High Court to Examine ‘Top-Two’ Primary

By: - March 7, 2007 12:00 am

The U.S. Supreme Court will decide whether to let Washington state voters use a “top two” primary-election scheme that, if upheld, could be a model for reformers looking to loosen political parties’ grip on the nomination process.

Under the arrangement, the top two vote-getters in state primaries would advance to the general election, regardless of their political affiliation. Supporters say the system would let voters – not political parties – control the outcome of elections. Three-fifths of Washington voters supported the idea through a ballot initiative in 2004, but courts have placed it on hold since it was adopted.

“Independent voters here are conscious of the fact that, in a closed party primary, an independent voter just doesn’t have near the influence everyone else does,” explained Don Whiting, who spearheaded the ballot initiative that created the “top two” system.

The high court decided last week (Feb. 26) to take up an appeal that seeks to put the setup into effect. Louisiana has a similar primary system. Lawyers for Washington state are defending the new selection process.

“It certainly is true that states may adopt primary election systems that function as taxpayer-funded party nominating primaries. But states need not do so, and Washington has not,” they told the justices in court documents filed in November.

But Democrats, Republicans and Libertarians who successfully have challenged the law convinced lower courts that the system violates their First Amendment right of free association. Courts have said that members of a political party have the right to determine who represents the party in elections.

The high court’s decision to review the case marks the first significant legal victory for backers of the “top two” initiative, which was struck down by two lower courts.

The fatal flaw, according to the San Francisco-based 9 th U.S. Circuit Court of Appeals, is that political party voters don’t get to determine whether candidates who identify themselves as party members truly represent the party.

“Whether or not the party wants to be associated with that candidate, the party designation is a powerful, partisan message that voters may rely upon in casting a vote – in the primary and in the general election,” a three-judge panel of the appeals court ruled last year.

“Not only does a candidate’s expression of a party preference on the ballot cause the primary to remain partisan, but in effect it forces political parties to be associated with self-identified candidates not of the parties’ choosing. This constitutes a severe burden upon the parties’ associational rights,” the federal appeals court held.

Even if the high court upholds Washington’s plan, the idea could face more practical tests.

Often, the arrangement is touted as a way to give voters more choices on their primary ballots and to give candidates an incentive to appeal to centrists. But as in Louisiana, which adopted a similar system in 1978, fringe candidates sometimes have benefited.

Most famously, in the 1991 gubernatorial race, the top two vote-getters in the initial election were David Duke, a Republican lawmaker and former leader of the Ku Klux Klan, and Edwin Edwards, a scandal-tainted former governor who eventually went to prison on extortion charges. They each took about a third of the primary vote in a 12-way race to get to the general election. Edwards won the run-off handily.

The U.S. Supreme Court in 2000 threw out a primary system used by Washington since 1935 and also by Alaska and California that similarly had allowed all primary voters to receive the same ballot, regardless of their party affiliation. Under the “blanket primary” setup, though, the winning candidate from each party advanced to the general election.

In a 7-2 decision, the justices ruled that the blanket primary violated the constitutional rights of political parties, because allowing outsiders to vote for party candidates forced a party’s members to associate with voters of rival parties in selecting a nominee for the general election.

While Washington’s new primary system is similar to Louisiana’s, there is a major difference. In Washington, the top two candidates face off in a general election no matter what. In Louisiana, if a candidate wins a majority of the votes in a primary, there is no general election.

Last year, though, the Louisiana Legislature voted to switch its method of selecting congressional candidates. Starting in 2008, the state will let only registered members of political parties vote in those primary contests.

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