First Amendment topicsAbout the First Amendment
News Story
 
Court upholds Wash. 'top 2' primaries

By The Associated Press
03.18.08

WASHINGTON — The Supreme Court today upheld the state of Washington's open-primary election system, a setback for the Republican and Democratic political parties in the state.

By a 7-2 vote, the Court said the state may use a primary system that allows the top two vote-getters to advance to the general election, even if they are from the same party.

Washington hasn’t held a primary under the new system because of legal challenges.

"Wow!" Washington Secretary of State Sam Reed said when told of the decision in Washington State Grange v. Washington Republican Party. "That's terrific! It means the people of the state of Washington are going to be able to control who gets elected through this process."

Reed said the top-two system would take effect with the August primary election.

"This is a victory for the state of Washington," he said in an interview.

“The ruling sets a precedent that will allow other states to break political party control on primary elections,” he said.

"I think we'll see it around the country."

Writing for the majority, Justice Clarence Thomas said that overturning Washington's plan would have been an "extraordinary and precipitous nullification of the will of the people."

In dissent, Justice Antonin Scalia said Washington's system could cause a political party to be associated with candidates who may not represent its views. Scalia was joined by Justice Anthony Kennedy.

Under Washington's system, all candidates for a particular office may list their political party preference after their names.

Lawyers for the political parties said David Duke has identified himself as a Republican, despite GOP repudiation of his racial views, while perennial presidential candidate Lyndon LaRouche has called himself a Democrat, despite wide disagreement with Democratic leaders.

In his majority opinion, Thomas wrote that "there is simply no basis to presume that a well-informed electorate will interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee" or that the party approves of the candidate.

Thomas added that "we cannot strike down" Washington's plan "based on the mere possibility of voter confusion."

The major parties challenged the law in federal court, asserting a First Amendment right to select their own nominees without outside interference.

The top-two plan was created after state voters approved a law in 2004 allowing them to pick their favorite candidate for each office. The top two vote-getters would advance to the November general election, even if they were from the same party.

A federal judge and the 9th U.S. Circuit Court of Appeals in San Francisco struck down the election plan.

Washington state Attorney General Rob McKenna argued there was no evidence that the parties would be harmed, since they can publicize through advertising and other means which candidates they support.

Today's decision is the second of two this year on the rights of political parties. In a case from New York, the justices said the state's method of electing trial judges, which gives party bosses effective control of the process, does not violate the Constitution.

The top-two plan was intended as the replacement for Washington's old "blanket primary," in which voters could vote for one party for governor and another party for the state Legislature, for example.

The Supreme Court threw out blanket primaries, to which the political parties also objected, in its 2000 ruling in California Democratic Party v. Jones. The Washington state government and the Washington State Grange have been sparring with the political parties ever since. The Washington State Grange advocates for farmers and has a long history of supporting populist ballot measures.

The cases are Washington State Grange v. Washington State Republican Party, 06-713, and Washington et al. v. Washington State Republican Party, 06-730.


Previous
Supreme Court hears arguments on Wash. 'top 2' primary system
Several justices appear wary of voter-approved law, which has twice been struck down by lower courts. 10.02.07

Related

High court to revisit primary-election politics

By Tony Mauro Justices must weigh association rights of political parties against rights of voters, candidates to have access to political system. 02.27.07

Court opens term with First Amendment case
2007-08 Supreme Court term preview by Tony Mauro Justices to decide three election- or voting-related cases, consider appeal from government on Internet law. 10.01.07

Majority: Give Wash. 'top 2' primaries a chance to work
By Tony Mauro Justice Thomas suggests that if problems arise once system begins, an 'as-applied' challenge can be launched. 03.19.08

2007-08 Supreme Court case tracker

News summary page
View the latest news stories throughout the First Amendment Center Online.

print this   Print


Last system update: Thursday, August 21, 2008 | 13:13:41
 SEARCH  MORE
About this site
About the First Amendment
About the First Amendment Center
Video/RSS/podcasts
First Amendment programs
State of the First Amendment
reports

First Reports
Supreme Court
Experts
Columnists
First Amendment publications
First Amendment Center history
Glossary
Freedom Sings™
Events
First Amendment
Schools

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment
Library

Lesson plans
freedomforum.org
Newseum
Contact us
Privacy statement
Related links