BREAKING NEWS: Top-Two Primary Ruled Unconstitutional

From the Seattle Times:

9th Circuit panel says top-2 primary unconstitutional

Washington's top-two primary infringes on the rights of the state's political parties and has been ruled unconstitutional by the 9th U.S. Circuit Court of Appeals.

Today's ruling by a three-member 9th Circuit panel came as little surprise to the state, which had appealed a similar ruling a year ago by U.S. District Judge Thomas Zilly.

Zilly last summer tossed out the state's new voter-approved primary, Initiative 872, because he said it unfairly burdened the rights of Washington's political parties. The 9th Circuit judges agreed.

"In attempting to craft a primary system that does not unconstitutionally burden political parties' right of association under the First and Fourteenth Amendments, Initiative 872 fails to do so," the judges wrote. "Rather, the initiative retains a partisan primary, in which each candidate may self-identify with a particular party regardless of that party's willingness to be associated with that candidate. We hold that Initiative 872 is unconstitutional in its entirety."

Voters in November 2005 overwhelmingly approved I-872, creating a top-two primary system in which the two candidates with the most votes would move on to the general election, regardless of political affiliation.

While the issue has been in the courts, the state has used the Montana-style primary, which requires voters to select one party ballot and vote only for that party's candidates.

"We are delighted with the ruling," said Dwight Pelz, the chairman of the state Democratic Party. "This means Democrats and all political parties will be able to have a direct voice in choosing their nominees for office."

He said the state has already conducted a successful election under the Montana primary, "and we've demonstrated that voters can navigate through new ballot. The state will adopt to the new system, and democracy will move forward."

The state has 90 days to decide whether to appeal the ruling to the U.S. Supreme Court, but the high court six years ago tossed out California's so-called blanket primary, which was similar to Washington's at the time.

Today's ruling will have little immediate effect, said Jeff Even, a state assistant attorney general, because the state was planning on using the Montana primary this year while the case was under appeal.

"Obviously, we're disappointed," he said. "We'd much rather have a win. But it's not a shock."

Steve Excell, assistant secretary of state, agreed that the ruling came as little surprise. "This decision tells us we're going to continue with the Montana-style primary. The decision was pretty clear on its face, and we'll be following it."

Diana Tebelius, the state Republican chairwoman, also cheered the ruling. "The 9th Circuit affirmed the importance of the First Amendment and emphasized that candidates do not have the right to hijack the party name for personal political ambition. We believe it's a victory for everyone."

For more than 65 years, Washington voters chose their candidates through a blanket primary, which allowed voters to vote for any candidate regardless of their party. The top vote-getter from each party advanced to the general election.

But the courts said such primaries infringed on the rights of the parties to decide who runs for office under their labels. The state's blanket primary was found unconstitutional in September 2003, and lawmakers approved a top-two primary, including a backup Montana primary. Former Gov. Gary Locke vetoed the top-two bill and left the state with the Montana primary.

Attorney Thomas Ahearne represented the Washington State Grange in the legal case. The Grange wrote I-872.

"Voters in the state of Washington lost," Ahearne said.

He said the initiative was written specifically to address the issues cited by the U.S. Supreme Court when it tossed the California primary, the so-called Jones decision.

"I think this is definitely wrong," he said of today's ruling. "The initiative complies with the Jones decision."

He said there are three steps the state and the Grange could now take, including appealing to the full 11-member 9th Circuit. The ruling also could be appealed to the Supreme Court. In addition, voters could face another primary initiative, one that would call for candidates to appear on the ballot without party affiliations next to their names.

This directly concerns what I blogged about Jim White earlier today. Primary candidates will no longer be allowed to identify themselves with the Republican or Democratic parties without gaining the endorsements of those parties first. For example, this excerpt from the decision:

A hypothetical may help illustrate the situation confronting the political parties and the voters of Washington in an Initiative 872 primary. Let us assume the Republican Party holds its own privately run party convention prior to the modified blanket primary to select the Party’s nominee for the primary ballot for a particular state office. Cf. Jones, 530 U.S. at 585 (noting that candidates appearing on a nonpartisan blanket primary ballot may be nominated by established political parties). Let us further assume that two Republican candidates (both of whom are bona fide party members) — Candidate C, a conservative, and Candidate M, a moderate — compete against one another for the nomination and that Candidate C wins the Republican nomination at the convention. Lastly, let us assume the existence of a third candidate — Candidate W, a wild-eyed radical — who purports to “prefer” the Republican Party but who is not a Party member, whose views are anathema to the Party’s membership and who does not participate in the Party’s convention process. Despite Candidate C’s party nomination, Candidate M and Candidate W decide that they want to appear on the primary ballot. Given these assumptions, how would each of these candidates be designated on the ballot, and how would voters be able to distinguish among them?

Presented with this scenario at oral argument, the State of Washington conceded that all three candidates would be designated in an identical fashion on the primary ballot — all would be shown to have “Republican” as their “party preference.” This is the essence of Initiative 872’s constitutional flaw. Because candidates can freely designate their political party preferences on the primary ballot, but the ballot does not show which candidates are the political parties’ official nominees (or even true party members), voters cannot differentiate (1) bona fide party members such as Candidates C and M from outsiders who purportedly prefer the party such as Candidate W; or (2) party nominees such as Candidate C from “spoiler” intraparty challengers such as Candidate M. The net effect is that parties do not choose who associates with them and runs using their name; that choice is left to the candidates and forced upon the parties by the listing of a candidate’s name “in conjunction with” that of the party on the primary ballot.

I think this is a sound decision by the court. Political parties carry a certain cachet and built-in voter support. If a candidate is going to be identified with a party and take advantage of this, they must play by the rules. Nothing in this decision precludes a person from running as an independent if they so choose.

Both Jim White and Jeannine Larkin are running in the GOP primary for Whitman County Commissioner without having received the party's nomination at the county convention in April. The mail-in ballots are about to be sent out for the September 19 primary, so I cann't imagine this ruling will affect their candidacy. Stay tuned for details.