WASHINGTON STATE REPUBLICAN PARTY; Diane Tebelius; Bertabelle Hubka; Steve Neighbors; Mike Gaston; Marcy Collins; Michael Young v. State of WASHINGTON; Rob McKenna, Attorney General; Sam Reed, Secretary of State; Washington State Grange
Nos. 05-35774, 05-35780
United States Court of Appeals, Ninth Circuit
August 22, 2006
Argued and Submitted Feb. 6, 2006.
Before D.W. NELSON, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.
FISHER, Circuit Judge.
For the second time in three years, political parties in Washington State are challenging the constitutionality of their state‘s partisan primary system, which was enacted as a result of the passage of Initiative 872 in the November 2004 state general election. In 2003, we concluded that Washington‘s previous “blanket” primary system was unconstitutional because it was “materially indistinguishable from the California scheme held to violate the constitutional right of free association in Jones.” Democratic Party of Wash. v. Reed, 343 F.3d 1198, 1203 (9th Cir. 2003) (relying on Cal. Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000)).
There are differences between Washington‘s pre-Reed blanket primary and the “modified” blanket primary being challenged in this case, and we are mindful that Initiative 872 reflects the political will of a majority of Washington voters. Nonetheless, although attempting to craft a primary system that does not unconstitutionally burden political parties’ right of association under the
Rob McKenna, Maureen A. Hart, Jeffrey T. Even and James K. Pharris (argued), Office of the Washington Attorney General, Olympia, WA, for the State of Washington (defendant-intervenor-appellant).
Thomas F. Ahearne (argued), Ramsey Ramerman and Rodrick J. Dembowski, Foster Pepper & Shefelman PLLC, Seattle, WA, for the Washington State Grange (defendant-intervenor-appellant).
John J. White, Jr. (argued) and Kevin B. Hansen, Livengood, Fitzgerald & Alskog, Kirkland, WA, for the Washington State Republican Party (plaintiff-appellee).
David T. McDonald (argued) and Jay Carlson, Preston Gates & Ellis, LLP, Seattle, WA, for the Washington State Democratic Central Committee (plaintiff-intervenor-appellee).
Richard Shepard (argued), Shepard Law Office, Inc., Tacoma, WA, for the Libertar-
I. Background
To understand the flaw in Initiative 872‘s partisan primary system, it is helpful to review the nature and structure of the primary process in general. A political primary is often thought of as a “meeting of the registered voters of a political party for the purpose of nominating candidates . . . “; and a common definition of a primary election is a “preliminary election in which voters nominate party candidates for office.” American Heritage College Dictionary 1086 (3d ed. 2000). The Supreme Court has characterized a candidate nominated in a primary as the party‘s “standard bearer,” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997), or “ambassador to the general electorate in winning it over to the party‘s views,” Jones, 530 U.S. at 575, 120 S.Ct. 2402. In states that have adopted a “closed” primary system, each party (or traditionally at least each of the two major parties) selects its nominees who are to appear on the general election ballot as that party‘s candidates for particular offices. This type of primary is referred to as “closed” because only voters who formally associate themselves with a party in some fashion in advance of the primary may vote in that party‘s primary and thereby select the party‘s nominee. See Id. at 577, 120 S.Ct. 2402; see also Alexander J. Bott, Handbook of United States Election Laws and Practices: Political Rights 21, 43, 139 (1990).
