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.
It’s hard to say how a court will deal with this. WAC can’t override RCW, but it can fill in a gap created by a RCW that doesn’t exist anymore, and a statute doesn’t have to be explicitly repealed by the legislature. Courts are empowered to decide whether a law is still in effect or not. I’ve seen cases, for example, where the legislature passed two laws on the same subject that were mutually exclusive, and the court decided which one applies. I haven’t read the federal cases mentioned by Ammons (who is a journalist, not a lawyer), but it sounds like dicta if even that. This is all probably an academic issue that won’t affect the election outcome because Romney won’t win this state anyway. My gut instinct is the Libertarian lawsuit won’t keep Romney off Washington ballots on Nov. 6.
From the News-Tribune piece:
The state’s view, as expressed in a memo from Katie Blinn, elections co-director, is that the 2008 presidential race kept the Republicans in major party status.
“Because the Republican and Democratic nominees for president and vice-president both received at least 5 percent of the total votes cast for that office in the 2008 presidential election, those parties retain their status as major parties until the next presidential election at which their nominees do not receive at least 5 percent of the votes cast,” she wrote.
Gee, Darryl, that sounds an awful lot like the position I took when you first posted about this – that the text of the statute could be interpreted to include the last presidential election, and not merely the last statewide election.
I’d sure like to see that memo. My ass is still stinging a little bit from the whipping you gave me because of what I wrote. I’m just a little curious about how similar my perspective is to that of WA state.
I wrote:
RCW 29A.04.086 tells us that “”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.”
The word OR is controlling.
Since presidential elections don’t occur in years not divisible by 4 into whole numbers, and since a presidential election is one of the scenarios, and since the GOP got more than 5% in WA in 2008, I see all this as a nonissue.
http://horsesass.org/?p=45117#comment-1171512
You replied:
Serial Conservative @ 6,
Are you fucking serious?
What don’t you understand about the phrase, “at the last preceding state general election in an even-numbered year”?
For the 2012 election, 2008 was not “the last preceding state general election in an even-numbered year.” That distinction falls upon our friend 2010.
The fact that the party candidate can be nominated for one of several offices is entirely irrelevant, since only Senate was on the ballot that year.
Sloppy, sloppy analysis.
http://horsesass.org/?p=45117#comment-1171528
Maybe I misunderstand the elections co-director’s point but she, clearly, is also referring to the 2008 election results as sufficient to qualify Romney for the ballot. I would like to know what her rationale is for doing so.
I must admit I am very concerned that our co-elections director might also be using sloppy, sloppy analysis.
This, and the the mess that led to the Presidential primary, and nothing else, being run by precinct voting instead of the mail ballot, makes me wonder if it’s all screwed up on purpose. Everyone knows that red tape and snafus are invented, written into law, and leveraged by incumbents to increase the barrier of entry to market newcomers. People hate big corporations because they hire lobbyists to make these kind of problems.
By the way, is there a rational reason you prefer to use a disrespectful sexual act to describe people that think taxes are too high? What happened to the “new civility”?
Ow! My head hurts. We were vastly better off when parties selected a nominee, by whatever means they liked, those names were printed on the ballot and we voted without this top two, on a Wednesday under a full moon in even number year system. I don’t blame the libertarians or greens for being pissed off.
Bob,
“Gee, Darryl, that sounds an awful lot like the position I took when you first posted about this – that the text of the statute could be interpreted to include the last presidential election, and not merely the last statewide election.”
Nope. You misunderstand the SOS argument. It isn’t a question of how the RCW is interpreted. All parties seem to agree that they plain text reading of the statute is as I presented. The SOS office believes that RCW is, in some sense, vacated by the courts.
So, no, you had it wrong.
“I’d sure like to see that memo.”
I’m pretty sure the memo is what Dave Ammons sent me.
“My ass is still stinging a little bit from the whipping you gave me because of what I wrote.”
Please…you suck even more at being a drama queen than you do at being an amateur propagandist!
“I’m just a little curious about how similar my perspective is to that of WA state.”
As I recall, you refused to actually read the RCW…instead you pulled your own interpretation of what you think the RCW was saying out of your ass. The SOS, on the other hand, takes the position that the RCW isn’t law.
In other words, pretty much nothing at all like what you were saying.
Bob,
“Maybe I misunderstand the elections co-director’s point but she”
You seem to misunderstand the reasoning.
“, clearly, is also referring to the 2008 election results as sufficient to qualify Romney for the ballot.”
Yes…but not because of any interpretation of the RCW. Your hair-brained reading–that was just half-assed, sloppy, and laughable!
“I would like to know what her rationale is for doing so.”
Um…read my post. Carefully.
Joshua,
“By the way, is there a rational reason you prefer to use a disrespectful sexual act to describe people that think taxes are too high?”
Because “Teabagger” is more parsimonious and more amusing than “people who think taxes are too high.” And because that is how at least some of them referred to themselves.
“What happened to the “new civility”?”
That’s funny!
If their suit is right, Washington has no major parties. With top two, there are no longer party nominees, except for President. So the 2010 US Senate election did not produce a party nominee. Did the Democrats get a thousand signature at their state convention and timely file them with the Secretary of State?
@ 6 Darryl:
Is the memo linked to or otherwise posted? Apologies if so but I’m clicking links all over the place and not finding it.
@9 Um…no. Just because the top two ballot does not list people by party nomination (instead idiotically listing who a candidate “prefers”) doesn’t mean the parties have stopped nominating people for statewide office. Both D and R have continued to do this regularly; as Darryl posted, the only reason the R’s didn’t in 2010 was that in the only statewide office being voted upon, the WSRP wanted to avoid an internal fight with Didier backers.
As for the lawsuit itself, this is yet another case where the law is causing problems specifically because of bending over backwards to make it difficult for voters to have meaningful choices. The blowback here is the apparent inadvertent disqualification of someone who should have the right, by any possible objective measure, to be on November’s ballot and allow voters the option of supporting him.
The apparently “correct” legal reading of the issue results in such a transparently ridiculous outcome that I can’t imagine any court letting it stand. The courts in this country have a long history of flexible interpretations of the law when a rigorous reading would threaten the interests of people with money.
Bob @ 10,
I searched on the text from Dave Ammons I quoted above and got this at the SOS web site. Hope that helps.
Richard Pope @ 9,
“So the 2010 US Senate election did not produce a party nominee.”
The Democrats did nominate a candidate for the 2010 Senate race at their convention. Essentially, they complied with WAC 434-215-165, and thus maintain their status as a “major party”.
The Republicans didn’t.
Roger Rabbit @1,
“This is all probably an academic issue that won’t affect the election outcome because Romney won’t win this state anyway. My gut instinct is the Libertarian lawsuit won’t keep Romney off Washington ballots on Nov. 6.”
That’s kind of a shame. If the Republicans were off the ballot, the third-party candidates would come out, and we might get a look at how much support third parties actually have, and which ones have it.
The Republican Times thinks it’s newsworthy.
http://seattletimes.nwsource.c.....ney17.html
Ruling is that Romney will be on the ballot.
http://www.spokesman.com/stori.....dge-rules/
Darryl, thanks for providing the link @12.