Executive Summary

Washington’s long-established blanket primary is no more.

This summer the Supreme Court ruled that California’s blanket primary violates the freedom of speech and association guarantees of the First Amendment. Shortly after, the U.S. District Court found that Washington’s blanket primary also violates these fundamental rights and ordered the state to conduct party-specific primaries in the future. As a result, Washington must immediately create a new primary election system.

This Policy Brief will review the central conclusions of the Supreme Court decision. It will then address how two related issues are handled in other states:

    How do political parties control who may seek their nominations?

    How do parties choose their candidates?

Finally, the Policy Brief will examine several proposals for a new primary system, the unique challenges Washington’s third parties face in the new environment, and the role of the legislature protecting the constitutional rights affirmed by the Supreme Court.

Our state is at a crossroads. Decisions made by Washington’s political parties on how they nominate their candidates will determine the extent to which Washington maintains a vigorous democracy and promotes vibrant, informed political debate as we embark on a new century.

“In a free society, the state is directed by political doctrine, not the other way around.”[1]

I. Introduction

Who speaks for the Republican Party? Who speaks for the Democratic Party? The Libertarian Party? The Green Party?

To most, it is their candidates and their elected officials. Should voters with no allegiance to a party or its ideas choose these spokesmen, at least in part? Or should parties select their own spokesmen? Those questions now focus Washington’s political parties.

Washington’s candidate nomination process had appeared long-settled by law and custom until it was upended in June 2000 by a U.S. Supreme Court ruling that the blanket primary is an unconstitutional imposition upon the freedom of association and freedom of speech guaranteed by the First Amendment to the U.S. Constitution. Immediate concerns that the ruling would cause chaos in the September 2000 Washington State primaries, raised by the filing of a suit by the Washington State Democratic Party, were allayed when the Secretary of State and the Democratic and Republican parties entered into an agreed injunction that recognized the rights of the parties to set their own nomination rules, while the parties consented to the use of the blanket primary one last time.[2]

The court order resulting from the settlement explicitly bars the Secretary of State from conducting any blanket primary after Dec. 31, 2000 unless the primary provides separate ballots for Republican and Democratic candidates for partisan offices and limits voting in the Republican or Democratic primary to voters authorized by the respective parties. Further, while the court did not require the state to adopt registration by party, the agreed order requires that the state deliver to each party a list of the voters participating in its primary. Those rules will remain in effect until further order of the court or until the legislature revises the election laws to meet the constitutional claims of the parties.[3]

Each major party is now in the process of determining what rules it will adopt to govern nominations of its candidates in future elections, while minor parties are studying the impact elimination of the blanket primacy will have on their ballot access. In addition, the Washington State Grange is preparing an initiative to provide a primary system that will “protect the provisions of the original blanket primary.”[4] This Policy Brief will analyze the alternatives employed by parties in other states and the options available in Washington.

II. Public Policy Goals in the Nomination Process

While political parties will have their own legitimate organizational purposes to serve, the overriding public policy goals derive from the purpose of elections in a free society: to determine the philosophical direction of our government. Several policy goals seem apparent: “It is through political parties that principles govern rather than men.” -- Senator Charles Sumner

Provide voters with a meaningful choice between alternative philosophies. The strength of our two-party system and its contribution to the political life of our nation is that it assures that voters will have meaningful choices. As Charles Sumner, one of the founders of the Republican Party, said, it is through political parties that we are governed by principles rather than by men. Two established parties seeking to promote their ideas for government have institutionalized a process for presenting alternative viewpoints to the voters.

Assure qualified, competent candidates. Since the reputation, and therefore the future, of a political party is determined through the honesty, integrity and competence of the elected officials carrying that party’s name, each party has an incentive to recruit and promote candidates whose performance in office will reflect well on that party.

Strengthen the political party system. It has been said that political parties are “the infrastructure of democracy” because it is through political association that like-minded citizens can work together to propose and advance solutions to our nation’s challenges. A vigorous two-party system assures a robust debate and a contest of ideas. Voters are given clearer choices when parties can speak with their own distinctive voices.

Limit the role of special interests. Successful political parties must be broad-based and representative of a general philosophical position rather than a narrow, specially-focused interest. While special interests, ranging from environmentalists to pro-life advocates, from teacher unions to business lobbies are important to the political process, major political parties seek to reflect the general interest.

III. The Blanket Primary in Washington State

From their inception, the role of political parties has been to advance a set of ideas -- a philosophical agenda -- for the governance of the country.[5] And, as part and parcel of performing that role, the political parties, their members, adherents and supporters determine who may represent the party’s philosophy in the election. Almost universally, voters must choose the party in whose primary they choose to vote, either through an “open primary” or “closed primary” system involving party registration.[6]

Washington stands apart. In Washington State, political parties initially nominated their candidates by party convention, in which only active party delegates took part. In 1907, the state legislature adopted an “open primary” system under which voters could vote in the primary of either party. In 1934, the state AFL-CIO and State Grange secured passage of an initiative establishing the blanket primary with candidates of all parties appearing on a single ballot.[7] For many years, the system was unique to Washington State. In recent years, Alaska joined Washington and in 1996 an initiative was adopted in California imposing the blanket primary upon that state.

