Washington State Republican Party v. Logan

• Decision Date: 15 July 2005
• Docket Number: No. C 05-927Z.,C 05-927Z.
• Citation: 377 F.Supp.2d 907
• Court: U.S. District Court — Western District of Washington
• Parties: WASHINGTON STATE REPUBLICAN PARTY, et al., Plaintiffs, and Washington State Democratic Central Committee, et al., Plaintiff Intervenors, and Libertarian Party of Washington State, et al., Plaintiff Intervenors, v. Dean LOGAN, King County Records & Elections Division Manager, et al., Defendants, State of Washington, Defendant Intervenors, and Washington State Grange, Defendant Intervenors.

Page 907

377 F.Supp.2d 907

WASHINGTON STATE REPUBLICAN PARTY, et al., Plaintiffs, and Washington State Democratic Central Committee, et al., Plaintiff Intervenors, and Libertarian Party of Washington State, et al., Plaintiff Intervenors, v. Dean LOGAN, King County Records & Elections Division Manager, et al., Defendants State of Washington, Defendant Intervenors, and Washington State Grange, Defendant Intervenors.

No. C 05-927Z.

United States District Court, W.D. Washington.

July 15, 2005.

COPYRIGHT MATERIAL OMITTED

John James White, Jr., Kevin B. Hansen, Livengood, Carter, Tjossem, Fitzgerald & Alskog, Kirkland, WA, David Thomas McDonald, Jay S Carlson, Preston Gates & Ellis, Seattle, WA, Richard Dale Shepard, Shepard Law Office Inc., Tacoma, WA, for Plaintiff.

Janine Joly, Thomas William Kuffel, King County Courthouse Civil Division, Seattle, WA, Thomas Fitzgerald Ahearne, Foster Pepper & Shefelman, Seattle, WA, Gordon W. Sivley, Robert Tad Seder, Snohomish County Prosecuting Attorney Civil Division, Everett, WA, Steven James Kinn, Spokane County Prosecutor's Office, Spokane, WA, Curtis Guy Wyrick, Clark County Prosecuting Attorney's Office, Vancouver, WA, Ronald S. Marshall, Cowlitz County Prosecutor's Office, Kelso, WA, James Garnet Baker, Grays Harbor Prosecuting Attorney's Office, Montesano, WA, Frederick Alan Johnson, Wahkiakum County Prosecuting Attorney, Cathlamet, WA, David W. Alvarez, Jefferson County Prosecuting Attorney's Office, Port Townsend, WA, for Defendants.

James Kendrick Pharris, Jeffrey T. Even, Maureen Alice Hart, Attorney General of Washington, Olympia, WA, for Defendant Intervenors.

ORDER

ZILLY, District Judge.

I. Introduction

On May 19, 2005, the Washington State Republican Party (the "Republican Party") filed this action against Dean Logan, King County Records and Elections Division Manager and the Auditors of eight other counties. Complaint, docket no. 1. The Republican Party's Complaint challenges Initiative 872 on the basis of the First and Fourteenth Amendments to the United States Constitution. The Washington State Democratic Central Committee (the "Democratic Party") and the Washington State Libertarian Party (the "Libertarian Party") have now intervened as Plaintiffs and also contend that Initiative 872 is unconstitutional. See docket nos. 2, 3.

Plaintiff Republican Party contends that Initiative 872 is unconstitutional because the Initiative prevents voters who share party affiliation from selecting their party's nominees. The Republican Party also alleges that Initiative 872 forces the Party to be associated publicly with candidates who have not been nominated by the Party, who will alter the political message and agenda the Party seeks to advance, and who will confuse the voting public with respect to what the Party and its adherents stand for.

The Democratic Party contends portions of Initiative 872 are unconstitutional to the extent that they authorize the County Auditors to permit non-affiliates of the Democratic Party to participate in its nomination process, and to the extent Initiative 872 allows crossover voting in violation of the Party's associational rights.

The Libertarian Party claims that Initiative 872 is unconstitutional because it "places impermissible limits on access to the general election ballot" contrary to the United States Constitution, and allows a person to appropriate the Libertarian Party label without compliance with its nominating rules and without allowing the Party to define what the Party label means.

The State of Washington and the Washington State Grange (the "Grange") have also intervened as Defendants. See Order, docket no. 30; see also Minute Entry, docket no. 45. The State of Washington and the Grange contend that Initiative 872 is constitutional.

