What Was Lost in the Primary Decision, or, The Forest for the Trees

Washington voters have, for a long time, had a "blanket primary," where they could vote for any candidate for any party.

For perfectly valid reasons, the parties said this makes no sense: the party should get to determine its own candidates, not the average voter, unless those voters choose to identify with the party, even if it is only choosing to participate in that party's primary.

The state says that this new "top two" system to replace the closed primary does not choose the party's nominee, but in practice, that is exactly what it does, since the party's nominee can only be on the ballot if he is in the top two, so the party's nominee becomes a meaningless thing, and worse, the government is, in essence, lying to the people, saying that the person on the ballot who bears the party's name represents the party, even if he doesn't.

Justice Thomas says, well, the law SAYS it is not choosing the party's nominees. So therefore it isn't, and since we have no instances of voter confusion, we can't assume they will be confused (despite the fact that every change to the primary thus far in recent years has been greeted by far more confusion than lack of it).

But it is a specious claim, regardless of the potential for confusion: Thomas is saying that the party preference listed with the candidate's name has no meaning, but if it has no meaning, why include it at all? That it is included necessarily implies meaning, and that meaning is, quite unavoidably, that the candidate is claiming affiliation with the party, affiliation the party may or may not accede to. It is not merely about whether the candidate is nominated by the party, but whether the party agrees to any association with that candidate at all. This is at the very heart of the right to association.

I wrote this before reading Scalia's dissent, but he echoes the sentiment:

... it seems to me quite impossible for the ballot to satisfy a reasonable voter that the candidate is not "associated with" the party for which he has expressed a preference. He has associated himself with the party by his very expression of a preference -- and that indeed is the whole purpose of allowing the preference to be expressed.

Scalia finds a good analogy:

Washington's law is like a law that encourages Oscar the Grouch (Sesame Street's famed bad-taste resident of a garbage can) to state a "preference" for Campbell's at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations.

You may not care about any of this, but there are other problems. What happens when decide you want to put some independent or third-party candidate on the general election ballot? The way it used to be is that if you just got enough signatures and paid the fee, you would be on the ballot. Not anymore. Now you need to do all that AND be in the top two. Good luck.

This is catastrophic for all third parties and independents, who have always been on the general election ballot, but now, will never -- or almost never -- be. You will now have FEWER choices on the general election ballot. Congratulations.

Unfortunately, our primary system in Washington has become basically just a "pre-election." We don't have a primary in this state anymore, not for normal definitions of the word. It's simply the first phase of the general election: we are not picking nominees, we are actually voting for candidates, just like in the general election.

The real question should be at this point, why bother with a primary at all? As the "top two" system just creates a two-tiered general election system, we are wasting money by having it at all. Just put all the candidates on the general election ballot and be done with it. It is literally throwing away time and money, as the "primary" no longer serves any purpose. Indeed, it serves a negative purpose, since fewer people participate: indeed, in 2006, a Supreme Court Justice was elected in the primary, instead of the general! Which is better: 39 percent of voters voting for judges, or 65 percent? Such atrocities happen when there is no clear purpose for having a primary in the first place.

Further, now that the primary serves no purpose, the parties won't use them. They will endorse their candidates for office and throw all their money behind candidates at their conventions, before the primary, thus giving you less choice than ever in the primary. There may be more names there, but fewer people who have a chance of winning, because the parties will have already made their choices, and the money will already have moved to those candidates.

If you voted for I-872, you voted for the government to lie to you; to diminish the right of association; to abolish your right to put a candidate on the general election ballot; to have more names but less choice for the fewer who vote in the primary; and less choice in the general.

You got your blanket primary back, but you lost a lot more than you gained.

NB: Thomas, Alito, and Roberts -- who voted in favor of the top two system -- all explicitly (in Thomas' court opinion, and in Roberts' concurring opinion, joined by Alito) left room open for the top two primary to be overturned in the future, if confusion does occur. Further, while a candidate has the right to place his party preference on the ballot, that doesn't mean he -- and the state or county government -- can't be sued by the party, as the law includes no exemption from such a misrepresentation of affiliation.