The distinguishing feature of a blanket primary is that a voter may participate simultaneously in the primaries of two or more parties. The same voter may participate with Republicans to determine that party’s nominee for Governor; may participate with Democrats to determine that party’s nominee for Senate, and may vote as a member of the Libertarian, Green, or Reform party in supporting candidates for other offices. Clearly, in such a system, there is no requirement that a voter consider himself a member or supporter of any of the parties whose candidates he is helping to choose.

Nor is the process, known as cross-voting, uncommon. A California survey in 1997 revealed that 37% of Republicans in that state planned to help determine the Democrat nominee for Governor in the 1998 California primary, while 20% of Democrats planned to vote in the Republican primary for Senate.[8] In Washington’s 2000 primary, according to a poll by The Seattle Times, an astonishing 66% of voters had crossed over in one or more race.[9] One man surveyed by The Times admitted to crossing over, saying “Sometimes there are pretty good Democrats and sometimes there are pretty good Republicans you want to vote for. What’s wrong with that?”[10] Blanket primary opponents would respond that the man has just described the freedom voters should expect to exercise in general elections.

Whether cross-over voters are motivated by the desire to “make mischief,” that is to help nominate the weakest candidate in the opposing party, or to select the candidate the cross-over voter truly favors, is much debated. Anecdotes of the mischief-making propensity of some voters abound. The Seattle Times poll reported that 9% of voters admit to having crossed over to help nominate the weakest candidate of the opposing party, a number Paul Berendt, Chairman of the State Democratic Party considers much too low.[11] It is likely that both motivations play a part. What is clear is that either motivation tends to reduce the ability of committed party supporters to nominate the candidate they feel would best advance the ideas of their own party.

IV. The Death of the Blanket Primary

While the clear message of Supreme Court opinions over the past twenty years recognized the fundamental rights of political parties to determine the process by which their nominees would be selected,[12] Washington’s blanket primary remained in place despite grumbling in both major parties. Perhaps it was inertia that reigned.

Earlier this year, that changed. In California Democratic Party v Jones,[13] the U.S. Supreme Court ruled that the blanket primary posed a “severe and unnecessary” burden on the rights of free association of political parties.

The genesis of the case before the Supreme Court was Proposition 198, enacted by the California voters in 1996. Previously, California had followed a “closed primary” system in which a primary voter received a ballot listing only candidates in the voter’s own party. Proposition 198 imposed on California’s political parties a blanket primary very similar to Washington’s. Four political parties, the Democratic, Republican, Libertarian, and Peace and Freedom Parties, promptly challenged Proposition 198 asserting that it conflicted with their party rules prohibiting voters not affiliated with their parties from voting in the party primary.

The California blanket primary law therefore called into direct issue the right of a state statute to override the rules of a political party. The parties’ challenge forced the Supreme Court to determine whether a political party may decide how candidates will be selected to espouse and advance the philosophy of that party, or whether a state may require that non-adherents to the party’s philosophy, and even outright political opponents, should have a voice in choosing the party’s spokesmen.

A. Cross-over Voting is a “Clear and Present Danger”

That the issue was not academic was made clear in the record of the case. Not only did the evidence show that 37% of Republicans and 20% of Democrats intended to cross over in California’s 1998 primary to help nominate candidates of the opposing party for either Governor or Senator, but minor parties were particularly vulnerable. Thus, in the 1998 primary, the total votes cast for nominees of party candidates in some races was double the total number of registered party members. [14] The result, according to one expert witness cited by the court, is that it is “[I]nevitable… that parties will be forced in some circumstances to give their official designation to a candidate who’s not preferred by a majority or even a plurality of party members.”[15]

Indeed, the court found that:

    “The prospect of having a party’s nominee determined by adherents of an opposing party is far from remote --- indeed, it is a ‘clear and present danger.’”[16]

In sustaining the blanket primary, the Ninth Circuit Court of Appeals had concluded that the prospect of cross-over voting being decisive was slight. Justice Antonin Scalia, writing for the Supreme Court, responded, “a single election in which the party nominee is selected by nonparty members could be enough to destroy the party.”[17] For, as Justice Stevens had said in an earlier case,

    “[A] party’s choice of a candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interest and support.”[18]

The Supreme Court concluded:

    “California’s blanket primary … 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.”[19]

B. Public Benefit Arguments Rejected

The supporters of the California primary blanket primary responded that these concerns were overwhelmed by the beneficial effect of the blanket primary method, which assured that nominees would be selected whose views were more “moderate” than the party membership they were chosen to represent. Moreover, supporters argued, the process caused parties to relinquish long-standing positions since a successful primary candidate may be the one who appeals beyond party members to a broader segment of voters. But those arguments merely proved the point opponents were making. As Justice Scalia said, “[Such arguments] reduce to nothing more than a stark repudiation of political association: [to a claim that] parties should not be free to select their own nominees because those nominees, and the positions taken by those nominees, will not be congenial to the majority.”[20]

Opponents of the blanket primary see another flaw in the proponents’ argument: by diminishing the role that ideas and political philosophy play in choosing nominees who will square off in the general election, the blanket primary invites the cynical view that “there’s no difference between the parties” and “it’s all about winning.” If elections are about selecting the philosophical direction of the nation and state, a robust contest of ideas is to be desired, not avoided.

