Washington State Grange v. Washington State Republican Party
The Supreme Court upheld Washington's top-two primary system, ruling that letting candidates label themselves with a party they "prefer" does not, on its face, force political parties to associate with candidates they don't want.
The decision cleared the way for a new kind of primary — since adopted elsewhere — in which the two highest vote-getters advance to the general election regardless of party, without officially becoming any party's nominee.
“There is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate.”
The Court's rejection of the parties' claim that voters would be confused about party endorsement.
How it got here: A federal trial court blocked the law on the parties' motion for summary judgment; the Ninth Circuit affirmed; the state and the law's sponsor asked the Supreme Court to review it.
The Case in Depth
What happened
Washington voters passed Initiative 872 after courts struck down the state's old "blanket primary," which let anyone vote for any party's candidate. The new law let candidates list a self-designated party preference on the ballot, let any voter pick anyone, and sent the top two vote-getters — regardless of party — to the general election. Major political parties, including the Republican and Democratic parties, sued, saying the law hijacked their right to pick their own standard-bearers.
The question before the Court
Could Washington let candidates list a self-chosen "party preference" on the primary ballot and send the top two vote-getters to the general election, without violating political parties' rights?
The Court's answer
Yes — the Court held that Initiative 872 is constitutional on its face. Because the parties challenged the law before any ballot had ever been printed or used, they had to show the law was unconstitutional in every possible application, a high bar for this kind of "facial" challenge. The Court found that I-872, unlike California's earlier system, does not actually choose any party's nominee — it merely lets a candidate state a preference, and the top two finishers move on regardless of party.
The parties' real complaint was that voters might mistakenly think a labeled candidate is the party's endorsed nominee. The Court called that pure speculation, since no ballot had yet been designed, and said the State could design the ballot — through disclaimers or wording — to avoid any real confusion. Without proof of that confusion, the law did not severely burden the parties' rights, so no compelling justification was required.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Washington voters could keep using primary ballots that list candidates by self-declared party preference, with the top two advancing regardless of party — even two candidates from the same party. The ruling gave other states a green light to experiment with similar top-two systems, while leaving the door open for parties to challenge specific ballot designs later if voters are actually confused about who a party endorses.
What changes now
The case is a final merits ruling reversing the Ninth Circuit, so Washington may implement its top-two primary system as written. The Court explicitly left room for a future "as-applied" lawsuit if the actual printed ballots turn out to genuinely mislead voters about party endorsement, and it did not decide separate claims about ballot access or campaign finance, which the opinion said could be raised on remand or in later litigation.
What this does not decide
The Court did not decide whether any particular ballot design would be constitutional — it only rejected the argument that the law is unconstitutional in all conceivable forms. It also left the door open for parties to bring a future lawsuit once real ballots exist, if those ballots actually mislead voters into thinking a labeled candidate is a party's official nominee.
Concurrences and dissents
Concurrence — Justice Roberts
Chief Justice Roberts agreed the challenge failed now but stressed that voter perception matters: if a printed ballot would lead a reasonable voter to think a candidate is a party's member or nominee, the law would violate the First Amendment. He would wait to see the actual ballot design before deciding, since no ballots existed yet, but warned that a poorly designed ballot could later be struck down.
Dissent — Justice Scalia
“Because Washington has not demonstrated that this severe burden upon parties’ associational rights is narrowly tailored to serve a compelling interest”Scalia's core objection that the law fails strict scrutiny and severely burdens parties.
Justice Scalia argued the law severely burdens parties' associational rights no matter how the ballot is worded, because letting any self-declared candidate claim a party's name on the ballot hijacks the party's goodwill and distorts its message, while barring the party from disavowing him. He would have struck down the law now, saying Washington's only real interest is weakening political parties, not offering neutral voter information, and that this fails strict scrutiny regardless of ballot design.
How the Court got there
The legal reasoning, step by step
- The Court applied the rule for facial challenges, which require showing a law is unconstitutional in essentially all of its applications rather than just some feared uses — a demanding standard meant to avoid striking down laws based on speculation before they're ever used.
- Because Washington's law had never been implemented and no ballots had been printed, the Court refused to assume any particular ballot design or any specific pattern of voter confusion, treating such assumptions as premature and hypothetical.
- The Court distinguished this law from California's earlier blanket primary, which the Court had struck down because it let outsiders choose who a party's official nominee would be. Washington's system never labels anyone a party's nominee — the top two finishers simply advance regardless of party.
- Since the parties' claim of harm rested entirely on voters possibly misreading a 'party preference' label as the party's own endorsement, and the Court found voters generally capable of understanding campaign information without official guidance, the claimed harm was too speculative to sustain a facial challenge.
- Because the law did not impose a severe burden on the parties' associational rights, the Court did not require Washington to prove a compelling interest, and found the State's interest in giving voters relevant information about candidates enough to justify the law standing alone.
- The Court left open the possibility that a specific ballot design causing real voter confusion could still be challenged later, once the State actually implements the law and produces real ballots to examine.
Doctrinal impact
Cases affected by this decision
Distinguishes California Democratic Party v. Jones (530 U. S. 567)
The Court said Jones did not decide whether a ballot showing candidates' party preference chooses party nominees.