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

By Robert Barnes
Washington Post Staff Writer
Tuesday, October 9, 2007

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."

"No, your honor, it does not," McKenna answered.

"If we found that that was the necessary effect of this ballot measure, then would it be invalid?" Kennedy responded.

The court's other case was New York State Board of Elections v. Lopez Torres. Margarita Lopez Torres is challenging the convoluted system for electing trial judges, devised by the state legislature, in which it is virtually impossible to win without the blessings of party leaders. An appeals court struck down what it called a "Byzantine and onerous network of nominating phase regulations employed in areas of one-party rule," but justices in oral arguments last week looked at it from the parties' point of view.

"The party hierarchy . . . wants to fence out the insurgents," Justice Samuel A. Alito Jr. said. "Does not the right of association include the right not to associate?"

Everyone has the same chance to seek the blessings of politicos, said Justice David H. Souter, just as the politicos have the right to say to those they don't want -- here Souter used a word you don't hear much at the court -- "scram."

"For political reasons, they're saying: 'We don't like you,' " Souter added, noting that he was having trouble finding a constitutional problem with that.

Former solicitor general Theodore B. Olson, arguing for the state board, agreed that "party leaders act like party leaders and exercise their influence."

A Rare (Chuckle)

It's pretty serious business at the court, and light moments are few. But when one of the justices displays a bit of wit, or sometimes a bit of sarcasm, he or she is rewarded with what the official transcript of the oral arguments records as (Laughter).

Scalia usually gets most of these, but Roberts was on top of his game last week.

During the Washington state arguments, Justice Ruth Bader Ginsburg asked how voters in Washington associate themselves with political parties, since they do not register that way.

John J. White Jr., representing the Washington State Republican Party, said they could do so in a variety of ways, including making campaign contributions or attending party nominating conventions. The Libertarian Party, he said, requires membership applications and pledges.

Roberts could barely contain himself: "Libertarians have a lot more rules than the other parties."

(Laughter.)