V. The Two Aspects of Freedom of Association

As a party organizes itself to select its candidates, it faces two fundamental issues:

    Who may seek to represent that party as its candidate?

    Who may participate in the caucus or vote in the primary process employed by the party to select its nominee?

Clearly these separate issues interact: the stronger the role of a party in narrowing the primary field to acceptable spokesmen for its philosophy, the more a party may desire to involve non-party members in selecting the final nominee. Conversely, the easier it is for a candidate to file for nomination without any showing of party support, the more critical it is that the primary voting be limited to party members who wish to advance the party’s philosophy.

On the spectrum between a party’s responsibility for its nominees and unrestricted participation in a party’s nominating process, Washington stands at the extreme “non-party” side: not only did the blanket primary provide voters the widest latitude to participate in primaries regardless of their party affiliation, but the open filing system has denied the major parties any control over who may seek to represent the party.[21]

In states across the land, political parties have balanced these considerations in a variety of ways but the vast majority provide a significant role for the political party in the selection of its candidates.

VI. How Parties Determine the Eligible Candidates

At the time of statehood, Washington’s political parties directly nominated their candidates and therefore determined eligibility through the process of holding their respective conventions. Under Washington’s more recent nomination regime, any voter at all may file for nomination as a Republican or Democrat. It has not been unknown for candidates to change party affiliation from election to election to improve their electoral opportunities.

For example, in one of the most egregious examples, Richard Pope ran for Attorney General in 1996 as a Republican, then ran for King County Prosecuting Attorney in 1998 as a Democrat and, again, in 2000 ran for Attorney General as a Republican. Neither Republican nor Democratic Parties may preclude an opportunistic candidate like Mr. Pope from representing himself as a member of their party and seeking to be their spokesman in a campaign.

A. Lessons from Other States

In many states candidates must demonstrate a required minimum level of party support before being able to contest for the right to represent the party. In general the systems fall under the party convention or the nominating petition method. Four examples illustrate the range of options available to political parties.

Colorado: Convention Nominates or Narrows the Field. In Colorado, each major political party holds a nominating convention to consider nominees. Each candidate who receives 30% of the convention vote may file for nomination in the state’s primary. If no candidate receives 30% on two ballots, the top two candidates are certified. If only one candidate receives 30%, only a single name will appear on the primary ballot and will become the party’s nominee. For local races or races where conventions are not held, candidates must file nominating petitions equal to 20% of the vote received by that party’s candidates in the last primary for the same office. For legislative candidates, candidates must file petitions containing 1000 signatures or 30% of the last primary’s vote, whichever is less.[22]

Connecticut: Convention Narrows the Field. In Connecticut, state or district conventions nominate the candidates. The candidate chosen by the party will be identified as “party endorsed” on the ballot. Any other candidate who receives at least 20% of the convention vote may also file in the primary. No nomination by petition in such races is allowed.[23]

New York: Party State Committee Nomination; Nominating Petition Alternative. In New York, the state party committee nominates the party’s candidates. (The committee members vote by weighted vote, based on their county’s share of the party’s vote in the last race for Governor.) The candidate receiving a majority vote is nominated. Any candidate receiving at least 25% may also file for the primary ballot. Other candidates may be nominated by petition. For a statewide office, 15,000 signatures, spread among at least half of the state’s Congressional Districts, are required. For legislative races, candidates must secure signatures from 5% of the registered party members or 1000 signatures, whichever is less.[24]

Virginia: Party Nomination with Incumbent Protection. In Virginia each state party committee determines how the party will nominate for statewide offices. Local district and county committees determine how to select for local offices. While the party may choose to nominate by convention or by primary, the parties generally choose the convention method. For statewide offices, however, any incumbent may insist upon a primary.[25] The rationale for this incumbent protection provision appears to be that the incumbent, by virtue of his prior nomination and election, has a legitimate claim to represent a sufficient body of opinion within the party to demand a primary.

B. Supremacy of Party Rules Over Statute

In Massachusetts, the Democratic Party rule requires that candidates for state offices must secure a minimum of 15% at the nominating convention in order to be eligible to participate in the Democratic primary. Massachusetts’s statute provides for nomination by petition as an alternative.[26] In 1982, the Democrats faced an intense contest between Governor King and State Senator Michael Dukakis, with the liberal delegates to the state convention united behind Senator Dukakis. A third candidate believed likely to divide the liberal vote in the primary, thus giving the nomination to Governor King, circulated nominating petitions. The conflict between party rule and statute inevitably became a critical issue: would the third candidate appear on the ballot notwithstanding the party rule? The Supreme Judicial Court of Massachusetts held that the state’s interest in promoting the integrity of the election process “does not justify elimination of party control over who the party’s candidate in the general election will be.”[27] The court reasoned, “Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share their interests and persuasions that underlie the association’s being…. A determination of who will appear on a general election ballot as the candidate endorsed by an identified political party is a critical decision for that party. The party, therefore, has a substantial interest, implicit in its freedom of association, to ensure that party members have an effective role in that decision.”[28]

C. Policy Considerations

    “[A] party’s choice of a candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interests and support.” -- Justice Stevens

The principal argument in favor of an unregulated filing system is that it allows any citizen wishing to present himself to the voters to run for office in a manner that is tactically best for him. Thus, Richard Pope can present himself as a Republican in one election and as a Democrat in the next, seeking to maximize his opportunity to be elected. A wide-open filing, supporters argue, provides the widest range of choices for the voter and allows maximum freedom to candidates to fashion their own message. The converse, as the courts have made clear, is that expanding freedom to would-be candidates inevitably diminishes the freedom the Constitution guarantees political parties to control their own message.

