Will Mitt Romney's Name Appear on the Ballot? Maybe Not

THE LIBERTARIAN PARTY of Washington State filed a civil action on August 15 in Thurston County Superior Court, case number 12-2-01683-3, which challenges the printing of Mitt Romney’s name on Washington’s presidential election ballots this November.  The clear statutory scheme involved in this dispute favors the Libertarian Party’s position.  Here is their argument:

How and in what manner a candidate appears on Washington’s ballot is determined, at least in part, as to whether that person is affiliated with a “major” or a “minor” political party.  The Revised Code of Washington, section 29A.04.086, defines a “major” political party as a party whose nominee for any state-wide race received at least 5% of the total votes cast in the November election for the prior even-numbered year.  A “minor” political party, by contrast, is any party that is not a “major” one.

For purposes of this November’s ballot, a “major” political party is one whose nominee received at least 5% of the vote in a state-wide race during Washington's 2010 general election.  But during the 2010 general election, the Republicans did not achieve that.

During the November 2010 election, there was only a single state-wide race under which a political party could qualify as being “major,” that being the US Senate Race.  Prior to that race, Patty Murray received the official nomination of the Democratic Party and then proceeded to win re-election. 

But – and here is the rub – Patty Murray’s challenger, Dino Rossi, was not the official Republican nominee.  Instead, party in-fighting between challenger Clint Didier and Rossi led the Republicans to withhold any official nominee for the race. As a result, there was no official Republican nominee who received at least 5% of the vote during the 2010 US Senate Race, and thus the Republican Party is not a “major” political party for purposes of this year’s general election.  It is, therefore, a “minor” political party.

A “minor” political party – such as the Republican Party in this case – is not, however, permitted to have its presidential and vice-presidential candidates’ names appear on the general election ballot unless it submits at least 1,000 signatures, on state-approved forms, from registered voters who support the party’s nominee.  The submission period for those forms has passed and the Republicans failed to submit any signatures in support of Mitt Romney or Paul Ryan. 

Mitt Romney’s name should not, therefore, be printed on November’s ballot because Washington’s Republican Party did not comply with the filing requirements for a “minor” party.  Mitt Romney can still appear as a “write-in” candidate, but then again so can Mickey Mouse.

Nonetheless, it appears that Washington’s Secretary of State Sam Reed has overlooked these violations and deemed the Republican Party a “major” party for purposes of this election.  Reed’s position is that Washington’s Administrative Code re-writes the Revised Code of Washington to define “major” and “minor” political parties with reference not to the state-wide race from the prior even-numbered year, but instead with reference to the last presidential general election.  Reed’s position, therefore, is that under Washington’s Administrative Code, the Republican Party is a “major” one and thus Romney’s name may be printed on the November ballot.

Unfortunately, this argument disregards the established legal principle that an administrative code, such as Washington’s, cannot modify or alter what is established by legislative statute, such as Washington’s Revised Code.  Put another way: when in conflict, the Revised Code of Washington trumps Washington’s Administrative Code and thus the Revised Code's definition of “major” party – the one under which the Republican do not qualify – is controlling.

Possibly anticipating this debacle, the State Legislature tried to reconcile these competing definitions of “major” and “minor” political parties in 2009.  But those attempts failed, which according to statutory interpretation, supports the conclusion that Washington’s Legislature accepts the discrepancy and the overriding precedence of the Revised Code’s definition of “major” political party.

Despite all this, there is a legal doctrine that will likely defeat the Libertarian Party’s lawsuit.  It is a judicial tenet that states that courts will not interfere with what is purely a political process.  If heeded, that imperative makes it unlikely that Thurston County’s Superior Court will intervene in this case. 

More to the point, this issue sheds light on a larger one that is, perhaps, much more relevant during this election cycle.  The Republicans’ “both ways” attitude is overbearing at times.  The two most striking examples of the conservatives’ approach to politics is first their insistence that we cut government spending, while also improving our roads, bridges and increasing our defense budgets and also their demand that we simultaneously decrease our deficit while not closing tax loopholes, which would generate much needed income.

This particular case is just another example of the Republicans' two-face positions: the Republicans want to disregard the clearly laid out procedural election rules, and at the same time receive, as the Libertarians are claiming, a “free pass” for Mitt Romney to appear on this November’s ballot.  This, to me, seems like an impossible cake that is both kept and eaten at the same time. 

***Update: The Libertarian Party of Washington State released the following Press Release about its lawsuit on Friday.

PRESS RELEASE

Wednesday August 15th, the Libertarian Party of Washington State filed suit seeking a court order directing that Mr. Romney’s name not be printed on Washington’s general election ballot. According to the Libertarian Party’s complaint, the Republicans became a “minor” party under Washington law following the 2010 election, and accordingly could place a name on the ballot for President only by collecting 1,000 signatures of registered voters, and the Republicans did not submit any signatures in support of Mr. Romney.

Time frames for addressing that claim are short, and the expectation is that a decision will be reached in the next week or two because the Secretary of State has a short time to get ballot proofs to the printer.

J. Mills, attorney for the Libertarian Party said: “At its state convention in 2010, the Republican Party chose not to formally nominate a candidate for U.S. Senate, electing not to choose between Clint Didier and Dino Rossi. Because that was the only state-wide race in 2010, there was no official Republican Party nominee who received 5% of the general election vote as required by law and the Republicans became a minor party. So, they needed to gather 1,000 signatures of registered voters to put their candidate on the ballot this year, which they did not do. This is about treating all political parties fairly regardless of how long a party has been around.”

Larry Nicolas, chairman of the Washington State Libertarian Party said: “The Republican Party officials must have known that a failure to officially nominate a candidate in the U.S. Senate race would mean that they needed to submit 1,000 signatures this year. It’s not clear why the Republican Party just didn’t meet that requirement.”

In part, the problem stems from Washington’s peculiar primary election system that does not act to nominate party candidates, but rather simply sends the top two candidates, regardless of self-declared party affiliation, on to the general election.

Accordingly, while Mr. Rossi won the primary and went on to challenge Patty Murray in the 2010 general election, he was not, by virtue of winning the primary alone, the official Republican Party nominee."

UPDATE - August 23, 2012

This morning Superior Court Judge Thomas McPhee dismissed the Libertarian Party of Washington’s lawsuit that attempted to block Mitt Romney’s name from being printed on the ballot.  The Judge ruled that the lawsuit be dismissed from the bench. 

According to Mike Baker of the Associated Press, “Thurston County Superior Court Judge Thomas McPhee determined that while Republicans didn't officially nominate someone at their state convention, the party did take the proper steps to choose Dino Rossi as their candidate during a meeting after the state's primary. Rossi went on to get 48 percent of the vote in the November election.”

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Trent Latta is an attorney and Kirkland resident.  He may be reached at TrentLatta@gmail.com.