Although many states employ a closed primary, other alternative primary systems have been and continue to be used in some states. One such alternative used to be the “blanket” primary, until the California version was held unconstitutional in Jones. In contrast to closed primaries where each party‘s nominee is selected by voters pre-affiliated with that party who vote only in that party‘s primary, a blanket primary system uses a common primary ballot shared by all candidates for particular elective offices. All voters, regardless of their own political party affiliations (if any), could —until Jones —vote for any candidate appearing on the blanket primary ballot regardless of that candidate‘s designated political party affiliation.2 The candidate who received the greatest number of votes in relation to other candidates with the same party affiliation would be-
Invoking Jones, the political parties in Washington challenged the blanket primary that had operated in that state since 1935. See Reed, 343 F.3d at 1201. Like the California primary, the Washington primary at issue in Reed advanced each of the top primary election vote-getters with-in the same party to the general election ballot. See Id.3 We held Washington‘s blanket primary unconstitutional in 2003 because it was “materially indistinguishable from the California scheme” that the Supreme Court invalidated in Jones. Id. at 1203.4
In the aftermath of Reed, two parallel efforts ensued to create a replacement primary system —one undertaken by the Washington state legislature and the other a ballot initiative sponsored by the Grange. In January 2004, the Grange filed the text of what was to become Initiative 872 on the November 2004 Washington ballot with the Washington Secretary of State. Initiative 872 made a number of changes to Washington‘s previous blanket primary system; but significantly, it retained the partisan nature of the primary. As the official voters’ pamphlet explaining Initiative 872 stated, the Initiative “concerns elections for partisan offices” and “would change the system used for conducting primaries and general elections for partisan offices.” (Emphasis added.)5
In March 2004, the Washington legislature adopted two alternative primary systems, subject to the outcome of the vote on Initiative 872 in the November 2004 general election. As its first choice, the legislature adopted a “top two” primary system similar, though not identical, to the one the Grange proposed in Initiative 872.9 As a precaution in case the anticipated legal challenges to the “top two” system proved successful, the legislature also adopted a “backup” primary system —the so called “Montana” primary —which is essentially a type of open primary.10
Governor Gary Locke vetoed the “top two” primary system in April 2004, so the “Montana” primary became Washington‘s primary system for the fall 2004 elections. Nevertheless, Initiative 872 passed with nearly 60 per cent of the vote in the November 2004 general election and became effective as Washington law in December 2004. The Washington legislature did not pass any other measure concerning the state‘s primary system in the first half of 2005, although the secretary of state did promulgate emergency regulations relating to Initiative 872 in May 2005.
The Washington State Republican Party (the Republican Party) filed suit in federal district court in May 2005, seeking a declaratory judgment and injunctive relief under
In July 2005, the district court granted the political parties’ motions for summary judgment and issued a preliminary injunction enjoining the enforcement of Initiative 872, see Wash. State Republican Party v. Logan, 377 F.Supp.2d 907, 932 (W.D.Wash.2005), and made the injunction permanent on July 29, 2005. Both the State of Washington and the Washington State Grange filed timely notices of appeal. We now affirm the district court‘s permanent injunction because the Initiative 872 primary unconstitutionally burdens the Washington state political parties’ associational rights by permitting candidates to identify their party “preference” on the ballot, notwithstanding that party‘s own preference.11
II. Discussion
A. Standard of Review
“We review a summary judgment [order] granting or denying a permanent injunction for abuse of discretion and application of the correct legal principles.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th Cir. 2004) (quoting EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987)). However, “any determination underlying the grant of an injunction [is reviewed under] the standard that applies to that determination.” Ting v. AT & T, 319 F.3d 1126, 1134-35 (9th Cir. 2003). Accordingly, the district court‘s findings of fact are reviewed for clear error while questions of law are reviewed de novo. See Id. at 1135.
The constitutionality of a state law is reviewed de novo. See Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1103 (9th Cir. 2004). “[W]e review the application of facts to law on free speech questions de novo.” Brown v. Cal. Dep‘t of Transp., 321 F.3d 1217, 1221 (9th Cir. 2003) (citing Planned Parenthood v. Am. Coalition of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002) (en banc)). Lastly, “severability is a question of state law that we review de novo.” Ariz. Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1283 (9th Cir. 2003) (per curiam).
B. Right of Association
“[T]he freedom to join together in furtherance of common political beliefs” —to form and join political parties —falls squarely within the right of association protected by the
The principle underlying the breadth of the right of association is one of mutuality: both the putative party member and the political party must consent to the associational tie. Accordingly, the freedom to associate necessarily includes some freedom to exclude others from the association. See Id. at 574, 120 S.Ct. 2402. “Freedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association‘s being.” Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 n. 22, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981) (quoting Laurence H. Tribe, American Constitutional Law 791 (1978)). Neither voters nor political candidates can force a political party to accept them against the will of the party. See Tashjian, 479 U.S. at 215 n. 6, 107 S.Ct. 544 (“[A] nonmember‘s desire to participate in the party‘s affairs is overborne by the countervailing and legitimate right of the party to determine its own membership qualifications.“); see also Duke v. Cleland, 954 F.2d 1526, 1531 (11th Cir. 1992) (“[David] Duke has no right to associate with the Republican Party if the Republican Party has identified Duke as ideologically outside the party.“).
