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U.S. Supreme Court

Justices Debate Voter Confusion Over WA Primary Law

Posted Oct 2, 2007 5:35 AM CDT
By Debra Cassens Weiss

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Both sides left the U.S. Supreme Court in an optimistic mood after oral arguments yesterday in a challenge to a Washington state law that curbs the influence of political parties.

The law allows candidates in a primary to designate their own political party preference, Legal Times reports. The top two vote-getters advance to the general election, regardless of their party affiliation.

The parties contend the law violates their First Amendment right of association.

Several justices pointed out the possibility that voters will mistakenly believe the candidates’ party preference indicates the party has nominated or endorsed that person.

Chief Justice John G. Roberts Jr. pointed out a likelihood-of-confusion inquiry in a trademark case and suggested it also should be a consideration in the ballot case. "I don't know why you would give greater protection to the makers of products than you give to people in the political process," he said.

But Justice John Paul Stevens suggested that voters are well-informed, making confusion unlikely, the Seattle Times reports. "Everybody reads the newspapers, they know who the Republican nominee is,” he said. “That's publicized generally throughout the state."

Lawyers for both sides told the Seattle Times that the justices appeared supportive.

"It's a very dangerous game to handicap the Supreme Court based on oral arguments alone," said Washington Attorney General Rob McKenna, who argued in support of the law. "We felt that there were more than two and maybe as many as five or six justices who were sympathetic to our position. But you don't know until you know."

Likewise, David McDonald, a Seattle lawyer for the Democratic party, liked what he heard. "I thought the court had a lot of questions for the state, and they were not friendly questions," he said.

Judge for yourself. Here is a transcript (PDF) of the oral arguments in the consolidated cases, Washington State Grange v. Washington State Republican Party and Washington v. Washington State Republican Party.

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