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9th Circuit: WA primary system OK

OLYMPIA -- Washington state's current primary system which has candidates stating their party preference rather than a party affiliation and sends the top two vote-getters to the general election is constitutional, a federal appeals court said today.

The 9th Circuit Court of Appeals rejected claims by Washington's Democratic, Republican and Libertarian parties that the system infringes on their First Amendment rights of association. There's no proof that voters are confused by it, the court ruled.

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The Top 2 primary was approved by voters in 2004, after the appeals court upheld the parties' challenge to the old "blanket primary" system the state had used for more than 60 years. Under the blanket primary, voters received a primary ballot with the names of all candidates, and could vote for a Republican candidate in one race, a Democrat in another, and a Libertarian, Green or independent in another. That did violate the parties' right to freedom of association, the high court said, because voters who weren't party members could decide a party's nominees for the general election.

The Top 2 primary still allows voters to get a ballot with all the candidates' names. But they register for the election by stating a party preference, not claiming party association. Even candidates who advance to the general election are not presented as the party's nominee; instead the candidates in the primary who get the most and second-most votes move on to the general.

That sometimes results in two candidates who list the same party preference appearing on the general election ballot.

After the Top 2 primary was approved by voters, the parties challenged it. Tthe U.S. Supreme Court said the state would have to come up with a ballot that "could conceivably be printed in such a way as to eliminate the possiblilty of widespread voter confusion and with it a threat to the First Amendment." That was possible, the high court said, but since the state hadn't actually held such an election, the court reserved judgment. After the election 2008 election, the parties again brought the challenge, but the trial court ruled against them.

The 9th Circuit agreed with the trial said the state has developed a system within the guidelines set down by the Supreme Court, and the parties did not provide sufficient evidence of widespread voter confusion in their latest challenge.

The ruling means the state's 2012 primary will likely occur as scheduled in early August.

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Jim Camden
Jim Camden joined The Spokesman-Review in 1981. He is currently the political reporter and state government reporter in the newspaper's Olympia bureau office.

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