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

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July 14, 2008 8:38 AM

State says top-two will go ahead

Posted by David Postman

A top state attorney says the state primary next month is in no legal jeopardy despite claims by the Republican and Democratic parties that the state is ignoring an order from a federal judge.

Attorneys for the parties said last week that appeals related to the top-two case are continuing and that an injunction against the primary is still in effect. They said the results of the primary and general election could be nullified if the state went ahead and did not specifically have the 2005 injunction reversed.

But Solicitor General Maureen Hart said in a letter to the parties that the injunction imposed by Federal District Court Judge Thomas Zilly was reversed as part of the U.S. Supreme Court decision that upheld the top-two earlier this year. Hart wrote Friday to Democratic Party attorney David McDonald and Republican Party attorney John White.

Neither of you can be surprised to know that the state of Washington began preparing to conduct a “top two” primary as soon as the Supreme Court issued its opinion on March 18, 2008, and has adopted rules and policies to implement Initiative 872. Candidates filing has been conducted in preparation for a “top two” primary, the voters’ pamphlet for the primary has been prepared, and the primary is scheduled to be conducted on August 19, 2008. Wholly aside from the practical impossibility of your suggestion, there is no legal basis for it. The injunction was based entirely upon the District Court’s conclusion that I-872 would facially violate the constitutional rights of the plaintiff political parties - a judgment that has been reversed. An injunction must be obeyed until it is “reversed by orderly and proper proceedings.”
Hart points to the final paragraph of the Supreme Court decision to show that the “injunction is no longer operative.”
Immediately after implementing regulations were enacted, respondents obtained a permanent injunction against the enforcement of I-872. The First Amendment does not require this extraordinary and precipitous nullification of the will of the people. Because I-872 does not on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates, and because there is no basis in this facial challenge for presuming that candidates’ party-preference designations will confuse voters, I-872 does not on its face severely burden respondents’ associated rights. We accordingly hold that I-872 is facially constitutional. The judgment of the Court of Appeals is reversed.

Hart said that to revert to the state’s previous primary election system - the pick-a-party or Montana-style primary - “amounts to nothing more than a request that the State refrain from following a law enacted by the people and upheld by the Supreme Court of the United States.”

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