## Facts

- Washington voters adopted Initiative 872 (I-872) after the State’s prior blanket primary system was invalidated.
- I-872 created a “top-two” primary in which:
  - candidates are listed with a self-designated “party preference,”
  - voters may vote for any candidate regardless of party, and
  - the two highest vote-getters advance to the general election regardless of party preference.
- Political parties objected that candidates could claim a party preference without party approval, allegedly forcing association and impairing parties’ control over who appears on the ballot with the party name.
- Political parties brought a facial First Amendment challenge and obtained an injunction barring implementation of I-872.
- The Ninth Circuit affirmed, reasoning that ballot party designations convey a strong partisan message and impose a severe burden on parties’ associational rights.

## Issues

1. Whether I-872’s top-two primary, which permits candidates to list a self-designated party preference on the ballot without party approval, facially violates political parties’ First Amendment associational rights.
2. Whether potential voter confusion or misattribution of party endorsement is sufficient to invalidate the scheme on its face before implementation.

## Decision

- The Supreme Court reversed in a 7–2 decision (Justice Thomas).
- The Court held I-872 is facially constitutional.
- The Court reasoned that facial challenges are disfavored and require showing a law is unconstitutional in all applications.
- The Court distinguished the system from a nominating primary: I-872 does not, by its terms, select party “nominees” or designate candidates as a party’s standard bearer.
- The Court concluded alleged harms (forced association and voter confusion) were speculative on the present record and better addressed, if at all, in as-applied litigation after implementation.
- A concurrence agreed facial invalidation was improper but stressed that ballot design and explanatory materials must avoid implying party endorsement.
- A dissent argued the party-preference label functions as a state-sponsored message likely to be read as endorsement, severely burdening parties’ associational rights.

## Legal Principles

- A facial constitutional challenge generally requires demonstrating that the law is unconstitutional in all (or a broad set of) its applications; courts should avoid invalidating election laws based on speculation about future effects.
- A primary scheme that does not formally nominate party candidates does not necessarily impose the severe associational burden identified in systems that allow nonmembers to choose a party’s nominee.
- States may, at least facially, permit candidates to communicate self-identified party preference on the ballot for informational purposes, so long as the scheme does not compel party endorsement or forced association as a matter of law.
- Potential constitutional defects turning on ballot presentation and voter understanding commonly depend on implementation and are suited to as-applied challenges.

## Conclusion

The Court upheld Washington’s top-two primary on its face, holding that allowing candidates to list a self-designated party preference and advancing the top two vote-getters does not inherently infringe political parties’ First Amendment associational rights, while leaving open as-applied challenges based on real-world implementation.


Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)