Perhaps the most egregious illustration of what can happen when a party is unable to control who may seek to represent it was the 1991 Louisiana Governor’s election. Three candidates filed as Republican: the incumbent Governor (endorsed by the incumbent U.S. President), an incumbent U.S. Representative (endorsed by the Louisiana Republican Party), and David Duke, a notorious segregationist. In a close race under Louisiana’s “jungle primary” rules, where voters regardless of party identification could vote for Mr. Duke, the sole Democrat on the ballot came in first and the three Republicans were grouped together. Since Mr. Duke narrowly topped the field, he achieved the right to represent the Republican Party in the general election, despite being rejected by nearly two of three voters who cast votes for candidates who filed as Republicans. Most observers felt that neither the Republican Party of Louisiana nor the public interest were served by the results. To the Republican Party the damage was long-lasting: many citizens concluded that the message Mr. Duke advanced on race matters represented the philosophy of the Republican Party.

Another aspect of the unregulated filing system is that multiple candidates may seek nomination, thus fragmenting the field. In 1996, the Republican gubernatorial primary in Washington had at least 8 candidates, six of whom were vigorous campaigners. In such a situation, it is inevitable that the nominee will be selected by a plurality (in 1996, about 1/3rd of the Republican votes) and, at best, will face several weeks demonstrating the right to speak for the full party. At extreme cases, as with the Duke nomination, a nominee may reflect a minority view that actually discredits the broad mainstream of the party. Freedom for all is assured under a system where the David Dukes of the world must form their own party or run as independents.

Those who support a requirement of demonstrated party support note that it narrows the field so that only candidates able to obtain substantial support contest the nomination. The effect in most states is that strong candidates who represent different “wings” of the party or different approaches to the party’s issues present themselves to the primary voters. Where only two or at most three candidates appear on the party’s primary ballot, the voters participate in a truly meaningful choice, with reduced risk that a small “rump” of the party will select the nominee.

An additional factor many believe is beneficial is that party participation will serve the goal of strengthening political parties and will result in them becoming a more broad-based reflection of their grass roots support. Precinct caucuses and state conventions have become “insider” groups over recent years as the perceived importance of caucuses has waned with the state’s Presidential primary. Many consider party conventions unrepresentative today. However, where the party convention plays a role in nominations, candidates have an incentive to encourage their supporters to attend caucuses. The growth in participation, many argue, will reinvigorate the political system by allowing involved voters a greater chance to participate. Likewise, the work of circulating nominating petitions is typically done in other states by local precinct committee officers and other activists, and reinvigorates the relationship of local activists and political candidates with their neighbors.

VII. Determining Who May Vote in Party Primaries

A. Primary Methods in Other States

At the primary election itself, the parties must decide eligibility criteria for the voters they want to participate in selecting their nominees. There are, essentially, four systems that have been in use, with minor variations from state to state within each system as summarized in Table 1.

Table 1.
Types of Primary Systems Used in Other States[29]
Source: Federal Election Commission
See https://www.secstate.wa.gov/elections/bpalt.htm.

Blanket Primary: Voters do not declare a party affiliation and receive a ballot listing the names of candidates of all parties for each office, and may vote for candidates seeking to be nominated by different parties. This is the system Washington State has been using since 1935. No other state currently uses the blanket primary.[30]

Closed Primary: In a “closed” primary, voters declare a party preference through registration or, where permitted by party rule, by declaring their affiliation at the polls. Separate ballots are prepared for each major party and at the polls the voter is provided with the ballot for his or her political party. Twenty-eight states have some form of a closed primary.

Since the purpose of a closed primary is to limit participation in a party’s selection process to declared members of that party (plus independents if party rules permit), parties generally adopt rules to prevent “party-raiding,” the process by which members of the opposition party change registration solely for the purpose of a specific primary race. Party raiding is reduced, if not prevented, by providing an interval between the change of party affiliation and the ability to participate in a primary. At one end of the spectrum is New York, which allows voting in its primaries only to voters who declare affiliation or change affiliation a full year before the primary, to Wyoming, which allows voters to change affiliation at the polls on election day.[31] The median requirement is 29 days. Details are given in Table 2.

