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Political parties always disliked the Progressive Era changes that pulled the entire electorate into nominating candidates. Why, after all, should non-party members participate in the affairs and choices of private organizations? Over the course of a century, Democrats, Republicans, and minor parties repeatedly mounted lawsuits to attack new primary laws, and they eventually prevailed on a key constitutional issue: the First Amendment right of association. But when political actors access the courts for strategic purposes, they can get caught in the vagaries of history and public attitudes, with outcomes they might not like. This Essay focuses on the history of Washington State's "direct primary" and "blanket primary" systems, the repeated lawsuits challenging them, and the freedom of association doctrine that propelled the blanket primary's 2004 demise. It then recounts the blowback from Washington voters, who enacted a "top two" primary system that sidelined the political parties by sending the two highest vote-getters to the general election regardless of political affiliation. It asserts that remaining aspects of Washington's election system might violate the State's own constitution, and that things could get worse than ever for the parties, perhaps disrupting precinct officer elections and even the state's presidential primary. How did the political parties wind up at odds with their own voters, with an outcome opposite to what they intended? This Essay suggests that the answer lies in a web of conflicts: between litigation and political strategies; between the federal and state constitutions; and between the First Amendment's protections of freedom of association, the late nineteenth century populist constitutional ban on public assistance to private entities, and the early twentieth century progressive goal of forcing private political parties to open their processes to the voting public. It concludes that long-term litigation strategies to address political issues can fail to achieve their objectives ...

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between "governmental" and "proprietary" powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse possession, zoning, and taxation. The article concludes that confusion with the governmental/proprietary distinction will be materially reduced if local government powers are conceptually realigned. Instead of completely jettisoning the distinction, as some have proposed, the "governmental" category should be split in two, with coercive and policymaking powers like the police power, law enforcement, and the powers of taxation, eminent domain and budgeting constituting a "governmental sovereign powers" category. General services that economists call public goods should be detached from the governmental sovereign powers and regrouped with proprietary services like municipal utilities to create a category of "governmental service activities." The article evaluates the new groupings within the context of each of seven substantive areas of law where the governmental/proprietary distinction has been used. The article concludes that realigning local government powers will reduce analytical confusion and help legislators and judges when they make key choices in both the lawmaking and litigation context.

Describes the impact of the late-nineteenth century populist movement on the structure and content of Washington's constitution and the consequential impact on the state's political and legal life. Suggests that the anti-business attitudes and skepticism about government prevalent among Washington State residents in the 1880s and 1890s, continues to influence that state's constitution, laws and politics today. ; https://digitalcommons.law.uw.edu/faculty-chapters/1020/thumbnail.jpg