Blanket primary gets its day in court

By Paul Queary

Associated Press

OLYMPIA — A federal judge has set a March trial date for the lawsuit challenging the state’s blanket primary system, a schedule that will push any resolution of one of Washington’s stickiest political problems well into next year.

For political parties trying to have the popular blanket primary thrown out, the order is the second setback in two weeks.

"If you’d have told me a month ago that we were going to have to wait until next spring to get this resolved, I would have been shocked and disappointed," said Chris Vance, chairman of the state Republican Party.

For the system’s defenders, it’s a sign they’ll have a good chance to fend off the parties’ challenges.

"From the point of view of a defense attorney, this case is well under way to being defended," said Jim Johnson, an attorney representing the Washington State Grange, an agriculture group that sponsored the initiative creating the system 66 years ago.

The constitutionality of the blanket primary — in which all candidates appear on the same ballot and the top vote-getter from each party advances to the general election — has been in question since the U.S. Supreme Court threw out a similar system in California last year.

The Legislature debated several potential fixes this year, but couldn’t agree on a new format.

Last month, U.S. District Judge Franklin Burgess refused to outlaw the primary or order an alternative system, and raised the possibility that Washington’s circumstances might be different than California’s.

That preserved the blanket primary for at least this year and set the stage for the trial.

"We really appreciate getting our day in court and the fact that Judge Burgess is viewing the blanket primary of Washington state as defensible or potentially defensible," said Secretary of State Sam Reed.

The scheduling order issued late Thursday indicates Burgess wants a full trial of the facts in the case. It lays out an extensive schedule for disclosing the testimony of expert witnesses and submitting briefs on the facts and the law of the case before the five-day trial, scheduled to start March 11.

The state Democratic and Republican parties had relied on the Supreme Court’s decision in California, which found the blanket primary violates the First Amendment’s right of free association. The court found it unconstitutional that California forced its parties to let nonmembers help chose their candidates.

Now Washington’s parties must rally experts and evidence — as California’s did — to back up the notion that they’ve been harmed by the blanket primary.

The task could be more difficult here. California’s blanket primary was only a few years old. Voters approved it by initiative in the mid-1990s, ending decades of partisan primaries. The results of those primaries and voter registration records gave party lawyers information to work with.

In Washington, voters do not register by party and there hasn’t been a partisan primary in nearly seven decades. That could make it difficult for parties to prove the system has harmed them.

"They don’t have any experts," Johnson said.

But the parties say they’ll be prepared with statistics and anecdotes that prove their case.

Jim Kainber, executive director of the Washington Democratic Party, said the party’s lawyers may use information from similar states to prove their case.

The parties’ biggest beef with the blanket primary is crossover voting — the practice of voting for a Democrat in one race, a Republican in the next, a Libertarian in a third and so forth. They argue that this freedom — treasured by many voters — allows members of one party to sabotage the other’s candidates. Both Vance and Kainber contend the practice is widespread.

"Are there elections that we can point to where this happened?" Kainber said. "I think you’ll find that there are, or at least elections where there is a question that that happened."

Vance raises his own party’s triumph in 1980, when liberal Jim McDermott beat incumbent Democratic Gov. Dixy Lee Ray, a moderate, in the primary, only to be trounced in the fall by Republican John Spellman.

"A lot of Republicans voted for Jim McDermott to take out Dixy Lee Ray so our nominee could win in November," Vance said. "Although it worked for us that year, it’s wrong."

But despite such anecdotes, both the Democratic and Republican parties hope eventually to rely more on the Supreme Court’s authority.

"There’s only two ways this ends, either the state of Washington reaches an agreement with the parties, or this is going to get litigated to the U.S. Supreme Court," Vance said.