Washington State Grange v. Washington State Republican Party Page 16

Washington State Grange v. Washington State Republican Party general information

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

Robert M. McKenna:

Well, I would defend it, Your Honor, by saying that this is a facial challenge.

Let's apply it.

And if there is evidence--

John G. Roberts, Jr.:

--Well, we are assuming it is applied in the way that is shown on the Grange reply brief at page 1.

If it were applied in that way, would that be unconstitutional?

It just says R or D.

Robert M. McKenna:

--It would... it could be unconstitutional, Mr. Chief Justice, if there were evidence that the voters were misled or confused.

Mr. Chief Justice, this is an excellent opportunity to point out that the letter after the name, whether it's the letter as on page one of the Grange ballot or an expression of party preference on pages two and three, is not the only information on the ballot.

As we've shown in the samples, there will be lots of other information on the ballot which clearly distinguishes the expression of party preference.

John Paul Stevens:

Isn't it also true that, by hypothesis, there will be other candidates beside the one R and the one D?

If there aren't at least two R's and two D's, there is no problem.

Robert M. McKenna:

In the scenario or the ballot on page 1, Justice Stevens, I believe that what would happen is the Secretary of State would still provide the additional language.

If that additional language is not provided, if it were just that bare ballot with no explanatory language, then, yes, it would be much harder to defend as being constitutional.

But that, in fact, is not the way it's going to work.

John Paul Stevens:

But my point is there could never be a ballot just like this, what your opponents are talking about, because there are always going to be at least two or three R's and two or three D's.

And the sample shows there is only one, which must then be the party chosen... I mean the nominee chosen at the convention.

Robert M. McKenna:

But the key here, Your Honor, is that even under the ballot on page one, what is not happening under top-two is that the nominee of the party is not being selected.

That's not happening any more.

And in Jones the Court said that the top-two is the same in all characteristics save one, which is the result of the nominee not being selected.

And that is exactly what is happening under top-two: The nominee is not being selected; and, as applied, we are going to be providing lots of other information on the ballot to make it very clear what the expression "party preference" means.

Anthony M. Kennedy:

Does the State have a legitimate interest in weakening the influence of political parties?

Robert M. McKenna:

No, Your Honor, it does not.

Anthony M. Kennedy:

If we found that that was the necessary effect of this ballot measure, then would it be invalid?

Robert M. McKenna:

I think Your Honor you would have to find there is a severe burden on the parties and subject the provision to party presence to strict scrutiny.

And if you did that, and it were unconstitutional, as it probably would be in that instance, it would be severable, Your Honor.

John G. Roberts, Jr.:

If the state has no legitimate interest it's going to fail any level of scrutiny.

Robert M. McKenna:

It has legitimate interest indicating something about party on the ballot.

This, the same legitimate interest that occurs in a nominating primary where the, where the party, where all the candidates who have filed under that office are going to miss the party in terms of conveying our... on the question of receiveribility I think Washington law applies here the McGowan three-part test which is paralleled under Federal severability and booker simply states that an act or statute is not unconstitutional no its entirety unless it's believed the voters would not have passed one without the other or unless the validation party to accomplish the legislative purposes clearly understands in this case the main purpose was to preserve choice.

It was called the People's Choice Initiative.

Thank you, Mr. Chief Justice.