WASHINGTON — The U.S. Supreme Court on Monday grappled with the question of whether a voter-approved overhaul of the state’s primary goes too far in curbing political parties’ ability to decide who does and does not represent them on the ballot.
Justices opened their fall term contemplating the legality of the 2004 initiative sending the two candidates in a primary with the most votes into a general election face-off even if they are of the same political party.
Attorney General Rob McKenna defended Initiative 872 against a continuous barrage of questioning.
“The voters have adopted a top-two election system which vindicates both the rights of the parties and the people,” McKenna told justices.
Political parties can select their standard bearers without any interference from the state, and the people are not limited to candidates selected by the parties, he said.
John White, representing the state Republican Party, countered that by arguing the initiative renders useless the political parties’ power to pick its candidates.
“Candidates are the party’s messengers to win over the public on the important issues of the day,” White told justices.
“Initiative 872 converts the established right of political parties to select their messengers into a mere right to endorse.”
The Washington State Grange wrote Initiative 872 after the political parties won a legal fight to end use of the popular blanket primary in which voters could choose candidates of any party in each race.
Nearly 60 percent of voters passed the measure, but it’s been held up by the legal challenge of political parties.
Justices spent a lot of the 52-minute hearing focused on McKenna’s contention that letting candidates state a party preference on the ballot did not infringe on political parties’ First Amendment rights to associate with those of their choosing.
“If it’s your position that the parties are not really injured or affected by this, and the parties’ position is that they are, who should we believe?” asked Justice Anthony M. Kennedy. “I mean, it’s hard for you to tell the parties that they don’t know what’s in their best interest.”
Justice Antonin Scalia asked repeatedly if a party would be able to disassociate itself on the ballot from a specific candidate, and McKenna eventually answered no.
If a candidate can “associate himself with the party it seems to me the party should be able to disassociate itself from him. And I think it harms the party not to permit that,” Scalia said.
McKenna tried to draw the distinction between a candidate “associating” with a party and simply listing a preference.
Justice David Souter had trouble finding a “real world” difference.
“Do you know any people who go around saying, ‘Well, you know, I really prefer the Democrats; I’m a Republican, myself.’ I mean, that doesn’t happen.”
“Well, the example of Sen. Lieberman comes to mind,” McKenna responded, referring to Sen. Joseph Lieberman, who lost the Democratic primary in Connecticut in part because of his association with Republicans and then won the general election as an independent.
Souter conceded, as the court and spectators laughed, “There’s always one.”
Afterwards, McKenna expressed optimism the majority of justices would side with the state.
“I think we’ve got a real shot here. I think we have a very reasonable chance of winning this case based on the tone and tenure of the questions,” he said in a conference call with reporters.
In another part of the nation’s capitol, White and David McDonald, the state Democratic Party counsel, felt equally confident in their position.
“It went very well,” McDonald said.
Scalia’s line of questioning seemed to boil the matter down to whether the top-two primary is fair to the political parties, he said.
“I think the justices understood the problem and I think they agreed it was a problem.”
A decision is expected by June but could come later this year, attorneys on both sides said.
If the initiative is reinstated, it will be used in August 2008. If it is not, the Grange is calculating another initiative that might make races nonpartisan.
Secretary of State Sam Reed, who attended the hearing and joined McKenna in the call with reporters, said a question of consequence to the nation is raised by this case.
“What ought to be the role of political parties in the 21st century,” he said.
Herald wire services contributed to this report.
Reporter Jerry Cornfield: 360-352-8623 or jcornfield@heraldnet.com.
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