Breaking News - District Court Issues Preliminary Injunction Barring Washington State Top Two Primary

You can find the district court's order and opinion here. See also this Seattle Times news update. In essence, the district court ruled that the "top two" system was not a nonpartisan primary, but rather was a partisan primary because of the use of party labels. Here is a snippet:

Party affiliation plays a role in determining which candidates voters select, whether characterized as “affiliation” or “preference.” Tashjian, 479 U.S. at 220. The top two nature of the primary does not cure this defect. Parties cannot be forced to associate on a ballot with unwanted party adherents. See Section VI.A.4, supra. The right to select the candidate that will appear on the ballot is important to political parties that invest substantial money and effort in developing a party name. Party name and affiliation communicate meaningful
political information to the electorate.22 The Democratic Party argues that it has expended considerable time and expense to develop a coherent set of goals and principles that guide the party, and that candidates asserting an affiliation with the party will receive numerous votes based solely on their proclaimed affiliation with the party, and implied adoption of its message and principles. Even non-commercial associations are entitled to protect their name
against misappropriation and misuse. See, e.g., Most Worshipful Prince Hall Grand Lodge v. Most Worshipful Universal Grand Lodge, 62 Wash. 2d 28, 35 (Wash. 1963) (“The underlying concept is that of unfair competition in matters in which the public generally may be deceived or misled.”); Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 566 (1995) (private association could not be required to admit a parade contingent expressing
message not of the organizers’ choosing); Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000) (First Amendment protects Boy Scouts’ right to exclude leader whose presence would expess a message at odds with Boy Scout policies). The Court is persuaded by Plaintiffs’ arguments that allowing any candidate, including those who may oppose party principles and goals, to appear on the ballot with a party designation will foster confusion and dilute the party’s ability to rally support behind its candidates.

Two questions: (1) Would the court have reached a different result had the Washington initiative allowed parties to prevent use of their party label in the primary, as the California initiative would have done (Disclosure: I was part of the legal team working on the California initiative)? (2) Will the Ninth Circuit reverse?

Posted by Rick Hasen at July 15, 2005 04:24 PM