Key election cases on Supreme Court docket

McClatchy NewspapersSeptember 28, 2007 

WASHINGTON — The Supreme Court digs into political bedrock this year with cases that will shape how candidates are chosen and how voters cast ballots.

Three disputes concerning campaigns and elections already are on the court's docket, and more of the same could be on the way.

On Monday, the court takes up a challenge to Washington state's primary elections. Two days later, it considers New York state's system for selecting judges. Soon, the justices will hear a challenge to Indiana's requirement that voters present photo identification.

"The intricacies of nominations will be on their minds," said Paul Smith, a Washington, D.C., lawyer who has considerable experience in arguing before the court.

The grunt work starts at 10 a.m. Monday, pitting Washington state's political parties against the state's government and most of its voters.

In 2004, Washington state voters approved a new way of selecting candidates by 60 percent to 40 percent: the top two vote-getters in a primary advance to the general election.

The ballot measure, called Initiative 872, allows primary candidates to specify which political parties they "prefer," even if they aren't party members. Consequently, the two candidates in a general election could come from the same party.

"The initiative advances the right of qualified voters to cast their votes effectively by providing broad access to the primary ballot, and by allowing voters to participate in the primary election without regard to their political persuasion," Washington state Attorney General Robert M. McKenna declared.

Opponents complain that the real result is to dilute the meaning of political parties. They liken it to a similar primary system in Washington state and California that courts struck down a few years ago.

"Political parties have the First Amendment rights to define the scope of their political association, select their standard bearers for the general election and exclude outsiders from that process," the Washington state Republican Party declared in a legal filing.

Despite their names, the combined cases Washington v. Washington State Republican Party and Washington State Grange v. Washington State Republican Party cross party lines. The state's Libertarian Party and the Washington State Democratic Central Committee have joined Republicans in challenging the primary system.

The California Democratic Party weighed in with an amicus brief supporting its Washington state counterparts, as did the Democratic National Committee.

"The state's asserted interest in providing easy ballot access for candidates and in informing voters do not justify burdening the Republican Party with messengers and messages the party does not want," Republican attorney John J. White Jr. argued.

The political parties recall what happened under the kind of blanket primary system that was struck down, in which primary voters were given ballots from both major parties. One survey found that barely one-third of Washington voters confined themselves to candidates from a single party under the old blanket primary system.

In California, likewise, 37 percent of Republican voters said in 1997 that they intended to vote in the Democratic gubernatorial primary. This cross-over voting contributed to what White called "the adulteration of political party message."

The Supreme Court struck down California's blanket primary by 7-2 in 2000 as an infringement on First Amendment rights of free association. An appellate court subsequently ended Washington state's blanket primary, as well, but state officials reasoned that they could resurrect it in another form so long as it was billed as nonpartisan.

"It does not nominate party candidates," McKenna argued in a legal filing. "Rather, (it) is a procedure for winnowing candidates for public office to a final list of two."

The New York judicial-selection system is a narrower case. Critics are challenging the state's complicated system for letting party leaders control judicial nominees through conventions, established some 80 years ago during the heyday of Tammany Hall, the Democratic Party political machine that largely controlled New York City politics in the 19th and early 20th centuries.

"What happens is the party leader picks his friends," said Smith, a lawyer with Jenner & Block.

The challenge to Indiana's photo-identification requirement for voters could have much broader sweep, depending on what the court does. Seven states, including Florida and Georgia require, or request voters to present photo IDs, and 18 states — including Kentucky, Missouri, Alaska, Texas and Washington — require non-photo identification. Proponents say the ID requirement deters fraud. Skeptics see other motives.

"Let's not beat around the bush," Judge Terence Evans of the 7th U.S. Circuit Court of Appeals declared in a dissenting opinion. "The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic."

ON THE WEB

See state-by-state voter identification requirements.

McClatchy Newspapers 2007

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