Judge strikes down “top two” primary in Washington

Received by Newsfinder from APJul 16, 2005 2:41 Eastern Time By GENE JOHNSONAssociated Press WriterSEATTLE (AP) _ A U.S. District Court judge has struck down Washington state’s new “top two” primary system, approved by voters last fall, as unconstitutional, saying it infringed on the rights of political parties to pick their own nominees for office. In a 40-page ruling Friday, Judge Thomas Zilly said the state cannot allow voters to skip back and forth along party lines as they pick a favorite candidate for each office. Nor can it allow candidates to identify themselves by party on a ballot without that party’s approval, the ruling said. State Attorney General Rob McKenna said late Friday he planned to appeal. “We’re confident that the voters of this state have a constitutional right to choose this type of primary,” he said. The state Republican, Democratic and Libertarian parties sued in May to challenge Initiative 872, which created a primary system in which the top two vote-getters for each office advanced to the general election, regardless of political affiliation. The effect of the ruling, Zilly said, was that Washington would return to the “Montana-style” primary it used during last fall’s election. Under that system, voters select one party’s ballot and vote for their favorite candidates on that ballot. “This is a huge win for the state Democratic Party and foreveryone who believes in a decent primary system,” said stateDemocratic Party Chairman Paul Berendt. “There were severalelements of the top two system we know were flatunconstitutional.”For nearly 70 years, Washington state used a “blanket” primary system, whereby voters could pick their favorites for each office _ a Democrat for governor, a Republican for secretary of state, etc. The top Democratic, Republican and third-party vote-getters for each office advanced to the general election. That system was struck down by the 9th U.S. Circuit Court of Appeals in 2003, three years after the U.S. Supreme Court invalidated a similar system in California. The Supreme Court said that opening a party’s nominating process to people who didn’t belong to the party _ be they candidates or voters _ infringes on the rights of the party to pick its own nominees. The sponsors of I-872, which passed with 60 percent of the vote, sought to dance around that Supreme Court ruling by taking the state out of the business of nominating candidates. In oral arguments on Wednesday, state lawyer Jim Pharris said the parties can nominate their own candidates by caucus or however they see fit; because party affiliation has no bearing on whether the candidates make the final ballot, I-872 can’t be said to be nominating candidates, he argued. He likened the system to one the Supreme Court, in the California case, suggested would be constitutional: a nonpartisan primary. Zilly dismissed that argument, saying that if candidates are identified by party preference on the ballot, it’s not a nonpartisan system. And, he said, if parties can merely endorse whoever makes the final ballot, the state is stepping on their right to nominate a candidate. “To relegate the members of a political party to a role of mere support for their preferred ‘standard bearer’ would deny a party its role in selecting its representative,” Zilly wrote. “I’m relieved he didn’t say that that top two per se is unconstitutional, but this particular version is,” Secretary of State Sam Reed said. “I’m very disappointed for the people of the state of Washington. They really do believe that the election process is their process and they have a right to control it, including the primaries. It’s a real blow.” State Republican Chairman Chris Vance was delighted with the ruling. “It is time for the state of Washington to end the litigation and negotiate with the political parties,” he said. “… Instead of a fruitless and useless appeal that will waste time and money, we need to work together to create the best system.” The Washington State Grange, which sponsored I-872, also said it would appeal. Spokesman Don Whiting said authors tried to draft the initiative to what the California decision dictated, but “You never can be sure you get all the T’s crossed and all the I’s dotted just right.” “The bottom line is the voters in this state want a top two primary and the Supreme Court has told us we can do that,” he said. “We’re going to keep working on it until we get that kind of primary for the voters of this state.”