Washblog

The Supreme Court and Primary: It doesn't mean what you think it means

[Front Paged: NM]

If you listened to the papers, you would believe that the Supreme Court ruled the top two primary constitutional, and it will be just like the old open primary. Neither is true. In this post I take a common sense view of what the ruling means and its practical application.

I have spent some time reading the court decision on the primary and I want to share some thoughts. The actual decision is much different than what is in the media. I would like to preface this by acknowledging that I am not a lawyer, and this is just a common sense read of the document. I have included a link to the ruling at the bottom of the post, and I recommend you read it as well.

The constitutionality of the top two primary
The press has been reporting that the Supreme Court has ruled in favor of the top two primary. That's not precisely what the ruling says. What it says is that there is insufficient cause to rule it unconstitutional on it's face. The argument basically is that the court puts a very high bar in overruling a law implemented by public vote. In order to be ruled unconstitutional without ever being tried, the court must be convinced that there is no possible way to implement the law within legal bounds. The majority of the court was not convinced. They left open the possibility that if the party could prove adverse impact in the future, further action could be taken.

Ballot design
A key point in over ruling the lower court was ballot design. The lower court had ruled that a top two primary was unconstitutional in part because they saw no way to eliminate voter confusion on the ballot and that voters would assume that "D" or "DEM" on the ballot meant that the candidate was affiliated with the party, not just that s/he had expressed a preference for that party. The Supreme Court ruled that they could conceive of such means, and would not rule the law unconstitutional in advance of seeing how it would be implemented on a ballot. They offer the example of designating a candidate as "prefers Democrat" joined with a public education campaign could be sufficient to eliminate confusion. However, buried in a footnote is that this ruling only addresses the issue of first amendment rights of free association and it does not address so called "trademark" issues of brand ownership. Two glaring issues are therefore left unaddressed. First, the party could sue over the use of the name "Democrat" on the primary ballot. Second, what does it mean if someone who indicates that they prefer the Democratic Party moves on to the general election? Would they then be listed as a Democrat, and would the party have the right to control affiliation with the candidates on the general election ballot? It is also worthy of note that the state is under no obligation to indicate which candidate is the party's nominee on the ballot.

The meaning of a primary
For some time I have felt that the reason the public sees primary's different than the party is a misunderstanding. The public sees it simply as the narrowing of choices, a question of ballot access. The parties (and the law) have seen it as choosing the party standard bearer. The winner of the primary is the nominee of the party and entitled to the backing and resources of the party. The primary did not control ballot access because a candidate could always file as an independent. This decision explicitly breaks this link. The top two primary is seen as legal specifically because it does not choose the party's standard bearer. The party is free to hold its own nominating process, but that is irrelevant to the primary. I believe that the public will be surprised, and probably disappointed, in what it gets. The parties must now decide how to choose their standard bearer, what it means to be the party standard bearer, and what it means not to be. The parties can hold their own nominating process. The Dwight Pelz, Party Chair, has already announced that the Democratic Party will hold nominating conventions. The parties will certainly support their candidate during the primary. What happens if the party nominee looses to another candidate listed as "prefers Democrat"? The ruling makes it clear that the party has no responsibility to support the winner but I think that the public has a presumption that the volunteer labor we perform and the money we donate will automatically go to the winner of the primary. Also, as stated above, it is not clear that they gain the right to be listed as a "Democrat" on the general election ballot.

Party discipline
A key issue here will be party discipline. If we can prevent Democratic challengers to the Democratic nominee from filing for the primary, none of this matters. But how does the party deal with candidates who loose the nomination process but choose to file as ""prefers Democrat" anyway. Take as an example the 2005 race for King County Council district 9. Recall that I-872 was passed in 2004 and would have been implemented in the 2005 King County Council primary's but for a court order. Both parties held nominating conventions prior to the court ruling and then choose to accept the results of the pick-a-party primary after the ruling. Both Regan Dunn and Steve Hammond were running for Republican nomination for the 9th district seat. Both agreed in advance to abide by the decision of the nominating convention. However, when Hammond won the nomination at the convention, Dunn decided to renege on his agreement and filed for the primary as a Republican while the court case was still pending. Recall also that while Hammond had the support of the rank and file, Dunn had the support of many people in the party who knew his mother. Both men had substantial constituencies in their party, and Dunn went on the win the primary. What if that happened this year? What pressure could the party bring to bear to force the looser of the nominating convention to withdraw his or her name and clear the field for the nominee? Would the party do so? If not, would that set a precedent for future contests where a challenger did not have support within the party? How will the party deal with its own members if they choose to support a challenger to the party's nominee?

