Supreme Court's decision to take up primary case isn't worrisome

Early yesterday, I wrote that supporters of a flawed "Top Two" primary should temper their enthusiasm about the United States Supreme Court's decision to hear the consolidated cases Washington State Grange v. Washington Republican Party (06-713) and State of Washington v. Washington Republican Party (06-730). Responding to that post on Washblog, Emmett O'Connell wrote:

Folks who are working for closed primaries in Washington should be worried that the Supreme Court picked up the case of the Top Two Primary.

The 9th Circuit court already struck down the Top Two Primary, pretty much using the already laid out arguments of the two major state parties, and strangely enough, the Supreme Court itself when it struck down California's primary.

So, that the Supreme Court is now picking up the case of the Top Two, means something. The Supreme Court wouldn't have picked up the case had they totally agreed with the ruling.

A few corrections are in order here. First, we're not "working for closed primaries in Washington". We support an open primary, which is not the same thing. Here's a comparison of the two, courtesy of Wikipedia:

An open primary (also known as the pick a party primary or Montana style primary) is a type of direct primary open to voters regardless of their party affiliation. Voters need not publicly declare their party affiliation but must vote for candidates of only one party.

A closed primary is a type of direct primary limited to registered party members, who must declare their party affiliation, generally in advance of the election, in order to vote in it. The closed primary serves to encourage party unity and prevent members of other parties from infiltrating and voting to nominate weak candidates.

The entries on Wikipedia correctly note that the two systems are actually opposites. The terminology is important because there is a major difference. Washington currently has an open primary system and that is what we support. We are not and have never been advocates of a closed primary system (which would require party registration outright).

Second, as I just pointed out, the Evergreen State already has an open primary in place. We're not working to install such a system - we're defending what the state has been using for three years already.

The Supreme Court can take up a case for any reason it wants to. The Court may take a case even if all of the justices agree with the lower court's ruling. It's worth remembering that the decisions of the 9th Circuit only apply to one region of the country. The Supreme Court's decisions are effective across all fifty states.

As Emmett notes, the Supreme Court declared back in 2000 (in California Democratic Party v. Jones) that the Golden State's primary, similar to the earlier "blanket primary" used in Washington was unconstitutional.

Emmett fails to make a convincing case that supporters of an open primary should be worried about the Court's grant of judicial review.

Rick at the Election Law blog offers his take on on the writ of certiorari:

[It] might mean that enough Justices have doubts that the Washington system is indistinguishable from the California system. Or it might be - and here's a trend I see perhaps developing with the grant of Lopez-Torres as well - that the Court simply finds these election law cases interesting, and enticing to take even when there are not high stakes involved (as in the major campaign finance cases, redistricting cases, or Bush v. Gore).

Whatever the reasons may be for taking the case, we believe the Court will again affirm the First Amendment rights of political parties to select their own nominees.