The federal trial court in Washington handed down the attached opinion yesterday in the ongoing litigation over their open primary. There were three main challenges that remained to be resolved after the Supreme Court's decision:
1) an as-applied challenge, based on potential voter confusion (the Supreme Court expressly only ruled that the open primary was not facially invalid);
2) a claim by minor parties that their access to the ballot was unconstitutionally infringed; and
3) claims that the open primary violated the parties' trademarks.
The Court dismissed the ballot-access and trademark claims, concluding they were insufficient as a matter of law. The Court rejected the motion to dismiss the as-applied claims, though, concluding that such a decision could only be made once an evidentiary record was established. Notably, this does not mean that the State lost on these claims, just that the question to be decided is a factual one that cannot be resolved on a motion to dismiss as a matter of law. The state still may prevail on a summary judgment motion, or following a trial.
Also notable, in connection with these as-applied challenges, is the fact that the judge let the plaintiffs amend their complaints, but expressly told them that they needed to suggest specific fixes for any problems alleged, because the Supreme Court's decision foreclosed striking down the open primary in its entirety. In other words, the remedy for a successful as-applied challenge is just to tinker with the open primary to figure out a way to enforce it constitutionally.
*The aforementioned was taken from a commentary by Christopher Skinnel
