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Postman on Politics

Chief political reporter David Postman explores state, regional and national politics.

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July 8, 2008 9:30 AM

Political parties say top-two primary may not count

Posted by David Postman

Attorneys for the state Democratic and Republican parties say the upcoming top-two primary violates a federal court order, and could jeopardize the results of both this year’s primary and general elections.

Attorneys for the parties wrote to the state yesterday. The letters were prompted by an order from the 9th Circuit Court of Appeals last week that asked attorneys for supplemental briefing materials in the long-standing court fight over the primary. They say that makes clear that the legal fight over the top two is still alive, despite a U.S. Supreme Court ruling earlier this year.

Under the top-two primary, voters can select any candidate on the ballot for each race and the two highest vote-getters advance to the general election regardless of their party affiliation. The old pick-a-party primary required voters to select a party ballot and vote for candidates only from that party.

Democratic Party attorney David McDonald and Republican Party attorney John White said in separate letters that the 9th Circuit order shows that appeals of Judge Thomas Zilly’s 2005 decision are continuing.

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.

White wrote:

As we have previously advised you: This litigation is not over. No court has vacated the injunction entered by the district court in July, 2005. The injunction against implementing the Modified Blanket Primary is still in effect. Conducting a Modified Blanket Primary in August will be a willful violation of the injunction. In addition to violating the injunction, issuing certificates of nomination to candidates who receive the most votes will constitute an “error” in the administration of the election because the Open Primary is still the law of Washington.

The party attorneys say the state should conduct a pick-a-party, or so-called Montana-style, primary that has been in place since 2004. And that, McDonald wrote, should be the law “until such time, if ever, as the validity of I-872 is fully and finally upheld.” White asked the Attorney General's office to “confirm immediately that the State will adhere to the terms of the injunction, and conduct its August primary in accordance with the Open Primary law.”

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.

MORE: State election director Nick Handy says the U.S. Supreme Court says the top two is constitutional.

The U.S. Supreme Court ruled 7-2 in March that Washington's Top 2 primary is constitutional and that Washington may conduct a Top 2 primary.

Accordingly, the state is proceeding to implement a Top Two primary on August 19. The Voters' Pamphlet has been printed and ballots for military voters will be in the mail in the next few weeks.

In summary, the state is proceeding to implement the people's initiative as upheld by the U.S. Supreme Court.

The order from the 9th Circuit, signed by a three-judge panel, says:

Within 30 days of the filing of this order, the parties shall submit supplemental briefs not exceeding 15 pages each addressing the impact of the Supreme Court's ruling in Washington States Republican Party v. Washington, 128 S. Ct. 1184 (2008), on the issues raised but not resolved in the appeal before this three-judge panel. The parties should also address any intervening authority on the ballot access and trademark claims that has been filed since these issues were originally briefed.

The parties are relying, in part, on a footnote in the U.S. Supreme Court opinion. This is Footnote 11:

Respondent Libertarian Party of Washington argues that I-872 is unconstitutional because of its implications for ballot access, trademark protection of party names , and campaign finance. We do not consider the ballot access and trademark arguments as they were not addressed below and are not encompassed by the question on which we granted certiorari: “Does Washington’s primary election system . . . violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?” Pet. for cert. in No. 06-730, p. i. The campaign finance issue also was not addressed below and is more suitable for consideration on remand.

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