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!

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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.