Court rejects ‘top two’ primary

SEATTLE – A U.S. District Court judge on Friday struck down Washington state’s new “top two” primary system, approved by voters last fall, as unconstitutional, saying it infringed on the rights of political parties to pick their own nominees for office.

In a 40-page ruling, Judge Thomas Zilly said the state cannot allow voters to skip back and forth along party lines as they pick a candidate for each office. Nor can it allow candidates to identify themselves by party on a ballot without that party’s approval, the ruling said.

State Attorney General Rob McKenna said late Friday he planned to appeal.

“We’re confident that the voters of this state have a constitutional right to choose this type of primary,” he said.

The state Republican, Democratic and Libertarian parties sued in May to challenge Initiative 872, which created a primary system in which the top two vote-getters for each office advanced to the general election, regardless of political affiliation.

The effect of the ruling, Zilly said, was that Washington would return to the “Montana-style” primary it used last fall. Under that system, voters select one party’s ballot and vote for their favorite candidates on that ballot.

“This is a huge win for the state Democratic Party and for everyone who believes in a decent primary system,” said state Democratic Party Chairman Paul Berendt.

For nearly 70 years, Washington state used a “blanket” primary system, whereby voters could pick their favorites for each office – a Democrat for governor, a Republican for secretary of state, etc. The top Democratic, Republican and third-party vote-getters advanced to the general election.

That system was struck down by the 9th U.S. Circuit Court of Appeals in 2003, three years after the U.S. Supreme Court invalidated a similar system in California. The Supreme Court said that opening a party’s nominating process to people who didn’t belong to the party infringes on the rights of the party to pick its own nominees.

The sponsors of I-872, which passed with 60 percent of the vote, sought to dance around that Supreme Court ruling by taking the state out of the business of nominating candidates. In oral arguments on Wednesday, state lawyer Jim Pharris said the parties can nominate their own candidates by caucus or however they see fit; because party affiliation has no bearing on whether the candidates make the final ballot, I-872 can’t be said to be nominating candidates, he argued.

State Republican Chairman Chris Vance was delighted with the ruling: “It is time for the state of Washington to end the litigation and negotiate with the political parties.”