Political Trademark

Washington State remains something of a maverick when it comes to politics. For more than 40 years the Evergreen State used the blanket primary system to select candidates for the general election. The blanket primary is unique because it allows voters to vote for different parties in different races, which is great if you don't have strong party identification.

Of course, if you're a political party, you hate the idea... so they took the system to court and had it struck down a few years ago as a violation of 1st Amendent freedom of association. The State Legislature responded by passing a top-two system, where the top two vote getters in a primary, regardless of party, would move on to the general. In other words, two Republicans could end up running against eachother in the general without a Democrat to be seen. This was line-item-vetoed by the Governor and left us with a closed ballot primary, where you designate a party and have to vote that party in every race, ensuring a Democrat and a Republican for each race.

The voters were not too thrilled with that plan, having used the blanket primary for so many years. With the same progressive spirit that gave us mutliple independent executive officers and elected judges, the state voters approved an initiative reinstating the vetoed top-two system.

This system is likely to upset the parties once again, but its going to be hard to get a freedom of association argument through the courts. So what are the parties going to do?! How will they ever survive the trying behavior of the Washington State electorate?! One individual close to the subject matter has suggested that the parties will switch over to conventions and use trademark to protect their identities. Didn't win the Democratic nomination but running as Democrat? Excepted to be served with a nice cease & desist order from you local party chair.

This raises a whole host of interesting policy issues. Is this what trademark is really for? Its justification has always been an economic one. Do quasi-state actors like political parties have the right to exclusionary trademarks? As a private club, maybe... but the parties are a great deal more than that in our society. And what of free speech rights? If they can stop me from identifying myself as a Democrat, what else can they restrain?

I think the parties would have been better off keeping their mouth's shut back when we had the blanket system... but I guess this is what happens when everyone tries to enforce their rights to the maximum extent allowed by law instead of working through systems of political compromise.