Link to the text of the Supreme Court decision...


March 19, 2008
Written by Fredi Simpson
Chelan County GOP Chair

On October 1st, 2007 I had the honor of sitting in the US Supreme Court.   I was there to support and listen as my two friends and favorite attorneys argued against each other on the constitutionality of the Washington State Top Two Primary. 

I was invited to be in the audience and as such entered the building in a special area for ‘reserved seating’.  Standing with me was former Solicitor General, Ted Olson. 

You may remember Ted.  He was the major attorney for the U S during the Gore v Bush fiasco in Florida.  Ted’s wife was also murdered in the plane that hit the Pentagon on September 11, 2001.  This is a man who’s opinion about the Constitution I trust and he was there to listen to OUR case!   I’m wondering now, after yesterday’s Supreme Court ruling, what he must be thinking?

I have read the ruling and while I’m not an attorney,  I don’t see this ruling as  final. 

In Chief  Justice Roberts ruling he states  “permitting a candidate to identify his political party preference on an official election ballot-regardless of whether the candidate is endorsed by the party or is even a member may effectively force parties to accept candidates they do not want, amounting to forced association in violation of the First Amendment”.    In court, the example given was David Duke, running as a Republican or Linden LaRoache running as a Democrat.  Both political Parties completely distanced themselves from these candidates.  But,  under the current ballot system, the Parties would not be able to do so.

In another part of the ruling Chief Justice Roberts states “if the ballot merely lists the candidate’s preferred parties next to the candidates’ names, or otherwise fails clearly to convey that the parties and the candidates are not necessarily associated, the
 I-872 system would not survive a First Amendment challenge”.

He also states “the course the State has chosen makes sense only as an effort to use its monopoly power over the ballot to undermine the expressive activities of the political parties”.

The confusion seems to be about the content of an  actual ballot.  In court, two proposed ballots were presented, but because the State of Washington has never actually held a Top Two Primary, there were no ‘actual’ ballots to present as evidence.  

Chief Justice Roberts says “it is important to know what the ballot actually says-both about the candidate and about the party’s association with the candidate”, “I would wait to see what the ballot says before deciding whether it is unconstitutional”. Chief Justice Roberts final comments echoed Justice Scalia in his (Scalia) dissenting vote:
“still, I agree with Justice Scalia that the history of the challenged law suggests the State is not particularly interested in devising ballots that meet these constitutional requirements…..but this record simply does not allow us to say with certainty that the election system created by I-872 is unconstitutional”. 

The problem in my mind is not the ballot, but rather the Top Two system itself. 

During the 2002 primary,  Cary Condotta ran against another Republican, Jerry Paine for the position of 12th Leg. District Representative.  Cary won the primary and moved on to the November general election.  Cary, our Republican, ran against Tom Stahl, a Libertarian, and Todd Smith, a Democrat. 

Over 21,000 people voted with almost 7,000 of the votes going to Tom Stahl and Todd Smith.  Had the Top Two Primary been in place then, the November ballot would have had only Cary Condotta and Jerry Paine, since these were the top two in the primary. 
That means, over 1/3 of our voters voices would not have had the opportunity to be heard.  While this system might appeal to some, it does not to me.  I enjoy the dialogue from those who think different than I do.  The debate Smith & Stahl brought to the election was invaluable. 

With the Top Two Primary, there may be times when you will see only two Republicans or two Democrats on the ballot.  The Libertarian, Green, Independent Party candidates would almost never be on the November ballot.   

At some point, voters need to realize the primary is NOT a constitutional right!  The only vote constitutionally guaranteed is the general election.  The primary is a way for political parties to bring to the top of the November ticket…… THEIR BEST Candidate.

So  where  do we go from here?  Several things can happen:  1) The Secretary of State  sends out an ‘actual’ ballot that  would not ‘survive’ a  First Amendment challenge, which takes us back to court. 2) The ‘big bad’ Parties decide to not participate in any primary and only hold nominating conventions/meetings for ALL political positions. 3) Or we try the Top Two Primary and the first time we have only two Republicans (or two Democrats) on the November ballot, we watch the voters scream “ THEIR RIGHTS HAVE BEEN VIOLATED!”    

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