Federal judge upholds state's 'top-two' primary voting

Washington's "top-two" primary-election system survived another court challenge when a federal judge ruled Tuesday that the state ballot is constitutional.

However, U.S. District John Coughenour did strike down the way Washington runs elections for the parties' grass-roots organizers.

In his ruling, Coughenour found that voters were not confused by the Washington ballot, which allows candidates to list which political party they prefer. The two top vote-getters in a primary then advance to the general election regardless of party.

The U.S. Supreme Court has already upheld the top-two primary, but this latest challenge was focused on whether the Washington ballot was confusing to voters.

The political parties argued the ballot is unconstitutional because candidates can claim that they prefer a particular party even if that party doesn't back them.

But Coughenour said the way the Washington ballots are laid out "eliminates the possibility of widespread confusion among the reasonable, well-informed electorate."

"What this means is the people's choice of having a top-two election system in the state is constitutional, and we've twice ground down the political parties' attempts to nullify the people's enactment of the top-two system," said attorney Thomas Ahearne, who represented the Washington State Grange.

It was a sample ballot created by the Grange that led to the one adopted by the state. "Hopefully the political parties will now give up fighting against what the people in the state want."

But David McDonald, attorney for the Democratic Party, said he is certain the decision will be appealed to the 9th U.S. Circuit Court of Appeals and could even end up back with the U.S. Supreme Court.

"We think the case is pretty vulnerable on appeal," McDonald said.

Said state Republican Party Chairman Luke Esser: "We remain convinced that our constitutional rights will ultimately be vindicated and protected, and we will be considering our next steps in the coming weeks."

For decades, Washington had what's called a blanket primary, which allowed voters to choose any candidate in the primary election, and the top Democrat and top Republican moved on to the general election, along with some independent party candidates.

The parties long had opposed the blanket-primary system, which allowed people to vote for any candidate — Democrat or Republican — on the same ballot. Although the blanket primary served as a way to winnow the field of major-party candidates to one Democrat and one Republican, the parties complained it allowed interlopers — voters who didn't share their beliefs — to help select their candidates.

The parties sued and in 2003, the 9th Circuit Court ruled the blanket primary was unconstitutional. In 2004, the Washington State Grange put Initiative 872 on the ballot, calling for a top-two primary. It passed overwhelmingly.

The political parties also sued to block the top-two primary. In 2005 and 2006, federal courts ruled the top-two violated the parties' First Amendment right of free association by allowing candidates to specify which political parties they "prefer" without necessarily being party members.

In March 2008, the U.S. Supreme Court in March 2008 upheld the top-two primary with the caveat that it depended on how the state implemented it, said James Pharris, assistant attorney general who defended I-872.

Pharris said the state worked to ensure that voters understood what the party-preference labels meant.

The judge did grant another request made by the parties in striking down the way the state runs elections for precinct-committee officers, the grass-roots organizers of the political parties.

Coughenour said having such officers listed on ballots sent to all voters allows people to vote for those organizers regardless of party affiliation. That does violate the parties' association rights, the judge said.

The Associated Press contributed to this story.

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