OLYMPIA, Aug. 16.—What if they held an election and Mitt Romney couldn’t come? That’s what the state Libertarian Party is saying ought to happen, in a lawsuit that claims the state Republican Party botched things and its presumed presidential nominee ought to be stricken from the ballot and reduced to write-in status. And this might make Republicans grit their teeth: The Libertarians are saying the GOP is actually a “minor party.”
The lawsuit in Thurston County Superior Court, announced Thursday, sent state elections officials scurrying to their lawbooks to dispute the merits of the argument. They think they have it beat on legal grounds. Meanwhile state Republican Party chairman Kirby Wilbur says he’s “not exactly trembling with fear.” He says he has a nuclear argument that blows the whole thing out of the water. “We’re giving thought to sending the Libertarians a letter that says, you know, if you don’t withdraw this, it will be really expensive to pay our lawyers if we win. Because we have expensive lawyers. It could bankrupt their party.”
The snit has to do with an old law that remains on the books from the state’s brief three-year experiment with a “pick-a-party primary,” from 2004 to 2006, in which voters had to choose a party ballot. The Democrats, Republicans and Libertarians had sued successfully to toss out Washington’s unusual blanket primary, the law for 68 years, in which voters could pick any candidate of any party. The pick-a-party primary was replaced in 2007 with the state’s current top-two system, adopted by Initiative 872 in 2004 and delayed by years of court challenges. The top two vote getters advance to the general election regardless of party. Parties have no say in who carries their banner, a longtime bone of contention.
A never-repealed law from the pick-a-party period makes a distinction between ‘major parties’ and ‘minor parties.’ Major parties get an automatic spot on the ballot — a rule that now matters only in presidential races. The law says major-party status is determined if a party gets at least five percent of the vote for one of its nominees in the preceding statewide general election in an even-numbered year. The last such election was the U.S. Senate race of 2010. John Mills, the former Libertarian Party chairman who filed the suit on behalf of the party, says the Republicans blew it.
At their 2010 convention in Vancouver, the Republicans didn’t nominate anyone, Mills says. That was to quell a revolt by supporters of Tea Partier Clint Didier, who had large forces at the Vancouver Hilton. It would have been an embarrassment — it was clear that Dino Rossi was going to win the primary and move on to the general election. Party leaders decided simply not to take a vote. If there was no nominee, Mills says the Republicans needed to follow the minor-party procedures this year as six other parties did, including the Libertarians. They were supposed to hold a nominating convention and collect 1,000 signatures. The Republicans didn’t do that.
“I don’t think they are exempt just because they have been around a long time,” Mills said. “We’re saying they simply ought to comply with the same rules we have to comply with.”
The Secretary of State’s office disputes the argument. Yes, the old law remains on the books, but during the lengthy challenges by the political parties over the top-two primary, the 9th Circuit Court of Appeals ruled the pick-a-primary laws were “impliedly repealed.” A 2008 Supreme Court ruling stated flatly, “In fact, parties may now nominate candidates by whatever mechanism they choose because I–872 repealed Washington’s prior regulations governing party nominations.”
For races within the state, the meaning was clear enough — no nominating process was needed. But the presidential race is a different matter, as it does involve a formal nomination at national political conventions. So the secretary of state’s office adopted a regulation to clarify, saying that a major party got an automatic spot for its presidential nominee if it got 5 percent of the vote in the previous presidential election.
“They’re going to have to do better than that,” Mills says. “You can’t override a statute with a WAC.”
So Wilbur says he can do better. After Rossi won the 2010 primary, the board of the state Republican Party took a vote and formally nominated him. “I have the records, I have an affidavit,” he says. The Libertarians don’t know what they’re talking about, he says, and you have to wonder why they would try something so silly. It might be because the Republicans squelched supporters of Libertarian Ron Paul at their convention this year.
Meanwhile, you might think the Democrats would be laughing. Republicans a minor party? But state Democratic chairman Dwight Pelz is standing with Wilbur on this one. Sort of.
“The Washington State Democrats oppose this lawsuit, and believe it is the right of Washington’s voters to have Mitt Romney and Paul Ryan on the ballot representing the Republican Party,” he said. “We welcome this choice, and believe that Washington voters will overwhelmingly endorse President Obama’s work to move our country forward, and reject the Rob/Romney/Ryan proposals to leave our seniors out in the cold, while cutting taxes on the rich. This, however, is a choice that should be made by the voters.”