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Originally published March 18, 2008 at 12:00 AM | Page modified March 18, 2008 at 9:31 PM

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Supreme Court rules in favor of Washington state top-two primary

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

Seattle Times staff reporter

Washington's primary history

1935: Washington adopts a "blanket" primary that allows voters to pick a favorite for each office without regard to party label. The top vote-getter from each party advances to the November general election.

June 2000: The U.S. Supreme Court invalidates a similar system adopted by California. Washington continues to use its blanket primary, though, when U.S. District Judge Frank Burgess sides with the state.

September 2003: The 9th U.S. Circuit Court of Appeals overturns Burgess and sides with the state's political parties.

March 2004: After the U.S. Supreme Court declines to hear the state's appeal, lawmakers approve a primary that allows the top two vote-getters to advance to the general election, without regard to party. But it also included a backup primary that requires voters to limit themselves to one party's candidates.

April 2004: Gov. Gary Locke vetoes the top-two part of the bill and leaves the state with the partisan system.

September 2004: Washington holds its first pick-a-party primary. It proves very unpopular.

November 2004: Voters approve Initiative 872, creating a top-two system, by a 60 percent yes vote.

July 2005: U.S. District Judge Thomas Zilly throws out the top-two system, saying it infringes on the political parties' right to pick their own nominees.

August 2006: The 9th U.S. Circuit Court of Appeals upholds Zilly's ruling.

October 1, 2007: The U.S. Supreme Court hears the appeal of the 9th Circuit ruling.

Today: The U.S. Supreme Court rules that top-two primary is legal.

The U.S. Supreme Court today upheld Washington's top-two primary system, delivering a huge defeat for the state's political parties.

The decision means the state will dump its unpopular "pick-a-party" primary that's been in place while the top-two system was being challenged in court.

The new system will be used for the state primary on Aug. 19.

Under the top-two primary, the two candidates with the most votes would move on to the general election, regardless of political affiliation.

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

Voters overwhelmingly approved the top-two primary in 2004 in an initiative backed by the Washington State Grange.

The law was immediately challenged by the Democratic and Republicans parties, which argued it violates their right to pick their own nominees. In the top-two primary, candidates can designate their party preference even if they aren't that party's nominee.

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

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.

State Democratic Party Chairman Dwight Pelz said he was "disappointed that the court appears to have made elections more complicated in Washington state.

"Voters want to know which candidate is the Democrat and which candidate is the Republican," Pelz said in a statement. "The state must make clear on the ballot which candidate is nominated by the Democratic and Republican parties. Until we see how that ballot is designed, we will not be able to conclusively gauge our response to today's court ruling."

Chris Vance, former Republican Party chairman, believes 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," Vance said.

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 candidates to specify which political parties they "prefer," even if they aren't party members.

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."

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com

The Associated Press contributed to this report

Copyright © 2008 The Seattle Times Company

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