The right of association, however, especially when it intersects with the public electoral process, is not “boundless.” Clingman v. Beaver, 544 U.S. 581, 589, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005). “States have a major role to play in structuring and monitoring the election process, including primaries.” Jones, 530 U.S. at 572, 120 S.Ct. 2402. Constitutionally permissible state regulations touching upon political party affairs include those “requiring] parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion,” “requiring] parties to demonstrate a significant modicum of support before allowing their candidates a place on [the general election] ballot” and “requiring] party registration a reasonable period of time before a primary election” in order to prevent “party raiding.”12 Id. (internal quotation marks and citations omitted). Accordingly, when we are faced with a state electoral law that allegedly violates associational rights:
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (internal quotation marks and citations omitted). Therefore, we must first determine whether Initiative 872 severely burdens the Washington political parties’ associational rights; if it does, we must then determine whether a compelling state interest justifies that bur-we weigh the character and magnitude of the burden the State‘s rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State‘s concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State‘s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.
1. Severe burden
Washington and the Grange contend that Initiative 872 does not severely burden the political parties’ associational rights. They point to dictum in Jones discussing with approval a nonpartisan blanket primary, see Jones, 530 U.S. at 585-86, 120 S.Ct. 2402, and argue that Initiative 872 created just such a primary. We disagree, because the primary under Initiative 872 is not the kind of nonpartisan election Jones contemplated.
The Jones dictum is found in that part of the opinion discussing the state interests California had identified in defense of its blanket primary. The Court identified four legitimate state interests that might justify allowing voters to vote for any candidate regardless of the candidate‘s party affiliation —“promoting fairness, affording voters greater choice, increasing voter participation, and protecting privacy” —but denied that these were compelling reasons to burden political parties’ associational rights “in the circumstances of[that] case.” Jones, 530 U.S. at 584, 120 S.Ct. 2402. The Court went on to reason, however, that even if these four interests were compelling, California‘s blanket primary was “not a narrowly tailored means of furthering them“:
Respondents could protect them all by resorting to a nonpartisan blanket primary. Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot —which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party‘s nominee. Under a nonpartisan blanket primary, a State may ensure more choice, greater participation, increased “privacy,” and a sense of “fairness” —all without severely burdening a political party‘s First Amendment right of association.
Id. at 585-86, 120 S.Ct. 2402. In light of this statement, we agree that to the extent Initiative 872 can be fairly characterized as enacting a nonpartisan blanket primary, Jones would lead us to uphold Washington‘s modified blanket primary.13
Initiative 872 resembles the Jones hypothetical nonpartisan blanket primary in some respects, but it differs in at least one crucial aspect. On the one hand, the “top two” feature of Initiative 872 seems indistinguishable from that referred to in Jones, as does the aspect of Initiative 872 that allows “[e]ach voter, regardless of party affiliation, [to] vote for any candidate.” Jones, 530 U.S. at 585, 120 S.Ct. 2402. However, the crucial point of divergence between Initiative 872 and Jones lies in the concept of partisanship. Although the Court did not specify in what sense it was using the term “nonpartisan,” an election is customarily nonpartisan if candidates’ party affiliations are not identified on the
In contrast to the Jones hypothetical primary, the primary envisioned by Initiative 872 is still overtly partisan. The Initiative redefined the concept of “partisan office,” but those offices remain partisan and so does the primary.15 By including candidates’ self-identified political party preferences on the primary ballot, Washington permits all voters to select individuals who may effectively become the parties’ standard bearers in the general election. Whether or not the primary candidate is a party‘s nominee, any candidate may appear on the ballot showing that party as his or her “preference” and (if one of the two top vote getters) may emerge as the only one bearing that designation in the general election. Whether or not the party wants to be associated with that candidate, the party designation is a powerful, partisan message that voters may rely upon in casting a vote —in the primary and in the general election. The Initiative thus perpetuates the “constitutionally crucial” flaw Jones found in California‘s partisan primary system. Not only does a candidate‘s expression of a party preference on the ballot cause the primary to remain partisan, but in effect it forces political parties to be associated with self-identified candi-
