Judge tosses top-two primary

Washington's new voter-approved primary has been ruled unconstitutional by U.S. District Judge Thomas Zilly, leaving the state with the same Montana-style primary used in last year's election.

Voters last November overwhelmingly approved Initiative 872, which would create a top-two primary system in which the two candidates with the most votes would move onto the general election ballot, regardless of political party.

The state's political parties sued to block the initiative from taking effect, asserting it violated their First Amendment rights to decide which candidate carries the party flag in an election. Zilly agreed.

"The implementation of Initiative 872 will severely burden the First Amendment rights of Washington's political parties by allowing any voter, regardless of their affiliation to a party, to choose a party's nominee," Zilly said in the 40-page ruling this afternoon.

He also said it was unconstitutional to allow any candidate, regardless of party affiliation, to identify himself as a party member and appear on the ballot as a candidate for that party.

The parties favored the Montana system, which requires voters to select one party's ballot and vote for only that party's candidates. To get around the new top-two primary, the Democratic and Republican parties held recent nominating conventions to choose their candidates for the primary election ballot.

But the parties have said that if Zilly supported the Montana primary, as he did, they would use the primary election rather than the conventions to choose their nominees.

For more than 65 years, Washington voters chose their candidates through a blanket primary, which allowed voters to vote for any party's candidates. The top vote-getters from each party then moved on to the general election.

But the parties challenged that primary and federal court judges struck it down two years ago.

Last fall the state used the Montana-style primary that requires voters to select one party ballot and only vote for that party's candidates. That system was replaced in November by Initiative 872.

In his order Zilly said the state would return to the Montana primary.

"The law as it existed before the passage of Initiative 872, including the Montana primary system, stands as if Initiative 872 had never been approved," Zilly wrote.

He said the defendants — the state and the Washington State Grange, which sponsored Initiative 872 — can file objections by July 27. The court then will rule on a permanent injunction against the top-two primary.

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com