Washington Crossed Over But May Be Sent Back

This is a follow-up to the October 15, 2004 post on this blog, "Will Washington (and California) Cross the Rubicon?"

On November 2, 2004, California voters defeated Proposition 62, an initiative for a Louisiana-style "top two" election system. Some 54 percent voted "no" as the measure lost in 51 of the state's 58 counties. This means that the Golden State will keep its semi-closed primary, which allows registered independents to vote in either the Democratic or the Republican primary in congressional and state elections.

Apparently, a big factor in this outcome was the fact that California has voter registration by party. Partisan Republicans and Democrats did not like the possibility that under Prop. 62, the two final candidates can be from the same party. Members of minor parties opposed the measure because it would make it nearly impossible for their candidates to reach the final election.

Richard Winger, a Californian who publishes Ballot Access News, comments, "The minor parties probably helped defeat Prop. 62 slightly, but the most important factor in the defeat of Prop. 62 was that the California Democratic and Republican Parties put their muscle in play against it, with door hangers, recommendations against it by unions, associations of ethnic and racial minorities, business associations... all the groups that are closely linked to state legislators. The state legislators were almost unanimously opposed to Prop. 62. On the other hand, the governor was for it, as were most big newspapers."

Voters in Washington state, however, approved a similar proposal, Initiative 872. Nearly 60 percent said "yes" as the Top Two carried all 39 counties. This was not surprising, since Washington has a long history of letting voters cross party lines in the first round of voting.

As promised, the state's political parties filed a federal lawsuit (Washington State Republican Party v. Logan) against Initiative 872. On July 15, 2005, U. S. District Judge Thomas Zilly struck down the Top Two and ordered that the state continue using the Montana-style system of separate party primaries. The state and the Grange have appealed to the Ninth U. S. Circuit Court of Appeals.

[The posts of February 28, 2006 and September 20, 2005 on this blog are also relevant to this topic.]

Must Be Something in That Georgia Water

[The Clarion-Ledger ran this Associated Press article on November 12, 2004.]

SYLVESTER, Ga. --- A 59-year-old great-grandmother is pregnant with twins and will deliver next month, three decades after she had her tubes tied.

"They came untied," Frances Harris said Thursday.

The multiple birth Dec. 21 would break the purported record set this week by a 56-year-old New York City mother of twins. [The NYC woman is the sister of Curtis Sliwa, founder of the Guardian Angels.]

Harris, of rural Sylvester, Ga., said she wasn't trying to get pregnant-- and didn't realize she was-- until she started gaining weight and went to see her doctor.

"A lot of things changed about me," she said. "I started craving grapes and apples, things I don't usually crave."

"They had to sit me down. I couldn't even talk," she said.

The news was even more shocking considering Harris had her tubes tied 33 years ago after the birth of her youngest child.

Government Caused the Flu-Vaccine Crisis

[Arthur Foulkes is an independent writer in Indiana and author of "Weakened Immunity: How the FDA Caused Recent Vaccine-Supply Problems," Independent Review, Summer 2004.]

Headlines about shortages of influenza vaccine are becoming as much a part of autumn as the World Series. In 2000, manufacturing delays and plant shutdowns sent many people scrambling for the hard-to-get vaccine. In 2001, fears of anthrax poisoning drew unexpectedly high demand, as did a particularly nasty flu bug in 2003. But 2004's scenario was undoubtedly the worst. [To see the complete article, go to the address below.]

http://www.fee.org/vnews.php?nid=6404&printable=Y

A Nudist Camp, Elvis, and a UFO

[This letter was written to Bill Huennekens in the office of Secretary of State Sam Reed, Olympia, Washington, on April 20, 2002.]

Thanks again for the copy of Judge Burgess's ruling in the blanket-primary case, Democratic Party of Washington State v. Reed. As you know, I have followed this case with great interest.

I feel like a mosquito in a nudist camp: I hardly know where to start.

You and your office are to be commended for winning in the District Court. I'm convinced, however, that this will prove to be a temporary victory. (I'm assuming that the political parties will appeal-- they would be crazy not to.)

