Supreme Court upholds top-two primary

Wednesday, March 19, 2008

By KATHIE DURBIN, Columbian staff writer

The U.S. Supreme Court upheld Washington’s top-two primary election Tuesday, capping  years of litigation over a voter-approved initiative that opens state and local primaries to independents, third-party candidates and cross-party voting.

The high court ruling deals a blow to political party dominance in Washington, though it would not affect the state’s current system of selecting delegates to party presidential nominating conventions.

In a 7-2 opinion, the court said party preference is now “irrelevant” in Washington’s primary system for state and local races.

Rather than ratify the political parties’ choices, the court said, the purpose of the state’s top-two primary is to winnow the number of candidates to two, allowing voters to select the two most popular ­candidates to advance to the general election, regardless of how they describe their party affiliation.

“Whether the parties nominate their own candidates outside the state-run primary is irrelevant,” the court said in its ruling.

Justice Clarence Thomas, who wrote the majority opinion, said that overturning Washington’s plan would have been “an extraordinary and precipitous nullification of the will of the people.”

“We cannot strike down” Washington’s plan “based on the mere possibility of voter confusion,” he wrote.

Justice Antonin Scalia, who was joined by Justice Anthony Kennedy in dissenting, said the top-two primary would force political parties to be associated with candidates who might not represent their views.

Jubilant Secretary of State Sam Reed said the new primary election system will take effect with the August primary election and will open up the election process to broader participation.

“We took the people’s case to the nation’s highest court, and the people won,”  said Reed, a Republican. “This is a victory for the people of Washington because our democracy­ belongs to them.”

Ballot design key

David McDonald,  attorney for the Washington State Democratic Central Committee, said the party could still sue to block the August election.

“The litigation is not over,” he said. “There are other aspects that still have to be resolved on remand. If you’re creating confusion, you have a problem.Until we’ve seen the ballot design and decided whether it will be challenged, and until we’ve seen how the implementation plans for I-872 intersect with other statutes on the books now, I can’t tell you whether it is possible it will be implemented this year.”
In its ruling, the court majority suggested that the primary ballot should be printed “in such a way as to eliminate the possibility of widespread voter confusion.”

For example, the justices said, the ballot “could include prominent disclaimers explaining that party preference reflects only the self-designation of the candidate and not an official endorsement by the party.”

Reed said his office already has drafted some preliminary wording for the ballot.

“We very definitely want to do that, because an important part of making this constitutional is that it not be confused with  being a political primary process,” he said.

The parties will still be free to endorse candidates, Reed said, but “whoever they support still has to be one of the top two vote-getters to make it into the general election. They are going to have to field candidates who can appeal to independents and across party lines.”

“The other change is that minor party candidates will be on the primary ballot,” he added. “No one gets a pass to the general election anymore.”

A history of litigation

Voters approved Initiative 872 adopting the top-two primary in 2004 by a 60 percent majority. But the state Republican, Democratic and Libertarian parties immediately sued to block it, and the initiative has never gone into effect.

The parties argued that it would be unconstitutional to allow­ candidates to identify themselves with a political party­ on the primary ballot when that party had not endorsed them and might not support their views.  

I-872 was ruled unconstitutional in 2005 by U.S. District Court Judge Thomas Zilly. Attorney General Rob McKenna appealed the ruling to the  9th U.S. Circuit Court of Appeals, which upheld the district court ruling. McKenna, a Republican, argued the case before the Supreme Court last October.

Clark County Auditor Greg Kimsey read Tuesday’s opinion in amazement.  Like many who were following the case, he was expecting the high court to rule against the top-two primary.

“If you read through the transcripts of the court hearing, it seemed impossible to imagine that we would get the decision we got today,” said Kimsey, a Republican.

The ruling is good news for election officials, he said.

In the 2006 primary election, following the 2004 ruling, Washington voters were required to pick a party and vote a single-party ballot. They didn’t like it much.

“For us, it makes life easier,” Kimsey said. “We create a single ballot. We no longer have party preference boxes. A voter votes for one candidate and the top two vote-getters go forward. It’s like the old blanket primary, except you could end up with two candidates from the same party in the general election.”

Changing rules

“The political ramifications of this could be pretty significant,” Kimsey added.

For example, in this year’s open Clark County commissioner race to succeed Betty Sue Morris, Democrat Pam Brokaw of Ridgefield, director of an affordable-housing nonprofit, will now face three Republicans in the August primary: Ridgefield development executive Matt Swindell, retired fire chief Brad Lothspeich of Felida and former state representative Tom Mielke of Battle Ground.

In 2006, well-financed moderate Democrat Jack Burkman, who had the state party’s endorsement, faced maverick Pat Campbell in the primary against Republican incumbent Jim Dunn.  Moderate Republicans who might have wanted to vote for Burkman rather than Dunn could not do so unless they changed their party affiliation.

“Arguably Jack Burkman suffered under the pick-a-party system,” Kimsey said. “The converse is that in a top-two primary, Jack Burkman would benefit.”

Skamania County Auditor Mike Garvison said the ruling will save his county printing and mailing costs. In 2006 his  office sent out three ballots — a Democratic ballot, a Republican ballot and a nonpartisan ballot for a water district measure — to its 6,400 registered voters.

More important, he said, “The comments we received back from voters about us requiring them to pick a party, those will stop.”

“Our turnout was low for the pick-a-party primary,” Garvison said.  “I think that turnout in the primaries is going to increase substantially. People in Washington don’t like to be told what to do by the parties.”

Kathie Durbin covers politics and the legislature.