Supreme Court Decides Interesting Facial Challenge Case:
All the hubbub over Heller led many of us to miss today's very interesting First Amendment decision, Washington State Grange v. Washington State Republican Party. The Court voted 7-2 to reverse the Ninth Circuit and uphold Washington's blanket primary system against facial challenge; Justice Thomas wrote the majority opinion and Justice Scalia (joined by Kennedy) dissented. Ed Whelan has analysis over at Bench Memos.
George Weiss (mail) (www):
that has to be the longest syllabus i've ever seen from the scotus
3.19.2008 12:35am
David Schwartz (mail):
Longest syllabus? You've got to be joking. Check out McConnell v. Federal Election Commission.
3.19.2008 12:59am
I'm totally stunned that the majority had seven votes to support that absurd opinion. I'm equally stunned that the Chief Justice seems to admit out of one side of his mouth that there's no way this law will be implemented constitutionally, but out of the other side states that the law can't be struck down because we're not "certain" it will be implemented constitutionally. Of course, once the constitutional violation happens, it's not clear here how there could be any sort of relief that would remedy the constitutional violation. Indeed, under the Court's view, it's not clear to me that if there were one unconstitutional primary, whether a litigant would ever be entitled to meaningful injunctive relief to stop future constitutional violations.

As an aside, it will be interesting that this case will be cited in the statistics stating that the Ninth Circuit is the "most overturned circuit in the country."

I also wonder what this case will mean for Heller, which also deals with a facial challenge.
3.19.2008 1:01am
George Weiss (mail) (www):
hmm another election case.

whats all that we learned about political questions?
3.19.2008 1:04am
Sorry, my second sentence should have said that the Chief admits out of one side of his mouth that there's no way this law will be implemented constitutionally, but out of the other side states that the law can't be struck down because we're not certain it will be implemented UNconstitutionally.
3.19.2008 1:05am
Dave N (mail):
I am wondering if this is one of the "balls and strikes" cases for this term. Certainly not the usual constellation (particularly with Thomas WRITING the majority opinion and Scalia dissenting).

I do think the majority opinion does give some broad hints on how this law can be implemented constitutionally.
3.19.2008 1:08am

I don't follow -- why are you stunned? Is it that you think the constitutional violations are certain?
3.19.2008 1:17am
Dave, yeah, broad hints, which (a) won't be adopted by the legislature and (b) if they are, will be totally ineffective.

Lets see if we can follow the majority's logic. An incredibly racist candidate wants to run for governor and wants to identify himself as a Republican. The Republican party, however, does not want to identify with this Neanderthal, nor does it want anyone to mistakenly believe that this individual is somehow supported by, or represents, the Republican party. Nevertheless, on the primary ballot, voters will see the racist's name next to the word "Republican." But don't fear, the majority assures us, voters won't be confused and think that the racist is a republican because any confused could be dispelled by television ads "educating" voters on the primary process. Those television ads, which will no doubt be seen and understood by every single voter, will explain that even though an individual on a primary ballot will have "Republican" or "Democrat" next to his or her name, that individual is not necessarily a member of the Republican or Democratic party! In other words, even though said racist has the word "Republican party" next to his name, that doesn't mean he is actually a republican. Who could possibly be confused?! (Now, granted, the majority offers other potential ways to clear up the confusion, but none of the ways would eliminate much of the confusion.) If being a judge is simply calling balls and strikes, this one was a wild pitch.

The typical American voter is dumb. How many voters to this day believe that Obama is a muslim? How many believe to this day that McCain "sold out" his country in Vietnam? How many voters in Florida in 2000 couldn't fill out a freaking butterfly ballot?! Christ, how many Texans didn't understand their "two step" primary process this year, despite the fact that they were inundated with commercials explaining the process. Yet, we're supposed to "wait and see" if this absurdly constructed primary process put together by the Washington legislature will result in voter confusion. Gee, I'll be sitting on the edge of my seat waiting to see how this one will turn out.
3.19.2008 1:28am
Bill Poser (mail) (www):
It seems to me that the Court gives short shrift to the Republican Party's freedom of association argument. The whole point of having political parties is that they get to choose which candidates they they will endorse. If party information is going to appear on the ballot at all, it ought to be the name of the party that endorses the candidate. (One could argue, I think, that the most neutral solution is not to list party affiliation at all.) Candidates are perfectly free to inform the voters of what party they wish to associate with just as they are of any other position they hold.
3.19.2008 1:32am

