Washington State Grange v. Washington State Republican Party, et al.
128 S. Ct. 1184 (2008)
Rule of Law:
A state's primary election system that allows candidates to self-designate a "party preference" on the ballot, without the party's consent, does not on its face violate a political party's First Amendment associational rights, because arguments about potential voter confusion are too speculative to invalidate a law before it has been implemented.
Facts:
- For most of the 20th century, Washington used a blanket primary system where voters could select a candidate from any party, with the top vote-getter from each party advancing as that party's nominee.
- After the U.S. Supreme Court struck down a nearly identical California primary in 'California Democratic Party v. Jones', Washington's system was also invalidated.
- In 2004, Washington voters responded by passing Initiative 872 (I-872), creating a new primary system.
- Under I-872, candidates for office declare their "major or minor party preference, or independent status" on the ballot.
- Political parties cannot prevent any candidate, even one they find repugnant, from listing a preference for their party.
- Voters may select any candidate listed on the primary ballot, regardless of party preference.
- The two candidates who receive the highest and second-highest vote totals advance to the general election, regardless of their party preferences, meaning two candidates with the same party preference could face each other.
Procedural Posture:
- The Washington State Republican Party, later joined by other political parties, filed suit against state officials in the U.S. District Court for the Western District of Washington, bringing a facial challenge to Initiative 872.
- The Washington State Grange intervened as a defendant to defend the initiative.
- The District Court granted summary judgment for the political parties, holding that I-872 was unconstitutional, and issued a permanent injunction against its implementation.
- The State of Washington and the Grange, as appellants, appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit affirmed the trial court's ruling, agreeing that the law placed a severe burden on the parties' associational rights.
- The U.S. Supreme Court granted certiorari to review the Ninth Circuit's decision.
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Issue:
Does Washington's primary election system, which allows candidates to designate a "party preference" on the ballot and sends the top two vote-getters to the general election regardless of party, facially violate a political party's First Amendment right of association?
Opinions:
Majority - Justice Thomas
No, Washington's primary system does not facially violate a political party's First Amendment right of association. Unlike the primary struck down in 'Jones', this system does not choose a party's nominee; it simply winnows the field of candidates to the top two. The core of the respondents' argument—that voters will be confused into thinking a candidate with a party preference is the party's chosen nominee—is speculative and insufficient to sustain a facial challenge. A law cannot be invalidated based on a mere possibility of confusion, especially when the state could implement it in a constitutional manner, for example, by using disclaimers on the ballot. Since the law has never been implemented, there is no evidentiary record to assess these claims, which must wait for an as-applied challenge.
Dissenting - Justice Scalia
Yes, Washington's primary system facially violates a political party's First Amendment right of association. The state-printed ballot is a unique and crucial instrument in the electoral process, not a public forum. By allowing any candidate to claim a party preference on the ballot while preventing the party from repudiating that association in the same space, the state allows the party's message to be distorted and its goodwill to be hijacked. This is not merely a failure to assist political parties; it is an active impairment of their ability to define their own message and endorse their chosen standard-bearer. The harm is inherent in the law's structure and constitutes a severe burden on associational rights that is not justified by a compelling state interest.
Concurring - Chief Justice Roberts
No, the law does not facially violate the First Amendment, but the challenge is premature. Whether a forced association occurs depends on voter perception, which is shaped by the design of the ballot itself. If the ballot is designed so that no reasonable voter would believe the candidate is the party's nominee or is otherwise associated with the party, the law would likely be constitutional. However, because this is a facial challenge brought before any ballots were printed, it is impossible to know how it will be implemented. The Court must wait to see what the ballot actually says before it can determine if it creates an unconstitutional forced association.
Analysis:
This decision creates a significant distinction between a primary that formally selects a party's nominee (unconstitutional, per 'Jones') and one that merely winnows the field while allowing candidates to express a preference (facially constitutional). It establishes a high bar for facial challenges to election laws, requiring challengers to demonstrate a law is unconstitutional in all applications rather than relying on speculative harms like voter confusion. The ruling effectively shifts the battleground for such disputes from pre-enforcement facial challenges to post-election 'as-applied' challenges, where parties must present concrete evidence of harm to their associational rights.
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