An attorney for the state Democratic Party says the upcoming top-two primary violates a federal court order, and could jeopardize the results of both this year’s primary and general elections.

David McDonald, the attorney who represents the party in the primary case, wrote to state attorneys yesterday. His letter was prompted by an order from the 9th Circuit Court of Appeals last week that asked attorneys for supplemental briefing materials in the longstanding court fight over the primary. McDonald said that order makes clear that appeals of Judge Thomas Zilly’s 2005 decision are not over.

Zilly issued an injunction against implementing I-872, the initiative that created the top-two primary. McDonald wrote that the state has made no effort to modify or vacate that injunction. He wrote to state attorneys:

Proceeding with the planned August primaries and November elections in violation of this injunction will expose all of the results to challenge, potentially wasting significant taxpayer resources on elections that have to be redone.

McDonald wants the state to go back to the pick-a-party primary that has been in place since 2004. And that, he said, should be the law “until such time, if ever, as the validity of I-872 is fully and finally upheld.”

The top-two system got the go-ahead in March when the U.S. Supreme Court ruled that overturning the citizen initiative would have been an "extraordinary and precipitous nullification of the will of the people."

The Supreme Court ruling left open the possibility that the top-two could be challenged after it was implemented and the political parties could show actual harm.