Washington and the Grange argue against interpreting the Initiative 872 primary as partisan, and assert that a party “preference” is distinguishable from a party “designation” or some other stronger affirmative indication of party affiliation, such as membership. Such a distinction exists as a matter of logic, but it is not meaningful in the circumstances of this case. The district court came to the commonsense conclusion that “[p]arty affiliation plays a role in determining which candidates voters select, whether characterized as ‘affiliation’ or ‘preference.‘” Wash. State Republican Party v. Logan, 377 F.Supp.2d 907, 926 (W.D.Wash.2005). Washington urges that a candidate‘s political party preference simply provides “information for the voters.” But a statement of party preference on the ballot is more than mere voter information. It represents an expression of partisanship and occupies a privileged position as the only information about the candidates (apart from their names) that appears on the primary ballot. Moreover, it also carries over onto the general election ballot.16
Importantly, “party labels provide a shorthand designation of the views of party candidates on matters of public concern. . . .” Tashjian, 479 U.S. at 220, 107 S.Ct. 544. Voters rely on party labels on the ballot in deciding for whom to vote. This political reality is illustrated by the Sixth Circuit‘s decision in Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992). Rosen held unconstitutional the provision in Ohio‘s election law that “prohibit[ed] nonparty candidates for elective office from having the designation Independent or Independent candidate placed on the ballot next to their name.” Id. at 171. The court relied on evidence that:
Id. at 172. Thus voters “are afforded a ‘voting cue’ on the ballot in the form of a party label which research indicates is the most significant determinant of voting behavior.” Id. Similarly, to the extent Initiative 182 allows candidates to self-identify with a particular party —even if only as a “preference” —it cloaks them with a powerful voting cue linked to that party.[v]oting studies conducted since 1940 indicated that party identification is the single most important influence on political opinions and voting. . . . [T]he tendency to vote according to party loyalty increases as the voter moves down the ballot to lesser known candidates seeking lesser known offices at the state and local level.
Given that the statement of party preference is the sole indication of political affiliation shown on the ballot, that statement creates the impression of associational ties between the candidate and the preferred party, irrespective of any actual connection or the party‘s desire to distance itself from a particular candidate. The practical result of a primary conducted pursuant-to Initiative 872 is that a political party‘s members are unilaterally associated on an undifferentiated basis with all
A hypothetical may help illustrate the situation confronting the political parties and the voters of Washington in an Initiative 872 primary. Let us assume the Republican Party holds its own privately run party convention prior to the modified blanket primary to select the Party‘s nominee for the primary ballot for a particular state office. Cf. Jones, 530 U.S. at 585, 120 S.Ct. 2402 (noting that candidates appearing on a nonpartisan blanket primary ballot may be nominated by established political parties).17 Let us further assume that two Republican candidates (both of whom are bona fide party members) —Candidate C, a conservative, and Candidate M, a moderate —compete against one another for the nomination and that Candidate C wins the Republican nomination at the convention. Lastly, let us assume the existence of a third candidate —Candidate W, a wild-eyed radical —who purports to “prefer” the Republican Party but who is not a Party member, whose views are anathema to the Party‘s membership and who does not participate in the Party‘s convention process. Despite Candidate C‘s party nomination, Candidate M and Candidate W decide that they want to appear on the primary ballot.18 Given these assumptions, how would each of these candidates be designated on the ballot, and how would voters be able to distinguish among them?19
In so holding, we do not question a political candidate‘s fundamental right to express a political viewpoint, including a political preference, more generally. See, e.g., Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) (“[I]t can hardly be doubted that the [First Amendment‘s] constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.“). We are not deciding that an expression of a party preference other than as a ballot designation —as such in campaign literature or advertising, a candidate statement in the voters’ pamphlet or a news conference —constitutes a forced association between the candidate stating the preference and the political party being preferred. Rather, we are focused on the specific primary election ballot created by Initiative 872, and the one-sided expression of party preferences on that ballot. There is a constitutionally significant distinction between ballots and other vehicles for political expression. “Ballots serve primarily to elect candidates, not as forums for political expression.” Timmons, 520 U.S. at 363, 117 S.Ct. 1364. Here the ballot communicates a political association that may be unreciprocated and misleading to the voters, to the detriment of the political parties and their bona fide members.
