The Corporate Law Group

Open Primary OK

The Supremes final score was 7 to 2 in a case involving Washington State’s open or blanket primary system. The two controlling political parties challenged a Washington state initiative that allowed those with the top two primary vote totals to enter the general election in November. The law would allow two persons from the same party to end up in the November election and also allowed anybody to run in any primary designating themselves as any political affiliation they wanted. No primary has yet been held under the new law because injunctions were granted early on. The law was challenged on grounds that it violated a political party’s members’ freedom of association. The District court granted the parties’ motion for summary judgment and the Ninth Circuit affirmed (in part,. we suspect, to move the case along to whence it belonged). But the Supremes reversed. Justice Thomas, noting the disfavor of facial versus actual challenges, and writing for the majority, said, “[i]f the ballot is designed in such a manner that no reasonable voter would believe that the candidates listed there are nominees or members of, or otherwise associated with, the parties that candidate claimed to ‘prefer,’ the … primary system would likely pass constitutional muster.” Scalia and Kennedy dissented, opining that Washington’s system allowed the preempting of the political parties’ trademarks, so-to-speak, at the most crucial stage of the election. We say, “Go for it.” Anything that shakes up those who are entrenched in government and gives people a broader choice is only a bad thing, if they don’t choose you. Why should the dems and pubs assume they each get a candidate in the general election, when others might get more votes?
Paul Marotta

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