Parties argue against I-872 primary system

SEATTLE – The blanket, the Montana, the top two and now … the nonpartisan primary?

As the state’s Republican, Democratic and Libertarian political parties went to court Wednesday to argue that Washington’s latest primary system, created by Initiative 872 last fall, is unconstitutional, U.S. District Judge Thomas Zilly repeatedly suggested that one way to solve any such questions might be to have ballots that don’t identify candidates by party.

“What would be wrong with that?” the judge asked.

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 for each office advanced to the general election.

That system was struck down by the 9th U.S. Circuit Court of Appeals in 2003, four 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 – be they candidates or voters – infringes on the rights of the party to pick its own nominees.

I-872 sought to get around that ruling by taking the state out of the business of nominating candidates. The parties can nominate their own candidates by caucus or however they see fit, argued Jim Pharris with the state attorney general’s office; under I-872, the September primary serves merely to winnow the field of candidates to the two most popular, who then advance to the general election.

Because the primary voters aren’t selecting a party’s nominee, they can vote for whomever they like for each office – just like with the old blanket primary, Pharris said.

“We’re out of the business of caring who’s a party. We’re out of the business of caring how parties nominate,” Pharris said. “Each candidate stands on his own.”

The parties, who sued in May to have I-872 declared unconstitutional, told Zilly that the state was being artful in its wordplay – unsuccessfully – to avoid running afoul of the Supreme Court’s ruling. According to other state law, they said, nominations must be made at a primary.

They argued that I-872 allows candidates to be listed by their party preference on the primary ballot – even if the party doesn’t want to be associated with that candidate – and there’s no mechanism for denoting on the ballot who is a party’s official nominee. The state argued that allowing candidates to state their “preference” for a party does not infringe on that party’s association rights; it simply provides a little information about the candidate.

“The state is forcing the Republican Party to associate with candidates it may not want carrying its banner,” said GOP lawyer John White.

The parties seek a return to the Montana-style primary that was used last fall before I-872 was adopted. Under it, voters could choose only one party’s primary ballot – no skipping across party lines.

Zilly, who said he would try to rule by Friday, offered that he might simply strike the “preference” language in the initiative, leaving a nonpartisan top-two primary in place – a system similar to one the Supreme Court suggested would be constitutional in its California ruling.

But Democratic lawyer David McDonald said that raised other issues, primarily a question of whether the judge would be creating a system drastically different from the one voters intended.

“The result you would arrive at is not one you can reasonably believe the legislative body – in this case, the people – would have adopted,” McDonald told the judge.

Zilly expressed other reservations about I-872, especially concerning minor parties. For decades, they got special treatment to ensure they made the November ballot, and I-872 did not explicitly repeal the laws that granted that special treatment.

Under I-872, minor parties have virtually no chance of making it to the general election: “Isn’t that the death knell for minor parties?” Zilly asked.

Thomas Ahearne, a lawyer for the Washington State Grange, which sponsored I-872, agreed that the new system treats minor parties the same as major parties. But he said that’s what voters intended when they passed the “top-two” system: that there would be only two choices per office on the final ballot.