Washington State Republican Party v. State of Washington

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 First and Fourteenth Amendments, Initiative 872 fails to do so. Rather, the Initiative retains a partisan primary, in which each candidate…