The State of Washington attempts to counter our concern with this one-sidedness by itself invoking Timmons. It suggests that the lack of distinction between Candidates C, M and W on the primary ballot could be cured by the more detailed candidate statements that would likely reveal party membership and a candidate‘s
Candidate statements cannot cure Initiative 872‘s one-sided party-preference labeling on the primary ballot. As previously discussed, political parties’ names matter; they are shorthand identifiers that voters traditionally rely upon to signal a candidate‘s substantive and ideological positions. See Rosen, 970 F.2d at 172. For some voters, the party label may be enough; other voters may seek out more information about a candidate. As the Supreme Court observed in Tashjian, “[t]o the extent that party labels provide a shorthand designation of the views of party candidates on matters of public concern, the identification of candidates with particular parties plays a role in the process by which voters inform themselves for the exercise of the franchise.” Tashjian, 479 U.S. at 220, 107 S.Ct. 544. When the Libertarian Party challenged Oklahoma‘s semi-closed primary law by seeking to open the Libertarian Party primary beyond registered Libertarians and independents to all voters regardless of affiliation, the Court expressed its concern about the possibility of voters’ being misled by party labels: “Opening the [Libertarian Party‘s] primary to all voters not only would render the [Libertarian Party‘s] imprimatur an unreliable index of its candidate‘s actual political philosophy, but it also would make registered party affiliations significantly less meaningful. . . .” Clingman, 544 U.S. at 595, 125 S.Ct. 2029 (internal quotation marks omitted).
A party should not be placed in the position of having to overcome a false association between itself and a candidate by relying on the candidate‘s off-ballot clarifying statements.22 It is too much to expect candidate statements to clear up the confusion engendered by the primary ballot regarding who is the “real” Republican, Democratic or Libertarian standard bearer for his or her respective party, never mind whom party members would acknowledge as a fellow member.23
We are similarly unconvinced by Washington‘s argument that the political parties’ associational rights are not severely burdened because their inability to indicate their candidate preference on the primary ballot is no different from the inability of other, nonparty organizations, such as labor unions or better business bureaus, to indicate their candidate preferences. First, Washington‘s argument is undermined by the fact that Initiative 872 sin-
In sum, because a party label —even if expressed more ambiguously as a party preference —conveys to voters “a short-hand designation of the views of party candidates on matters of public concern,” Tashjian, 479 U.S. at 220, 107 S.Ct. 544, Initiative 872‘s party “preference” designation allows some candidates to create a mistaken impression of their true relationship with a political party. That severe burden on parties’ associational rights is not negated by requiring voters to rely on candidates’ or parties’ off-ballot statements to clarify the nature or even lack of an actual party association.
2. Compelling state interest and narrow tailoring
Washington and the Grange have focused their arguments on appeal on the contention that Initiative 872 does not severely burden the political parties’ associational rights at all. They have not articulated any compelling state interest that justifies such a burden. To the extent that we can read compelling state interests between the lines of their arguments —essentially those interests articulated and found inadequate by the Supreme Court in Jones —we conclude that such interests could be sufficiently served by a more narrowly tailored primary system. One obvious approach would be to create a true nonpartisan primary, such as the one discussed in Jones, where only a candidate‘s name without any party preference or designation appears on the ballot. Therefore, we hold that the modified blanket primary enacted by Initiative 872 in November 2004 is unconstitutional.
C. Severing Unconstitutional Provisions
As a fallback position, Washington and the Grange argue that any unconstitutional provisions in Initiative 872 —namely those that provide for the designation of candidate party preferences —can be severed from the rest of the Initiative. Following Washington law, which guides our severability inquiry, see Ariz. Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1283 (9th Cir. 2003) (per curiam), we conclude that it is not possible to sever the constitutionally deficient portions from the rest of Initiative 872.