I dunno, skimming over the opinion, it actually seems pretty persuasive to me. But then I'm a judicial restraint guy, so maybe I am being biased.
3.19.2008 1:48am
CrazyTrain (mail):
Ed Whelan does neutral legal analysis?! Who knew? Usually, he is railing against the evul libruls who are going judgify all our 'merican rights away, and telling us how moderates like Justice Ginsburg are on the verge of outlawing the bible, making us all get gay-married, and forcing public schools to replace the pledge &flag with some picture of Lenin and an oath to Marx. . . . OK, an exaggeration, but really only a slight one.
3.19.2008 2:08am
George Weiss (mail) (www):
i dunno if i find the majority persuasive...but Scalia's dissent seems incredibly unpersuasive.

a) the chief justice tried to make the argument that saying you like the republican party has no more effect on the republican party than saying you like Cambell soup. (so its not clear that allowing candidates to self associate on the ballot and then have them

Scalia tried to counter that cambell is a commercial organization, and cambell has limited speech rights under the commercial speech doctrine. I think that kind of misses the point; one should easily be able to substitute a non commercial product in that argument (i like math) for his entire counter-argument to fail. what the heck?

also Justice Scalia seems to rely on the Washington AG's assurance that the ballot will not say whether the party supports or does not support the self associating candidate. Um, is that up to the AG? how on earth do we know without knowing the future decisions (statutory or otherwise) about the election rules? now that the state has seen this decision-it may very well decide print on the ballot a warning that the candidates are not endorsed by their parties.

OTOH-they could also print that warning after decision that went the other way-(striking down the law but hinting that it would be ok with a warning on the ballot) thereby negating the possibility of this coming up again through a direct challenge.
3.19.2008 2:20am
George Weiss (mail) (www):
sorry the chief justices argument was saying you like the republican party has no more effect on the republican party than saying you like cambell soup has on the cambell company
3.19.2008 2:24am
Dave N (mail):
I am not sure I follow the "associational" argument. In most states, ANY person, no matter how much a wingnut, can register as a member of ANY political party that person chooses.

Then if that person decides to run for office, he or she pays a nominal filing fee and appears on the ballot with everyone else who joined that particular party and in a primary election, the one who gets the most votes ends up as the party nominee.

Thus Lyndon LaRouche (or his followers) can register as Democrats and appear on a primary ballot without the Democratic Party having a say about that person's membership or wingnut ideology.

The same is true of David Duke and the Republicans.

When these people win their party nominations, the official organization will do its best to disavow them (resulting, for example, in the Republican Party actually supporting the otherwise reprehensible Edwin Edwards for Governor of Louisiana in 1991).

So, how are "associational rights" different in Washington as opposed to other states?
3.19.2008 2:49am
Bill Poser (mail) (www):
Dave N,

I think you're right, given that the case concerns primaries. I was thinking of the general election, where the situation is different. The associational argument doesn't work for primaries so long as there are no restrictions on who can run in a given party's primary.
3.19.2008 3:21am
Dave N (mail):
By the way, as far as associational rights are concerned, I think Utah (where I lived for a decade) has the best system. Anyone can file for a partisan office (when I lived in Utah, there was no party registration, I do not know if there is now). However, if more than 1 candidate filed, the candidates would have to compete at a state or county political convention depending on the office sought. If a candidate received a certain percentage of the delegate vote (originally 70% a now 60%), the candidate was nominated--otherwise the top two finishers face each other in a primary.

Colorado and Minnesota have similar systems--though I do not know the details of those two states' convention processes. The political aprties in these three states can definitely cite a true associational argument because they are involved in weeding out candidates prior to a primary election.