A practical note
The announcement from Dwight Pelz makes it clear that the delegates to the nominating conventions will be Precinct Committee Officers (PCOs). If your are not a PCO, please consider becoming one. If you are in the party, use the LD caucus as a recruiting forum and let people know why it is more important than ever before.

Read the full decision at:

supremecourtus.gov

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... strike 872 supporters as unintended.

(2) Before long, candidates will list themselves as "Prefers Blondes", "Prefers Partial Shade", "Prefers  Linux", etc.

by RonK Seattle on Thu Mar 20, 2008 at 03:28:09 PM PST

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  this year. The rules to cover Top Two were adopted in 2005 "just in case" and there is not sufficent time (or a meeting of the WSDCC) to change them now for this cycle.
  I'm not sure there is even time to organize and hold the required nominating conventions before the filing period the last week of June.

Dave Gibney Pullman

by gibney on Thu Mar 20, 2008 at 05:29:24 PM PST

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  • Specifically: by gibney, 03/20/2008 10:21:43 PM PST (none / 0)
    • Thanks by Bryan Kesterson, 03/21/2008 06:26:19 AM PST (none / 0)
The voters of Washington have said, in pretty clear terms, that they expect the primary to be a winnowing tool, rather than a method of choosing a party standard-bearer.

In most cases, this will make little difference, although in a few cases, the person chosen by party leadership may lose to someone who "prefers Democratic".

So what?  If, with the resources of the Washington State Democratic Party, a candidate cannot even get into the top two, then we're better served by putting our resources into some other race.

Or, perhaps the party leadership should re-think the choice of candidate.  It's our party, and we can figure out a way to endorse the primary winner, should we decide to do so.

Certainly, we, as a party, should be able to decide who gets to use party symbols and endorsements.

But I don't have any problem with the idea that the voters should pick who they want to represent them on the ballot or in the legislature.

Political parties are an important part of our system of government, but they are not in themselves the government.  They are simply a way that like-minded people can gather to effectively support candidates and issues.  That is the basis of the "freedom of association" argument.

As long as we remember that, we won't have any problem with the new system.

by jbarelli on Fri Mar 21, 2008 at 11:24:47 PM PST

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I more or less agree with your facts and immediate observations. I'm not so sure I'm on board with (whether I agree or disagree with is different) some of your longer-term extrapolations and strategic concerns.

I've been down there, I walked a precinct in Covington with Betty. ;-) I've been to at least one non-Party event with Noemie. You know I am not entirely comfortable with the relationship between the Party and campaigns being so cozy that the Party lets the campaigns drive for the most part. I'm not sure you're entirely on board with your own conclusions... any more than as a critic of the Party, almost anything I say in defense of the Party opens me at least to accusations of being a Party apologist.

I think there's a lot of temporizing and selective memory going on at the moment. There are immediate reasons for that, top two being resolutions submitted at the caucuses to abolish the caucuses and populist nature of the Obama campaign. These two factors lead to a lot of internal discomfort within the Party especially given that it would like to convert a lot of these people who showed up into Party members (or at least meat on the off for the campaigns).

Party leaders resigned over the Party's decision to seek to overturn the old primary. That's been downplayed and deflected by blaming it on The Grange, but it's coming home to roost. The Democratic Party hasn't yet come public with its complicity with the Republican Party in this lawsuit: in fact "complicity" isn't strong enough, it was an out-and-out partnership... sure, that doesn't make it a secret... but is it reported on any Party web site? My impression is that mention of this facet is pretty minimal, in fact the only reference I remember recently was one here on Washblog rhetorically asking whether Sam Reed is a Republican or not, and a lot of people probably have no clue what I'm talking about.

I attended a King County nominating convention in 2005, and the sky certainly didn't fall in... in fact people didn't care.

Parties are a special kind of political club/action committee which anyone can join... provided you can get a few of your immediate neighbors to vote for you: what PCO isn't going to pay attention to their neighbors, their constituency, if they start getting heat? You think I wouldn't hold a public ballot in my neighborhood if anybody wanted it? You think that if this interest took the form of blowback, and there was any appreciable counter pressure from above not to hold a public ballot to provide me with direction as the elected delegate, that I wouldn't tell those folks higher up "screw you, I'm the PCO"? In the 36th, as in many other LDs, we already amend our bylaws so that ordinary members can vote to the maximum extend permitted by State law.

