Facts
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Washington voters adopted Initiative 872 (I-872) after the State’s prior blanket primary system was invalidated.
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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.
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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.
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Political parties brought a facial First Amendment challenge and obtained an injunction barring implementation of I-872.
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The Ninth Circuit affirmed, reasoning that ballot party designations convey a strong partisan message and impose a severe burden on parties’ associational rights.
Issues
- 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.
- 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.