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State of Washington Defends Its Primaries Before Supreme Court

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By Robert Barnes
Washington Post Staff Writer
Tuesday, October 2, 2007

The Supreme Court convened its new term yesterday, and the justices immediately immersed themselves in the first of several election-law challenges the court has agreed to decide in the midst of the 2008 elections.

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Skeptical justices heard the state of Washington defend its unique voter-approved election system against a challenge that it unconstitutionally prevents political parties from choosing their own nominees.

Washington has a "top two" primary system, in which all candidates on the ballot state a party "preference'' and all voters may choose among them. The top two advance to the general election, even if they prefer the same party. The major political parties have challenged the system, saying it violates their First Amendment association rights.

Washington Attorney General Robert McKenna argued that the state has a right to set its own election rules, and that the party preference listed by the candidates is simply helpful information for voters, not a sign that the party endorses that candidate's views.

But several justices were doubtful.

"If it's your position that the parties are not really injured or affected by this, and the parties' position is that they are, who should we believe?" asked Justice Anthony M. Kennedy. "I mean, it's hard for you to tell the parties that they don't know what's in their best interest."

Justice Antonin Scalia asked repeatedly if a party would be able to disassociate itself on the ballot from a specific candidate, and McKenna eventually answered no.

McKenna tried to draw a distinction between a candidate "associating" with a party and simply listing a preference.

Justice David H. Souter had trouble finding a "real world" difference. "Do you know any people who go around saying, 'Well, you know, I really prefer the Democrats; I'm a Republican myself.' I mean, that doesn't happen."

"Well, the example of Senator Lieberman comes to mind," McKenna responded, referring to Sen. Joseph I. Lieberman, who lost the Democratic primary in Connecticut in part because of his association with Republicans and then won the general election as an independent.

Souter conceded, as the court and spectators laughed. "There's always one."

The combined cases are Washington State Grange v. Washington State Republican Party (06-713) and Washington v. Washington State Republican Party (06-730).

The justices also heard arguments in a case that asks whether school districts must pay for a private education for children with learning disabilities if the public schools have never had the chance to show they can provide the services.

The case, Board of Education of City of New York v. Tom F. (06-637), concerns the federal Individuals With Disabilities Education Act, which requires the public system to provide a free and appropriate education or pay for private tuition.

The court yesterday also provided details about cases it had decided not to hear this term. Included on the list were two cases involving the separation of church and state.

In one, justices refused to take an appeal from the U.S. Court of Appeals for the 9th Circuit, which said a California library did not have to allow a religious organization to use its community meeting room. The library said doing so would have required taxpayers to subsidize a religious group.

The court also let stand a New York court's ruling that the state could require religious organizations to pay for contraceptive services under its employee health-care plans. New York is one of 23 states, including Maryland, that said prescription plans must also cover birth control pills. Catholic Charities and other organizations had challenged the law, saying they shouldn't have to pay for services that violate their religious beliefs.


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