him supersede the Republican Party s right not to be associated with him. 14 The Supreme Judicial Court of Massachusetts was equally clear that a political party could bar any candidate not getting the percentage of support its rules required at its state convention. It held that legislation overriding these party rules, would substantially infringe the right of freedom of association of the Democratic party and its members. 15 B. Who May Vote? Across the nation political parties have chosen a variety of methods to determine who may vote to choose their candidates. 16 In 28 states, at least one party nominates candidates using a closed primary in which only adherents of that party (either by formal party registration or by declaration of party affiliation at the polls) may vote in the primary. In 20 states, parties nominate by open primaries, in which a voter may vote in the primary of either party. Louisiana s nonparty primary will be discussed below. 13 Duke v Massey, 87 F 3rd 1226, 1234 (11th Cir, 1996). 14 Ibid. 15 Opinion of the Justices to the Governor, 385 Mass. 1201 1205, 434 N.E. 2d 960 (1982). 16 See Beyond the Blanket Primary, by Richard Derham, Washington Policy Center Policy Brief, December 2000, at www.washingtonpolicy.org. Washington Policy Center 5
C. The Party Decisions Washington s political parties have adopted rules placing them in the mainstream of the nation s parties. 1. Democrats Choose Closed Primary With Verification. The Democratic Party of Washington is governed by a Party Charter adopted by its state convention. The Charter provides that Democratic nominees and delegates should be selected by Democrats and defines Democrats as all residents of the State of Washington who are willing to support the principles and goals of the Democratic Party as expressed in the Charter and wish to be known as Democrats. 17 Implementing these provisions, the Democratic Party has said it seeks a primary open only to voters who declare themselves to be Democrats and who are willing to sign-in at the polls so that their eligibility can be verified. 18 Detailed rules are in the process of being drafted and are expected to be considered for adoption in January 2004. That the party is entitled to the list of voters in its primary has been challenged by those who argue for a private choice model, in which voters select a party ballot of their choice, but no record of the choice of ballot is maintained. In fact, the Washington State Grange, in its arguments in support of Washington s blanket primary urged that the issue of voter privacy was a compelling state interest that provided constitutional justification for maintaining the blanket primary, notwithstanding the decision in the California case. The Ninth Circuit has resolved this debate. The court ruled that private choice may not be forced upon a political party. Noting that Washington State has already expressly required the State to provide a political party with the names of people who voted in that party s presidential primary, the court rejected the Grange s contention that there is a constitutional compelling state interest that would override the right of the party to know who has voted in its primary. 19 2. Republicans Choose Open Primary and Eligibility Criteria. The Republican Party rules allow both Republicans and unaffiliated voters to vote in Republican primaries. 20 Although the Party opens its primary to non-republican voters, it maintains control over who will carry its message by setting eligibility requirements for candidates seeking to represent the Republican Party on the ballot. In 17 Charter of the Democratic Party of the State of Washington (as amended, 1994), Article IB and Article VII C3. 18 Testimony of Paul Berendt, Chairman of the Democratic State Central Committee, before the House Select Committee on Elections, Washington Legislature, Olympia, Washington, January 30, 2001. 19 Democratic Party v Reed, 343 F 3rd (9th Cir, 2003) slip opinion at 13660. 20 Rules for the Nomination of Republican Candidates, Republican State Committee of Washington, adopted June 2001. The operation of the rules was suspended pending the outcome of Democratic Party v Reed. Washington Policy Center 6
order to be eligible for the Republican ballot, candidates must demonstrate significant Republican support by either obtaining the support of 25% of the delegates at a Republican convention or obtaining the signatures of Republicans equal to 5% of those votes received by the last Republican to run for the position. Similar eligibility requirements are used in many states and have been discussed in detail in a prior Policy Brief. 21 The party rules provide that the petitions will be validated by public election officials or, if these officials choose not to do so, by the party itself. Without party registration and the validation of petitions by election authorities, the nominating petition alternative may prove unsatisfactory to everyone. Candidates who have not received the requisite 25% at a party convention may be reluctant to trust signature validation to the party. The party may be unhappy in diverting substantial volunteer activity to signature validation for a candidate it does not want on the ballot. One may expect the operation of the rule to be reviewed -- and possibly revised or eliminated -- after the party has one round of experience in dealing with it. D. What If The Parties Don t Agree? There is no constitutional requirement that the parties, exercising their independent rights, adopt identical systems for choosing candidates. In Maryland and West Virginia, for example, the Democratic Party primary is open only to registered Democrats, while independents are allowed to vote in the Republican Primary. 22 In Alaska, some parties have chosen to be listed on a joint ballot, while others require a separate ballot listing only their candidates. 23 Nor do the parties need to follow the same procedures from year to year. 24 The state may, of course, regulate the conduct of primary elections as to time, place and manner. The legislature could even withdraw from conducting party primaries altogether and leave the nomination of candidates to internal party procedures the practice followed by virtually every democracy in the world today, except the United States. 21 See Beyond the Blanket Primary, by Richard Derham, pages 7-9. 22 Party Affiliation in Primary Voting, 2000, compiled by the Federal Election Commission, at www.fec.gov/votregis/primary/voting.htm. 23 Joint Primary Ballot OK d by Judge, Anchorage Daily News, October 8, 2003. 24 Memo: Jeffrey Even, Assistant Attorney General to Christine Gregoire, Attorney General of Washington, Jan 5, 2001, citing Tashjian v Republican Party of Connecticut, 479 U.S. 208 (1986). Washington Policy Center 7
