To Associate Freely
[ED: Good in-depth coverage/analysis & readers' comments. PCOs will be getting lots of questions about this. NM]
In 1935, Washington Voters approved a ballot measure that formed Blanket Primary elections.
Initiated by the Washington State Grange, the Blanket Primary was a system where partisan candidates self-identified their affiliation when filing for office. This could be done in lieu of any participation with political organizations that met the legal definition of "major party".
In 1935, Washington Voters approved a ballot measure that formed Blanket Primary elections.
Initiated by the Washington State Grange, the Blanket Primary was a system where partisan candidates self-identified their affiliation when filing for office. This could be done in lieu of any participation with political organizations that met the legal definition of "major party". The top vote getter within the group of candidates sharing the same party designation would advance to the general election. (Third party and independent candidates participated in private nominating conventions where qualifying candidates would appear on general election ballots.)
California voters passed a similar Blanket Primary in the 1990's. The United States Supreme Court declared the system unconstitutional on free association grounds. As a result, Washington's longstanding Blanket Primary failed in Federal Court.
In early 2004, with all appeals exhausted, the Washington State Legislature finally acted on a primary election. The new system featured exclusive major party ballots. Voters can only choose between the candidates of a respective party. This is the same system used in Montana. (Thus the name "Montana Primary")
Washington voters, used to wide open choices, rejected this system in November 2004 by approving I-872, another Grange sponsored initiative. Like the Blanket Primary, I-872 provided for self-identification by candidates. It differed from the 1935 effort by only advancing the top two vote getters regardless of party affiliation.
The Washington Democrats, Republicans and Libertarians sued and I-872 was declared unconstitutional on grounds that self-identification violated free association.
The dialog over primary elections finds itself in familiar territory - Federal Court.
The conflict is based on two notions.
On one side, the Democrats, Republicans and Libertarians, intend to preserve the right of free association in regards to their respective political organizations.
On the other side, the State of Washington along with the Washington State Grange, seek to provide more choices for voters in primary elections.
The line has been drawn in this battle among the establishment. Both sides make important arguments. However, as the following perspective offers, we need not choose between the two in the pursuit of moving our democracy forward.
The political parties are saying that I-872 (Top Two Primary) rains on their parade as private political organizations.
The core of their legal argument is Hurley et al. v. Irish-American Gay, Lesbian & Bisexual Group of Boston.
The case is about the South Boston Allied War Veterans Council refusing to allow a gay group to march in their parade. The gay group cried foul and sued.
Ultimately, the US Supreme Court held that to require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey violates the First Amendment.
Forced association not only infringes on liberty - it could do real harm. Organizers of Seattle's annual Gay Pride parade knew this when they denied NAMBLA, the North American Man Boy Love Association to march in their event. And of course, the Irish American gay group could have freely invited the Allied War Veterans Council to march in their own parade - or not.
The State and the Washington Grange interpret the party designation on a ballot as merely a preference of the candidate and in no way binding to a particular political organization.
On the morning of February 6th, 2006 both sides faced a panel of judges in the 9th Circuit Court in Seattle, Washington.
The Court asked Jim Ferris, council representing The State, a hypothetical question, "Can an extremist candidate like David Duke get on the ballot with a `G' for Grange after their name?" Ferris affirmed The State's position that ballot designation is a candidate's preference and a respective organization could "get their name out".
When John White, council for the Republicans took the stand, he stated that under CALIFORNIA DEMOCRATIC PARTY V. JONES, a candidate cannot force association upon a political party.
In writing the majority opinion invalidating the Blanket Primary, Justice Scalia said,
"Proposition 198 forces political parties to associate with -- to have their nominees, and hence their positions, determined by -- those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival,"
I couldn't imagine a Grange meeting that would allow anybody to walk in off vote on our matters of business. Grangers take an oath and pay yearly dues. Voting on Grange matters is a privilege of its members. The Grange is officially a non-partisan organization that does not run or even endorse candidates for office. And why should the Grange, or any organization, go to the trouble and expense of advertising that a candidate is hi-jacking their name? Such an imbroglio could confuse many voters at the expense of the good name of an organization.
As part of the same ruling stated above, Justice Scalia perfectly encapsulates the essence of associating with a political party,
"In no area is the political association's right to exclude more important than in the process of selecting its nominee. That process often determines the party's positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party's ambassador to the general electorate in winning it over to the party's views."
When invalidating I-872 on free association grounds, Judge Thomas Zilly re-installed the Montana primary system. In doing so, he effectively sidelined the rank-and-file membership of each party - just as I-872 did!
"The right of people adhering to a political party to freely associate is not limited to getting together for cocktails and canapés," -- wrote Judge Andrew J. Kleinfeld when invalidating Washington's Blanket Primary on the grounds of the US Supreme Court decision on Jones.