Table 2.
Number of states that allow voters to change their party registration,
and how long in advance of election day they must do so.
Source: Federal Election Commission
See https://www.fec.gov/voterregis/primaryvoting.htm

    “[A] blanket primary forces a political party to accept a candidate it may not want, and by so doing changes the party’s doctrinal position on major issue.” -- Justice Kennedy

Open Primary: In an open primary, party registration is not required. Separate ballots are prepared for each major party and at the polls voters may request the ballot of either party. In some states, a record of which ballot is requested is maintained, as Washington state does in its presidential primary. Twenty states use some form of the open primary.[32]

Nonpartisan Primary: The nonpartisan primary, or “jungle primary” as it is sometimes called, is a remnant of the one-party South and is currently used only in Louisiana. Much like the blanket primary, the “primary” ballot includes the names of all candidates and voters may participate in nominating candidates regardless of party. Unlike a partisan primary, however, the two candidates receiving the most votes, regardless of party, are declared the nominees. Historically in the one-party South, both candidates advancing to the general election were from the same party. The jungle primary is, in effect, a “preliminary general election” rather than a party primary and was designed to meet the needs of a bygone era in the South. If adopted by Washington today, it is likely that each major party would consider adopting a convention system to avoid a divided field and to assure that only a single name carrying the party’s message would appear on the ballot.

B. The Effect of an Open Primary on Parties

Among the arguments frequently advanced in favor of an open primary is that it benefits the public because it has a moderating effect on the parties. As Justice Scalia noted, that is precisely its constitutional defect if imposed without party consent: to the extent that participation of non-party voters change the party’s message, such participation violates the Free Speech rights of the party.

Political parties, on the other hand, may be attracted to an open primary because they consider it as a vehicle for tailoring their message to appeal to “swing” or uncommitted voters. Even within a single state, parties may see things differently. Thus, in Maryland and West Virginia, the Republican primary is open to independent voters by party rule, while in Oregon it is the Democrats who open their primary to independents.[33] There are, of course, no constitutional implications when the party chooses to open its process to outside participants.

Open primaries still allow “mischief makers” especially in off years when there may be a limited number of partisan primaries on the ballot. Some argue that Democrats and Republicans will “stay home” to vote in their own primaries rather than engage in mischief making. That assertion deserves to be examined.

In the year 2000, it is clear that Democrats had a major reason to stay home to participate in their heavily contested Senatorial Primary. Republicans likewise had primaries for Governor, Secretary of State and other statewide offices. Few would eschew the right to select their own party’s candidates in significant races in order to produce “mischief” for the opposing party.

But the primary system operates in “off-years” as well as in Gubernatorial years. In 2002, for example, there will be no statewide office on the ballot. Only Congress, the state legislature, and in most counties, county offices will be on the ballot. A Republican in Seattle, or a Democrat on Mercer Island is unlikely to see primaries in his party and will, therefore, have no disincentive from crossing over. Supporters of the blanket primary have argued that it is fundamental that voters in a “safe” district should be able to participate in the nomination of the person who will represent their district, even if of the other party. The Supreme Court rejected that argument, saying it was less unfair to exclude the minority from primaries than “permitting nonparty members to hijack the party.”[34] The likelihood of mischief making in the “off years” cannot be excluded.

If, therefore, political parties wish to preserve their control over their nominees, some form of protection, either through limiting access to the ballot or by limiting those who may participate in a primary is essential.

C. Some Recent Proposals

    1. Eliminate the Party Primary

Some proposals have been floated suggesting that the state might simply refuse to enact a primary law complying with the rules of the political parties, or it might condition the holding of a partisan primary on the payment by the parties of the cost of the primaries. No doubt the state is within its constitutional power to decline to conduct a primary or to impose conditions such as private payment for the costs of the election. That is a matter of public policy for the state, either through its legislature or through an initiative, to address.

There is, of course, a private benefit to the parties from conducting the nomination process, whether it be done by convention or by primary election. If there is only a private benefit, then the argument is strong that the parties should pay the cost of the primary -- or that portion of it relating to their contested races.[35]

The issue is whether Washington’s citizens perceive a public benefit to holding a primary election: whether voters believe that their interest in encouraging parties to hold primary elections justifies the cost to the public of the partisan primary. Earlier in this century, among the Populist reforms that swept Washington and many Western states, the state determined that there was such a public interest and adopted, over the opposition of the parties, the 1907 primary law. Washington State has consistently argued that it has a compelling state interest in all its arguments over the years supporting the primary and blanket primary laws.[36]

For let it be clear: if the state discontinues a public-funded primary, the nomination process reverts to the pre-1907 system, a system used to this day in other states, including Virginia and, to some extent, New York, whereby the parties nominate their candidates through conventions. While some would regret the result as a narrowing of the participation base in the nomination of candidates, other political observers believe this would strengthen democracy in the state by bolstering the role of the political parties.

    2. Provide an “Advisory” Ballot for Independents

A particularly pernicious proposal would provide for three ballots in the primary election: A Republican ballot on which only Republican candidates would be listed, and which would be provided to Republican voters; a Democratic ballot on which only Democratic candidates would be listed and which would be provided to Democratic voters, and a complete (blanket) ballot, listing all candidates, which would be provided to independent voters. Only votes cast on a party ballot would count in the selection of that party’s nominee.[37]

A similar method is now used in the state’s Presidential Primary and allows voters to choose a party ballot or to select blanket ballot that lists all candidates for President, regardless of party. After each quadrennial exercise, many voters using the blanket ballot complain that they did not realize that their vote was a useless act: that it had no effect on the presidential nominating process since only votes cast within the party primary affect delegate selection. Providing an illusory choice on all state elections can only add to voter cynicism and alienation from the political process, a result precisely the opposite from any legitimate public policy goal that should be pursued.

