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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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Posted by JimD

10:38 AM, Jul 14, 2008

This seems to come down to what you posted "last week" regarding the Supreme Court's ruling.

"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."

The only possible recourse left for the parties would be to show "actual" harm.
I find it hard to imagine they will be able to do so.
Even if the parties can demonstrate the voters didn't now which party a candidate was affiliated with -- so what?
How does that cause "actual harm"?

I think the parties are blowing smoke in a last ditch effort to scare us into backing away.
I don't particularly like the top-two concept.
I think it will eventually be perverted by powerful political interests to restrict political diversity, not promote it.
But the Supreme Court of the United States have spoken, and it appears to be a done deal for the foreseeable future.

Posted by AllInAName

11:07 AM, Jul 14, 2008

I am so sick of the Democrats and Republicans wining about the top two primary. If they want to change it, let them pay for it.

Posted by hinton

11:49 AM, Jul 14, 2008

Actually, I'm becoming partial to making all of the elections in the state non-partisan... get rid of the parties altogether.

Then, maybe, our lawmakers can focus on laws, instead of toeing a party line.

Posted by JimD

12:14 PM, Jul 14, 2008

The problem with that, Hinton, is who gets to the top-two positions.
Without two distinct parties of competing ideologies fielding candidates, the top-two will be achieved by the two majority of local citizenry prefer in the primary.
I dare say - Gregoire would be running against another similarly-minded democrat instead of Rossi if the party system didn't impose a republican-tilting candidate into the race.

Posted by Will in Seattle

12:19 PM, Jul 14, 2008

Like most Washingtonians, I blame the two parties leadership for this mess, and think that we need to return to our workable Blanket Primary.

They dug the hole we're in.

Posted by C'mon

12:25 PM, Jul 14, 2008

JimD says;
"I dare say - Gregoire would be running against another similarly-minded democrat instead of Rossi if the party system didn't impose a republican-tilting candidate into the race."

How do you figure??
If all the Dems voted for Dem Candidate #2 and not Gregoire, she would be eliminated in the Primary.
Rossi would get about 47-50% of the vote...and the 2 Dems would split the other 50-53%

Posted by Richard Pope

12:57 PM, Jul 14, 2008

It is pretty clear to me that the "Permanent Injunction" signed by Judge Tom Zilly in U.S. District Court in July 2005 is still in effect. The appeal is still pending in the Ninth Circuit, and the district court order has not been reversed, modified, vacated, or stayed.

The U.S. Supreme Court merely reversed the Ninth Circuit decision which upheld the District Court order on appeal. The Ninth Circuit needs to redecide the appeal -- which presents other issues than those which the Supreme Court has decided.

There certainly is an extremely good chance that the Ninth Circuit will reverse the District Court permanent injunction, once they re-decide the appeal. Also, the State would have a good chance at getting the permanent injunction stayed pending the decision on appeal, given that they have a good chance of winning the appeal.

But what it truly amazing is the strident stand that the Washington REPUBLICAN PARTY is taking on this issue. If the permanent injunction is really still in place -- and if Judge Zilly enforces the injunction (or a state court holds the injunction to be valid in a contest of the primary election) -- this will spell DEFEAT for the two highest ranking Republican elected officials in the State of Washington come November.

If the "Top Two" primary scheduled for August 19, 2008 is invalidated in an election contest, called off by Judge Zilly prior to being held, or has to be re-run after being conducted (or replaced at the last minute) under the "Pick-A-Party-Ballot" rules, then the voters will be extremely angry at Sam Reed for defying a federal court injunction and failing to do anything to timely get rid of the injunction. They will likewise be very angry at his lawyer, Rob McKenna, for such disastrous legal advice and representation.

Pretty amazing isn't it, that the state Republican Party's official legal spokesperson (attorney John White) says that Reed and McKenna are such incompetent lawbreakers? Regardless of whether the state Republican Party is correct on this point, it sure reflects poorly on that party and its candidates.

Posted by Skagit Dave

1:15 PM, Jul 14, 2008

Victory for the people!!!

Its too bad when our political parties must conspire against us. Shows how out of touch they both currently are.

Posted by Julie

1:20 PM, Jul 14, 2008

I don't care who a person is affliated with I just want the best person on the job. Haven't they figured it out yet? This is what most of the people in EVERY state want not just this one, but they have to make noise about how its so unfair to the "parties". Just more of our money being spent on unnecessary trivialities.

Posted by JimD

1:42 PM, Jul 14, 2008

What I'm saying is that Rossi exists because the republicans have an opportunity to field a republican candidate.
In a top-two primary, it would be more likely the business interests that support Gregoire would sufficiently fund a Gregoire-like candidate to take the second position - insuring them one or the other they could live with.

I think we're leaving out of the equation that campaign funding drives who makes it to the top.
In the absence of the necessity for two competing political idological parties to field a candidate, a predominately democratic Washington State would most likely find two democratic alternatives at the top of a top-two primary.

That would serve my political interests just fine - don't get me wrong.
But I think its bad for democracy to eliminate what little diversity the party system IMPOSES on the process by virtue of two distinct and competing ideological camps - including a distinctly minority interest like Washington's republican party.

It's another example of "deregulation" that looks good on paper and makes sense - until you consider how the power brokers with the bucks will pervert it to their best interests.
In the case of top-two, expect them to package and fund more similar candidates than they do now.

Posted by xcountrynomad

5:08 PM, Jul 14, 2008

The responses blaming the parties for taking their choices away are absolutely wrong. YOU took your own choices away. In Seattle- good luck voting for Democrat 1 and mirror image Democrat 2. In Grant County- good luck voting for Republican 1 and mirror Republican 2. That is what your general election will look like.

In addition, do you think the party bosses are going to put forth a quality candidate against an incumbent? They will be suppressing any challenge against their candidates. This is an incumbency protection election. Congratulations. Your blind anger with the political parties has gotten you more of the same- the same.

Posted by harry

8:24 PM, Jul 14, 2008

I agree with Hinton. Political parties have been incredibly destructive to Democracy in recent years, and they get worse and worse. Any elected official now has to hold two two jobs -- 1. Getting reelected by marching to the party's drum, and 2. If possible, doing what's right. It might interest most people to know that the founders of this country -- especially John Adams -- saw parties as something to be wary of.

Posted by Karl B

10:11 PM, Jul 14, 2008

The Top Two system pits the two candidates that are most representative of their districts. Ensuring that candidates reflect the basic principals of their constituents is more important than guaranteeing a contest between two ideological extremes.

Hopefully, our elections will then become a competition that focuses on who is more prepared to manage the nuts and bolts of governing.

Posted by Richard Shepard

6:26 AM, Jul 16, 2008

All comments here reflect the commonly held opinion that there is only one legal basis to challenge the top two primary, and that the USSC ruled against it. The Court even said there are at least three more legal bases that the courts haven’t addressed, trademark, ballot access and campaign finance.

All anger against the political parties is really anger against the Ds and Rs, which have admittedly botched their job of aggregating, collecting and reconciling various political interests into a unified agenda. But the problem isn’t entirely their fault.

First, the special interest lobby has been burning the midnight oil seeking ways to beat the political parties at their own game. Second, the single member plurality election district is far, far more responsible for the lack of voter choice than the Ds and Rs are. Third, there are other political parties out there, and any “top two” system is virtually guaranteed to smother them.

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Jul 14, 08 - 08:38 AM
State says top-two will go ahead







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