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Washington State open primary ruling helps weaken possible legal challenges to California's Prop 14

by Greg Lucas, published

An open primary system like California's has been upheld by a Washington federal judge, bolstering the odds that similar challenges to the Golden State's new election law will also fail.

Although the two systems differ slightly, California's system, approved by voters in June 2010 as Proposition 14, is modeled after the Washington law which has been in effect since 2008. California's law does not take effect until 2012.

"We're pleased to see that the federal courts have rejected yet another effort to block reform measures that open primary elections to all voters, regardless of their political party preferences," said Steve Merksamer, a Sacramento lawyer whose firm helped write Proposition 14.  "We are confident that challenges to Proposition 14 will similarly be rejected."

In his 24-page ruling upholding most of the Washington law, US District Court Judge John Coughenour (CQ) rejected arguments by the state's Republican, Democratic and Libertarian parties that the system confused voters who might misinterpret a candidate's party preference as an official endorsement by that party.

"The ballot and accompanying information concisely and clearly explain that a candidate's political-party preference does not imply that the candidate is nominated or endorsed by the party or that the party approves of or associates with that candidate," Coughenour wrote.

"These instructions -- along with voters' ability to understand campaign issues and the fact that the voters themselves approved the new election system  through the initiative process -- eliminate the possibility of widespread voter confusion and with it the threat to the First Amendment."

Backers of open primaries argue that winning lawmakers will be more moderate because they must appeal to a broader range of voters than simply those of their own party.   So far, however, it hasn't had a moderating influence in Washington.  "Washington's state Legislature is one of the more polarized in the country -- and it still is," said Eric McGhee, a research fellow on electoral and political reforms at the Public Policy Institute of California.

Opponents of open primaries say they violate the autonomy of political parties to pick their own candidates and effectively eliminate any chance of minor party candidates winning elective office.  Just like in Washington, opposition to the open primary in California was one of the few issues both major political parties agreed on.   In Washington, the two parties have been challenging the legality of the law since 2005 -- three years before the law took effect.

Coughenour's opinion calls it a "long-running saga over the form of political elections in Washington." And, if history is any judge, the parties likely will continue the saga by appealing his ruling.

Under Washington's open primary law, each candidate declares his or her "party preference or independent status" -- even if that political party prefers otherwise. In California, candidates register with parties.

In 2005 -- as in the lawsuit Coughenour dismissed  -- Washington's political parties claimed that an open primary allowed party nominees to be chosen by persons outside of that party and allow candidates to "appropriate" a party name when the candidate makes a party preference.   The federal trial court agreed with the political parties holding that the law, Initiative 872, was unconstitutional because it violated the parties' freedom of association by letting non-party voters help select party candidates.  This was the same reason California's previous open primary law was struck down in 2000 by the US Supreme Court.  That ruling also nullified the voting system Washington had used since 1935 in which all candidates for state and local office, from all parties, were placed on a single ballot and voters could select a candidate from any party. The candidate with the most votes within each major party became the party's nominee for the general election.

Proponents of Washington's open primary law appealed the trial judge's ruling. The Ninth Circuit Court of Appeals sided with the political parties saying the law placed a "severe burden on political parties' associational rights."

Open primary supporters appealed to the US Supreme Court. The high court reversed the lower courts.  The law could only be thrown out if the political parties could prove the law was unconstitutional in "all its applications," the high court said.   It would be impossible to prove that without the law being in effect, the court said.   Nor could the court determine if Washington voters were confused by the system without them voting under it.   "In the absence of evidence, we cannot assume that Washington's voters will be misled," the court wrote.

The court noted that any potential confusion would depend "in significant part" on the form of the ballot and offered Washington a suggestion:

"If the ballot is designed in such a manner that no reasonable voter would believe that the candidates listed there are nominees or members of, or otherwise associated with, the parties the candidates claimed to 'prefer,' the (open) primary system would likely pass constitutional muster."

And that, Coughenour ruled, is "precisely" what Washington did.

"The ballot Washington uses to implement Initiative 872 is uniformly consistent with the Supreme Court's conception of a constitutional ballot," Coughenour wrote.

Each ballot has the following  "prominent and clear explanation," Coughenour said.

"READ: Each candidate for partisan office may state a political party that he or she prefers. A candidate's preference does not imply that the candidate is nominated or endorsed by the party or that the party approves of or associates with that  candidate."

Although that was sufficient to rule against the political parties, Coughenour said Washington also offers explanations in its voter pamphlets and ballots mailed to absentee voters, Coughenour said.  The parties argued that not all voters read ballot instructions or voting pamphlets, an argument Coughenour soundly rejected.

"A voter who ignores or refuses to read basic ballot instruction is no longer a reasonable voter and surely not a well-informed one," Coughenour wrote.  "The court cannot and will not consider the constitutionality of Initiative 872 from the viewpoint of such an unreasonable, uninformed voter."

Coughenour did agree with the parties on one issue -- using the open primary to elect precinct committee officers.  They are "grassroots representatives of the political parties" and not allowing the respective parties to determine who they are violates their First Amendment right to association, Coughenour wrote.

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