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Federal appeals court hears challenge of Top 2 Primary

by David Ammons | November 29th, 2011

Washington’s political parties are back in federal appeals court, continuing their six-year  challenge of the state’s popular voter-approved Top 2 Primary.

The Democratic, Republican and Libertarian parties of Washington asked the 9th Circuit Court of Appeals on Tuesday to throw out the system, which allows voters to choose their favorite for each office, without respect to party, with the two favorites advancing to the November General Election ballot.  Neither party is guaranteed a November runoff slot, and the Top 2 is not a nominating election, but rather a winnowing contest.

Jeff Even, deputy state solicitor general, representing Secretary of State Sam Reed and the voters, said the oral argument went well, and that he is optimistic that the state will be able to keep the Top 2 system in place.  California voters recently adopted the system. The three-judge panel gave no indication when they will rule, but Even said he would expect the state to know by next spring that it can run the big 2012 election system with the Top 2 in place.

The system was approved in a landslide public vote in 2004 after the parties had successfully challenged the state’s longstanding “blanket” primary, which allowed crossover voting, but produced a GOP nominee and a Democratic nominee, with minor parties handled in a separate process.

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, U.S. District Judge John Coughenour (pronounced Coo’-now-er) dismissed challenges brought by the parties over the way Washington operates the primary.  Secretary of State Sam Reed and Attorney General Rob 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 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 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.”

Even and Grange attorney Tom Ahearn asked the appeals judges to agree with the district judge that Washington has carefully implemented the Top 2 system 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, Even said.

The judges gave no indication that the Top 2 system itself is in any jeopardy, Even said.

“This is about as good as we could have hoped,” said Katie Blinn, co-state elections director.

Secretary Reed was pleased at how the hearing went, and optimistic of victory:

“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 decade, and it has proven very, very popular in the past four elections.  California voters recently adopted our system and I would predict it catches on more broadly in this country.”  The Top 2 system says every single voter is important in winnowing the field of candidates.  Judge Coughenour’s wise ruling told us that the primary belongs to the voters and not solely the parties.”

“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.”

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3 Responses to “Federal appeals court hears challenge of Top 2 Primary”

  1. Bernard Sandstrom says:

    What about the constitutional right to assembly and association? The government has no business manages private affiliations. I have always thought that this was a stupid law bred out of ignorance.

  2. I have never liked anything that limits our ability to choose. The “Top 2″ forces us to choose from only the two candidates that have the most financial backing, basically. I hope this law is repealed.

  3. Jion_Wansu says:

    Not true. The top 2 system is a more democratic system

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