Appeals Court upholds Top Two

The bulk of the Secretary of State’s announcement follows this brief conversation.

If you’re reading this blog you’re probably informed enough to know that when Washington votes in a primary the top two vote getters make it to the ballot in November. This is a fairly recent development that like many things sprung from problems in California. (I grew up there, so your problem with me originates there.)

In California it used to be that to vote in a party’s primary you actually had to be a declared member of that party. When the state changed that the parties sued and it ended up wrecking things for Washingtonians, who had voted for whoever the heck they wanted in the primary regardless of party. The Supreme Court struck down that system, and Washington eventually responded with the Top Two system.

The Secretary of State explains in what follows.

FYI: The 9th U.S. Circuit Court of Appeals has upheld Washington’s voter-approved Top 2 Primary.

The court rejected the challenge brought by the Republican, Democratic and Libertarian parties against Washington Secretary of State Sam Reed, the state’s chief elections officer, and the state Grange, which sponsored the citizen initiative that created Top 2 after the parties successfully challenged the time-honored “blanket primary.”

The U.S. Supreme Court, in a 7-2 ruling in 2008, upheld the state’s primary’s constitutionality, saying it does not violate the parties’ First Amendment right of association. The parties have been pursuing a second round of challenges, based on how the state of Washington is applying the system. U.S. District Judge John Coughenour dismissed that challenge a year ago, saying the parties have failed to prove any fatal flaws in the Top 2, including the possibility of widespread confusion among voters. Today, his decision was upheld by the Circuit Court.

Barring some unforeseen development, the Top 2 will be used by the state to run the big 2012 primary on Aug. 7, including races for governor and other statewide offices, U.S. Senate, 10 newly redrawn congressional districts, the Legislature, the judiciary and other offices. California voters also have approved a Top 2 system.

The ruling is here: http://tinyurl.com/845kjaz
An FAQ on the Top 2 system is here: http://tinyurl.com/29ofz7u
A guide to all the Top 2 litigation: http://tinyurl.com/cc6ompb

Secretary of State Sam Reed, a longtime advocate for a wide-open primary that allows all voters to participant, said the ruling was expected, but an important victory for the people of Washington and the system that is so popular with voters.

“We are delighted. Once again, the courts have made clear that our Top 2 process is legal and is being administered in a clear and thoughtful fashion. I would hope the parties will accept the judgment of the courts, including the Supreme Court, and cease their litigation, which costs the taxpayers and the parties precious resources of time and money.

“Today’s opinion keeps the voter in the driver’s seat.

“The people created this Top 2 system by overwhelming mandate as a Grange initiative in 2004, and pollsters tell us the voters really like it. Initiative 872, the Top 2, honors our political tradition in this state of allowing us to vote for our favorite primary candidate for each office, without regard to party preference. With our old blanket primary and now our voter-approved Top 2 system, every single voter can take part in winnowing the field of candidates. The primary truly belongs to the people and not solely the parties. Instead of a nominating process, we now have a winnowing election.

“On behalf of the 3.6 million voters of Washington, I salute our elections community, including our state Elections Division and our County Auditors, for their clear and effective implementation of Top 2, which will be used for the fifth time this August. I also thank Attorney General Rob McKenna and Deputy Solicitor General Jeff Even and the excellent attorneys of his office, and the Grange and its attorney Tom Ahearn for defending this important system.”

State Elections Co-Directors Katie Blinn and Shane Hamlin also applauded the latest strong ruling from the courts. The system is widely supported by the public and encourages strong voter turnout, they said.

After their setbacks in the Supreme Court and U.S. District Court, the parties nonetheless continued their litigation by turning to the Appeals Court for the western states. The oral arguments were less than two months ago in Pasadena.

The three-member panel, in a 25-page opinion handed down Thursday, dismantled all of the challenges raised by the parties, primarily whether the state has designed a system that eliminates the risk of widespread voter confusion. The judges said the state has followed the roadmap suggested by the U.S. Supreme Court, informing voters in a variety of ways that candidates for each partisan office specify which party they prefer, but that the party may or may not embrace or endorse that person.

“Given the design of the ballot, and in the absence of actual voter confusion, we hold that Washington’s top two primary system, as implemented by the state, does not violate the First Amendment associational rights of the state’s political parties, the appellants here,” the court said.

The court did concur with the parties that they should not have to repay legal costs from earlier litigation that the parties won at the time, but later ended up being reversed on appeal.
Background:

The system was approved in a landslide public vote in 2004 after the parties had successfully challenged the state’s longstanding “blanket” primary, which allowed crossover voting, but produced a GOP nominee and a Democratic nominee, with minor parties handled in a separate process.

The system easily survived a constitutional challenge to the U.S. Supreme Court, which handed down a 7-2 ruling back in March of 2008. The state has used the system ever since, with polls showing heavy public support. But the parties continue to argue that the Top 2 system causes voter confusion and thereby violates the parties’ freedom of association.

In January of last year, U.S. District Judge John Coughenour (pronounced Coo’-now-er) dismissed challenges brought by the parties over the way Washington operates the primary. Secretary Reed and Attorney General McKenna called it a major victory for the voters of Washington and expressed hope that the case was resolved at long last. But the parties decided to appeal.

The court did, however, side with the parties on one issue, saying it is unconstitutional for the state to conduct precinct committee officer elections for the parties when the races are on a ballot available to all voters across the political spectrum. The ruling apparently means the state is out of the PCO election business unless the Legislature devises some fallback system.

The judge said the state Elections Division has carefully adopted the recommendations of the high court, making it clear that candidates “prefer” a particular party of their designation, but that the party may or may not endorse the candidate. Coughenour dismissed the parties’ contention that voters are confused by the party references.

He said the system “does not create the possibility of widespread confusion among the reasonable, well-informed electorate.”

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