The Washington Supreme Court has set forth its state severability doctrine as follows:
[A]n act or statute is not unconstitutional in its entirety unless invalid provisions are unseverable and it cannot reasonably be believed that the legislative body would have passed one without the oth-
McGowan v. State, 148 Wash.2d 278, 60 P.3d 67, 75 (2002) (internal punctuation marks, footnote and citations omitted).25
Conceptually speaking, severing all references to party preference from Initiative 872 seems fairly straightforward even though, as a practical matter, a fair number of provisions or portions of provisions would have to be severed.26 However, even if we assume without deciding that the problematic provisions are “grammatically” or even “functionally” severable,27 they are not “volitionally” severable. Volitional severability is another way of stating the McGowan requirement that “it cannot reasonably be believed” that Washington voters would have passed the remaining portions of Initiative 872 without the excised party preference provisions. Id.
Even if we grant Washington and the Grange‘s argument that Washington voters understood that Initiative 872 redefined candidate partisanship (i.e., as a party preference rather than as a stronger form of party affiliation), excising all mentions of party preference from the modified blanket primary would transform a partisan primary into a nonpartisan one. It is not reasonable to believe that Washington voters would have passed Initiative 872 if they knew it would result in nonpartisan primaries for all statewide offices. Because the party preference provisions in Initiative 872 do not pass the volitional severability test in McGowan, we conclude that Initiative 872 cannot be saved by severing its provisions for candidate party preferences. We hold that Initiative 872 is unconstitutional in its entirety.28
III. Conclusion
Although the Constitution grants States “a broad power . . . to regulate the time, place, and manner of elections[, that power] does not justify, without more, the abridgement of fundamental rights, such as . . . the freedom of political association.” Tashjian, 479 U.S. at 217, 107 S.Ct. 544 (internal citations omitted). A political party‘s “determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution.” Id. at 224, 107 S.Ct. 544. Initiative 872 severely burdens the Washington political parties’ associational rights by allowing all candidates to state their party preferences on the primary ballot. This one-sided
AFFIRMED.
RAYMOND C. FISHER
UNITED STATES CIRCUIT JUDGE
Notes
The proposed initiative would replace the current nominating system with a qualifying primary, similar to the nonpartisan primaries used for city, school district, and judicial offices. As in those primaries, the two candidates who receive the greatest number of votes would advance to the general election. Candidates for partisan offices would continue to identify a political party preference when they file for office, and that designation would appear on both the primary and general election ballots. . . .
At the primary, the candidates for each office will be listed under the title of that office, the party designations will appear after the candidates’ names, and the voter will be able to vote for any candidate for that office (just as they now do in the blanket primary).
Jones, 530 U.S. at 576 n. 6, 120 S.Ct. 2402. See also Bott, Handbook of United States Election Laws and Practices 21, 138.An open primary differs from a blanket primary in that, although as in the blanket primary any person, regardless of party affiliation, may vote for a party‘s nominee, his choice is limited to that party‘s nominees for all offices. He may not, for example support a Republican nominee for Governor and a Democratic nominee for attorney general.
Furthermore, even if Initiative 872‘s modified blanket primary can be said to “nominate” candidates, it does so in a way that is distinguishable from Washington‘s pre-Reed or California‘s pre-Jones blanket primaries. Unlike those primaries, the top vote-getters in each party under Initiative 872 are not guaranteed a place on the general election ballot; candidates advance only if they finish in the top two overall. There is therefore a real possibility that one of the political parties’ top vote-getters will not even make it into general election or that two candidates from the same party will advance. This is not a situation squarely contemplated by Jones or the cases upon which it relies, all of which share the underlying assumption that only one candidate emerges from a partisan primary as the party‘s nominee. See Jones, 530 U.S. at 575, 120 S.Ct. 2402 (“In no area is the political association‘s right to exclude more important than in the process of selecting its nominee.“) (emphasis added) (citing cases).
Second, Washington argues that “the associational rights of political parties do not include the right to have their nominees advance to the general election ballot.” But even if we construed the political parties’ argument to be that they have a right to have their respective nominees appear on the general election ballot, that argument misses the mark because it only addresses the “top two” nature of the Initiative 872 primary. The concern in this case is not that the top two vote-getters advance from the primary to the general election. Rather, it is that Initiative 872 provides candidates with a designated space on the ballot to express their party preference, notwithstanding the political parties’ unwillingness to associate with a particular candidate or nominate that person as a standard bearer.