    3. The Position of the Washington Grange

The Washington State Grange, was one of the prime sponsors of Initiative 2 which established the blanket primary in 1934. Terry Hunt, State Master of the Washington Grange, has declared that the Grange will do all it can “to protect Washington citizen’s right to choose and their right to privacy.”[38] The Grange is currently drafting an initiative which, in their opinion, will meet the “Scalia test” established in California Democratic Party v. Jones.[39] While the outlines of the Grange proposal will not be clear until a draft of their proposal is released later in December 2000, it appears likely to emphasize voter privacy (the right of the voter to participate in a primary without declaring a political affiliation) and may also propose a nonpartisan primary.

Their task of passing constitutional muster will not be an easy one. Justice Scalia specifically addressed concerns that a closed primary would interfere with voter privacy. His conclusion was that the state lacks a constitutionally compelling interest sufficient to override the right of political parties to control participation in their process.[40]

The only maneuver room the Supreme Court seems to have left open is a decision to adopt a nonpartisan primary, similar to the Louisiana primary. As the Supreme Court noted, a nonpartisan primary lets all voters participate in selecting the two candidates for the final election. The court noted that it has all the characteristics of the partisan blanket primary “save the constitutionally crucial one: Primary voters are not choosing a party’s nominee.”[41] While the voters would gain the semblance of the blanket primary, what they would lose would be the ability to participate in the selection of the nominees of either party, since the major political parties would then be forced to select their nominees as minor parties do today.[42] Voters would also lose the opportunity to cast their votes for third party candidates in the general election (as over 200,000 voters did in Washington in 2000) since minor party candidates would usually be eliminated by the nonpartisan primary. Adoption of a nonpartisan primary that would pass constitutional muster could actually reduce voter choice rather than increase it.

VIII. The Role of Third Parties

    “An independent is a person who wants to take the politics out of politics.” -- Attributed to Adlai Stevenson

Third parties, from the nascent Republican Party of the 1850’s through the Populist Party of the 1890’s and the Progressive Party of the 1920’s have enriched our political dialogue, refocused the issues agenda of politics, and, in the case of the Republican Party, transformed our nation. And it is, perhaps, at a time when the national electorate is closely divided, as the 2000 election showed it to be, that third parties contribute the most to the vibrancy of our political life.

Washington State today has a large number of third parties that regularly place candidates upon the ballot. For example, in 2000, in additional to the two major parties, the Libertarian Party and the Reform Party ran candidates for statewide office, and six additional parties ran electors for President, ranging from the Green Party to the Natural Medicine Party.

Unlike the major parties, each minor party nominates its candidates through a party convention, thus assuring that it has complete control over the message its candidates carry forth into the election.[43] To nominate candidates for a statewide office, a convention of 200 registered voters is required; to nominate for a local office, 25 registered voters within the jurisdiction must participate. Voters may participate by signing a petition as well as by attending the formal convention. No change in nomination process is required to safeguard the rights of minor partiers to present their views to the voters.

However, minor party candidates are also required to receive 1% of the vote cast for their office in the September primary.[44] Minor party leaders have legitimate concerns that the elimination of the blanket primary will make it impossible for them to achieve the minimum 1% and their candidates will be eliminated from the general election ballot. Third parties consider that the result will infringe upon their constitutional rights to legitimate access to the general election ballot.

While elimination of the 1% requirement would immediately eliminate any constitutional impediment to ballot access by third parties, the principal objection many might raise is that it could lead to a proliferation of third parties on the ballot.

The Supreme Court has acknowledged a legitimate interest of the state to require “a significant modicum of support”[45] before a party may secure a place on the general election ballot. Perhaps the most common method is to require that each candidate submit a nominating petition signed by a non-trivial, but not burdensome, number of registered voters. Another method followed in some states is to provide automatic access to the general election ballot to recognized minor parties, based on their achieving a stated minimum the vote in a prior election. New York, for example, lists on the general election ballot the candidates of any party that received 50,000 votes in the last race for Governor.[46] If Washington provided automatic access to the ballot to any party that achieved, say, 1% for a statewide office in Washington State, that would establish a requirement of approximately 24,000 votes. The Libertarian Party’s candidate for Governor received 47,000 votes. No other minor party nominated a candidate for Governor, but the Reform Party candidate for Secretary of State received 49,000 votes and the Green Party slate of electors received 103,000 votes.[47] Thus adoption of a 1% rule in Washington would not lead to an overwhelming proliferation of minor parties, but would provide automatic access to three parties whose unique message received significant support in 2000.

Automatic access to significant minor parties plus provision of an ability to qualify candidates of “new parties” would seem to assure reasonable access while also providing commonsense limitations.

