Washington elections case tops U.S. Supreme Court agenda

WASHINGTON – The Supreme Court digs into political bedrock this year with cases that will shape how candidates are chosen and how voters cast ballots.

Three disputes concerning campaigns and elections already are on the court’s docket, and more of the same could be on the way.

The new term also includes issues such as sentencing in drug cases, executions by lethal injection, age bias in the workplace and the rights of employees who put their money into 401(k) accounts.

And the court will consider – again – whether detainees at Guantanamo Bay have a right to plead their innocence before a judge.

Today, the court takes up a challenge to Washington state’s primary elections. Two days later, it will consider New York state’s system for selecting judges. Soon, the justices will hear a challenge to Indiana’s requirement that voters present photo identification.

“The intricacies of nominations will be on their minds,” said Paul Smith, a Washington, D.C., lawyer who has considerable experience in arguing before the court.

The grunt work starts at 10 a.m. today, pitting Washington state’s political parties against the state’s government and most of its voters.

In 2004, Washington state voters approved a new way of selecting candidates by 60 percent to 40 percent: the top two vote-getters in a primary advance to the general election.

The ballot measure, called Initiative 872, allows primary candidates to specify which political parties they “prefer,” even if they aren’t party members. Consequently, the two candidates in a general election could come from the same party.

“The initiative advances the right of qualified voters to cast their votes effectively by providing broad access to the primary ballot, and by allowing voters to participate in the primary election without regard to their political persuasion,” Washington state Attorney General Robert M. McKenna declared.

Opponents complain that the real result is to dilute the meaning of political parties. They liken it to a similar primary system in Washington state and California that courts struck down a few years ago.

“Political parties have the First Amendment rights to define the scope of their political association, select their standard bearers for the general election and exclude outsiders from that process,” the Washington state GOP wrote in legal filing.

Despite their names, the combined cases Washington v. Washington State Republican Party and Washington State Grange v. Washington State Republican Party cross party lines. The state’s Libertarian Party and Washington Democratic Central Committee have joined Republicans in challenging the primary system.

The California Democratic Party weighed in with an amicus brief supporting its Washington state counterparts, as did the Democratic National Committee.

“The state’s asserted interest in providing easy ballot access for candidates and in informing voters do not justify burdening the Republican Party with messengers and messages the party does not want,” Republican attorney John J. White Jr. argued.

The political parties recall what happened under the kind of blanket primary system that was struck down, in which primary voters were given ballots from both major parties. One survey found that barely one-third of Washington voters confined themselves to candidates from a single party under the old blanket primary system.

In California, 37 percent of Republican voters said in 1997 they intended to vote in the Democratic gubernatorial primary. This cross-over voting contributed to what White called “the adulteration of political party message.”

The Supreme Court struck down California’s blanket primary by 7-2 in 2000 as an infringement on First Amendment rights of free association. An appellate court subsequently ended Washington state’s blanket primary, as well, but state officials reasoned that they could resurrect it in another form so long as it was billed as nonpartisan.

The New York judicial-selection system is a narrower case. Critics are challenging the state’s complicated system for letting party leaders control judicial nominees through conventions, established some 80 years ago during the heyday of Tammany Hall, the Democratic Party political machine that largely controlled New York City politics in the 19th and early 20th centuries.

“What happens is the party leader picks his friends,” said Smith, a lawyer with Jenner & Block.

The challenge to Indiana’s photo-identification requirement for voters could have much broader sweep, depending on what the court does. Seven states require or request voters to present photo IDs, and 18 states require non-photo identification. Proponents say the ID requirement deters fraud. Skeptics see other motives.

On Guantanamo, the justices ruled three years ago that the right to habeas corpus written into American law extended to the longtime prisoners held at the U.S. Navy base in Cuba. This seemed to open the door to hearings before an independent judge.

But the Bush administration balked, and last year’s Republican-controlled Congress changed the law to say that foreign-born “enemy combatants” did not have a right to habeas corpus. Now, the court faces a historic decision on whether to overrule both the president and Congress on a war-related matter.

The decision will depend on how the justices interpret the Constitution, which says “the privilege of the writ of Habeas Corpus shall not be suspended,” except during times of “rebellion or invasion.” Civil libertarians have urged the court to say Congress violated this provision when it took away from the Guantanamo prisoners the right to go to court.

With just half of the court’s docket set for 2007-08, room remains for the justices to add cases which could dramatically reshape the course of the term.

Among those it may add is one that could weigh the meaning of one of the best-known phrases in the Constitution: the right “to keep and bear arms,” in the Second Amendment.

Remarkably, the court has never invoked this amendment to strike down a law restricting guns. That may be because the amendment begins by saying a “well-regulated militia” is “necessary to the security of a free state.” For much of the court’s history, it was ignored as archaic, merely a guarantee that states could maintain militias.

More recently, scholars have come to view the amendment as protecting an individual’s right to bear arms.

The justices will decide this fall whether to hear an appeal from attorneys for the District of Columbia, whose 30-year-old ban on the private possession of handguns was struck down as unconstitutional under the Second Amendment. Even if the court agrees that gun rights are protected by the Constitution, its decision is likely to leave room for some regulation of firearms.