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Supreme Court hears arguments on Wash. 'top 2' primary system

By Associated Press
10.02.07

WASHINGTON — To Washington Secretary of State Sam Reed, his state's long tradition of a wide-open primary system represents the old-fashioned individual freedoms championed in the West.

To the major political parties, the state's attempt to create a "top two" primary system infringes on their right to select a nominee of their choosing.

The U.S. Supreme Court considered those competing views yesterday as the Court, meeting on the first day of its new term, took up a case challenging Washington's primary system. The 3-year-old law — which has never taken effect because of legal challenges — would allow voters to choose any candidate on the ballot regardless of political affiliation.

"Washington state voters have a real passion for having the freedom to vote for individuals rather than political parties," Reed said after the hour-long hearing. "The people of Washington have been clear: They want and value this freedom on the ballot."

But the major political parties said it was unfair that candidates would be allowed to use a party's name on the ballot even if they are not affiliated with that party. Currently the state uses a "pick a party" primary that requires voters to restrict themselves to one party's slate of candidates.

"A political party has a fundamental constitutional right to select its candidate for an office and get ... supporters behind that candidate," said David McDonald, a lawyer representing Washington state Democrats.

The top-two primary "interferes with that right by promoting sore-loser campaigns, mischief campaigns by members of other parties and just plain confusion," McDonald said. "That isn't fair and it isn't constitutional."

The top-two plan was created when 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.

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

Several justices yesterday appeared wary of the voter-approved law, which has been struck down by a federal judge and a federal appeals court.

The law would allow candidates to associate themselves with a party but would not allow the parties to reject a candidate they oppose, said Justice Antonin Scalia.

"That seems to me a great disadvantage to the parties," Scalia said.

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

Chief Justice John Roberts compared the case to a trademark dispute. The two major parties are trying to protect their "brand" to ensure that only those who agree with the party's principles are identified with that party, he said.

Under the law as approved, "people will be confused," Roberts said. Candidates might "look like Republicans but aren't."

Justice David Souter said candidates were unlikely to identify themselves with a party unless they agree broadly with its principles.

John White, arguing the case for Republicans, disagreed. In recent history, 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.

The Washington state government and the Washington State Grange have been sparring with the political parties since the Supreme Court ruling in California Democratic Party v. Jones threw out the "blanket primary" in a California case in 2000. The Washington State Grange advocates for farmers and has a long history of supporting populist ballot measures.

The blanket primary allowed voters to split their tickets, voting for one party for governor and another party for state senator, for example.

In 2004, Washington voters approved the Grange-sponsored Initiative 872, which set up the top-two primary system. The major parties challenged the law, which was then struck down by a U.S. District judge and the 9th U.S. Circuit Court of Appeals.

The court is expected to rule by June. If the state prevails, there would be enough time to prepare for a top-two primary approach before the scheduled August primary, Reed said.

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


Update
Court upholds Wash. 'top 2' primaries
In dissent, Justice Scalia says system could cause a political party to be associated with candidates who may not represent its views. 03.18.08

Previous
9th Circuit won't reinstate Washington's 'top 2' primary
Three-judge panel says system, which voters approved to replace state's blanket primary, infringes on rights of political parties to choose their own nominees. 08.23.06

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

2007-08 Supreme Court case tracker

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