The Top Two Primary lawsuit continues

Article by Natalie McClendon, Chair, Whatcom Democrats

Washington State’s political parties are expected to be back in court in March 2009 in the on-going court case over the state’s so-called Top-Two Primary election method. The U.S. Supreme Court ruled last spring that the Top-Two Primary was constitutional “on it’s face,” and that the state should go ahead with implementing the primary system, and see if it is unconstitutional in practice. Now the U.S. District Court will determined if the primary method, in practice, is constitutional, by evaluating how Sec. of State Sam Reed conducted the election.

Todd Nichols, a practicing attorney and chair of the Rules Committee of the Washington State Democratic Party spoke to the quarterly meeting of the 40th Legislative District Democrats in February about the progress of the case. Nichols explained that in order for the Top-two Primary to be constitutional, as claimed by its proponents, it would have to be conducted completely without political parties, which is the reason the primary ballot used the unusual wording of “prefers Democratic Party” rather than straightforward statements of party affiliation. The court will be looking at whether under a purely non-partisan primary, the political parties can still exercise their constitutional rights to select their own party nominees, and that these nominees can be considered on the General election ballot.

The Democratic Party conducted “nominating conventions” in the spring of 2008 to select party nominees, to show the court that it’s desire to choose it’s own candidates was genuine. If the party had skipped this step, it would have undermined the party’s argument that their constitutional rights to choose their party’s nominee would be infringed by the Top-Two method.

In evaluating the constitutionality of the Top-Two Primary of 2008, U.S. District Court Judge John C. Coughenour could determine that the harm to the voters is too great and issue an injunction against use of the Top-Two, pending the final outcome of the court case, Nichols said. He predicted that the case could take up to four more years to resolve.

While party conventions have been used for centuries to choose nominees, partisan primary elections are more common in the U.S. today. Washington is the only state in the union that does not use a partisan primary method. Washington’s political parties support a partisan primary like the Open Primary, Private Choice, also known as the Montana Primary, that was used in Washington from 2004-2007. This method asks voters to choose one party’s ballot to vote for their preferred party nominee, and each party’s nominee advances to the General Election ballot.

Many editorial writers and Washington Secretary of State Sam Reed have claimed that a partisan primary, where voters chose a party ballot, is unpopular with the voters. However, the Washington State Presidential Primary election was conducted as a partisan primary in February 2008, with strong public support for it over a caucus process. If the state continues to use the Top-Two method for its regular primaries (in August), the parties will be forced to choose nominees in a caucus or convention process.

Nichols said the strongest legal argument against the Top-Two method is that in order to make the primary non-partisan, and therefore acceptable to the court, the Secretary of State ignored state law on the conduct of elections for political party’s Precinct Committee Officers. Reed ordered county election officials to declare as winners the top vote-getter, even though they did not meet the state law requirement (RCW 29A.80.051) that they receive at least 10% of the number of votes cast for the top vote-getter of the same party in that precinct. As a result, people whose names were written in and received one vote were declared winners. The reason for the 10% requirement is to ensure that PCOs of the political parties be at least nominally representative of the party voters in that precinct.

Another constitutional argument against the Top-Two method will be that candidates on the general election ballot in November 2008 were not the nominees of the parties, in some cases. This situation shows that a political party was denied the right to select their own nominee to be considered by the voters in the general election. The same argument applies to races where two candidates from the same party were the top two vote-getters and advanced to the general election ballot, which happen in a number of races for Legislature in 2008. Having a constitutional right to select your own party’s nominees becomes meaningless if that nominee cannot be considered by the voters on the general election ballot.

Plaintiffs in the lawsuit are the Democratic Party, the Republican Party, and the Libertarian Party. It's ironic that the one common ground the major political parties share is their desire to remain separate in the eyes of the voters.