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WA voters win court approval of Top 2 Primary

by David Ammons | January 11th, 2011

Washington’s voter-approved Top 2 Primary system is constitutional, says U.S. District Judge John Coughenour.  The jurist, in an order that dismissed challenges brought by the political parties, ended a decade of litigation over the primary system.

Coughenour (pronounced Coo’-now-er) called it “this long-running saga over the form of political elections in Washington.”  Secretary of State Sam Reed and Attorney General Rob McKenna called it a major victory for the voters of Washington.

The court did, however, side with the parties on one issue, saying it is unconstitutional for the state to conduct precinct committee officer elections for the parties when the races are on a ballot available to all voters across the political spectrum.  The ruling apparently means the state is out of the PCO election business unless the Legislature devises some fallback system.

The judge’s surprise 24-page ruling came just a week before a full-blown trial was scheduled to begin in his Seattle courtroom.  The ruling also buttresses a system that has since been adopted by California voters.  The U.S. Supreme Court previously held 7-2 that the Top 2 system is, on its face, constitutional and does not violate parties’ First Amendment rights.

After the parties succeeded in having the state’s popular “blanket” primary thrown out, voters adopted a Top 2 initiative brought forward by the state Grange, Secretary  Sam Reed and other supporters.  The new system, used in 2008, 2009 and 2010, allows voters to choose their favorite for each office, without regard to party preference, with the two favorites for each office moving forward to the General Election.

It is no longer a nominating process, but a winnowing election, and no party is automatically entitled to a November runoff slot.

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.”  He did, however,  conclude that the wide-open election system does not work for election for PCOs. He declined to order a fix.

Secretary Reed’s statement on the Top 2 ruling:

“I am absolutely delighted with this great and sweeping victory for the voters of Washington state.  The people created this Top 2 Primary system by an overwhelming statewide vote in 2004 as Initiative 872 and it keeps voters in the driver’s seat in choosing their finalists for office in this state. It honors our wonderful political heritage of allowing us to vote for our favorite candidate for each office without regard to party preference.

“This new primary system has been a real passion of mine for the past 10 years, and it has proven very, very popular in the elections of 2008, 2009 and 2010.  California voters recently adopted our system and I would predict it catches on more broadly in this country, particularly with the U.S. Supreme Court’s strong 7-2 ruling and now today’s excellent and definitive ruling.

“The Top 2 system says every single voter is important in winnowing the field of candidates.  Judge Coughenour’s wise ruling tells us that the primary belongs to the voters and not solely the parties.

“We believe this is the end of a decade of litigation and I call on the parties to forgo any further appeal, and spend their money and time and energy on party-building, candidate recruitment and all the valid roles they play in our political system, rather than on legal challenges that cost so much for them and for the taxpayers of Washington.

“We did not request the ruling against the state conducting the party precinct committee officer elections; the parties themselves did. Nonetheless, they have won on this point, and it appears we are out of the business of running PCO elections unless the Legislature makes a different policy choice, such as combining the elections with the partisan presidential primaries in the future, possibly repaying the costs of taxpayers running the election.

“On behalf of the 3.6 million voters of Washington, I thank our elections community, including our state Elections Division and our County Auditors, for their clear and excellent implementation of this new system. And I thank Attorney General McKenna and his legal team for their excellent and diligent defense of Top 2.”

5 Responses to “WA voters win court approval of Top 2 Primary”

  1. If this report is correct, this judge must not inhabit the same political world that I do. There is no way that anyone even slightly familiar with the electoral process could base any decision on the premise that the [top-two] system “does not create the possibility of widespread confusion among the reasonable, well-informed electorate.”

  2. butterfly says:

    “He [Judge Coughenour] said the system [Top Two] “does not create the possibility of widespread confusion among the reasonable, well-informed electorate.”

    This premise for his decision is not supportable by any realistic assessment of the electoral process we have just endured.

  3. Matthew F. Pfefer says:

    Judge Coughenour *never* said that “it is unconstitutional for the state to conduct precinct committee officer elections for the parties when the races are on a ballot available to all voters across the political spectrum” or that the state is “out of the business of running PCO elections.”

    Instead, Judge Coughenour specifically stated that the “political parties further suggest that they might be satisfied of party membership if a voter checked a box indicating affiliation with the particular party. (Id. at 9.) Again, the current system does not facilitate a check box.” (On page 22, lines 11-13.)

    Judge Coughenour also stated as follows:
    “the political parties offer multiple approaches that would satisfy them that only party members select their PCOs. Washington may also decide to implement PCO elections in a manner not yet conceived but ultimately satisfactory to the political parties. Washington may even implement PCO elections in a way that severely burdens the political parties’ associational rights but does so in a manner narrowly tailored to serve a compelling governmental interest. Or Washington may decide to stop conducting public elections of PCOs. Given the wide range of options, the Court declines to order an injunction imposing a particular form of election.” (On page 23, lines 15-22.)

    Please tell the truth about this decision.

  4. Sarajane Siegfriedt says:

    What was settled is candidate’s ability to represent themselves on the ballot as “prefers Democratic” or “prefers GOP/whatever.”

    The first amendment right of the parties to assemble without interference and to choose who will represent them hasn’t been decided. Both parties agree that the decision is subject to being appealed.

    State law requires the state to conduct Precinct Committee Officer elections. This could be done by mailing two short ballots and requiring participants to select one, sign it publicly affirming their party affiliation, and return it with a PCO vote. The names and voter information of those who participate will be made available to the parties.

  5. as a person who does not know about the world of politics that is increasingly unclear I’d like to ask if it is indeed worth going, because I think those political parties are those that are filled with the knowledge that many compared to our not knowing anything at all with our fate would they bring. Thank you.

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