The Libertarian Party of Washington State is suing to keep Mitt Romney off the ballot.
Their argument may be familiar to you…I wrote about it recently. By law, the Washington State Republican Party is a minor party and it hasn’t met the signature gathering requirements of a minor party for the fall Presidential election.
You can read the Libertarian’s complaint here. But let me briefly recap the argument.
In 2010, the WSRP didn’t nominate, or even endorse, anyone in the only statewide election. The reason, as I mentioned earlier, was that the Teabaggers were going to raise holy hell if Dino Rossi (who entered the race very late) got the nomination over uber-teabagger Clint Diddier for the U.S. Senate race.
Dino Rossi won a spot on the general election ballot by placing second in the primary. But, prior legal precedent has firmly established that our top-two primary is a “‘winnowing’ election designed to send only two candidates on to the general election without regard to political party nomination or affiliation,” rather than a nominating election.
So the Republicans failed to have a party nominee receive at least 5% of the vote in a 2010 statewide election as per RCW 29A.04.086:
“Major political party” means a political party of which at least one nominee for president, vice president, United States senator, or a statewide office received at least five percent of the total vote cast at the last preceding state general election in an even-numbered year.
They also failed to file the 1,000 signatures this year as is required for a minor party by RCW 29A.20.111 et seq.
Thus the Libertarians point out in their complaint:
Accordingly, the Washington State Republican Party is not entitled under the R.C.W. to have its nominee’s name printed on the November general election ballot, although its candidate (presumably Mr. Romney) is entitled to run as a write-in candidate.
In other words, the Libertarians (who are currently a minor party) want fair and equal treatment with the Republicans who, evidence suggests, is now a minor party.
And they have a point! It is how the law is written. And if the law is followed as written, there should be no Republican presidential ticket on our ballots this fall.
Here’s the thing. The relevant RCW actually predate the top-two primary. And, from one perspective, the major/minor party status law doesn’t quite jibe with a top-two primary system. In fact, in 2009, the SOS office pushed legislation that would have changed the major/minor party part of the law to better reflect a top-two primary. Alas, the bill (SB 5681) failed.
After my last post on this topic, I emailed the Secretary of State office to ask for their take on this issue. Dave Ammons respond with a helpful summary of the SOS position:
The Legislature has not repealed the old RCWs that were put in place for the old pick-a-party primary system, so many of the old definitions are still on the books. All three levels of federal courts (District Court, Ninth Circuit Court of Appeals, and U.S. Supreme Court) have commented at some point in the 8 year litigation over the Top Two Primary system that Initiative 872 impliedly repealed the old party nomination procedures for the pick-a-party primary. The upshot is that we have adapted many procedures for the Top Two Primary in WAC.
WAC 434-208-130 define major and minor political parties. The relevant paragraphs of the WAC state:
(1) For purposes of RCW 29A.04.086, “major political party” means a political party whose nominees for president and vice-president received at least five percent of the total votes cast for that office at the last preceding presidential election. A political party that qualifies as a major political party retains such status until the next presidential election at which the presidential and vice-presidential nominees of that party do not receive at least five percent of the votes cast.
In other words, the SOS office is relying on a WAC that changes the RCW, under the argument that the RCW’s major/minor party definitions were implicitly “repealed” when the pick-a-party procedures were replaced for the top-two primary.
The argument might make sense, except for two things. First, the major/minor party definitions as they exist under RCW are a little awkward to deal with, but they are certainly not incompatible with a system that primarily has top two primaries (except for presidential elections). Therefore, an argument can (and will!) be made that the definitions were not implicitly repealed as suggested by the SOS office. And you cannot use the WAC to “override” the RCW.
The second point is that the legislature actually considered the issue in SB 5681. They had a chance to change the law to dovetail with the definitions in the WAC. And they declined to do so!
It is a fascinating problem! That said, I don’t relish the idea of Mitt Romney being kept off the ballot.
What I enjoy about this predicament is just how fucked up the Teabaggers have made things for the WSRP. In almost any other year, the Republicans would have had the clone-like unity to rally behind the “chosen” candidate. They would have proudly nominated him and, knowingly or not, maintained their legal eligibility as a major party under all definitions. But not in 2010.
This is why I always keep a good stock of popcorn in my pantry….
Update (11:45 pm): I modified the post to remove an extraneous quote that was accidentally left in the original. I clarified the language in a couple of spots, too.