In this case at least, Judge Burgess has chosen to be a man of the people rather than a man of the Constitution; he presumably associates with many who strongly favor keeping your blanket primary. [Blanket primary: All candidates of all parties are listed on the same ballot, with the top vote-getter from each party advancing to the general election.]

It appears to me that the good judge deliberately set about to find arguments supporting the status quo-- and to exclude evidence that argued against it. He makes a number of erroneous and misleading statements, causing me to question whether he fully understands all the issues involved.

Your "blanket primary" is actually a hybrid-- part primary and part general election.

(I'll refer to the page numbers in the upper right corners.)

Burgess, page 5: Secretary Reed contends "... that voters in Washington do not participate in the primary as party members or affiliates, but as the general electorate winnowing the field and choosing nominees..."

IT IS NOT THE PROPER ROLE OF THE GENERAL ELECTORATE TO CHOOSE PARTY NOMINEES-- ANY MORE THAN IT IS THE PROPER ROLE OF METHODISTS AND AGNOSTICS TO PICK THE PASTOR OF THE BAPTIST CHURCH!!

Justice Scalia, author of the Supreme Court's majority (7-2) opinion, which struck down the blanket primary in the California case: The blanket primary "... has simply moved the general election one step earlier in the process, at the expense of the parties' ability to perform the 'basic function' of choosing their own leaders."

Scalia: "The impact of voting by nonparty members is much greater upon [small] parties, such as the Libertarian Party..." If a small party's message is kept out of the general-election campaign, the party loses its main reason for existing. (page 6)

Page 7: Burgess fails to mention that "the seven state interests" were claimed in the California case by the defendants-- who lost.

Burgess, page 9, line 9: "... independent parties..." Obviously, it should be "independent candidates."

Burgess, page 9: "... the State's interests in this blanket primary are animated by the electorate's evident desires..." (italics added)

Scalia: "... [S]electing the candidate of a group to which one does not belong... has been described... as a 'desire'-- and rejected as a basis for disregarding the First Amendment..."

Burgess (pp.9-10) quotes the U. S. Constitution (Art. I, S. 4, cl. 1) as though this is the entire Elections Clause: "The Times, Places, and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." The next part of that sentence is, "... but the Congress may at any time by Law make or alter such Regulations..." Of course, Congress, in 1872, designated the first Tuesday after the first Monday in November of even-numbered years as federal election day.

Burgess, page 10: "In California, a candidate... gains access to the general election ballot ... by filing as an independent and receiving a certain percentage of votes." Wrong! An independent candidate qualifies by getting signatures on a petition.

Burgess, page 13: "The Washington blanket primary... enacted by the... Legislature, does not suffer from the same infirmity-- being enacted by popular initiative alone-- that concerned the dissent in [the California case]." Justice Stevens, who otherwise favored the blanket primary, worried that nominating candidates for the U. S. Congress through a blanket primary not passed by the legislature may be unconstitutional. Be that as it may, this clearly does not apply to Washington.

Bill, you told me that Judge Burgess had actually read the opinions in the California case, and I'll take your word for it!

Hizzoner seems to be more interested in upholding Washington's ancient state court decisions than upholding the recent U. S. Supreme Court ruling. Though these state court decisions now seem to be irrelevant, I can't resist making a few comments.

Anderson v. Millikin, page 13: A citizen has the right to vote "... not a coerced party ballot, but for the candidate of his choice, whether he be upon one ballot or another." (italics added) Do the citizens in the 48 states with separate party primaries feel "coerced"? Gimme a break!

Scalia: "Selecting [nominating] a candidate is quite different from voting for the candidate of one's choice."

Anderson, page 13: As to the risk of members of one party forcing a candidate on an opposing party, "... the provisions... apply equally to all parties who may be affected thereby, and thus there is no discrimination in favor of or against any." In other words, it's OK for one party's nominating process to potentially be hijacked-- so long as the other parties face the same danger of hijacking!

