State Democrats and Libertarians ask U.S. Supreme Court to decide on Top 2 Primary challenge | David Ammons

The following is from David Ammons, communications director for the Secretary of State.

Washington Democrats and Libertarians are asking the U.S. Supreme Court to hear yet another challenge of the  state’s popular Top 2 Primary.  Various appeals have been underway since voters approved the system by a landslide eight years ago.

The open primary, which allows all voters to select their favorite candidates for each office, without regard to party label,  has been successfully used since 2008, when the U.S. Supreme Court ruled 7-2 to allow its use.  The high court did leave open the possibility of further challenge based on the way the state administered the winnowing election.

Barring some unexpected development, the state plans to use the Top 2 Primary on Aug. 7 to winnow the field for governor and other statewide offices, Congress, the Legislature and other offices. The two top votegetters will advance to the General Election in November. No party is guaranteed a runoff spot.

Both the U.S. District Court and the 9th Circuit Court of Appeals have rejected arguments by the Democratic, Republican and Libertarian parties of Washington that their constitutional rights are violated.  The Republicans have dropped out of the challenge. Just before the deadline late Wednesday, the Democrats and Libertarians filed separate requests that the high court hear a further appeal.

Secretary of State Sam Reed, the state's elections chief, said he was disappointed that the Libertarians and Democrats persist in their challenge, and pleased that Republicans have heeded the request he has made for all three parties to stop challenging a voter-approved system that is working well and producing good candidates and officeholders.

"Our system, which is a model for other states, really honors the way Washingtonians want to vote -- for the person, not the party label,” Reed said. “It really fits our populist, independent streak and allows people to split their ticket, rather than be confined to one party's candidates.  The parties' challenge of our old blanket-primary led to our Top 2 system, with a very unpopular detour to the Pick-a-Party system that limited our primary choices.

"I hope the Supreme Court will decline to take the case, and will acknowledge that we followed the court's roadmap for how to conduct the primary as a nonpartisan, winnow election that puts the voter in the driver's seat."

Attorney General Rob McKenna said the Top 2 system has withstood scrutiny by the voters and by the federal courts, and has passed with flying colors.  The state's implementation followed the Supreme Court's own guidance for how to design election materials and a filing system that clearly inform the voter how the nonpartisan winnowing process works, he said.  The parties no longer have a guaranteed nominee on the November ballot, and during Filing Week, all candidates are allowed to designate the party they "prefer," with voters informed that the party may or may not support that candidate, he added.

The Democrats, writing in their request to the court,  complained that the system gives the parties no say in which candidate is allowed to claim their label. They also said the state hasn't been required to show that disclaimers on the ballot are adequate remedy for voter confusion. The disclaimer essentially says that the candidate chooses which party their prefer, but that  the party may or may not endorse their candidacy.  Apart from the primary process, the parties are able to "nominate" one or more candidates for each office -- their seal of approval.  Candidates may publicize that in their yardsigns, Voter's Pamphlet and advertising.

The system easily survived a constitutional challenge to the U.S. Supreme Court, which handed down a 7-2 ruling back in March of 2008.  The state has used the system ever since, with polls showing heavy public support.  But the parties continue to argue that the Top 2 system causes voter confusion and thereby violates the parties’ freedom of association.


In January of last year, U.S. District Judge John Coughenour dismissed challenges brought by the parties over the way Washington operates the primary.  Reed and McKenna called it a major victory for the voters of Washington and expressed hope that the case was resolved at long last.  But the parties decided to appeal.

The judge said the state Elections Division has carefully adopted the recommendations of the high court, making it clear that candidates “prefer” a particular party of their designation, but that the party may or may not endorse the candidate.  Coughenour dismissed the parties’ contention that voters are confused by the party references.

He said the system “does not create the possibility of widespread confusion among the reasonable, well-informed electorate.”

The parties appealed to the 9th Circuit, which handles cases from the West. Again, the three-judge panel upheld Washington. The Secretary of State, represented by Attorney General McKenna, and backed by the Washington State Grange, promoters of the Top 2 Initiative 872, asked the appeals judges to agree with the district judge that Washington has carefully implemented the primary using the roadmap suggested by the U.S. Supreme Court.  Voters are not confused by the system and the high court already has said the parties do not have a right to demand that their favored candidates be identified, they said.

In their latest filing, the Democrats said "The 9th Circuit did not independently analyze whether, as implemented, Washington's system is a reasonable, politically neutral regulation that serves an important regulatory interest when the system provides potentially misleading or inaccurate information."  The party should be allowed to object to use of its name in conjunctions with the candidate's in state-sponsored publications, the Democrats said.

Libertarians concurred with the Democrats' arguments, including their concerns about unauthorized use of their party label or trademark and their lack of authority to "disavow false candidacies."

McKenna's attorneys will file reply briefs later this spring; there is no clear timeline for when the high court might say if the justices will hear the case.  Statistically, few very cases are accepted for review.  If it were accepted, it likely would be heard sometime next year.

An FAQ on the Top 2 system is here:

A guide to all the Top 2 litigation:

Katie Blinn, state elections co-director, is available at 360-902-4168.

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