This is different from most states, however, where, as I described above, anyone can be a member of any party and as a general rule anyone can appear on that party's primary ballot. In those situations, I am wondering what "associational rights" are really implicated, even in Washington.
3.19.2008 3:34am
As far as I can tell, "primaries" is a misnomer here. What Washington has is an "assured runoff" election: no matter what the results of the first round, there will always be a second round (with the two candidates getting the most votes). Thus, this has nothing to do with "primaries" as the word is used in the rest of the US (unless I misunderstood, and candidates can get on the ballot for the second round even if they weren't part of the first round).

Surely running such a two-stage election is constitutional, just like instant runoff voting is constitutional. Surely parties are free to privately hold actual primaries where they would decide which candidate they party will endorse in the first stage?
3.19.2008 3:40am
Asher Steinberg (mail):
Dave N, the problem, as I understand it, isn't really the primary choosing someone the party leadership doesn't like; the problem is that the party (by which I mean its members) doesn't get to choose its own nominee. That's why blanket primaries - in which there are two distinct primaries and voters can vote in both - are unconstitutional. The counterargument here is that the primary isn't choosing parties' nominees; rather, it's just determining which two candidates will move on to the general election. The parties' counterargument to that is that people will think whoever has an (R) next to his name is the Republican nominee. But that depends on how the ballot's laid out.

As for Scalia's dissent, I found it pretty unpersuasive myself, but he does have a point about Roberts's Campbell Soup analogy. It's not that commercial speech is limited, it's that Campbell's isn't an association. There are some legitimate concerns here. Suppose Jeremiah Wright ran for Congress in a district in Washington, and the Republican voters in that district, in an attempt to sully the reputation of the Democratic Party, all went out and voted in this primary for Jeremiah. Now he's on the general election ballot as the sole candidate with a D next to his name. Even if all sorts of disclaimers are placed on the ballot, people will still think of Wright as the Democratic horse in the race and start associating the Democratic party with Wright. You can't compare that to Jeremiah Wright endorsing Campbell's Soup. Or math. Maybe I've sold myself on Scalia's position.
3.19.2008 3:59am
George Weiss (mail) (www):
except that were talking about a reasonable over here (for better or for worse everyone seems to agree with that)..nobody reasonable would believe that wright was the democratic 'nominee' after that.

if wright went on national television and announced he was the inventor of cambell soup-nobody would believe him either
3.19.2008 4:35am
George Weiss (mail) (www):
that's reasonable *voter* here
3.19.2008 4:36am
The reason the majority (and especially Roberts) gets this right is that the current law allows candidates to list which party they prefer, not which party they are a member of. If the ballots are designed in such a way as to make that distinction clear, the law will survive an as-applied challenge. If not, it will not.

I think the real story here is how this opinion will affect the Indiana Voter ID case. Some expected the Court to use these cases to re-frame the test for the constitutionality of voting laws, but they did not do so here, which means the voter ID law is likely to survive.
3.19.2008 7:13am
To find the majority opinion persuasive, you must believe that Washington can do something that will eliminate voter confusion such that it will protect the Republican Party's associational rights. I think Justice Scalia explains fairly persuasively why this will not be the case. What the end result is going to be is that voters will be confused, the Republican party will have their rights violated, and nothing will be able to remedy that constitutional violation. The cat will be out of the bag.

tarheel, do you believe that a ballot can be designed in such a way to clearly explain to voters that someone who runs as a republican is not necessarily supported by the republican party? That doesn't make sense, and I think a lot of people will be confused by that. As I mentioned earlier, think back to how many people were baffled by the butterfly ballot. But you're right, that that is what this case is about.

Orin, at what point can you do you no longer invoke judicial restraint? If I'm a conscientious judge and I want to follow your idea of the judicially constrained judge, when do I find a constitutional violation that I wish to remedy? Should we eliminate facial challenges altogether?
3.19.2008 9:49am

It ain't gonna be easy, I agree. Why WA did not make it truly non-partisan, I don't know. But if a candidate has the right to go around saying he prefers X Party -- and he clearly does, whether the party likes it or not -- the state should get a chance to create a ballot that reflects that without violating the associational rights of political parties. It may well fail, but if the Court is serious about distinguishing as-applied and facial challenges, this seems like a good case to do so.
3.19.2008 10:01am
NaG (mail):
This decision all boils down to a simple question: Does a political party pick its members, or do people pick a political party?

