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Top 2 upheld in court: voters win

by Brian Zylstra | October 1st, 2012

Washington’s popular Top 2 Primary system has cleared its final legal hurdle.

The U.S. Supreme Court announced Monday that it will not hear the challenge by Washington Democrats and Libertarians on the Top 2. This apparently is the final word on litigation that has been under way since voters overwhelmingly approved the primary through an initiative in 2004.

Go here to view the cases that the Supreme Court is refusing to hear. (The Top 2 appeal case is found on page 12, showing the combined challenge by Democrats and Libertarians on how the primary is conducted in Washington.)  The case was brought against the Grange, the sponsors of the initiative that created the system in 2004, and the state.  Secretary of State Sam Reed has been a foremost backer of the Top 2 and is recommending it to other states.

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 U.S. Supreme Court ruled 7-2 to allow it.  The high court ruling four years ago left open the possibility of further challenges based on the way the state administered the winnowing election.

In August, the state used the Top 2 Primary for the fifth time, winnowing the field for governor and other statewide offices, Congress, the Legislature and other offices. The two top vote-getters advanced to the General Election in November, with no party guaranteed a runoff spot.

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

Reed, the state’s top elections officer, let out a cheer when he heard that the U.S. Supreme Court refused to hear the latest legal challenge by the parties.

“This is a victory for the people of the state of Washington,” Reed said. “The Top 2 fits the political heritage of our state.  On my first day in office as Secretary of State, in January 2001, I was served with litigation papers regarding Washington’s primary election system.  I am relieved that this 12-year litigation will be resolved before I leave office.”

State Elections Division Co-Director Katie Blinn had this response to the high court’s rejection of the parties’ appeal:

“The Top 2 Primary system has been very well received in Washington because it allows voters to focus on candidates, not the political parties,” Blinn said. “We are grateful for the aggressive and strategic defense of our right to vote provided by the Attorney General’s Office.”

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 they 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 yard signs, Voters’ Pamphlet and advertising.

The Top 2 system easily survived a constitutional challenge to the U.S. Supreme Court, which handed down a 7-2 ruling back in March 2008. Since being implemented later that year, opinion polls have shown strong public support. But the parties refused to let it go, continuing to argue that the Top 2 system causes voter confusion and thereby violates the parties’ freedom of association.

In January 2011, U.S. District Judge John Coughenour dismissed challenges brought by the parties over the way Washington operates the primary.  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 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. The three-judge panel upheld the Top 2. The Secretary of State, represented by 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.”

According to the Attorney General’s Office, there is one piece left to wrap up.  The Democrats and the Republicans have claims for attorneys fees remaining before the District Court, based upon the fact that they “won” as to their claim that the way the state was conducting PCO elections was unconstitutional. The cert denial by the Supreme Court will put that issue back before the District Court.

An FAQ on the Top 2 system is here:  http://tinyurl.com/29ofz7u

A guide to all the Top 2 litigation: http://tinyurl.com/cc6ompb

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