One of the terrific administrative changes made by the Supreme Court this term is the availability of oral argument transcripts the same day as the actual argument. I’ve had a chance to read quickly through this transcript in today’s Washington State “top two” primary case, and it seems pretty clear that the State is going to lose this case on grounds that this is an impermissible end-run around California Democratic Party v. Jones. As Justice Scalia put it (transcript at 46): “the State’s interest was to — to do what we disapproved in Jones without seeming to do what we disapproved in Jones.” In other words, it violates the parties’ associational rights under Jones to let candidates run with a party label against the wishes of the party. Chief Justice Roberts analogized this to a trademark issue, and the diluting of the Republican and Democratic brand (a similar analogy I used in when quoted in this Roll Call article).
From the questions, it appears that Chief Justice Roberts, along with Justices Alito, Kennedy, and Scalia are prepared to strike down this law as a First Amendment violation. Justices Thomas and Breyer did not ask any questions, but given his past votes I think Justice Thomas is likely to vote to strike this down as well. If that’s right, I am still confused why the Court granted cert. in this case, given that the Ninth Circuit reached the conclusion likely to be reached by a majority in this Court.
If the case goes as I expect, it is not clear that a nonpartisan primary is the only way to go. There is one other possibility: have a nonpartisan primary that uses party labels except for those parties which object. That was the approach we took in Prop. 62 (text here), which was on the California ballot in 2004 (for more analysis, see here). It would be useful if there were some dicta in the Supreme Court’s opinion expressing a view as to whether or not this solution might work.
For more coverage of the oral argument, see this AP report and this report by Richard Winger.