Washington State Grange v. Washington State Republican Party

PETITIONER: Washington State Grange
RESPONDENT: Washington State Republican Party et al.
LOCATION: U.S. Court of Appeals Eleventh Circuit

DOCKET NO.: 06-713
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 552 US 442 (2008)
GRANTED: Feb 26, 2007
ARGUED: Oct 01, 2007
DECIDED: Mar 18, 2008

John J. White, Jr. - on behalf of Respondents
Robert M. McKenna - on behalf of the Petitioners

Facts of the case

The State of Washington reconstructed its primary election system according to Initiative 872, which was passed into law by a majority general vote in 2004. The initiative was endorsed by the Washington State Grange and created a new "modified blanket primary" system where each candidate on the ballot could affiliate with the party of his choosing regardless of whether the party approved of his candidacy. Political parties claimed that this system violated their First and Fourteenth Amendment rights of free association, arguing that control over which candidates to endorse constituted an essential function of association. The Grange argued that the primary was nonpartisan.

The U.S. Court of Appeals for the Ninth Circuit affirmed a District Court decision, ruling that since "party designation is a powerful, partisan message that voters may rely upon in casting a vote," Initiative 872 "constitutes a severe burden upon the parties' associational rights." (The case was consolidated with Washington v. Washington State Republican Party for argument before the Supreme Court.)


Does Washington's "modified blanket primary" system violate the First and Fourteenth Amendment right to freedom of association by denying political parties control over which candidates to endorse?

Media for Washington State Grange v. Washington State Republican Party

Audio Transcription for Oral Argument - October 01, 2007 in Washington State Grange v. Washington State Republican Party

John G. Roberts, Jr.:

We'll hear argument first today in case 06-713, Washington State Grange v. Washington State Republican Party et al., consolidated with 06-730, Washington v. Washington State Republican Party et al..

General McKenna.

Robert M. McKenna:

Mr. Chief Justice, and may it please the Court: In adopting Initiative 872, Washington's voters followed this Court's guidance in California Democratic Party v. Jones.

They adopted a top-two election system.

By so doing the voters eliminated the crucial constitutional defect of a partisan blanket primary because in the top-two system the voters are no longer selecting the party's nominees for the November election.

The Ninth Circuit nonetheless ruled that Initiative 872 is unconstitutional, holding that allowing each candidate to state his or her personal party preference on the ballot would create the appearance of association between a political party and candidate.

The Ninth Circuit is wrong for at least two reasons.

First, the Ninth Circuit's appearance... of-association conclusion assumes that top-two ballots will look the same as ballots under a party nominating election system.

They will not.

The top-two ballot--

John G. Roberts, Jr.:

Can you give us assurance that they will not?

I take it we don't... we haven't had an election under this system, so we don't know what the ballots are going to look like.

Robert M. McKenna:

--Yes, Your Honor.

That's correct.

We have not had an election, and the secretary of state was enjoined by the district court before having the opportunity to promulgate the regulations governing the ballot after 872's adoption.

However, Your Honor, we may look to the declaration of candidacy form, which the secretary of state did have the opportunity to promulgate, which appears in the corrected joint appendix at pages 592-593.

And what we see there, Your Honor, Mr. Chief Justice, is that, unlike the old declaration of candidacy form, we have the candidates declaring themselves as a candidate for the office of blank, and instead of saying that they're a candidate of a party, they say... that you have an opportunity to check off the box that my party preference is blank or I'm... I am an independent candidate; or, under Initiative 872, if they check neither box, that will be left blank on the ballot.

Samuel A. Alito, Jr.:

But you say that the purpose of allowing a candidate to declare a preference is simply to convey useful information to voters, but once you decided, once the State decided, that the ballot was not going to indicate party affiliation, why do you limit candidates to the names of parties?

Why don't you allow them to pick some other phrase that better expresses their point of view?

Somebody may want to say, I'm the pro-environment candidate, or I'm the no-new-taxes candidate.

Why do you limit them to saying Democrat, Republican, Libertarian, et cetera?

Robert M. McKenna:

Your Honor, the voters could have chosen to allow candidates to include other information.

In fact, in the State's earliest days candidates were given five words they could use for whatever expression they wished.

But the voters chose to allow an expression of party preference, which the State is allowed to do.

The State is not required to allow the ballot to be a form... forum for political expression, but the State is allowed to do so and has chosen to do in this way.

Samuel A. Alito, Jr.:

What is that and wasn't the purpose that was offered by the proponent of the initiative to try to get around the decision in Jones, to change the system as little as possible?

Robert M. McKenna:

No, Your Honor, because there is an immense difference between the top-two system and the system that replaces the old blanket nominating primary.

The immense difference is of course that the first stage of this two-stage general election process is no longer being used to select the nominees of the parties, which was identified as the one characteristic in Jones--

John Paul Stevens:

Justice Alito can defend his own question, but he asked whether or not the Grange stated that this was the purpose.

Robert M. McKenna:

--Well, the Grange was--