Parties ask court to scuttle top-two primary

OLYMPIA — The state's major parties went to court yesterday in an attempt to get rid of Washington's "top-two" primary system and gain control over who can run as a Democrat or Republican.

The lawsuit, filed in federal District Court in Seattle by the state Republican Party, potentially could end up before the U.S. Supreme Court. The state Democratic and Libertarian parties, which also want the primary thrown out, both filed motions to intervene.

At stake is the ability of people to vote for any candidate, regardless of party, in Washington. But perhaps just as important, the major parties want the ability to prevent candidates from running as Democrats or Republicans unless they've been nominated by their party.

The prospect worries some state lawmakers, including Rep. Rodney Tom, R-Bellevue, who doubts he'd be allowed to run as a Republican in the next election if the parties win their case. Tom noted that, unlike most House Republicans, he voted for an $8.5 billion transportation tax package earlier this year.

"That vote alone would probably not allow me to win in a caucus vote in my district" and receive the GOP nomination, Tom said. "I've won twice as a Republican. How can they say I'm not a Republican?"

If the parties win in court, the decision could catch the eye of political parties across the country interested in keeping people such as Lyndon LaRouche from appearing on a ballot as a Democrat, or neo-Nazi David Duke as a Republican, some political observers say.

The level of cooperation between the state Republican and Democratic parties on the primary case is striking, considering both camps are slugging it out in a Wenatchee courtroom over who will be the state's governor.

Republicans are challenging Democratic Gov. Christine Gregoire's election. She edged Republican Dino Rossi by 129 votes in 2004 after two recounts. "These are two unbelievably important issues: who is or isn't going to be governor, and the future of the political party," state Republican Party Chairman Chris Vance said.

Vance and Democratic Party Chairman Paul Berendt said their telephone discussions stay focused on primary elections. "We just don't talk about the governor's race," Vance said. "... You can't let the difference between the political parties be so great that you can't talk to each other."

Longstanding issue

The parties, in fact, have a long history of working together to put in place a primary that gives them greater control over who can vote for their candidates and who can run for office under the party banner.

For example, they long had opposed the blanket-primary system used by Washington for nearly 70 years that allowed people to vote for any candidate — Democrat or Republican — on the same ballot.

Although the blanket primary served as a way to winnow the field of major-party candidates to one Democrat and one Republican, the parties complained it allowed interlopers — voters who didn't share their beliefs — to help select their candidates.

They sued, and in 2003 the 9th U.S. Circuit Court of Appeals tossed out the blanket primary.

After a bitter fight the following year involving the political parties, former Gov. Gary Locke and legislators, the state ended up with a so-called "Montana" primary that forced voters to choose one party's ballot before voting. The state's major parties said they could live with the new system.

Supporters of the old blanket primary could not.

They put an initiative on the ballot in 2004, and its approval by voters gave Washington yet another type of primary, often referred to as a "Louisiana-style," or top-two, system.

It's similar to the blanket primary in that people can vote for anyone, regardless of party. But instead of one candidate from each party advancing, the two people with the most votes appear on the November ballot.

The political parties hate the top-two primary just as much as the blanket primary they got rid of in 2003. And that's why everyone is back in court.

Parties and their rights

The parties argue that earlier court rulings clearly say parties have the right to pick their candidates, but if the state has its way they'll have no control over who selects their candidates because people could vote for anyone they want. And the parties would have no control over who uses the party name.

"What we're going to ask the federal court to do is throw out the top-two completely," Vance said.

If that doesn't happen, Vance said they at least want the right to determine who can use their party label, through conventions.

If the courts agree, that could mean people who used to run as Democrats or Republicans would have to use a different label if they don't win their party nomination but still want to run for office.

"As long as they don't use the word Democrat, we don't care," said Berendt, the Democratic Party chairman. "You can run as an independent or you can go out and form a third party ... but you're not going to be able to say things like 'thinks like a Democrat.' "

Defending top-two system

State officials say they're confident the top-two system is different enough from the blanket primary that it will survive in court. They also say the parties will have a tough time convincing the courts they own the names Democrat or Republican.

The parties can hold nominating conventions and advertise who their official nominees are, said Secretary of State Sam Reed, but they can't prevent others from filing for office and using the same party description.

"Just the thought of somebody taking a term like Republican or Democrat and saying we own it seems presumptuous, seeing as how they've been in use for a couple thousand years," Reed said.

Rep. Tom predicts that if the parties get their way in court, Washington voters will revolt and try to make all elections nonpartisan.

"Then the parties are going to lose all influence," he said. "Right now they're grabbing for too much power, and I think it's going to backfire."

Andrew Garber: 360-943-9882 or agarber@seatletimes.com