Primary election ruling awaited I was wondering how long it would take the Louisiana media to get around to noticing that the opening-day case argued by the U.S. Supreme Court concerning Washington state’s blanket primary system might have an impact on Louisiana. It now officially has, nine days later, but didn’t report why the law would be in trouble, or that, from oral argumentation, it appears this will be the last statewide election that operates under the blanket primary system. It started with a California case decided in 2000 that had permitted a “partisan” blanket primary (the official name scholars give to Louisiana’s system, largely ignored by the state’s media and politicians, is a nonpartisan blanket primary). For decades California had allowed cross-nomination – a candidate could seek nominations from more than one party – but then changed to allow all voters the opportunity to vote in any party’s primary for any office, with winners fro each party advancing to the general election. This is in contrast to an “open” primary system where a voter regardless of affiliation may choose one particular party’s primary in which to participate. The Court, reaffirming lower court decisions, struck this down, the majority arguing that it infringed on the free association rights of political parties. That is, it prevented parties from disassociating themselves with candidates who in the main could be chosen by non-party affiliates. At the time, the majority made clear the ruling did not impact the open primary, because in having to choose one party’s primary in which to participate the voter was making an affirmation of allegiance, or the nonpartisan blanket primary, since the general election could advance two members of the same party which, in the Court’s words, “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.” Washington had a similar system, so in response a popular initiative was proposed, and passed by voters, that dispensed with the party nominee aspect and instead would advance the top two vote getters to the general election. It is like Louisiana’s in every way except that Washington did not claim that candidates would run as a representative of a party but instead would indicate a “personal party preference” in an attempt to obviate the claim that they were running in a nomination contest. Lower courts have rejected this wording as cosmetic. In addition, oral argumentation last week in front of the Court appeared to indicate that it was skeptical of the Washington law as well. Louisiana’s nonpartisan blanket primary now is threatened because, in the most recent case, lower courts are providing a more exact definition of “nonpartisan” which was not really addressed in the Court decision concerning California. To them, the term defines an election such as held in Nebraska where there is no party affiliations listed on the ballots at all (even as candidates publicize their affiliations). If the Court agrees, this means that neither Washington’s nor Louisiana’s systems are “nonpartisan” and thus are in violation of the associational rights of political parties. If it does, then the only way Louisiana could keep its present system is to remove partisan labels from ballots. Court decisions, even with seemingly-strong evidence from oral arguments, are hard to predict, and this obviously won’t be decided until after state and local elections, and then someone would have to challenge Louisiana’s system. But if the Court goes in the direction it seems to indicate, one huge matter the next Legislature will have to tackle is replacing its blanket primary system. (If you'd like to have Prof. Sadow's column mailed to you, go to http://www.between-lines.com and click on "Join the mailing list!" on the left-hand side.)