State takes ‘Top 2’ vote to high court

OLYMPIA – Washington state is turning to the U.S. Supreme Court in a last-ditch effort to save the “Top 2” primary system that voters created, state Attorney General Rob McKenna said Friday.

The Top 2 system would allow voters to pick their favorite for each office, with the top two vote-getters advancing to the November general election, even if they are from the same party.

That system is similar to the state’s popular “blanket” primary that was declared unconstitutional in a California case.

After Washington voters approved the Top 2 system as a replacement, via Initiative 872 in 2004, the political parties challenged it in federal courts, asserting a First Amendment right for the parties to select their own nominees without outside forces interfering.

U.S. District Judge Thomas Zilly sided with the parties. The state has been using a voting system created by the Legislature and then-Gov. Gary Locke that restricts voters to one party’s ballot.

That system was used this week, and election officials said voters remain unhappy with the demise of crossover voting. Many voters spoiled their ballots for party races by failing to choose a party.

A three-judge panel of the 9th U.S. Circuit Court of Appeals last month agreed with Zilly and refused to reinstate the Top 2 system, ruling that it infringes on the political parties’ constitutional rights.

The Washington State Grange, which sponsored both the original blanket primary and the Top 2 initiative, has said it would try to remove party designations from future balloting. That would again allow wide-open primaries. The state’s November ballot has continued to allow crossover voting.

On Friday, McKenna said the state will give one last try in the federal courts, asking the high court to take the case on appeal.

“The 9th Circuit decision not only strikes down the election system selected by the people of Washington, but leaves the state in serious doubt as to what options it has in seeking to craft a primary that meets constitutional standards while reflecting the will of the people,” McKenna said.

“The attorney general’s office joins the secretary of state’s office in standing behind the citizen’s right to initiative and we will continue to work to uphold the will of the people in our state.”

In the appeals court’s unanimous ruling, Judge Raymond Fisher wrote of the Top 2 system, “The net effect is the parties do not choose who associates with them and runs using their name; that choice is left to the candidates and forced upon the parties.”