IX. The Role of the Legislature

When the legislature convenes in January 2001, it will immediately be faced with the need to rewrite Washington’s primary election laws to afford protection to the constitutional rights of political parties. The U.S. District Court has already established a briefing scheduling commencing with filings by the two major parties of their proposals for a permanent injunction. Those filings are due on March 1, 2001; the Secretary of State’s answer is due not later than May 23, 2001 and a court hearing can be expected in due course thereafter.[48] Action by the legislature that recognizes the rights of the parties, of course, could lead to an agreed resolution of the case.

The legislature has two routes open to it: enact detailed rules and primary procedures codifying the decisions made by each of Washington’s major parties; or enact broad enabling legislation requiring election officials to give effect to a wide range of alternative party rules.

The “one-size restricts all” approach provides for the greatest degree of uniformity in candidate selection and may simplify the task for election officials administering the primary process but it does so by placing the legislature deeper into the political thicket than public policy interests require. If the Republican and Democratic Parties choose different approaches, for example, on the number of signatures required on a nominating petition or the ability of independents to participate in a party primary, which will the legislature favor? In light of the Massachusetts decision,[49] may the legislature override a party rule at all?

On the other hand, by deferring as much as practicable to party rules, the legislature avoids perennial wrangling as one or the other party seeks legislative authority to amend its candidate selection procedure by revision to the statute. A busy, hard-working legislature has enough matters demanding their attention; they would be advised not to extend their control into minutiae that raise no serious questions of public policy.

X. Conclusion

Elimination of the blanket primary provides Washington’s political parties with the opportunity to revitalize the political debate by reasserting control over how their political message will be carried forth in elections.

As our parties and our legislature move beyond the blanket primary, they would be well guided by the conclusion of John Mills, Elections Coordinator of the Washington Libertarian Party:

    “We need less – not more – rules governing the primary selection of candidates. We need more – not less – choices at the general election.”[50]

Appendix

Types of Primary Systems Used in Other States[51]

    Closed Primary - Independents are not allowed to vote (15 states):
    Alaska, Kentucky, New Jersey, Pennsylvania,
    California, Maine, New Mexico, South Dakota,
    Connecticut, Nebraska, New York, Wyoming,
    Delaware, Nevada, Oklahoma

    Closed Primary - Independents are allowed to vote (13 states):
    Arizona, Kansas, New Hampshire, Rhode Island,
    Colorado, Maryland, North Carolina, Utah,
    Florida, Massachusetts, Oregon, West Virginia, Iowa

    Open Primary - Voters can make a public request for a party ballot (11 states):
    Alabama, Illinois, Ohio, Texas,
    Arkansas, Indiana, South Carolina, Virginia,
    Georgia, Mississippi, Tennessee

    Open Primary - Voters can make a private request for a party ballot (9 states):
    Hawaii, Minnesota, Montana, Vermont
    Idaho, Missouri, North Dakota, Wisconsin, Michigan

    Non-Partisan Primary - The two top vote-getting candidates advance to the general election, regardless of party (1 state):
    Louisiana

    Blanket Primary - All voters allowed to vote for any candidate (1 state):
    Washington

About the Author

Richard Derham is a graduate of Harvard College and Columbia Law School. He practiced law for thirty years in the Seattle office of Davis Wright Tremaine where his practice included election law matters. He also served for three years in the Reagan Administration as Assistant Administrator of the Agency for International Development. He served as President of the Washington Institute Foundation from 1997-2000.

[1] California Democratic Party v. Jones, 530 US ____, 147 L Ed 2d 502, 519 (2000). (Kennedy, J., concurring).

[2] “Blanket Primary Has Year to Live,” by Angela Galloway and Neil Modie, The Seattle Post-Intelligencer, July 21, 2000.

[3] Order on Motion of Democratic Party for Preliminary Injunction, July 20, 2000 in Washington State Democratic Party v. The State of Washington, Case No C00-5419, U.S.D.C., (W. Wa.)

[4] Statement of Washington State Grange, https://www.grange.org/washington/walegis1.htm.

[5] See for example B. Weisberger, “America Afire: Jefferson, Adams, and the Revolutionary Election of 1800,” and S. Elkins and E McKitrich, “The Age of Federalism,” especially Chap VII, “The Emergence of Partisan Politics: The ‘Republican Interest,’” describing the origins of politics in the Federalist-Republican contest of the early republic; M. Holt, “The Rise and Fall of the American Whig Party,” which makes clear that it was the lack of a unifying philosophy that doomed the Whig Party, and E. Foner, “Free Soil, Free Labor, Free Men,” one of the many studies describing the ideological origins of the Republican Party. For a more general treatment, see A. James Reichley, “The Life of the Parties.” Reichley argues that a reinvigorated party system is the path toward a revitalized democracy.

[6] In most countries, including the leading Western democracies such as the United Kingdom, Canada, France and Germany, the party designates its candidates through party procedures with no voter participation. Thus, even the most "closed" of America’s primaries is far more “open” than anywhere else.

[7] Challenges to the constitutionality of the 1935 law were rejected by the Washington State Supreme Court in Anderson v. Millikin, 186 Wash. 602, 59 P.2d 295 (1936) which reiterated prior holdings that political parties are unrecognized under the Constitution, and therefore have no constitutional rights, a holding that has long since been overtaken by U.S. Supreme Court decisions. See discussion, infra. In a second challenge in 1980, the court held that there were “compelling state interests” justifying a blanket primary, Heavey v. Chapman, 93 Wn 2d 700, 705, 611 P. 2d 1256 (1980). The “compelling state interest” justification has now been explicitly rejected by the U.S. Supreme Court. See the discussion in Section IV.