Note: All those state judges were elected by voters who overwhelmingly favored the blanket primary.

Burgess appears to be mesmerized by "experts" who have taught and written about political science-- but who have never run even a campaign for dog-catcher.

Conversely, Hizzoner deems the testimony of those with real-world experience in the nitty-gritty of the political process to be "worthless."

"Expert" Olson, page 20: "... there is no easy or clear way to define membership in political parties in Washington State."

There are ways besides party registration to identify party members. Otherwise, there would not be 21 states without party registration. (Ever heard of the exit poll, Doc?)

Since there are political parties in Washington, they are bound to have members. Evidently, Doctors Olson and Donovan want us to believe these members wear disguises. ["The Strange Case of the Unknown Party Member" DUM-DE-DUM!!]

Scalia, quoting from a previous ruling: Parties have "'... the freedom to identify the people who constitute the association, and to limit the association to those people only...'" This was a case from Wisconsin, one of the first states to enact the primary election-- and which has no voter registration at all.

Washington Democratic Party, p. 20: "The determination of how to structure the Party and who is eligible to participate in the Party's candidate selection process belongs to the Party, not the State..."

Burgess, p. 20: "This argument ignores the inherent problem with the political parties' definition of party membership in Washington." Say what?!

Scalia, quoting again from the Wisconsin decision: "'[T]he act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party... .'"

As to Washington's 2000 presidential primary: Each voter who chose either a Democratic or a Republican ballot and signed an oath of affiliation could have kept his party affiliation secret by selecting instead an unaffiliated ballot-- and he could have thus voted for the very same candidate. This sounds to me like a pretty positive act of commitment to a political party. [The parties chose not to count unaffiliated ballots.]

Dr. Donovan (p. 21) suggests that, over a six-and-a-half-month period, a large number of voters might change their party affiliations. And the moon is made of green cheese... pigs can fly... Elvis is alive... a UFO just landed at Disney World...

Judge Burgess, p. 24, paraphrasing "Expert" Olson: Under the blanket primary, "... there may not actually be a burden on the political party, because it may benefit by having candidates selected who may actually be more likely to win the general election."

Justice Kennedy, concurring with Scalia, addresses this argument that "[a] political party might be better served by allowing blanket primaries as a means of nominating candidates with broader appeal. Under the First Amendment's guarantee of... free association... this is an issue for the party to resolve, not for the State."

Olson, p. 26, as to the concept of one party's voters forcing a candidate on another party: "Such a strategy... is equally available in all direct primaries, whether of the closed, open, or blanket variety." Bovine Scatology!!

Olson, p. 26: "... [T]here is no way to determine that cross-over voting has occurred."

Scalia: "One expert testified... that in Washington the number of voters crossing over from one party to another can rise to as high as 25 percent... and another that only 25 to 33 percent of all Washington voters limit themselves to candidates of one party throughout the ballot..."

Burgess, p. 27: "... the Louisiana primary where David Duke ran as a Republican and won." Wrong! "Expert" Donovan, Supplemental Declaration, p. 12: "... Louisiana's primary system that allowed Duke to win the Republican nomination... . ... Republicans were significantly more likely to vote for Duke than Democrats..."

Since Louisiana has no nominating process, there are no party nominations. The only thing David Duke won in 1991 was one of two spots in the non-partisan runoff. Notably, both President Bush I and the incumbent Republican governor endorsed the Democrat, who got 61 percent of the total vote.

Party registration versus non-registration was not an issue in the California case. However, if the Burgess decision were upheld, both California and Alaska could re-enact the blanket primary by merely first eliminating party registration.

Under the Court's reasoning in the California case, the open primary is also vulnerable to a legal challenge-- which seems unlikely. But if the Court is willing to scuttle the open primary, what chance does your blanket primary have? [Open primary: Each voter chooses a party on primary day.]

My dream scenario: The Ninth Circuit adopts the Burgess ruling as its own, and Scalia makes mincemeat of it.

Realistic scenario: Having been reversed in the California case, the Ninth Circuit will presumably overturn the District Court. The Supreme Court will then refuse to hear the case.

