Top Two FAQ

The Secretary of State issued a list of answers to questions about the top-two primary ruling by the U.S. Supreme Court.

Click below to read it.

Frequently Asked Questions on the Top Two Primary

What is a Top Two Primary?
A Top Two Primary allows candidates to file for partisan office and list on the ballot a party preference. Voters do not have to declare a party affiliation and, for each race, voters may vote for any candidate in the race. The two candidates in each race who receive the most votes advance to the General Election.

How did the Top Two Primary become law?
The Top Two Primary was passed by the people as an initiative in 2004. It was I-872 and passed by almost 60%.

What happened after I-872 passed?
In May 2005, before the new primary was implemented, the state Democratic, Republican and Libertarian parties sued in federal court to prevent its implementation. The political parties argued that the new primary system violated their right to free association.

The federal District Court agreed with them and issued an order in July 2005 prohibiting the State from implementing the Top Two Primary. The State appealed but the Court of Appeals also agreed with the parties in an order issued in 2006. The State appealed to the U.S. Supreme Court.

What did the U.S. Supreme Court decide?
The court upheld the constitutionality of Initiative 872. The Supreme Court reasoned that, since this form of primary has never been used, the political parties’ challenge to it was based on assumptions, and that the court would not nullify the vote of the people based upon such speculation.

What does this mean for voters?
In August, the state will conduct a primary using I-872. Voters will be able to choose among all candidates for each office and will not have to pick a party ballot. The two candidates with the most votes will advance to the general election.

Can the Democratic and Republican parties prevent a candidate from calling himself a Democrat or Republican?
No. Candidates will be permitted to express a political party preference. The court ruled that the ability of candidates to express a preference for a party does not severely burden the rights of that party.

Could the General Election have two Republicans or two Democrats running in the same race?
Yes. The two candidates who advance to the General Election will be those with the most votes in the Primary. It is possible that both candidates who receive the highest and second highest numbers of votes could prefer the same party.

If the political parties oppose the design of the primary ballots, can they sue to prevent use of the Top Two this year?
Yes they can sue, but probably not prevent use of the Top Two primary. As part of its ruling, the Supreme Court said it would not set the Top Two primary aside based on speculation about what might happen, or based on “hypothetical” or “imaginary” cases. It is likely that something more will have to be shown to block use of the Top Two.

Does the U.S. Supreme Court opinion impact the Presidential Primary?
No. The Top Two Primary is for local, state and Congressional partisan races. The Presidential Primary is a separate system that only applies to the nomination process for President of the United States, and how the major parties allocate delegates to their national conventions.

Will minor party and independent candidates still use the convention and petition process in order to appear on the ballot?
No. Minor party and independent candidates will file for office and appear on the ballot in the same manner as major party candidates. They no longer have to conduct conventions and submit petitions prior to filing week. They no longer advance directly to the General Election, but appear on the Primary Election ballot along with the major party candidates.

If no candidate from a major party files for a particular race, can the party fill the vacancy on the major party ticket after filing week?
No. There is no major party ticket in a Top Two Primary. All candidates are treated the same. A race that was open for filing during the regular filing period will only be re-opened for a special filing period if no candidates at all file during the regular filing period, which is called a void in candidacy.