[8] California Democratic Party v. Jones, 147 L Ed 2d at 512 (2000).

[9] “Poll Questions and Answers,” The Seattle Times, Sept. 20, 2000.

[10] “Two of Every Three Voters Crossed Party Lines,” The Seattle Times, Sept 21, 2000.

[11] Ibid.

[12] See for example Democratic Party of United States v. Wisconsin ex. rel. La Follette, 450 U.S. 107 (1091). This case held that the state of Wisconsin could not require the Democratic Party to include independent voters in its Presidential Primary. See also Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). This case held that Connecticut could not require the Republican Party to exclude independent voters from its primary. See also Eu v. San Francisco Democratic Central Committee, 489 U.S. 214 (1989).

[13] 530 US ___ , 147 L Ed 2d 502 (2000), (Justices Stevens and Ginsburg dissenting).

[14] 147 L Ed 2 at 512.

[15] Ibid.

[16] Id at 511-12.

[17] Id at 11. For an example of the destructive effect a candidate selection can have on the viability of a political party, one need look no further than the nomination of Pat Buchanan to lead the Reform Party in the 2000 race for President. The selection in this case was made through internal party rules and amounted to no less than a philosophical high-jacking of the party founded by Ross Perot. Even though the party had significant national support in the 1992 and 1996 elections, in 2000 it received less than 1% of the vote nationwide.

[18] Timmons v. Twin Cities Area New Party, 520 US 351, 372 (1997) (Justice Stevens dissenting).

[19] 147 L Ed 2d at 511.

[20] Id at 515.

[21] As we’ll see, infra, minor parties in Washington State have full control over who may represent them on the ballot. It is only major parties that are denied the right to control their “brand name.”

[22] Colorado Revised Statutes, Section 1.5-601, -801.

[23] Connecticut Statutes, Section 9-382, 9-400

[24] New York Election Law, Section 6-100 et. seq.

[25] Virginia Statutes, Section 24.2.509.

[26] Massachusetts Statutes, Chapter 53.

[27] Opinion of the Justices to the Governor, 385 Mass. 1201, 434 N.E. 2d 960 (1982).

[28] Id at 1204 (citations omitted).

[29] See the appendix for the list of states that falls under in each type of primary.

[30] Alaska and California have both abandoned their blanket primaries since the Supreme Court decision in California Democratic Party v. Jones.

[31] Federal Election Commission website, https://www.fec.gov/voterregis/primaryvoting.htm. See Rosario v. Rockefeller, 410 U.W. 752 (1973) and Kusper v. Pontikes, 414 U.S. 51 (1973), in which a 23-month waiting requirement was overturned as unreasonable.

[32] For a state-by-state listing, see “Nomination Systems of Other States,” compiled by Washington’s Secretary of State and available at https://www.secstate.wa.gov/elections/bpalt.htm.

[33] See Federal Election Commission WEB site, https://www.fec.gov/voterregis/primaryvoting.htm.

[34] California Democratic Party v. Jones, 147 L Ed 2d at 516.

[35] It is common for primary elections to include nonpartisan races and ballot measures as well as the partisan primary. The basic cost of holding an election would, therefore, continue to be paid by the state and formulas would be required to determine what marginal cost should be allocated to each party, depending on the number of primary contests the party experienced in a given year.

[36] See Heavey v. Chapman, 93 Wn 2d 700, 611 P. 2s 1256 (1980).

[37] Campaign monthly newsletter of the Sam Reed for Secretary of State Campaign, Volume XVI, Sept. 2000.

[38] “War Room readied for State Grange initiative drive,” Washington State Grange, https://www. grange.org/washington/walegis1.htm.

[39] Statement of Washington State Grange, https://www.grange.org/washington/walegis1.htm.

[40] California Democratic Party v. Jones,147 L Ed 2d at 516.

[41] Id at 517.

[42] This conclusion was clearly acknowledged by one editorial writer who favors going to a nonpartisan primary. See “Primary could put people above politics,” by Mark Trahant, The Seattle Times, June 29, 2000.

[43] RCW 26.24.020.

[44] RCW 29.30.095.

[45] Jeness v. Fortson, 403 U. S. 431, 442 (1971).

[46] New York Election Law, Section 1-104.

[47] Libertarian Party candidates for other offices received votes ranging from 92,000 to 180,000. https://www.vote.wa.gov/vote2000/results/state_idx.tpl.

[48] Order on Motion of Democratic Party for Preliminary Injunction, July 20, 2000 in Washington State Democratic Party v. The State of Washington, Case No. C00-5419, U.S.D.C. (W. Wa.).

[49] Opinion of the Justices to the Governor, 385 Mass. 1201, 434 N.E. 2d 960 (1982).

[50] Communication to the author, November 8, 2000.

[51] See “Nomination Systems of Other States,” compiled by Washington’s Secretary of State and available at https://www.secstate.wa.gov/elections/bpalt.htm.