OLYMPIA — The state's Democratic and Libertarian parties are asking the U.S. Supreme Court to do what lower courts have refused: Throw out the state's Top Two primary system.
The two parties have asked the nation's top court to hear arguments on the state's primary system, which has all candidates for all offices on a single ballot and lists candidates by the party they say they “prefer”. The two candidates receiving the most votes advance to the general election, regardless of party preference.
The Supreme Court would be the last stop in a long battle the parties have waged over the way Washington conducts its primaries. For more than a half-century, Washington operated what was known as a blanket primary, where all candidates for all offices appeared on a single ballot, and voters could select on candidate from any party for each office. When those ballots were tallied, the Democrat and Republican candidate for each office advanced to the general election, as did minor party candidates and independents who crossed a threshhold for a minimum number of votes.
Washington voters don't register by party, and the major parties argued that meant people who weren't their members were choosing their nominees. In 2000, the U.S. Supreme Court overturned a similar law in California for violating constitutional protections of freedom of association, and the Washington parties won a court challenge to their state's law in 2003. Voters approved an initiative for the Top 2 primary, which was also challenged in court, and while the court case was pending, primaries in which voters had to choose a Democratic or Republican ballot or nonpartisan ballot if there were nonpartisan races or measures in the same election.
Eventually the Supreme Court ruled 7-2 the Top 2 primary was, on its face, constitutional. But it left open the possibility that it could be administered in a way that was unconstitutional. The parties challenged the way the primary ballot identifies a candidate's party preference, arguing they don't have an adequate way of objecting to a candidate who claims to be associated with them, and that voters might be confused that listing of party preference indicates the candidate is a member of the party.
That challenge failed with a U.S. District Court judge and the 9th U.S. Circuit Court of Appeals. The ballot contains a disclaimer that a candidate's preference does not necessarily have the support of that party, and the appeals court said that was enough. The parties are saying, however, there wasn't any evidence in front of the appeals court to show “that voters read or understand the disclaimer or that doing so would affect voter perceptions of the candidate-party association.”
Secretary of State Sam Reed defended the Top 2 primary as a way for state residents to vote for the person, not the party label. “I hope the Supreme Court will decline to take the case, and will acknowledge that we followed to court's roadmap for how to conduct the primary as a nonpartisan, winnow election that puts the voter in the driver's seat.”
The state Republican Party had been involved in the previous court cases, but is not part of the latest effort to get the U.S. Supreme Court to hear the case, which is a request for a writ of certiorari.