WASHINGTON — Supreme Court justices on Monday sharply critiqued Washington state's primary election system, with several suggesting that it violates political parties' First Amendment rights.
Washington allows primary candidates to identify which parties they prefer, even if they aren't the parties' official nominees. In a case watched by political professionals nationwide, justices wondered Monday whether Washington is infringing on protected rights of free association.
"We know the candidates can associate themselves with a party, but the party can't disassociate themselves from the candidate," Justice Antonin Scalia said. "That, it seems to me, is a great disservice to the party."
The opening case of the court's 2007-08 term returned justices to a dispute previously addressed in 2000. Then, under different leadership, the court by 7-2 struck down California's so-called blanket primary, which allowed voters to choose candidates regardless of political affiliation.
California's system violated parties' rights to choose which individuals and ideas they associate with, the court concluded. Washington voters responded in 2004 with Initiative 872, under which candidates identify their party "preference," and the top two primary vote-getters advance to the general election.
"There is no evidence in the record that the parties will be harmed," Washington state Attorney General Robert M. McKenna argued, adding that "this is not an 'association' in the constitutional sense. It is an expression of preference."
McKenna said there was an "immense difference" between Washington's primary system and the one in California struck down earlier by the court. He seemed to have the sympathies of Justice John Paul Stevens, one of two dissenters in the earlier California case.
While Supreme Court questions don't necessarily foreshadow how decisions go, McKenna appeared to face tougher going than did John J. White, the attorney for the Washington State Republican Party.
While Scalia conveyed his sentiments more directly than his colleagues did, several others joined in pressing McKenna during the hour-long oral argument.
Justice David Souter, for instance, said voters "in the real world" probably would believe that candidates who said they "prefer" one party were members of that party.
Justice Anthony Kennedy, the crucial swing vote in many cases, added that parties might end up embarrassed by candidates who sought to identify themselves with the parties for their own purposes.
"There is evidence from other states that people who preach racial hatred try to associate themselves with a particular party," Kennedy said, in an apparent reference to Louisiana politician David Duke.
Chief Justice John G. Roberts likened the Washington state election dispute to a "trademark case," in which the state is allowing candidates to exploit the names of political parties.
"I don't know why you would give greater protection to makers of commercial products than to people in the political process," Roberts said.
The First Amendment doesn't explicitly enumerate a right of association, but it's long been recognized in court decisions. The right includes "the freedom to join together in furtherance of common political beliefs . . . and to limit the association to those people only," the court noted in the 2000 California case.
The political parties that oppose Washington's election system contend that it isn't meaningfully different from what the court struck down in California.
"The state (still) allows any candidate to appropriate the party name and to compete against the party's candidate," White said.
Reflecting the stakes, the California Democratic Party and the Democratic National Committee filed briefs opposing Washington state's primary system. Louisiana filed its own amicus brief, as the ability of other states to redesign their systems will be shaped by what the court decides on the consolidated cases known as Washington v. Washington State Republican Party and Washington State Grange v. Washington State Republican Party.
The court will rule before next June.
To read the transcript of the oral arguments go to: