SEATTLE – Judges from a federal appeals court grilled lawyers for the attorney general’s office and the Washington State Grange on Monday over their assertions that Washington’s short-lived “top two” primary system should be reinstated.
The top-two system was ruled unconstitutional last July, before it was ever used, by U.S. District Court Judge Thomas Zilly, who found it infringed upon the right of political parties to nominate candidates for office.
The state and the grange appealed Zilly’s decision to a three-judge panel of the 9th U.S. Circuit Court of Appeals, which heard arguments from them and from the state Democratic, Republican and Libertarian parties Monday.
Voters approved the top-two system as Initiative 872 in 2004, a year after the state’s nearly 70-year-old “blanket primary” was struck down. Like the blanket primary, the top-two system allowed voters to pick their favorite candidates for each office, regardless of party. But instead of the top Republican, Democratic and third-party candidates advancing, the top two vote-getters advance – even if they’re both Republicans or both Democrats.
It’s much like the state’s system for electing nonpartisan positions, such as judges, except that the candidates identify their party preference on the ballot – and there’s the problem.
The political parties don’t want anyone except their members picking their standard-bearer, and they don’t want anyone but their chosen nominee being identified on the ballot as a party member – it’s a First Amendment freedom of association issue. Under the top-two system, candidates can call themselves Republicans on the ballot even if they’re not Republicans.
“A candidate has no right to force himself upon an unwilling party,” GOP lawyer John White told the judges.
Judge Pamela Rymer expressed similar concern.
“It’s a partisan office … and yet there’s no opportunity for the party to say in the same breadth, ‘Uh-uh, not our nominee?’” Rymer asked.
Thomas Ahearne, a lawyer for the grange, argued that voters understand what is meant when they see candidates list their “party preference.”
“My football team preference is the Seahawks,” Ahearne said. “No one is going to take that to mean I’m a member of the Seahawks.”
“I don’t think that’s a good analogy,” Judge Raymond Fisher responded.
Voters may understand the language, Fisher said, but “What is the language on the ballot that allows them to distinguish between the three candidates labeled ‘R’?”
The judges suggested, as U.S. Supreme Court Justice Antonin Scalia has, that the only way this type of primary could be constitutional would be if the state made all of its offices nonpartisan, and candidates did not list party affiliation on the ballot.
The judges did not indicate when they might rule. In the meantime, the Montana-style primary that Washington has used as a default for the past two elections – voters pick one party’s primary ballot and stick to it – remains in place.
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