Supreme Court upholds Top Two Primary despite party challenges

Yesterday the United States Supreme Court upheld the controversial I-872 law which creates a "Top Two Primary" system in Washington, whereby voters choose their favorite candidate for office in an August 19 Primary, and the top two vote getters, regardless of party affiliation, earn the right to a spot on November's general election ballot.

This initiative was brought about by the Washington State Grange, a farm-based fraternal organization with strong roots in rural areas, to create a primary system more like the blanket primary that the state used up until 2003 when it was declared unconstitutional on the grounds that it infringed upon the rights of the political parties to associate.

The blanket primary, according to the Supreme Court, "severely burdened the parties' freedom of association because it forced them to allow nonmembers to participate in selecting the parties' nominees." But this new system, the courts decided, has nothing to do with a party's nominee. Instead, it is a means to narrow down the electoral field to the voters' two favorite candidates regardless of party affiliation.

The initiative was immediately challenged by the State Republican Party and has never been enacted. The challenge has come mainly on two fronts by political parties who stand to lose a guaranteed say in the election of each office in Washington.

The first argument maintains that the law disallows political parties from choosing their own nominees, and that in the general election a candidate who affiliates with a particular party may not hold the views of the party that did not specifically nominate him or her.

"I feel that the political party is an organization," said Spokane County Republican Chairman Curtis Fackler. "And I believe an organization should be able to pick its own leaders."

Secondly, as suggested by Democratic Chair Dwight Pelz in his official response to the ruling, is the item of voter confusion since the law states that ballots cannot be organized by the will of the party, and instead must allow for a candidate to say how he or she prefers to affiliate.

"We are disappointed that the Court appears to have made elections more complicated in Washington State," said Pelz. Voters want to know which candidate is the Democrat and which candidate is the Republican."

However, the Court found that argument too weak to overturn the will of the people. "We cannot strike down I-872 on its face based on the mere possibility of voter confusion...we are satisfied that there are a variety of ways in which the State could implement I-872 that would eliminate any real threat of voter confusion."

The decision also stated that I-872 does not make either of the Primary's Top Two any party's nominee. "To the contrary," Justice Clarence Thomas says in the opinion, "the election regulations specifically provide that the primary ‘does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.'"

MORE: I-872 decision a game changer in partisan districts