Washington voters should have the right to elect whomever they want, however they choose to do it. Or so contend the majority of us who choose not to affiliate with the major parties. That attitude suits our state’s populist traditions.

We don’t like our politics played out in partisan pigeonholes. And we relish the chance to tweak those “party bosses” who try to tie our hands.

When it comes to electoral politics, voters here retain some of the vestigial independence staked out in the heady days of populist rebellion. So when Attorney General Rob McKenna defended the “top two” primary before the U.S. Supreme Court Monday, he had the public on his side.

I’m not sure I’m with the public on this. I disliked the blanket primary and argued against Initiative 872, which established the “top two” system. Yet I’m hoping the Supremes give the win to McKenna and the 60 percent of Washington voters who plumped for it.

While the “top two” is a lousy way to run a primary election, it’s the scheme voters here endorsed. And unlike the blanket primary, the I-872 format does not trample the First Amendment rights of the major political parties.

A little background for newcomers. From 1935 through 2003, Washington used the so-called blanket primary to nominate partisan candidates for the general election. Voters received ballots listing all candidates for elected office. They could vote for a Republican in one race, a Democrat in another, a Libertarian or Green in yet another. Folks merrily hopscotched across the ballot, unshackled by any need to show partisan or philosophical consistency. And that’s the way they liked it.

In 2000, the U.S. Supreme Court ruled (7-2) that California’s recently adopted blanket primary violated the parties’ First Amendment right of association. Justice Antonin Scalia, writing for the majority, said the scheme “forces political parties to associate with – to have their nominees, and hence their positions, determined by – those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.”

Unpopular as his assessment may be with Washington voters, he’s right. The consequences of that ruling significantly disrupted the way we do politics here.

In tossing the California primary, the Court effectively tossed Washington’s candidate selection process. After much flailing about, in 2004 the Legislature established two primary election systems: the “top two” and the “pick-a-party.” If the “top two” was found to be unconstitutional, the “pick-a-party” would kick in. Gov. Gary Locke vetoed the “top two” option, leaving the “pick-a-party” plan in place for the September 2004 primary election. Voters were required to select a party ballot and vote only for candidates of that party.

A lot of folks objected. Two months later, voters overwhelmingly endorsed Initiative 872, establishing the “top two.” The political parties challenged it, again on free association grounds. And again we find the case in the hands of an unsympathetic U.S. Supreme Court.

McKenna convincingly argued that the “top two” cures the First Amendment defect of the blanket primary. Under the “top two” the people simply send the two leading vote-getters to the general election, regardless of party affiliation. They’re not choosing the Republican nominee or the Democratic nominee. And the association rights of the parties are not compromised. The candidates’ party preferences would appear on the ballot, but only for informational purposes.

Scalia pounced: “… what this system creates is a ballot in which an individual can associate himself with the Republican Party, but on the ballot the Republican Party is unable to dissociate itself from that candidate.”

McKenna pointed out that parties have the means to make their favorite known. Turning the tables, he noted that “the correct approach (to correcting candidate misrepresentations) is to provide for more speech, not to limit the speech of all the candidates ….”

Fair enough, but Scalia’s also correct. The “top two” does the political parties no good. But Washington voters have shown little interest in strengthening – or even participating in – party politics. I think such widespread detachment leads to greater partisan polarization and weakens our political institutions. Nonetheless, the voters have spoken. The Court should listen.