Skip to comments.Wash. state's 'top two' primary struck down
Posted on 07/15/2005 6:05:19 PM PDT by mdittmar
A U.S. District Court judge on Friday struck down Washington state's new "top two" primary system, approved by voters last fall, as unconstitutional, saying it infringed on the rights of political parties to pick their own nominees for office.
In a 40-page ruling, Judge Thomas Zilly said the state cannot allow voters to skip back and forth along party lines as they pick a favorite candidate for each office. Nor can it allow candidates to identify themselves by party on a ballot without that party's approval, the ruling said.
The state Republican, Democratic and Libertarian parties sued in May to challenge Initiative 872, which created a primary system in which the top two vote-getters for each office advanced to the general election, regardless of political affiliation.
The effect of the ruling, Zilly said, was that Washington would return to the "Montana-style" primary it used during last fall's election. Under that system, voters select one party's ballot and vote for their favorite candidates on that ballot.
"This shouldn't be a shock to anyone," said Republican Party State Chairman Chris Vance.
"The bottom line is, you have to have a system where Republicans choose the candidates of the Republican Party and Democrats choose the candidates of the Democratic Party," he said.
The state's top Democratic Party official agreed.
"This is a huge win for the state Democratic party and for everyone who believes in a decent primary system," said state Democratic Party Chairman Paul Berendt. "There were several elements of the top-two system we know were flat unconstitutional."
For nearly 70 years, Washington state used a "blanket" primary system, whereby voters could pick their favorites for each office - a Democrat for governor, a Republican for secretary of state, etc. The top Democratic, Republican and third-party vote-getters for each office advanced to the general election.
That system was struck down by the 9th U.S. Circuit Court of Appeals in 2003, four years after the U.S. Supreme Court invalidated a similar system in California. The Supreme Court said that opening a party's nominating process to people who didn't belong to the party - be they candidates or voters - infringes on the rights of the party to pick its own nominees.
The sponsors of I-872, which passed with 60 percent of the vote, sought to dance around that Supreme Court ruling by taking the state out of the business of nominating candidates. In oral arguments on Wednesday, state lawyer Jim Pharris said the parties can nominate their own candidates by caucus or however they see fit. Under I-872, he said, the September primary serves merely to winnow the field of candidates to the two most popular.
Because the primary voters aren't selecting a party's nominee, they can vote for whomever they like for each office, Pharris argued.
Zilly said the state's argument would transform the parties' right to "nominate" into merely a right to "endorse."
"To relegate the members of a political party to a role of mere support for their preferred 'standard bearer' would deny a party its role in selecting its representative," Zilly wrote.
It is rather odd, since the founders disliked the idea of parties. It is just another one of those penumbra things.
Make the parties live with the "general election" only, and make it "plurality wins" instead of "majority wins".
I added Louisiana to the topic list because it sounds similar to the open primary system that they use.
Louisiana has what's called a jungle primary where regardless of what party you're registered to you simply vote. Top two people advance regardless of party. Then whoever gets 50%+1 on election day wins.
The idea of ignoring the party on the day of the primary for the purposes of picking the finalist within the two parties sounds stupid in comparison though. They ought to just make it fully open or fully closed.
Perhaps, but we have constitutions for a reason. We're not a direct democracy and the "votes of individuals" are not always the final word, nor should they be.
The idiotic 9th Circuit overturned yet again. I read somewhere that the dummies are overturned nearly 80 percent of the time!
Well, Young Scholar, folks with your thinking is the problem we have in this country today! The Judiciary is usurping the will of the people, yet again.
Thanks for the clarification on the differences in the two systems. Perhaps the folks down in Louisiana won't have to worry about this decision, then.
So what you are telling me is that the will of the majority should always win? Tell me, who would that have elected in the 2000 presidential election? There is a reason the Founding Fathers totally rejected the idea of direct democracy.
Answer: President Bush! He had the majority of Electoral Votes! (That pesky Constitution) Don't split hairs!
The "people" are not as conservative as you seem to think they are.
Democracy = Two wolves and a sheep voting on what's for dinner.
We live in a country where the supreme law in a government is the constitution (whether state or Federal), even when this conflicts with the majority of voters; you can't pick and choose when to enforce this constitution.
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