Metropolitan News-Enterprise


Monday, December 4, 2006


Page 1


Washington Asks S.C. to Revive ‘Top Two’ Primary Law




The state of Washington has asked the U.S. Supreme Court to overturn a Ninth U.S. Circuit Court of Appeals decision striking down the “top two” primary system approved by the state’s voters.

The state filed a certiorari petition Nov. 20, seeking to overturn the Aug. 23 ruling of the panel in Washington State Republican Party v. State of Washington, 05-35774. The Washington State Grange, which contends that the top two primary will more effectively serve the interests of rural voters, also petitioned for review.

A top two primary allows all registered voters to choose from the same list of candidates and permits the top two vote-getters—and no others—to move on to the general election even if both are from the same party.

Judge Raymond C. Fisher, writing for the Ninth Circuit, 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 year by U.S. District Judge Thomas Zilly of the Western District of Washington. 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 one before California did, while Louisiana has used a top-two primary for a number of years.

The Washington Legislature responded to the 2003 ruling by passing 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 case is just one of several election-related petitions that the high court may be considering this term.

The state of New York last week petitioned for review of a Second Circuit ruling that struck down the state’s judicial district convention system for nominating members of its trial court of general jurisdiction, called the Supreme Court. The appeals panel held that control of the nominating process by certain political party leaders deprived voters, as well as candidates not favored by the leaders, of a “realistic opportunity to participate” and that the system thus violates the First Amendment.

In addition, Ralph Nader is challenging a ruling that requires him to pay over $80,000 in costs as a result of litigation in which his petitions to get on the 2004 Pennsylvania presidential ballot were found to be fraudulent.


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