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Supreme Court looks likely to end LA blanket primary

I was wondering how long it would take the Louisiana media to get around to noticing that the opening-day case argued by the U.S. Supreme Court concerning Washington state’s blanket primary system might have an impact on Louisiana. It now officially has, nine days later, but didn’t report why the law would be in trouble, or that, from oral argumentation, it appears this will be the last statewide election that operates under the blanket primary system.

It started with a California case decided in 2000 that had permitted a “partisan” blanket primary (the official name scholars give to Louisiana’s system, largely ignored by the state’s media and politicians, is a nonpartisan blanket primary). For decades California had allowed cross-nomination – a candidate could seek nominations from more than one party – but then changed to allow all voters the opportunity to vote in any party’s primary for any office, with winners fro each party advancing to the general election. This is in contrast to an “open” primary system where a voter regardless of affiliation may choose one particular party’s primary in which to participate.

The Court, reaffirming lower court decisions, struck this down, the majority arguing that it infringed on the free association rights of political parties. That is, it prevented parties from disassociating themselves with candidates who in the main could be chosen by non-party affiliates. At the time, the majority made clear the ruling did not impact the open primary, because in having to choose one party’s primary in which to participate the voter was making an affirmation of allegiance, or the nonpartisan blanket primary, since the general election could advance two members of the same party which, in the Court’s words, “This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party's nominee.”

Washington had a similar system, so in response a popular initiative was proposed, and passed by voters, that dispensed with the party nominee aspect and instead would advance the top two vote getters to the general election. It is like Louisiana’s in every way except that Washington did not claim that candidates would run as a representative of a party but instead would indicate a “personal party preference” in an attempt to obviate the claim that they were running in a nomination contest. Lower courts have rejected this wording as cosmetic. In addition, oral argumentation last week in front of the Court appeared to indicate that it was skeptical of the Washington law as well.

Louisiana’s nonpartisan blanket primary now is threatened because, in the most recent case, lower courts are providing a more exact definition of “nonpartisan” which was not really addressed in the Court decision concerning California. To them, the term defines an election such as held in Nebraska where there is no party affiliations listed on the ballots at all (even as candidates publicize their affiliations). If the Court agrees, this means that neither Washington’s nor Louisiana’s systems are “nonpartisan” and thus are in violation of the associational rights of political parties. If it does, then the only way Louisiana could keep its present system is to remove partisan labels from ballots.

Court decisions, even with seemingly-strong evidence from oral arguments, are hard to predict, and this obviously won’t be decided until after state and local elections, and then someone would have to challenge Louisiana’s system. But if the Court goes in the direction it seems to indicate, one huge matter the next Legislature will have to tackle is replacing its blanket primary system.


Steve Rankin said...

I have followed since 2001 the controversy surrounding Washington state's election system.

In 1996, California enacted its partisan blanket primary by popular initiative and first used it in 1998. This put all candidates of all parties on the same primary ballot, and the top vote-getter from each party advanced to the general election. In 2000, the U. S. Supreme Court (SCOTUS) reversed the two lower courts and struck down California's blanket primary.

Washington state had used the partisan blanket primary since 1936 and attempted to keep it. In 2004, however, the federal courts also declared it unconstitutional. In November 2004, Washington voters passed an initiative for a Louisiana-style "top two" system. (All candidates, including independents, run in the same election. The top two vote-getters, regardless of party advance to the runoff.)

Washington's "top two," because of federal litigation, has not been implemented. They have instead used open primaries. (The parties have separate primary ballots, and each voter picks a party on primary day.)

In his majority opinion in the 2000 California case, Justice Scalia called the "top two" a "nonpartisan blanket primary." He said that it is constitutional because "voters are not choosing a party's nominee." (In his dissent, Justice Stevens-- correctly, in my view-- stated that the "top two" is a general election with a runoff.)

The Louisiana/"top two" is a nonpartisan system because the parties have no way of officially nominating candidates, and the general election (the first round) is not limited to one candidate per party. (Each party, of course, may endorse a candidate.)

In my view, when party labels are put on a Louisiana/"top two" ballot, it's mainly for the voters' information. If a candidate has a party preference, he has that preference whether the party likes it or not. Thus, I was surprised on October 1 when the justices showed sympathy for the parties' argument against allowing party labels on the "top two" ballot. If SCOTUS indeed strikes down the "top two" for that reason, there will be a new Washington initiative for a "top two" without party labels. And the voters will again pass it overwhelmingly.

Louisiana, unlike Washington, registers voters by party, and it will be interesting to see how this ruling affects the Bayou State.

All of this (and more) is covered in greater detail here.

~~ Steve Rankin
Jackson, Mississippi

Anonymous said...

Speaking for Washington State, it has been pretty clear from the outset that candidate expressions of "political party preferences" on the ballot, without come corresponding indication of support from the political party, leads to voter confusion, weakens political parties generally, and serves no legitimate state interest.

If the stories coming out of Louisiana are any indication, the whole purpose of the Louisiana system is to direct outcomes toward the consensus candidate, to the detriment of ideological candidate. CDP v Jones is just one of several election law cases that hold that states cannot direct outcomes through seemingly neutral regulations.

Steve Rankin said...

The Louisiana/"top two" weakens political parties because they cannot perform their basic function of officially nominating candidates, and more than one candidate from the same party can be on the general election ballot (the first round). Also, it's possible for mulitiple candidates to split the party vote and prevent that party from having a candidate in the runoff.

Even when party labels are left off a "top two" ballot, the candidates' party preferences are generally well known. Putting those preferences on the ballot makes it easier for voters to get that information. And when a party endorses a candidate, the party publicizes that fact whether party labels are on the ballot or not.

Suppose a voter asks a candidate if he has a party preference, and the candidate replies, "Yes, I do, but I'm not allowed to say what it is." How ridiculous is that?

The Louisiana system (popularly called the "open primary") is an extension of the old one-party (truly no-party) system, in which elections were decided in the Democratic primary, with a Democratic runoff if necessary. It sometimes produces extreme choices, e.g., the 1995 gubernatorial runoff between Mike Foster and Cleo Fields. That was a white conservative Republican versus a black liberal Democrat.

The "top two" without party labels is used in most judicial elections in the U. S. It's also used to elect the great majority of municipal officials in the U. S. Are those elections unconstitutional?

Steve Rankin said...

There is a movement for a Louisiana-style "top two" in Oregon. In 2006, the proponents got a late start and failed to get enough signatures to place the initiative on the ballot. A "top two" measure also failed in the legislature's 2007 session.

Now the advocates are trying to put an initiative on Oregon's November 2008 ballot. There is a court fight over whether its ballot title may include "open primary."

During California's failed 2004 "top two" initiative campaign, a judge prohibited the proponents from calling it an "open primary," since it in reality is a nonpartisan general election with a runoff.