Bill, if we didn't live so far apart, I'd bet you a steak dinner on the outcome of this case. I love steak-- it tastes even better when someone else is paying for it!

--------

Note: On September 15, 2003, the Ninth Circuit Court of Appeals reversed the District Court, thus striking down Washington state's 68-year-old blanket primary.

On February 23, 2004, the U. S. Supreme Court refused to hear the state's appeal.

Discovering Gravity: No Big Deal

I do not know what I may appear to the world, but to myself I seem to have been only like a boy playing on the sea-shore, and diverting myself in now and then finding a smoother pebble, or a prettier shell than ordinary, whilst the great ocean of truth lay all undiscovered before me.

ISAAC NEWTON,
in Brewster's Memoirs of Newton

To Party Or Not To Party?

[The Clarion-Ledger ran a shorter version of this letter on August 19, 2004; this is in response to "The rise of the unaffiliated," which appeared in the Perspective section on July 4, 2004.]

During Rhodes Cook's recent C-SPAN appearance, an Alabama caller claimed to be a "registered Republican." That's impossible, since Alabama, like Mississippi, is among the 21 states without voter registration by party.

Cook says the supposed movement away from the Democrats and Republicans began in 1987. In 1986, the U. S. Supreme Court gave parties in states with party registration the right to invite independents to vote in their primaries. In states where one or more parties have extended this invitation, the voter has less incentive to register with a party.

Just because a citizen doesn't put a party preference on a voter registration form doesn't mean he lacks one. To paraphrase the Supreme Court, the act of voting in a party primary is an act of affiliation with that party. If someone consistently votes in a particular party's primaries, it's usually safe to assume that he favors that party.

An excellent tool for learning the voters' attitudes is the exit poll, whereby voters in key precincts are interviewed as they leave the polling places. This is especially useful in those 21 states without party registration.

The turnout numbers for the 50 states' party primaries would be much more revealing than the party registration figures.

Several states have unusual setups. A New Hampshire independent may vote in a party primary by changing his registration as late as primary day. On emerging from the voting booth, he may either stay registered with his new party or switch back to independent status.

Utah Republicans allow independents to vote in their primary by changing their registration as late as primary day. Utah Democrats, in contrast, invite all voters (even registered Republicans!) to participate in their primary.

In the states without party registration, each party's members can cross over and vote in another party's primary. If this is ever challenged in the federal courts, it will likely be outlawed.

Reagan's "Gender Gap" and Millions of Abortions

[The Natchez Democrat ran this letter on July 25, 2003; The Clarion-Ledger ran an edited version on July 27, 2003.]

In 1912, former President Theodore Roosevelt endorsed the concept of letting the voters overturn judicial decisions. While this is still a bad idea, two recent Supreme Court rulings make it tempting.

The majority opinions in the affirmative-action and sodomy cases were written, respectively, by Justices Sandra Day O'Connor and Anthony Kennedy.

Facing a "gender gap" in the 1980 presidential race, Ronald Reagan promised to name a woman to one of the first Supreme Court vacancies. In 1981, Robert Bork would have breezed through the Republican Senate, but Reagan went ahead and nominated O'Connor instead.

Rev. Jerry Falwell expressed doubts about O'Connor's views on abortion. Sen. Barry Goldwater, an O'Connor supporter, suggested that Americans "kick Jerry Falwell right in the [behind]." During the subsequent 23-year onslaught against innocent human life, O'Connor has cast crucial votes to keep abortion legal.

President Reagan nominated Judge Bork in 1987, after the Democrats had regained control of the Senate. The administration was unprepared for the vicious anti-Bork campaign, and the liberals defeated one of the best-qualified Supreme Court nominees of the 20th century. [Sen. Arlen Specter, Pennsylvania Republican, joined in stabbing Judge Bork in the back. Ironically, Specter had been elected on Reagan's coattails in 1980.] Reagan's next appointee was withdrawn due to marijuana use. (He evidently did inhale.) The third choice, Judge Kennedy, was confirmed.