I think, traditionally, that the vast majority of private groups pick their members. However, political parties seem to work differently. An obvious point comes to mind: when you "register" in a state as a member of a political party in order to vote in the primary, is the political party there to ensure that you meet certain qualifications? No. In fact, you sometimes have Democrats registering as Republicans and vice-versa. The parties, by putting the quest for votes over ideological purity, have voluntarily eliminated their own will to exclude.

The upshot of this is that if the parties aren't willing to exclude, then the only way to deal with undesirables is by shunning them from within. You can't ask an outside force to do it for you. And that is what the Court did.
3.19.2008 10:28am
You write that this case provides "broad hints, which (a) won't be adopted by the legislature" and therefore that it's doomed to end badly. This case was at the Supreme Court precisely because Washington implemented an explicit suggestion by the Supreme Court in its dictum from an earlier case. Why would they not do it now, especially since they outlined a procedure during oral argument?
And your argument about confusion holds no water. The Washington Supreme Court just held that, even if voters are stupid, the solution to misleading speech by candidates (i.e. lies) is more (truthful) speech. In response to your hypothetical, curtailing the rights of a free speaker is not how you maintain the free expression of someone else.
3.19.2008 1:00pm
I just have to say, your argument seems to rest on the idea that no election is valid unless the voters are absolutely unconfused. The Constitution doesn't require perfectly-comprehending voters, just like it (apparently) allows plenty of other rights to be "knowingly and intelligently" waived even when a person is not necessarily "knowing and intelligent."
If we're going to have an operative system, we have to assume that reasonably intelligent people can be informed about the issues (e.g. who is the nominee, and who simply expresses a preference), even if they're too lazy to be fully informed.
3.19.2008 1:06pm
Gulf Coast Bandit (mail):
I want to respond to the question you posed to tarheel:
If Washington were to put a statement at the top of both sample ballots and the actual ballot stating something to the effect of, "The X, Y, and Z parties do not endorse any of these candidates; the party designation by the candidates' names shows only with which party the candidate self-identifies," then there should not be an issue with voter confusion. Unless I'm totally misunderstanding the issue, which is always a possibility.
3.19.2008 2:00pm
Bob Goodman (mail) (www):
What was the point of taking a case just to issue an opinion that says they don't have enough facts to decide it? They could've just denied cert. Gotta ask Richard Winger about this one.

NY has procedures in its election law for political parties to disenroll members. One of the reasons the Liberal Party no longer exists was that it was so diligent in disenrollment; they were the only party I heard of that pursued such a policy.
3.19.2008 2:36pm
Dilan Esper (mail) (www):
Roberts has a great takedown of Scalia:

"JUSTICE SCALIA complains that '[i]t is hard to know how to respond' to such mistaken views, post, at 6 (dissenting opinion), but he soldiers on nonetheless."
3.19.2008 8:55pm
The problem with the Campbell Soup analogy is that it dodges the central question.

Stipulate that voters will be confused by the distinction between candidates choosing a party and parties endorsing a candidate.

If the voters' confusion is relevant to the law (i.e. it doesn't matter what the intent of the listed party affiliations are, only what the voters may mistakenly conclude), then this becomes a case of false branding. Under this reading, politicians shouldn't be able to list an affiliation without the party's consent, just as you can't boil up soup in you home and sell it under Campbell's brand without their permission.

If the voters' confusion is irrelevant, either because they are not likely to be confused, or because only the stated intent of the political labeling matters, then the candidates can list whatever party affiliation they like. This is the situation that Roberts alludes to when he offered the Campbells analogy, but in order for it to work, you need to have already concluded that the candidates are merely expressing their own choice of parties, and that voter confusion on this issue does not matter.

In either case, once you decide whether intent or perception is the relevant matter for the court to address, you have already chosen your side.
3.21.2008 5:49am