This case presents a classic conflict between the rights of the voters to establish by initiative a new system for conducting primaries and general elections for partisan offices, and the rights of political parties to control the nomination of partisan candidates for elective office and to protect their rights of association. Primaries constitute a "crucial juncture" in the elective process and a "vital forum" for expressive association among voters and political parties. Clingman v. Beaver, ___ U.S. ___, 125 S.Ct. 2029, 2042, 161 L.Ed.2d 920 (2005) (O'Connor, J., concurring). The voters by Initiative 872 seek to create a system "that best protects the rights of voters to make such choices, increases voter participation, and advances compelling interests of the state of Washington." Initiative 872, Sec. 2.¹

Plaintiffs seek to have Initiative 872 declared unconstitutional under the United States Constitution as constituting an illegal nomination process, as requiring an unconstitutional "forced association," and for violating equal protection under the law. The recent invalidation of the Washington blanket primary forced Washington voters to choose between two strikingly different versions of a primary election. The voters were forced to choose between voter choice and party nominations, and the voters chose voter choice.

In considering the issues presented in this case, the Court does not begin with a clean slate. Rather, the United States Constitution and binding court precedent have created the landscape for deciding these important issues.

II. History of Washington's Primary Process

For over 100 years, Washington has had a partisan election system. Historically, voters at the general election were provided a choice between representatives of each qualifying political party. From 1890 through 1907, candidates for partisan offices were chosen either by convention or by petition. In 1907, the Washington State Legislature established the first direct primary system for partisan candidates, requiring political parties to choose their representative through a public primary. See State ex rel. Wells v. Dykeman, 70 Wash. 599, 127 P. 218 (1912). In this system separate ballots were printed for each political party and voters could only cast ballots in one party's primary.

Washington State's "blanket primary"² system was first established in 1935. Except for presidential primaries,³ all properly registered voters could vote for their choice at any primary for "any candidate for each office, regardless of political affiliation and without a declaration of political faith or adherence on the part of the voter." Wash. Rev.Code Ann. § 29.18.200 (West 2003). As a result, each voter received a ballot listing all candidates of all parties and could vote for any candidate as opposed to getting an exclusively Republican, Democratic, or other party ballot. Under the blanket primary system, voters could choose candidates from some parties for some positions, others for other positions, and engage in cross-over voting or "ticket splitting." Wash. Rev.Code Ann. § 29.18.200 (West 2003). Under the blanket primary system, minor parties selected their nominees at conventions prior to the date of the primary. Wash. Rev.Code Ann. § 29.24.020 (West 2003). These nominees would be placed on the ballot for the primary election. To be placed on the general election ballot, under the prior blanket primary procedure, minor party nominees had to receive a number of votes equal to at least one percent of the total number cast for all candidates for that position. Wash. Rev.Code Ann. § 29.30.095 (West 2003).⁴

In 2000, the United States Supreme Court held that California's blanket primary, similar in many respects to Washington's blanket primary, was unconstitutional. California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). The Supreme Court held that the California blanket primary placed a severe burden on political parties' right of association, was not narrowly tailored to achieve a compelling state interest, and was therefore unconstitutional. Id. at 582-85, 120 S.Ct. 2402.

In 2003, relying on Jones, the Ninth Circuit Court of Appeals held that Washington's blanket primary system was unconstitutional in Democratic Party of Washington v. Reed, 343 F.3d 1198 (9th Cir.2003), cert. denied, 540 U.S. 1213, 124 S.Ct. 1412, 158 L.Ed.2d 140 (2004). The Ninth Circuit stated that Washington's primary system was "materially indistinguishable" from the invalidated California system. Id. at 1203. As a result, Washington's blanket primary that had been used for over sixty-five years was held unconstitutional and the State was legally enjoined from "conducting the challenged primary in future elections." Amended Judgment, Washington State Democratic Party v. Reed, No. C00-5419FDB (W.D.Wash. May 13, 2004).

On January 8, 2004, the Grange filed Initiative 872 with the Secretary of State (the "Secretary").⁵ Dembowski Decl., docket nos. 68 and 69, Ex. F. Initiative 872 proposed a "top two" primary system in which a properly registered voter has "the right to cast a vote for any candidate for each office without any limitation based on party preference or affiliation of either the voter or the candidate." Initiative 872, Sec. 5.⁶ Initiative 872 defines a partisan primary as a "procedure for winnowing candidates for public office to a final list of two as part of a special or general election." Id.

While sponsors of Initiative 872 were gathering signatures,⁷ the Washington State Legislature was faced with the task of developing a new primary system in Washington State after the Reed decision invalidated the blanket primary. On March 10, 2004, the Legislature enacted a bill which would have provided for two alternative primary systems. E.S.B. 6453, 58th Leg., 2004 Reg. Sess. (Wash.2004). Part I of the bill provided for a "Louisiana" style primary system, commonly referred to as the "top two" approach. See id., Part I. Under the top two approach, a registered voter would be permitted to cast a vote for each office appearing on the ballot without any limitation based on the party...