[Publisher’s Note: With yesterday’s decision by the Supreme Court of the United States to overturn an Appellate Court decision, and re-instate a draconian open primary scheme passed by Washington State voters a few years back, we turned to California Republican Lawyers Association President Steve Baric, a rising star among respected attorneys who have an expertise in political and elections law, to give us his analysis of the decision. Baric not only makes the case for why this was a poor decision by the Court, but undoubtedly is accurate in his concern that those who brought us Prop. 198 will be back again to attack the fundamental rights of political parties to the Constitutional right to freedom of association… – Flash]
REFERENCES: SCOTUS OPINION, SCALIA DISSENT
The Blanket Primary…
Back from the Dead?
By Steve Baric, President, California Republican Lawyers Association
When the United States Supreme Court struck down Prop 198 as an unconstitutional violation of the right of political parties to freedom of association, it appeared that the specter of the blanket primary was dead and buried in California. Sadly, it appears that the blanket primary may be rising from the dead.
Yesterday, in a surprising shift in direction, the United States Supreme Court struck a serious blow to all political parties in the United States. The Court’s decision in Washington State Grange v. Washington State Republican Party was a major victory for all with an agenda to blunt the ability of political parties to endorse and advocate their own candidates. The consequences of this decision are far reaching. Initially, the decision will infringe on political parties fundamental right to associate with candidates of their own choosing. Just as concerning is the fact that a Washington style primary will have the effect of squelching certain political views from the general election because several parties will not be represented.
In 2004, Washington voters passed an initiative changing the State’s primary system. Under the new primary system, the top two vote gathering candidates, regardless of party affiliation, advance to the general election. On the ballot, candidates individually choose their party designation. They are allowed to list their party of preference without having to get that party’s endorsement or support. In effect what this equates to is that a candidate who does not represent the ideas, values, or goals of a party can hold themselves out as a candidate of that party. This system also makes it possible to squeeze a party out of the general election all together, allowing two candidates of the same party to be the only choices on the ballot.
Surprisingly, Justice Clarence Thomas wrote the opinion for the majority. He argued, that because the primary system did not specifically select the nominee for each party, it did not violate the right of political parties to enjoy the freedom of association. Thomas’ reasoning is fundamentally flawed because he underestimates the power of public perception. Sadly, academics often operate in a world without any consideration of common sense. Obviously, when the public views the ballot and observes the candidate’s party designation it will associate that party with that candidate for better or for worse. In effect, the Supreme Court’s opinion allows candidates to “elbow their way” into membership without any consideration of the party’s desires.
This fundamentally violates the First Amendment rights of political parties. Inherent in the freedom of speech, and in the parallel First Amendment protection of the right to peaceably assemble and petition the government for the redress of grievances, is the right to associate with others of like mind in order to magnify such political speech. And there is perhaps no more fundamental tenet of the freedom of association than the right of the association itself to determine who shall be admitted to membership.
During debate in the convention that gave us our Constitution, for example, Governor Morris noted that "every Society from a great nation down to a club had the right of declaring the conditions on which new members should be admitted." As the Supreme Court has recognized, "there can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire" because "[f]reedom of association . . . plainly presupposes a freedom not to associate."
The Washington case involves the quintessential political association — the political party. Primary elections in California are the vehicle by which such political parties select their standard-bearer. When Proposition 198 was struck down, the freedom of political parties to associate was salvaged. Political parties were free to require that only party members could participate in the most fundamental choice made by the association, the choosing of a candidate to represent the party’s views in an election. The Washington decision puts this fundamental right in jeopardy. It allows the candidate to in effect declare membership in a political party using the only forum every voter is guaranteed to see – the ballot. Furthermore, the political parties have no comparable forum in which they can disassociate themselves from a candidate if they so choose.
The right to associate with like minded individuals in order to magnify political speech has a long and storied tradition in this Country. The Washington decision puts that tradition at risk. Soon I fear, some individual or group under the guise of increasing voter participation will foolishly seek to introduce a similar law here in California. They will not understand that by promoting this primary here in California they will be violating the First Amendment rights of millions of Californians and destroying one of our most fundamental rights – freedom of association.
Steve Baric, an attorney from Orange County, is a former County Prosecutor. He is an elected officer of the California Republican Party. You can contact him, via the FR, here.
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