Jeffrey Toobin may one day slip behind the Court’s heavy red curtains and return with the answer, but until then the question will be:  by what set of discussions, bargains or trade-offs did the Court produce a majority for the opinion issued yesterday in Washington State Grange v. Washington State Republican Party?  The Court decided, seven joining but with Roberts and Alito seemingly apologetic about it, that states can deny parties the right to designate their nominees on the ballot while inviting any and all candidates to associate explicitly with that same party, on that same ballot, by their own statement of party preference.
 
     Application of precedent does not explain this outcome; close reasoning has scant part to play.  It is a dodge, it seems:  a decision to put off a decision without admitting it, on the excuse that the challenge to the statute is only a facial challenge and as such insufficient.

     The Court bids for a middle ground by dropping hints about what the state might do to strengthen its case when an as-applied challenge comes its way, as it will.  Everything turns on the form of ballot, the Court decides.  Printed sensibly, it might keep voters clear that a candidate designating a party preference is not the parties’ candidate, nor necessarily a member in good standing.  No further action would be needed to avert voter confusion.

     Of course, the State could easily enough dispel confusion by allowing the party to have its say—to note its endorsement, or to disavow a candidate’s attempt to link up with the party through a “preference” statement.  But the State won’t do that, for the reasons noted by the dissenting Scalia:  the State is prepared, seemingly, to make life harder for parties by separating them from their brand.  This is the only discernible interest, and since it is not constitutionally permissible in this form, the Court won’t admit to what is going on.

     How, then, to explain that the candidates can state a preference but the party cannot?  The Court refuses to accept that this very difference in treatment virtually assures voter confusion.  In a whisper of a footnote, the Court disposes of the barrier on party designations by asserting that “The First Amendment does not give political parties a right to have their nominees designated as such on the ballot.”  Washington State Grange, slip op. at 10-11, n. 7.  It leaves out of this analysis the other interlocking part—the permission granted to candidates at the same time that it is denied to parties.  The candidates can speak of party preference or affiliation; the party cannot.  This is where the constitutional harm lies, unaddressed by the Court:  this is why the fear of voter confusion is not fanciful.

     This was not the Chief’s shining moment, this concurrence.  Here his aptitude for pithy analogies or striking phrases fails him.  The self-designation allowed to candidates strikes him as little different and no more susceptible to confusion than the statement “I like Campbell’s soup”:  the preference reflects a taste for the soup but it does not indicate sponsorship by or affiliation with the company.  Roberts Concurrence at at 3.  As Scalia suggests, expressive association and product preference are not too much alike.  Scalia Dissent at 6.  Scalia is even gentler on this point, surprisingly, than he should be.

     After all, as Roberts knows, I might like Campbell soup, but this is not an exclusive club and it indicates hardly anything at all other than that I like Campbell’s soup.  Self-designation as a Democrat or Republican communicates much more—it is intended to communicate more.  It matters to very few people that you like Campbell’s soup.  It may matter, a great deal, that you are a Democrat or Republican.  Few commitments or beliefs outside of fine culinary schools are entailed in the preference or distaste for a commercial brand of soup.

     Scalia is right to say, in the matter of Campbell Soup, that “it is hard to know how to respond,” if by this he means, as he apparently does, that the Chief’s point is not a serious one and that a serious reply is therefore difficult to imagine.  He is not entirely right to say that “it is no mystery what is going on here.”   The State’s motives may be clear—the “dislike for bright-colors partisanship” (Id. at 10)—but the Court’s are not:  we will have to wait for the likes of Toobin to dig out and explain those motives, one day far into the future. 

Bob Bauer