Kennedy's opinion, with O'Connor agreeing, paves the way for same-sex marriages.

There are several lessons here for President Bush and future Republican presidents. Make a potential nominee's views on the Constitution your main consideration. Send up the best candidate first, and then fight like the dickens to get him or her confirmed.

***************

For a great article related to this topic, be sure to see Joseph Sobran's "How Tyranny Came to America" at http://www.sobran.com/tyranny.shtml

***************

Jewish World Review July 6, 2005

When Ronald Reagan nominated Arizona's Sandra Day O'Connor to the Supreme Court in 1981, conservatives were nervous because little was known about her. Reagan assured religious conservatives they had nothing to fear.

Reagan told Rev. Jerry Falwell he had spoken to her about abortion, which was the main concern of religious conservatives, and found her to be "OK" on that issue. Reagan assured Falwell and company they would not be disappointed.


I was vice president of Falwell's Moral Majority at the time and went on ABC's "Nightline" to express my reservations that conservatives might not like what they were getting. What I had seen of O'Connor's record did not persuade me she would favor restricting abortion.


I was right and Reagan was wrong. Conservatives were disappointed. O'Connor has been the key vote upholding the extra-constitutional ruling known as Roe vs. Wade. There would be other justices named by Republican presidents who also were disappointments. Anthony Kennedy was chosen by Reagan after his administration misjudged the intensity of opposition to Judge Robert Bork. Kennedy has been a disaster on abortion and religious issues.


David Souter was nominated by the current president's father after similar assurances by then-White House chief of staff John Sununu that Souter would be "OK" on issues about which conservatives cared. He wasn't. Souter has been as liberal as any justice in recent memory.


Despite her thin legislative and judicial record in Arizona, there were hints about O'Connor's legal philosophy from Eleanor Smeal, then-president of the National Organization for Women. Last week, Smeal recalled she endorsed O'Connor's nomination before the Senate Judiciary Committee because "I knew then that O'Connor, although a conservative voice, would be one who would not permit the elimination of women's fundamental rights, including the right to privacy."


Instead of seeing this as a red flag, most conservatives held their tongues. They wanted to maintain "access" to Reagan.


This history is what makes conservatives nervous about the choice President George W. Bush will make, especially when he speaks of symbolism and the potential nomination of the first Hispanic justice, possibly Attorney General Alberto Gonzales. Reagan tried symbolism by naming the first woman, but he lost substance.


We hear this President Bush has learned a lot from the mistakes of his father. Does this include naming a justice that reflects his often-stated views about wanting someone on the bench who doesn't make law, but rather upholds the Constitution? We are about to find out.


More than campaign promises, President Bush's first choice of a Supreme Court justice will reveal his core beliefs. He has repeatedly said he wants someone in the model of Clarence Thomas and Antonin Scalia. These are men who have lived up to the noble objective of faithfully interpreting the Constitution instead of unfaithfully reading into it their personal judicial preferences.


An unnamed "senior administration official" told The New York Times, "The president is going to pick someone who is a true constructionist and who is correct in interpreting the law."


The left is already mobilizing to smear whoever is selected as an "extremist," an "out of the mainstream" nominee who will recreate "back alley abortions" and resurrect the Dark Ages.


Conservatives say they have learned from previous court battles and are not going to be fooled again. They will look beyond assurances that a nominee is "OK" and examine the substance of that nominee's record and philosophy. Nothing but delivery on the president's promise will satisfy them.


This is the big one, the main event. If the president does not nominate someone who measures up to his often-stated view of the court and the Constitution, he can forget about conservative support for anything he wants to do during the rest of his term. Even if he names someone who is eventually rejected by the Senate, he will get significant support from conservatives and momentum for nominating another conservative.


Perhaps it is a case of hope trumping experience, but my guess is that despite a pro-choice wife and mother, the president will be true to his convictions. My hope is that I am not exposed as a "false prophet."


JWR contributor Cal Thomas is the author of, among others, The Wit and Wisdom of Cal Thomas.