But it's indeed cocktails, canapés, (and I should add), pancake breakfasts and potlucks where the party faithful are relegated as their candidates are nominated through a publicly financed and administered effort.
In Washington State, as in Montana, it's not active party members who choose their respective nominees. Exclusive public primary ballots do. Ballots featuring a closed roster of candidates for each major party are presented to all voters. The voter can only choose one ballot or party section.
With the September 2004 "Montana" primary ballot, the voter needed only to search for the two or three contested races among the 14 or so offices up for election, to pick their preferred candidate. This overwhelming lack of choices was a clear exercise in futility and, in November of 2004, nearly 60% of voters threw it out by approving I-872.
It's feared that given the power, party activists would nominate fringe candidates who are out of touch with mainstream voters.
In a competitive democracy, party activists nominate candidates to their own benefit or peril. In the end, it's up to voters to decide who gets elected.
My experience with nominating conventions is hardly the so-called "smoked filled back room" of political lore.
In 2004, I attended the Washington State Democrat Party presidential caucuses. That year there were no publicly funded presidential primaries. I went to my local precinct caucus and interacted with my Democrat neighbors. These were reasonable folks, sincere in their intention to participate in the democratic process. John Kerry won the largest proportion of delegates from our local caucus. He went on to win the state and almost the presidency.
I've also participated in nominating conventions as a Precinct Committee Officer (PCO). In 2005, PCO's from around my legislative district twice converged to nominate a candidate for a recently vacated State House seat. We nominated Dean Takko who went on to win in a special election.
Both of these nominees well reflected the mainstream values of the region and state.
THE PARTY IS OVER
The parties are rightfully defending their free association rights. Yet voters don't see it this way. They see the challenge of I-872 as a power grab by the incumbent major parties. Voters are very weary of the status quo and identify the existing political duopoly as part of the problem.
This tension cannot last.
The US Supreme Court has set the stage for the next phase of Washington's democracy in crisis. Let's look to Jones again. Justice Scalia said a non-partisan Blanket Primary, " ... has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party's nominee."
It's in these words where we find the potential for the Grange to bring back the choices of the Blanket Primary. The solution is simply removing party designation from the ballot.
I-872 enjoyed a large margin of victory. The Top-Two Primary, resurrected in non-partisan form, can easily win again - if only because the incumbent parties insist on forcing the unpopular "Montana Primary" on voters.
Removing designation sounds easy but its no meager cosmetic fix. It has the potential to decrease participation within an already dysfunctional system. Too many voters cannot even name their own state legislators. The respective "R", "D", minor party initial or "I" for independent, next to a candidates name is an important informational resource.
Without party designation on ballots, political organizations would still be free to promote their candidates for election. Rank-and-file members could still organize around predetermined principals. But those principals will not even merit the value of party designation on a ballot.
In filing its amicus brief in the I-872 appeal, Fairvote - the Center for Voting & Democracy laid out a blueprint to move Washington's elections forward.
Among other issues, the brief seeks to utilize privately funded political nominations, while at the same time, present voters with the wide-open choices of the late Blanket Primary.
The brief proposes Ranked Choice Voting (RCV). The key feature is the Instant Runoff (IRV) method of tabulation. If no candidate wins a majority of first rankings, the candidate with the fewest first rankings is eliminated. Voters who ranked this candidate now have their vote counted for their second choice, and all ballots are recounted in an "instant runoff." If a candidate reaches a majority, she or he wins. If not, the process repeats until a candidate wins a majority of votes.
RCV efficiently incorporates the winnowing function of a primary into a single general election.
All candidates would have their affiliation, or lack of, designated on the ballot.
With RCV, major parties could nominate multiple candidates for the ballot. By offering multiple candidates, a party can attract a wider swath of potential supporters. Disbursement issues are negated because party members, along with the voters at large who adhere to the values of that party, could rank those nominees as respective first and second or even third choices.
At the same time, voters inclined towards independent or minor party candidates would pick from the larger mixed pool.
The popular dynamic of the Blanket Primary is voters could jump around from different parties in each respective race. RCV not only preserves this, it is enhanced as voters could freely rank multiple candidates regardless of party affiliation - in the same race!
Thus we find the reconciliation of the conflict fought among our states' established political forces - ranking candidates works by giving voters more choices and information while protecting the right of free association.
BOTTOM UP DEMOCRACY
The grassroots of the major parties are weak. Their abdication only makes more room for initiative peddlers, media, political consultants and the special interests that fund the whole enterprise.
The solution is more participation based in the notion of people coming together for the common good. The party rank-and-file can and need to resolve the current crisis by holding precinct nominating conventions and endorsing Ranked Choice Voting. The alternative is continued irrelevance.
Currently, registered voters receive partisan ballots regardless of whether they even care to participate in the primary. Yet as taxpayers, they still pay for them! We need a decentralized system of private nomination where participation is voluntary.
The Fairvote brief offers many features that merit serious consideration. It proposes, under established law, to,
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