OLYMPIA — The U.S. Supreme Court restored a touch of populism to state elections Tuesday, ruling the voter-approved “top two” primary is legal and does not curtail the constitutional rights of political parties.
As a result, voters in the Aug. 19 primary should be able to vote for whomever they want in partisan races rather than having to pick one political party and choose among its candidates.
“The people of the state of Washington I think will be delighted with this,” Secretary of State Sam Reed said Tuesday. “It will look exactly like the blanket primary ballot.”
In a 7-2 ruling, justices upheld Initiative 872 passed by voters in 2004.
It establishes a primary in which all the candidates in a partisan race are listed together and the two people who collect the most votes, regardless of their party affiliations, advance to the general election in November.
This top-two primary has never been used because the state’s Democratic and Republican parties went to court soon after the 2004 election and successfully blocked its deployment.
In a series of courtroom battles, the political parties have contended the top-two plan infringes on their constitutional rights to decide which candidate carries the party label. They argue the initiative will create confusion among voters as they review their ballot and wonder which ones are the party’s endorsed nominees.
Justice Clarence Thomas, writing for the majority, said the political parties’ argument rested on speculation of what might happen and that is not reason enough to invalidate before it’s even tried.
Overturning the top-two plan would be an “extraordinary and precipitous nullification of the will of the people,” he wrote.
In dissent, Justice Antonin Scalia said it is clear the primary would cause a political party to be associated with candidates who may not represent its views.
Such a process, he wrote, “does not merely refuse to assist, but positively impairs, the legitimate role of political parties. I dissent from the Court’s conclusion that the Constitution permits this sabotage.”
It was the Washington State Grange that brought the initiative to voters.
Terry Hunt, the Grange government affairs director, cheered Tuesday’s decision.
“I can’t get any higher than I am today,” he said.
Democratic Gov. Chris Gregoire called it a “new day for democracy.”
“Washingtonians are known for their independence and I applaud today’s ruling allowing them to continue to voice their opinion,” she said.
Tuesday’s decision turns the spotlight on how the Aug. 19 primary will be conducted and specifically how candidates will be allowed to describe themselves on the ballot.
Leaders of the major political parties said this could prompt another legal fight and another blockage of the primary.
“Really all this does is take us back to square one to see if the top two can be conducted in a constitutional way,” said state Republican Party Chairman Luke Esser.
He said the court’s opinion makes clear the primary ballot must be designed in a way that voters cannot conclude that a candidate who declares a preference for a party without that party’s approval is a member of that party.
In a prepared statement, Democratic Party chairman Dwight Pelz said, “Voters want to know which candidate is the Democrat and which candidate is the Republican.
“The state must make clear on the ballot which candidate is nominated by the Democratic and Republican parties. Until we see how that ballot is designed, we will not be able to conclusively gauge our response to today’s court ruling,” he said.
Reed said attorneys in his office started working on the ballot issue Tuesday,
“We’re going to be well-prepared to be very sensitive to not violate the rights of the political parties,” he said.
Attorney General Rob McKenna said the political parties still will be able to select their nominees through caucuses or mini-conventions. The state will need to get that information before voters.
Snohomish County Auditor Carolyn Diepenbrock said this is not going to be an easy task. And time is short as candidates can start filing in early June.
“The challenge is how do we identify the chosen candidate of the party and how do we make sure the public knows this is the chosen candidate in a clear, concise manner and in a very limited space on the ballot,” she said.
Reporter Jerry Cornfield: 360-352-8623 or jcornfield@heraldnet.com.
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