US Supreme Court Rules in Favor of WA State Open Primary

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US Supreme Court Rules in Favor of WA State Open Primary

Postby Shawnna » Tue Mar 18, 2008 8:11 pm

Supreme Court rules in favor of Washington state open primary
By Susan Gilmore

Seattle Times staff reporter

The U.S. Supreme Court has upheld the state's top-two primary law, a huge defeat for the state's political parties.

A year ago, the high court agreed to consider the state's primary law, three years after state voters overwhelmingly passed Initiative 872, backed by the Washington State Grange, the original sponsor of the blanket primary law that went into effect in 1935.

The initiative provided that the two candidates with the most votes in the primary would move on to the general election, regardless of political affiliation.

Federal courts tossed out the new primary system before it was ever used, and now the state uses the so-called Montana primary law, where voters have to choose a party ballot before voting in the primary.

But one former party leader believes, despite the Supreme Court ruling, the fight is not over.

"My understanding is the court ruled the law is not unconstitutional on its face, but it leaves open the ability for people to challenge the law as it is actually applied," said Chris Vance, former Republican Party chairman who led the party while the primary fight was going on.

"I lived this issue for five years," he said. "I'm very surprised. It seems to break with court precedent. Now there will be a premium placed on political gamesmanship, getting the right combination of people to file and make sure opponents not make it to the general election."

Tom Ahearne, attorney for the Grange, which argued the case before the high court, said he had expected to win. As for further challenges, he said that won't happen until the new primary has been in effect for a few years. "They can file a challenge after a few elections, but I don't think they can prevail. It's clear from the Supreme Court decision (the parties) will need evidence to show widespread voter confusion, and that's not going to happen in the state."

For more than 65 years, Washington voters chose their candidates through a blanket primary, which allowed them to vote for any party's candidates. The top vote-getters from each party then moved on to the general election.

But the parties challenged that primary system, and the 9th Circuit Court of Appeals struck it down in 2003.

Then the Grange sponsored Initiative 872, which established the top-two system.

In 2005, the U.S. District Court for the Western District of Washington ruled that the top-two primary violated the political parties' First Amendment right of free association by allowing any voter, regardless of his or her affiliation to the party, to choose the party's nominee. The court struck down I-872 in its entirety and specifically stated that Washington return to the Montana-style primary.


The issue of how Washington could frame its primary came to a head in 2000, when the state still was using its blanket primary. The U.S. Supreme Court ruled that an almost identical primary in California was unconstitutional. Shortly after that ruling, the parties in Washington filed a lawsuit to end the state's blanket primary. Political observers expected the California decision would doom Washington's top-two primary as well.

Writing for the 7-2 majority, Justice Clarence Thomas said that overturning Washington's plan would have been an "extraordinary and precipitous nullification of the will of the people."

He added, "there is simply no basis to presume that a well-informed electorate will interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee."

In dissent, Justice Antonin Scalia said Washington's system would cause a political party to be associated with candidates who may not represent its views. He was joined by Justice Anthony Kennedy.

The parties challenged both the blanket and top-two primary law, arguing it violated their First Amendment right to decide who should carry the party label in an election.

"Wow!" said Washington Secretary of State Sam Reed, who supported the top two primary. "That's terrific! It means the people of the state of Washington are going to be able to control who gets elected through this process."

Vance said he and most of his party's activists were more comfortable with the blanket primary than the top-two system, because at least the blanket primary ensured a Republican would be on the ballot. Under the top-two system, that's not guaranteed.

"This is not the way to make policy on this issue," said Vance. "It's long past time for Sam Reed to sit down with two party chairmen and negotiate a system for the two major parties to nominate their candidates. This should be decided by negotiation, not litigation."

The decision shocked former state Democratic Party Chairman Paul Berendt. "You're kidding," he said. "When we were sitting in court, the justices appeared to be very hostile to the state's position."

But Terry Hunt, head of the Washington State Grange, which sponsored Initiative 872, said he was elated by the ruling. "I always believed we would get there," he said. "I would not be happy with this decision if I were the parties, but if I were the people, I'd love it. They gave it back to us. They gave us back our primary and will let the people vote for the best person, not the party's pick."


Emphasis mine. I feel this is a very good decision but am curious what others here think.
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Postby MikeJamieson » Wed Mar 19, 2008 12:26 am

I like the idea a lot.

I recently (January 23rd, four days after the Nevada Caucus) re-registered
to "Non-Partisan".

And, I noticed that Non-Partisans (or Independents in some states) are
growing in size in many states, equaling almost the two parties in size.

I've been a Democrat all my life. (I'm 57). I saw too much this past year.
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