By Gene Barton

U.S. District Court Judge Thomas Zilly ruled on July 15 that Washington’s Initiative 872, which established a new “top two” blanket primary system, was an unconstitutional infringement on the Democrat and Republican parties’ right to free association under the First Amendment. But you knew that. What you might not know is why Judge Zilly ruled as he did.

Judge Zilly’s decision is grounded in two cases: California Democratic Party v. Jones, 530 U.S. 567 (2000), in which the Supreme Court ruled California’s blanket primary to be unconstitutional, and Reed v. Democratic Party of Washington, 343 F.3d 1193 (9th Cir. 2003), in which the Ninth Circuit followed suit and declared Washington’s blanket primary to be unconstitutional. The latter decision led to the campaign that placed I-872 on the ballot.

In Jones, the Supreme Court held that “a corollary of the right to associate is the right not to associate” and that “when States regulate parties’ internal processes, they must act within the limits imposed by the Constitution.”1 The Jones Court further held that “[i]n no area is the political association’s right to exclude more important than in the process of selecting its nominee” and, according to Judge Zilly, “concluded that the ability of a political party to select its ‘own candidate,’ or ‘nominee,’ unquestionably implicates associational freedom.”2

Similarly, in Reed, the Ninth Circuit held that Washington’s blanket primary denied “party adherents the opportunity to nominate their party’s candidate free of the risk of being swamped by voters whose preference is for the other party.”3 As such, the blanket primary “prevents a party from picking its nominees” and was “on its face an unconstitutional burden on the rights of free association.”4

The Parties United

The Republicans and the Democrats -- oddly united in a common cause for once -- argued that under Jones and Reed the “top two” primary system instituted under I-872 took away their parties’ respective rights to nominate candidates of their choosing. There were several aspects of the I-872 system with which the parties took issue. But their primary concerns --sorry --were twofold: 1) the “top two” system allows candidates who may not actually be affiliated with a party to designate a party affiliation and appear as a candidate for that party; and 2) it allows voters of any party to vote for any candidate in violation of Reed. The parties argued that this was the type of “forced association,” i.e., “forcing a party to associate with a candidate other than (one) selected by the party,” prohibited by the First Amendment. Judge Zilly agreed.

As Judge Zilly noted, the “case presents a classic conflict between the rights of the voters to establish by initiative a new system for conducting primaries and general elections for partisan offices, and the rights of political parties to control the nomination of partisan candidates for elective office and to protect their rights of association.” In the end, I-872 simply did not stand up under First Amendment scrutiny.

In light of the parties’ “facial challenge” to I-872, Judge Zilly subjected the initiative’s alleged restrictions on free association to strict scrutiny, under which it would be found unconstitutional unless the State could affirmatively demonstrate that it is narrowly tailored to advance a compelling state interest. In this respect, the State placed all its eggs in one basket. The State (a term used loosely because there were other defendants) limited its arguments to an assertion that I-872 did not “impose a burden on core First Amendment rights” and did not argue that it was narrowly tailored. Quoting Jones, Judge Zilly held: “The Court concludes as a matter of law that Initiative 872 ‘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.’”

Primary Cannot Nominate

In effect, Judge Zilly found that the “top two” system was a means of nominating candidates, thus allowing voters to usurp the parties’ right to nominate the candidates of their choosing. He found I-872 little different in this respect from the blanket primary system struck down in Reed. “Under Jones,” Judge Zilly ruled, “primary voters may not choose a party nominee.” Rather, “[p]olitical parties are entitled to First Amendment protections for any process which chooses the party’s nominee.”5

The position advocated by the State transforms the party’s right to “nominate” into a right to endorse. . . . To relegate members of a political party to a role of mere support for their preferred “standard bearer,” would deny a party its role in selecting its representative. Party members’ associational right to choose the “standard bearer” of the party cannot be so infringed, nor can the ability to nominate a party’s chosen candidate be so easily disposed of.6

With respect to the parties’ two principal grounds, Judge Zilly agreed that I-872 “burdens the rights of the political parties to choose their own nominee by compelling the parties to accept any candidate who declares a preference for the party, and allowing unaffiliated voters to participate in the selection of the party’s candidate.”7 Because “the right to nominate is a constitutionally protected right of association” and “parties cannot be forced to associate on a ballot with unwanted party adherents,” Judge Zilly found I-872 unconstitutional where it gives parties “no choice with respect to whether such public association is made.”8

Initiative 872 imposes a severe burden on the Plaintiffs’ First Amendment right to associate on two separate grounds: (1) (it) forces political parties to have their nominees chosen by voters who have refused to affiliate with the party and may have affiliated with a rival; and (2) (it) forces the parties to associate with any candidate who expresses a party “preference.”

Judge Zilly’s decision returns Washington to the “Montana-style” “open” primary, approved by the Legislature in 2004. (Gov. Gary Locke vetoed the “top two” approach that also was included in the legislation.) Under the Montana system, which was used in the fall 2004 elections, voters are not required to register with a party, but can choose only among the candidates of a single major party. Minor party candidates do not appear on the primary ballot under this system. Eleven states conduct such open primaries. n

1 530 U.S. at 573, 574.

2 Citing 530 U.S. at 575--76.

3 343 F.3d at 1204.

4 Id. at 1204, 1207.

5 Slip Op. at 18, 20.

6 Id. at 21.

7 Id. at 25.