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Eye On Olympia

Mon., Oct. 1, 2007, 6:25 p.m.

U.S. Supreme Court considers Washington’s highly unusual attempt at a “Top Two” primary election…

In a case that Attorney General Rob McKenna says is "parties versus voters, folks," Washington state officials are trying to convince the nation's highest court to allow a "top two" primary election here, even if that means two Republicans or two Democrats facing off on a November ballot.

"I think this is an interesting point in history for this case," Secretary of State Sam Reed said this morning in a conference call with home-state reporters. "...What ought to be the fole of the political parties in the 21st century, I think, is wide open right now."

The parties say the argument is simple: It's their constitutional right to determine who gets to be their standardbearer in November. Depending on who the Supreme Court justices side with, Washington's proposed system -- which allows any candidate to label themself a Democrat or Republican -- is either free speech or an unconstituional undercutting of the parties' right of association.

"It seems to me it's very clear where the parties are going here," said McKenna. "Nationally, the parties want to force the voters to register by party if they want to vote in the primary election. I don't think the voters are going to stand for that for one minute."

Excerpts from the arguments this morning:

-Justice Scalia: I am less concerned about the fact that the candidate can't say I'm the -- I'm the no-taxes candidate, than I am about the fact that he can associate himself with the Republican Party or the Democratic Party on the ballot and that party has no opportunity on the ballot to say, we have nothing to do with this person. That, it seems to me, is a great disadvantage to the parties.

(UPDATE: And aiming to test this theory is blogger David Goldstein, who said this afternoon that if Washington's top-two primary is allowed to proceed, he'll declare himself a Republican and challenge Dino Rossi for the gubernatorial nomination.)

-JUSTICE SOUTER: You're saying that a right to nominate has to be a right to exclude everyone from the ballot except the nominee -- everyone from the ballot under that banner, from the nominee.
(GOP attorney John J. White, Jr.) WHITE: To be -- to be a meaningful right to nominate, yes, Your Honor.

MR. WHITE: And with respect to the importance of party designations and party information on the ballot, last term the Chief Justice, in Wisconsin Right to Life, ordered a study that showed that 85 percent of voters couldn't name a single candidate for the United States House of Representatives in their own district, but the -- the voters know the political parties. The political parties spent, in our case, a century and a half and, in the Democratic Party's case, 200 years developing a message and developing a set of principles with which the parties are associated...

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