Fanning the Flames: The Freedom Project Blog


Who Doesn't Want Oscar in Their Party?

By Shawn Healy
The Supreme Court reversed a Ninth Circuit Court of Appeals decision last week concerning a state law in Washington that enables voters to select candidates from both major parties, the Democratic and Republican Party, along with independents on a blanket ballot. The top-two vote getters in the primary advance to the general election, meaning that a major party may be excluded in its entirety.

The state parties, led by the GOP, contested the law, I-872, The People's Choice Initiative, on First Amendment grounds, contending that it violated parties' right to association. The parties suggest that candidates may claim an affiliation to them and use this to advance to the general election, leaving the party with little or no say who carries their banner before voters.

The Supreme Court, in a 7-2 decision, restored the law, rejecting the facial challenge. By the latter I mean the majority contends that the law is not unconstitutional in its abstract form. It could be struck down upon application, but this has yet to occur because the lower courts struck it down before it took effect.

Justice Clarence Thomas, writing for the majority, reverses the lower court decision on the grounds that I-872 does not on its face impose a severe burden on political parties' associational rights, and because respondents' arguments to the contrary rest on factual assumptions about voter confusion that can be evaluated only in the context of an as-applied challenge..."

Thomas claims the Court is disinclined to favor facial challenges on the grounds that they "often rest on speculation," "raise the risk of premature interpretation of statutes on the basis of factually barebones recorrds," and "run contrary to the fundamental principle of judicial restraint," thus "threaten(ing) to short circuit the democratic process."

Having struck down a similar California law, the majority distinguishes the Washington statute in that it does not choose parties' nominees, but instead general election candidates independent of party affiliation. Moreover, the "fatal flaw" of the defendants' argument centers on voter confusion relative to the party-preference designation on the ballot, but the majority considers such a phenomenon "sheer speculation." In sum, "The First Amendment does not require this extraordinary and precipitous nullification of the will of the people."

Chief Justice John Roberts wrote a a concurring opinion, echoing the majority's claim that "Majority perceptions matter, and if voters do not actually believe the parties and the candidates are tied together, it is hard to see how the parties' associational rights are adversely implicated." Roberts urges us to wait for the actual ballot design to measure whether or not the statute in practice is unconstitutional. He makes an analogy to Campbell's Soup, suggesting that a candidate declaring an affinity for the product does not make her/him a company spokesperson. The same holds true for party identity. Claiming allegiance to a political party does not make one its standard-bearer.

Justice Antonin Scalia wrote a scathing dissent suggesting that the Washington law is unconstitutional on its face. He writes, "Because Washington has not demonstrated that this severe burden upon parties' associational rights is narrowly tailored to serve a compelling interest--indeed because it seems to me Washington's only plausible interest is precisely to reduce the effectiveness of political parties--I would find the law unconstitutional.

Scalia continues, "Not only is the party's message distorted, but its good-will is hijacked. There can be no dispute that candidate acquisition of party labels on Washington's ballot--even if billed as self-identification--is a means of garnering the support of those who trust and agree with the party."

He parses Roberts' Campbell's Soup analogy further, claiming that Washington's law allows "Sesame Street's famed bad-taste resident of a garbage can," Oscar the Grouch, to state his affinity for the soup, while never allowing the company to disassociate itself from this questionable character.

Scalia concludes, "There is no state interest behind this law except the Washington legislature's dislike for bright colors partisanship, and its desire to blunt the ability of political parties with non-centrist views to endorse and advocate their own candidates."

To Scalia's chagrin, Oscar continues to eat and promote Campbell's Soup to his heart's delight, and may even ride its good will to the state legislature or governor's mansion.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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