Initiative I-872: "top-two" ballot goes to high court

Published 11:24 pm Saturday, September 29, 2007

OLYMPIA — Washington voters’ fight to inject more populism into primaries reaches the nation’s high court Monday.

There, the U.S. Supreme Court will consider the legality of an initiative letting the number of votes rather than party affiliation set the field for November elections.

“The issue here is very fundamental: Who has the right to decide who their elected officials will be,” said Secretary of State Sam Reed, who is in Washington, D.C., for the hearing.

Voters approved I-872 in 2004, creating a primary for partisan offices in which the two candidates with the most votes advance to the general election even if they are in the same political party. This “top-two” approach is the same used in nonpartisan races.

But in 2005, the state’s Republican, Democratic and Libertarian parties successfully sued to block the measure from taking effect. They contend it is unconstitutional because it strips parties of their right to ensure that people who affiliate with the party are chosen to represent the party in the general election.

“The primary lets our voters decide who speaks for us. Under 872, the state makes the choice,” said David McDonald, an attorney representing the Washington State Democratic Party.

Justices will hear arguments at 10 a.m. Monday in the nation’s capital. This will be the first case on their fall docket.

Republican Attorney General Rob McKenna will represent the state and the Washington State Grange, which wrote the initiative. John White, counsel for the state Republican Party, will argue for the political parties.

Each will get 30 minutes to make his point.

Reed said if the lower court ruling is overturned and the initiative resurrected, the top-two method would be used in the August 2008 primary.

If that happens, it will restore a bit of the populism that had been a hallmark of Washington electoral politics for years.

A century ago, Washington’s Legislature set up a primary for partisan races in which voters picked the ballot of a political party and voted only for candidates of that party — the procedure in effect today.

In 1934, an initiative by the Grange established the blanket primary in which each ballot listed all candidates of all parties in partisan races. For each contest, voters could pick and choose any candidate, regardless of party.

In 2000, the three major political parties sued to get rid of the blanket primary. They contended the practice of letting voters pick a Republican in one race and a Democrat in another infringed on the parties’ constitutional right to control the selection of their nominees.

Three years later, the courts agreed and threw it out. Since 2004 voters have griped loudly at being forced to pick a party in the primary in order to vote in partisan races.

The Grange wrote I-872 to fix what the U.S. Supreme Court in 2000 identified as a major defect in blanket primaries when it invalidated the one used in California.

In that decision, written by Justice Antonin Scalia, the court said the problem was letting all voters choose a party’s nominee, said Tom Ahearne, counsel for the Grange.

That’s eliminated in the initiative by focusing on who gets the most votes and not which party they come from, he said.

“It’s the people’s choice initiative not the political parties’ initiative,” he said. “We win or lose on whether Justice Scalia believes we did what he told us to do.”

If the top-two primary is put in place, it will give voters in some areas less choice and minority parties everywhere a diminished voice, said Luke Esser, state Republican Party chairman who traveled east to attend.

“It creates a potential for voters in a Democrat- or Republican-rich area like Seattle or Eastern Washington to get a general election ballot with only members of one party to choose from,” he said.

“I think that’s a bad, bad system,” he said.

The plight of candidates of the Libertarian, Green and other small parties could be worse, he said.

Unless they have a celebrity running, they might never get a person on the November ballot, he pointed out.

Today, the system enables those parties to bypass the primary and nominate candidates to have their names appear on the November ballot.

Reporter Jerry Cornfield: 360-352-8623 or jcornfield@heraldnet.com.