- The Washington Times - Tuesday, April 25, 2000

The Supreme Court was unreceptive yesterday to California's unique "mix and match" open primary, which lets voters vote in a way that trumps political parties' rights to choose like-minded candidates.

"That's democracy carried to an extreme, to tyranny for the majority," Justice Antonin Scalia said of the system Californians call a blanket primary, in which each voter, regardless of party, simultaneously may back nominees from Democratic, Republican and splinter-party columns for various offices.

"What is the state's interest in allowing an ever-changing galaxy of voters to tell the party who its representative must be?" Justice Anthony M. Kennedy asked.

"The very essence of the party's right is to define its own message and decide its own candidates. That's precisely the point at which the associational right of the party is at its zenith," Justice Sandra Day O'Connor said.

"What's left if this stands?" demanded Justice O'Connor, reflecting what appeared to be the overwhelming majority view across the court's political spectrum.

Without committing himself on the question of the California Democratic Party's First Amendment rights, Justice John Paul Stevens introduced the issue of whether voters ever may change the terms of congressional elections, as Californians did.

Justice Stevens asked what he somewhat disarmingly called "a stupid question": Does allowing voters to alter these rules violate the Constitution's Article I, Sect. 2, which requires that "times, places and manner" of electing Congress "be prescribed in each state by the legislature thereof"?

Justice Kennedy, a Californian, responded that the framers of the Constitution weren't aware of voter initiatives.

Justice Stevens said political parties were equally remote to the framers, disregarding the factional political system functioning in Philadelphia and Boston before the Constitution was adopted.

Lawyers told Justice O'Connor the court's decision will not retroactively affect the blanket primaries held in 1998 and 2000.

"It's just civics. The more people you have voting, the more representative a candidate is going to be," said Thomas F. Gede, special assistant California attorney general, who is representing the California secretary of state.

"What about the political party that doesn't want to be representative because it believes the country's going in the wrong direction?" Justice Scalia asked.

"If they're solely there for an expressive purpose, what are they doing on the ballot at public expense?" Mr. Gede said. "Why are we allowing the party tail to wag the dog?"

Under pressure to articulate the state interest that would allow voters to intrude on the party's First Amendment rights, Mr. Gede said California wants to avoid "lower voter turnout, alienation, political gridlock."

"What about the party that believes legislative gridlock is good because there are too many laws on the books already?" Chief Justice William H. Rehnquist said.

The chief justice said that under such reasoning some political party might be "so far out that it could be outlawed."

"The state [should] not be commandeering parties as a vehicle to blend their political ideologies together," said George Waters, the Sacramento lawyer who argued the case for the California Democratic Party and other parties.

"Political parties have the right to limit their nominating process to voters who affiliate with them," he said, even if that affiliation is exercised under the system used in 23 states, where a voter requests the ballot of any party and is confined to that ballot for that election only.

Mr. Waters and Mr. Gede disagreed sharply on whether a decision against California's new system wouldn't endanger all open primaries elsewhere.

Mr. Waters said it would not, because California made "a wholesale assault" on a party's ability to choose its standard-bearer while voters elsewhere "affiliated" at least for that day with one party and didn't vote in several primaries.

Mr. Gede said overturning California's system could endanger other open primaries, including similar systems in Alaska and Washington state, as well as same-day registration and eventually the primary election concept itself.

In other business yesterday, the court:

• Left standing a South Carolina law banning video gambling as of July 1, rejecting pleas by a gambling machine company that had attempted to salvage a business that reaps $2.8 billion a year in the state.

• Agreed to decide next term if federal prison officials may refuse early release for nonviolent felons who complete a drug-abuse program on the grounds that their conviction included a gun charge.

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