It was great to see all of those people interested. Where were they in 2006? I asked them that. "What do you mean, we have to elect delegates? We voted!" "What do you mean, you're going to give our delegates to Clinton if we can't elect them? That doesn't sound fair!" It wasn't quite that baldly put in the ornery '1295, but do those tropes feel as familiar to you as they nonetheless did to me?

Political parties are a special club, with a special place under the law. They're not created or maintained by people sitting in their undershorts at the kitchen table scratching themselves and carefully considering the issues (the "Underpants Party"? hrmmm... instead of a schmooze break, the scratch yourself break? hrmmm...) Who chooses the delegates, when you vote at the kitchen table?

Shouldn't the people who have some say be the people who are invested enough to take time off of work and risk the public scorn, ridicule and embarrassment and at the same time respect of their neighbors who are doing the same? (As me that tonight while I'm standing at Greenlake holding a candle.) (Should the Party be as willing to subsidize delegate's expenses as they are to shuck and jive for campaigns? Should campaigns be willing to foot the bill for delegates pledged to their candidates? Things to consider.)

The major Parties have gotten off easy and there are a lot of people now who want the Easy button. One of the major things they want from the Easy button is not having to deal with blowback. It doesn't make your job or my job any easier, but I think there is a kind of winnowing of those in the Parties which is propelled by the Supremes' decision in this case.

In spite of it all, my neighbors don't want to replace me as PCO. I offered to resign at my caucus, so that someone else could take over before the coming election, so that they'd have the opportunity to know the current crop of potential leadership prior to having to vote on them as their first act of office... "but we like you as PCO!". Crap, so much for that January in Mexico I was hoping for next year!

Where exactly does this notion that "the public" (who asked them?) is going to be disappointed when they find out that the Party is going to choose its nominee come from? We already do it: we endorse candidates.

What happens now when someone loses in the primary and then runs as an independent in the general election. What, exactly, happened with Joe Lieberman and the Party when he did this?

Well we have a long road of pain to walk down before that kind of hypocrisy is squeezed out of the system. We'd better get started.

Where exactly did the notion that "the public" is going to be disappointed come from? One place it may come from is still trying to deflect the truth:

My neighbors tell they want publicly financed elections. If as a result of this they also tell me they want to do away with the primary entirely and go to ranked choice voting and proportional representation, I'll be right there supporting them.

If that results in more choices of Parties, that's more for me to choose from, too... in case this Party decides it wants to keep the "lost left" after all.

Oh the pain! Where's that Easy button?

by m3047 on Mon Mar 24, 2008 at 04:26:37 PM PST

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...is how major party voters will react when they are faced with no representative of their party in the general--which may well happen in legislative races on both sides of the mountains.

and an additional question: will either party defend the system that allows two rs or two ds to be the only ballot choices--and will either, or both, promptly attack the same system, in the name of "disenfranchisment"?

by fake consultant on Tue Mar 25, 2008 at 03:15:33 PM PST

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soundpolitics
I don't post there and rarely read, it was pointed out to me. Some of (much) is surprisingly rational.

Dave Gibney Pullman

by gibney on Thu Mar 27, 2008 at 07:43:46 PM PST

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thank you very much

--
منتديات دليل مواقع منتدى قريش منتدى صور الكون شبكة اسلاميه العاب مركز تحميل
اداره مواضيع المميزه تعارف اهدائات ترحيب تعارف خدمة الاعضاء الرئيسيه مواضيع اسلاميه مواضيع عامه نقاش حوار السياحه السفر الاخباريه جريمه اثاره الرياضه سيارات دراجات ناريه الاسره المجتمع شباب العربي ابناء ادم عالم حواء بنات حواء عالم الطفل الطفل الطب الصحه مطبخ الزواج الحياه الزوجيه ديكور اثاث منزلي اشغال يدويه الابداعات الشعريه الابداعات الادبيه همس القوافي شعر عذب الكلام خواطر قصص روايات ترفيهيه العاب مسابقات نكت ضحك فرفشه افلام انمي افلام كرتون المكتبه الصوتيه المكتبه السمعيه الابداع التصوير الفوتغرافي فوتشوب فلاش سويتش صور صور ورده تصاميم الاعضاء ابداعات الاعضاء تقنيه الالكترونيه الاتصالات كمبيوتر برامج كمبيوتر برامج ماسنجر ماسنجر هوتميل ماسنجر ياهو جوال موبايل برامج جوال ارشيف مواضيع مكرره مواضيع محذوفه

by shooooq on Thu Jul 10, 2008 at 04:20:06 PM PST

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