Political Parties, Under Challenge, Seem to Have Justices' Sympathy

There is a place, after all, where political party leaders still get a little respect, and it's called the Supreme Court.

The justices last week heard two cases that challenge the authority of party bosses and the freedom of political parties to select their own nominees, and the court seemed quite protective of the often-maligned party leaders.

In Washington State Grange v. Washington State Republican Party, the court considered a unique, voter-approved system in which any voter can choose among several candidates who express a "preference" for a party, and the top two vote-getters advance to the general election, regardless of party affiliation. Democrats, Republicans and Libertarians have joined together in opposing the initiative, which has never gone into effect because lower courts found it unconstitutional.

Those courts agreed that the law would violate the parties' rights of association under the First Amendment, because it might force a party to be identified with a winning candidate it didn't like and had no role in choosing.

The Supreme Court in 2000 struck down California's version of what is called a "blanket primary" for just that reason. Washington's leaders argued that its voters had fixed the constitutional problem by saying the party affiliation by the candidate's name was just the candidate's "preference," and not a suggestion that the party had endorsed the candidate.

But some justices were not buying that.

Justice Antonin Scalia asked repeatedly whether the party would have some opportunity on the ballot to state that it didn't approve of the candidate. He was finally told no but that the court should not keep the candidate from stating which party he preferred.

Scalia said he was concerned that a candidate "can associate himself with the Republican Party or the Democratic Party on the ballot, and that party has no opportunity on the ballot to say, 'We have nothing to do with this person.'

"That, it seems to me, is a great disadvantage to the parties."

Chief Justice John G. Roberts Jr. wondered what interest the state has in listing party preferences in the first place and said the case is really like a trademark case.

"They are going to think this person is affiliated with the Democratic or Republican Party, when they may, in fact, not be at all," he said. "And I don't know why you would give greater protection to the makers of products than you give to people in the political process."

And Justice Anthony M. Kennedy asked Washington Attorney General Rob McKenna, who was defending the election procedure, if the state has "a legitimate interest in weakening the influence of political parties."