IV. The Cajun or French Alternative Systems A. How the Alternative Systems Work. The Washington legislature may consider alternative primary election systems. Many commentators have focused on the unique arrangements in Louisiana, known as the Cajun system. 25 Sometimes called the Jungle Primary, it is in fact not a party primary at all, but a nonpartisan holdover from Louisiana s heritage as a one-party state. In the Louisiana system, all candidates appear on a single ballot, much as was the case in Washington s blanket primary. The difference, however, is that in Washington s primary, the top Republican and the top Democrat advanced to the general election, along with any third party candidates who had qualified. Thus, the voters were assured of choices between the two major competing philosophies of government. In Louisiana, the top two candidates advance to the general election, regardless of party. Thus, voter choice in the general election may be limited to two candidates representing the Republican point of view, or two representing the Democratic point of view. In a one-party state, the system was designed to assure that there were two viable candidates in the general election. The French system, while different on its face, may prove identical in practice. In France, elections are conducted in a two-stage process. All parties designate their slate of candidates, determined in accordance with their internal rules. No primaries are involved. Then, all party nominees appear on the first ballot. If no candidate receives a majority, the top two vote-getters proceed to the final, run-off election several weeks later. Should Washington s parties all exercise their option to nominate by convention, the operation of the Cajun and French systems would be identical in practice. B. Constitutional Limitations on the Cajun system. Proponents of the Cajun election rely on language from Justice Antonin Scalia s opinion in the California primary case. Because of its centrality to the debate, it is worth reviewing precisely what Justice Scalia said and to see it in its proper context. California had asserted many state interests to justify its use of the blanket primary, including creating greater voter choice, increasing voter participation, and protecting voter privacy. The Court concluded that none of those reasons could overcome the First Amendment rights of political parties. However, Justice Scalia noted: Respondents could [adopt] a nonpartisan blanket primary. Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot which may include nomination by established parties and voter-petition requirements for independent candidates. 25 For a full discussion of the Cajun primary, see The Cajun Primary: Unintended Consequences of Political Reform, Policy Notes 01-10, Washington Policy Center, May 2001, at www.washingtonpolicy.org. Washington Policy Center 8
Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party s nominee. 26 [emphasis added] Clearly, nothing in Justice Scalia s discussion of the nonpartisan primary detracts from the court s holding that political parties may determine their membership and choose their own spokesmen/candidates to represent the party s ideas to voters. But if, as Justice Scalia noted, the nonpartisan primary does not choose the party s nominee, how are those nominees selected? Perhaps, a party may decline to choose its nominees, as Louisiana s parties have thus far done, and agree to a Cajun-style primary. Or a political party may adopt its own system most likely a party convention to select the candidate who will carry the message of the party into the election. A candidate not selected by a party, or who does not choose to seek party nomination, could qualify as an independent candidate and appear on the ballot without a party label. C. What will Washington s Parties do? Washington s party leaders are unlikely to agree to a Cajun primary. All of them remember the 1980 governor s race in which Republican John Spellman, who was ultimately elected, trailed Democrats Jim McDermott and Dixie Lee Ray in the primary election. The Republican voice would have been silenced under a Cajun style election, because Democrats McDermott and Ray were the top two vote-getters in the primary, guaranteeing the election of a Democrat. Democrats would face the same problem when, under a Cajun system, the two top vote-getters are Republicans. No political party, charged with the responsibility of presenting its candidates to the voters in the general election, can accept the risk that its voice will be silenced because of a vigorous party primary. For the Republican Party, the choice has already been made. Party leaders have expressed a preference for an open primary, but have said that, without a primary election that complies with party rules, Republican candidates will be chosen at a party convention. The Democratic Party will probably adopt a similar process. V. Conclusion The courts have ruled on the blanket primary and the political parties have made their choices. It is now up to the state legislature to determine whether continuing a primary process is in the public interest or whether the state should withdraw from the running of party primaries and leave the nominating process to separate party conventions. 26 California Democratic Party v Jones, 530 US at 585. Washington Policy Center 9
About the Author Richard Derham is a graduate of Harvard College and Columbia Law School. He practiced law for thirty years in the Seattle office of Davis Wright Tremaine where his practice included election law matters. He also served for three years in the Reagan Administration as Assistant Administrator of the Agency for International Development. Most recently he served four years as President of the Washington Policy Center. Mr. Derham is the author of the studies, Beyond the Blanket Primary, Washington s Parties Nominate Their Candidates, and Reforming Washington s Primary Elections, Six Proposals in a Nutshell. He was the chairman of the committee that drafted the Republican Party Nominating Rules. Published by Washington Policy Center Chairman President Vice President for Research Communications Director Janet True Daniel Mead Smith Paul Guppy Carl Gipson If you have any comments or questions about this study, please contact us: Washington Policy Center P.O. Box 3643 Seattle, WA 98124-3643 Visit our website at www.washingtonpolicy.org E-mail: wpc@washingtonpolicy.org Phone: (888) WPC-9272 Fax: (888) 943-9797 Washington Policy Center 10