Wednesday, August 23, 2006
Court Strikes Down Washington State ‘Top Two’ Primary Law
By KENNETH OFGANG, Staff Writer
A “top two” primary system, in which all voters vote on the same candidates and the top two vote-getters move on to the general election even if both are from the same party, is unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge Raymond C. Fisher, writing for the court, said the system violates the First and Fourteenth Amendments by preventing party members from choosing their own nominees and forcing them to accept the use of the party label by candidates the party does not choose to support.
“The net effect is that parties do not choose who associates with them and runs using their name; that choice is left to the candidates and forced upon the parties by the listing of a candidate’s name ‘in conjunction with’ that of the party on the primary ballot,” Fisher wrote.
The top-two system was approved by nearly 60 percent of Washington voters in November 2004. A similar measure that was on the California ballot at the same time, Proposition 62, was turned down with nearly 54 percent voting against it.
The never-used Washington measure was turned down last summer by U.S. District Judge Thomas Zilly of the Western District of Washington. The state attorney general’s office and the Washington State Grange, an advocacy organization for rural interests, asked the appellate judges to overturn that decision.
Washington’s primary system has been in turmoil since 2003 when the Ninth Circuit ruled that it was indistinguishable from the California plan struck down by the U.S. Supreme Court in California Democratic Party v. Jones, 530 U.S. 567 (2000). The latter decision struck down California’s short-lived blanket primary, in which candidates of all parties went on the same ballot but the top vote-getter in each party qualified for the general election.
Washington had used a blanket primary since the 1930s, when it became the first state to do so. Alaska had adopted it before California did, while Louisiana has used a top-two primary for a number of years.
The Legislature then passed a bill to create a top-two primary, but then-Gov. Gary Locke vetoed the bill, so an alternative was enacted, an open-style primary in which voters may choose which party they wish to vote in, but must then limit themselves to candidates of that party. Such primaries are constitutional, the Supreme Court said in Jones, because they require voters to affiliate, at least on election day, with a party in order to participate in the selection of its nominees.
That system was used in 2004, and under Zilly’s order will be used again when the state has its next primary in September.
The basic flaw in Washington’s version of the top-two primary, Fisher explained, is that a candidate may list himself or herself as a Democrat, a Republican, or a member of some other party, and be nominated as that party’s standard-bearer in the general election, even if his or her candidacy has been rejected by the party.
For example, he explained, if the Republican Party holds a pre-primary convention and endorses Candidate C, a conservative, but if Candidate M, a moderate, and Candidate W., “a wild-eyed radical...whose views are anathema to the Party’s membership and who does not participate in the Party’s convention process” choose to run as Republicans in the primary, all three would be listed as Republicans and either Candidate M or Candidate W could wind up as the sole candidate listed as Republican on the general election ballot.
The state argued that the candidates are free to explain their relationship to the party in their campaign materials, but Fisher was unswayed.
“A party should not be placed in the position of having to overcome a false association between itself and a candidate by relying on the candidate’s off-ballot clarifying statements,” he wrote. “It is too much to expect candidate statements to clear up the confusion engendered by the primary ballot regarding who is the ‘real’ Republican, Democratic or Libertarian standard bearer for his or her respective party, never mind whom party members would acknowledge as a fellow member.”
Judge Pamela Ann Rymer and Senior Judge Dorothy W. Nelson concurred
Washington’s Assistant Attorney General Jeff Even told The Associated Press state lawyers will consult with Secretary of State Sam Reed before deciding whether to appeal to the U.S. Supreme Court.
The case is Washington State Republican Party v. State of Washington, 05-35774.
Copyright 2006, Metropolitan News Company