State Dem Party Chair on the Supreme Court Decision

[eridani]

Statement on the Supreme Court Decision
From Dwight Pelz, Chair, Washington State Democratic Party

March 20, 2008

On March 18, 2008 the United State Supreme Court issued an opinion reversing the summary judgment of the United States District Court in Seattle which had held that I-872 was unconstitutional on its face. The Supreme Court opinion does not hold that I-872 is constitutional. Rather it holds that until the State actually implements the top two primary and provides a ballot design for use under the initiative the question of constitutionality cannot be determined. That is, the Initiative is still vulnerable to “as applied” challenges.

Five of the Supreme Court Justices indicated in their opinion that if the implementation of I-872 creates a risk of widespread voter confusion about whether candidates stating a Democratic preference are in fact the Democratic nominees then the Initiative would be subject to strict scrutiny and thus would almost certainly be unconstitutional. Two of the other Supreme Court Justices indicated that I-872 would be subject to strict scrutiny unless the State implements I-872 in such a manner that “no reasonable person” could be confused about whether a person stating a Democratic preference is a member of, approved by or a candidate of the Democratic Party. The remaining two Justices simply stated flat out that it was impossible to implement I-872 in a constitutional manner.

The Supreme Court also reaffirmed our right to nominate our candidates by whatever process we choose since I-872 removed the requirement that we nominate candidates in a public primary. The Court confirmed, however, that under I-872 there will be no designation on the ballot as to which candidate is our nominee; only an indication as to which party a candidate personally prefers. It remains to be seen whether the form of that preference statement will cause confusion when actually used on ballots. That is one of the “as applied” issues still to be decided by the courts.

Our challenge to the Initiative is still pending in Court. In its 2005 opinion the District Court in Seattle expressly reserved for further proceedings any “as applied” challenges related to the actual implementation of the Initiative.

Because the State no longer requires us to select our candidates in an unconstitutional blanket primary and has indicated that it will not conduct in 2008 the “Montana” style primary that has been in use for the past three years, party organizations should plan on nominating candidates pursuant to the rules adopted by the Washington State Democratic Central Committee in April 2005. These rules generally provide that PCOs will vote on nominations at meetings held prior to May 23, 2008. The nominating process is separate from the current process of selecting delegates for the state and national conventions.

[eridani]

1. Also, some comments from Bryan Kesterson, Chair of the 47th LD Dems

I have spent some time reading the court decision on the primary and I want to share some thoughts. The actual decision is much different than what is in the media. I would like to preface this by acknowledging that I am not a lawyer, and this is just a common sense read of the document. I have included a link to the ruling at the bottom of this message, and I recommend you read it as well.

The constitutionality of the top two primary

The press has been reporting that the Supreme Court has ruled in favor of the top two primary. That's not precisely what the ruling says. What it says is that there is insufficient cause to rule it unconstitutional on its face. The argument basically is that the court puts a very high bar in overruling a law implemented by public vote. In order to be ruled unconstitutional without ever being tried, the court must be convinced that there is no possible way to implement the law within legal bounds. The majority of the court was not convinced. They left open the possibility that if the party could prove adverse impact in the future, further action could be taken.

Ballot design

A key point in over ruling the lower court was ballot design. The lower court had ruled that a top two primary was unconstitutional in part because they saw no way to eliminate voter confusion on the ballot and that voters would assume that "D" or "DEM" on the ballot meant that the candidate was affiliated with the party, not just that s/he had expressed a preference for that party. The Supreme Court ruled that they could conceive of such means, and would not rule the law unconstitutional in advance of seeing how it would be implemented on a ballot. They offer the example of designating a candidate as "prefers Democrat" joined with a public education campaign could be sufficient to eliminate confusion. However, buried in a footnote is that this ruling only addresses the issue of first amendment rights of free association and it does not address so called "trademark" issues of brand ownership. Two glaring issues are therefore left unaddressed. First, the party could sue over the use of the name "Democrat" on the primary ballot. Second, what does it mean if someone who indicates that they prefer the Democratic Party moves on to the general election? Would they then be listed as a Democrat, and would the party have the right to control affiliation with the candidates on the general election ballot? It is also worthy of note that the state is under no obligation to indicate which candidate is the party's nominee on the ballot.

The meaning of a primary

For some time I have felt that the reason the public sees primary's different than the party is a misunderstanding. The public sees it simply as the narrowing of choices, a question of ballot access. The parties (and the law) have seen it as choosing the party standard bearer. The winner of the primary is the nominee of the party and entitled to the backing and resources of the party. The primary did not control ballot access because a candidate could always file as an independent. This decision explicitly breaks this link. The top two primary is seen as legal specifically because it does not choose the party's standard bearer. The party is free to hold its own nominating process, but that is irrelevant to the primary. I believe that the public will be surprised, and probably disappointed, in what it gets. The parties must now decide how to choose their standard bearer, what it means to be the party standard bearer, and what it means not to be. The parties can, and probably will, hold their own nominating process. They will certainly support their candidate during the primary. What happens if the party nominee looses to another candidate listed as "prefers Democrat"? The ruling makes it clear that the party has no responsibility to support the winner but I think that the public has a presumption that the volunteer labor we perform and the money we donate will automatically go to the winner of the primary. Also, as stated above, it is not clear that they gain the right to be listed as a "Democrat" on the general election ballot.

Party discipline

A key issue here will be party discipline. If we can prevent Democratic challengers to the Democratic nominee from filing for the primary, none of this matters. But how does the party deal with candidates who loose the nomination process but choose to file as ""prefers Democrat" anyway. Take as an example the 2005 race for King County Council district 9. Recall that I-872 was passed in 2004 and would have been implemented in the 2005 King County Council primary's but for a court order. Both parties held nominating conventions prior to the court ruling and then choose to accept the results of the pick-a-party primary after the ruling. Both Regan Dunn and Steve Hammond were running for Republican nomination for the 9th district seat. Both agreed in advance to abide by the decision of the nominating convention. However, when Hammond won the nomination at the convention, Dunn decided to renege on his agreement and filed for the primary as a Republican while the court case was still pending. Recall also that while Hammond had the support of the rank and file, Dunn had the support of many people in the party who knew his mother. Both men had substantial constituencies in their party, and Dunn went on the win the primary. What if that happened this year? What pressure could the party bring to bear to force the looser of the nominating convention to withdraw his or her name and clear the field for the nominee? Would the party do so? If not, would that set a precedent for future contests where a challenger did not have support within the party? How will the party deal with its own members if they choose to support a challenger to the party's nominee?

A practical note
Recall that in 2005 the delegates to nominating conventions were the elected and appointed PCOs. While no decision has been made at this time, it is possible that this same arrangement will be made this year. I would recommend that we use this in recruiting PCOs at our LD caucuses.


Thanks for your time in reading this. Please share it with others as you see appropriate. I entreat you to respond because I think communication within the party will be critical. This issue will be discussed in party meetings, but written communication also has a role in allowing us to explore issues and solutions.

Bryan Kesterson,
Chair, 47th LD Democrats
Chair, 8th CD Democrats
22955 130th PL SE,
Kent, WA 98031
Home: 253-639-3515
Cell: 206-304-2701
bryan.kesterson {at} yahoo.com

Read the full decision at:

http://www.supremecourtus.gov/opinions/07pdf/06-713.pdf