Court hears arguments over ‘top two’ primary

Tue., Oct. 2, 2007

Robert Barnes Washington Post

Court rejects regional cases

» The U.S. Supreme Court has declined to consider three regional cases:

» •Death row inmate Mark Lankford had been convicted in Idaho for the 1983 slayings of a young Texas couple while they were camping in the Idaho wilderness.

» Lankford and his brother, Bryan Lankford, were both convicted, but while Mark Lankford was sent to death row, Bryan was given life in prison. Today, Mark Lankford maintains he is guilty only of being an accessory after the fact – a crime in which he says the statute of limitations has already passed.

» •Krispen Estrada was convicted in 2001 of rape and kidnapping for choking, beating and raping his estranged wife in her Twin Falls home in front of their five children. He was sentenced to life in prison with the possibility of parole after 25 years.

» In his case, the Idaho Supreme Court ruled that the Fifth Amendment right against self-incrimination extends even to the pre-sentence investigation proceeding against a defendant.

» •The U.S. Supreme Court also declined to hear the appeal of a Washington state Supreme Court justice who was punished for visiting imprisoned sex offenders, including some who had appeals pending.

» Washington state's judicial watchdog agency gave Justice Richard Sanders an unusual rebuke in 2005 for his visit to the state's McNeil Island lockup for sexual predators.

» Sanders appealed to the U.S. Supreme Court, arguing that the "appearance of impropriety" standard he was punished under is unconstitutionally vague.

Associated Press

WASHINGTON, D.C. – The Supreme Court convened its new term Monday, and the justices immediately immersed themselves in the first of several election-law challenges the court has agreed to decide in the midst of the 2008 elections.

Skeptical justices heard the state of Washington defend its unique voter-approved election system against a challenge that it unconstitutionally prevents political parties from choosing their own nominees.

Washington has a “top two” primary system, in which all candidates on the ballot state a party “preference” and all voters may choose among them. The top two advance to the general election, even if they prefer the same party. The major political parties have challenged the system, saying it violates their First Amendment association rights.

Washington Attorney General Robert McKenna argued that the state has a right to set its own election rules, and that the party preference listed by the candidates is simply helpful information for voters, not a sign the party endorses that candidate’s views.

But several justices were doubtful.

“If it’s your position that the parties are not really injured or affected by this, and the parties’ position is that they are, who should we believe?” asked Justice Anthony M. Kennedy. “I mean, it’s hard for you to tell the parties that they don’t know what’s in their best interest.”

Justice Antonin Scalia asked repeatedly if a party would be able to disassociate itself on the ballot from a specific candidate, and McKenna eventually answered no.

McKenna tried to draw the distinction between a candidate “associating” with a party and simply listing a preference.

Justice David H. Souter had trouble finding a “real world” difference. “Do you know any people who go around saying, ‘Well, you know, I really prefer the Democrats; I’m a Republican, myself.’ I mean, that doesn’t happen.”

“Well, the example of Sen. Lieberman comes to mind,” McKenna responded, referring to Sen. Joseph Lieberman, who lost the Democratic primary in Connecticut in part because of his association with Republicans and then won the general election as an independent.

Souter conceded, as the court and spectators laughed, “There’s always one.”