January 21, 2012
Ninth Circuit Rejects As Applied Challenge to Washington Election System
A three-judge panel of the Ninth Circuit this week rejected an as-applied challenge to the two-phase Washington state election system held over from the Supreme Court's ruling in Washington State Grange v. Washington State Republican Party (2008).
Recall that the state's election system under Initiative 872, or I-872, created a "top two" primary in which the primary operates to reduce the number of candidates in the general, rather than to select party nominees. It works like this: Primary candidates can designate any "major or minor party preference, or independent status"; the top two vote-getters in the primary (even if they designated the same party preference) go on to compete in the general.
The Washington State Republican Party challenged I-872 on its face, aguing that it violated its First Amendment associational rights, because it forced it to associate (or share its name) with candidates that it might not endorse. The Supreme Court upheld I-872 against the facial challenge in 2008. But the Court left open the question whether Washington's primary ballots would in fact confuse voters, thus potentially violating associational rights as applied.
The Ninth Circuit answered that question on Thursday. The court noted that Washington adopted each of the four suggestions offered by the Supreme Court in Grange to avoid voter confusion. These included clarifications on the ballots themselves and voter educational material to ensure that voters would not confuse a candidate's preference for a party as a party's endorsement of that candidate. The panel also held that the plaintiffs failed to produce evidence of actual voter confusion. Between the ballot fixes and the lack of evidence of actual voter confusion, the court held that there was no severe burden on the party's associational rights.
The court also rejected the Libertarian Party's ballot access claim. The Libertarians argued that the top-two primary made it much more difficult for their candidates to compete in the general election. The court said that the system provided a level playing field for all parties, and that, while a top-two system may make it more difficult for minor party candidates to move on to the general, "[t]his additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See Cal. Democratic Party v. Jones (2000)." (Citation omitted.)
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