Judge tosses state's new primary

A federal judge tossed out Washington's new voter-approved primary as unconstitutional yesterday, leaving voters with the unpopular version used last year that requires them to pick a party ballot and vote only for that party's candidates.

State Attorney General Rob McKenna said the state will appeal. But it's likely the case won't be resolved before voters face a so-called Montana-style primary election in September.

Voters last November overwhelmingly approved Initiative 872, creating a top-two primary system in which the two candidates with the most votes move on to the general election, regardless of political affiliation.

Washington's primary history


1935: Washington adopts a "blanket" primary that allows voters to pick a favorite for each office without regard to party label. Top vote-getter from each party advances to November general election.

2000: The U.S. Supreme Court invalidates a similar system adopted by California. Washington continues to use its blanket primary, though, when U.S. District Judge Frank Burgess sides with the state.

September 2003: The 9th U.S. Circuit Court of Appeals, relying on the U.S. Supreme Court's reasoning, overturns Burgess and sides with the state's political parties.

March 2004: After the high court declined to hear the state's appeal, lawmakers approved a top-two primary that allows the top two vote-getters to advance to the general election, without regard for party. But it also included a backup system, a Montana-style primary that requires voters to limit themselves to one party's voting.

April 2004: Then-Gov. Gary Locke vetoes the top-two part of the bill and leaves the state with the partisan Montana system.

September 2004: Washington holds its first Montana-style primary. It proves very unpopular.

November 2004: Voters approve Initiative 872, creating a top-two system, by a 60 percent yes vote.

May 2005: The political parties go to federal court, challenging the initiative as an unconstitutional infringement on their right to pick their own nominees.

Yesterday: U.S. District Judge Thomas Zilly sides with the parties and throws out the top-two system, leaving the Montana plan in place.

Associated Press

In May, the state's political parties sued, claiming the top-two primary violated their First Amendment rights to decide which candidates should carry the party flag in an general election.

U.S. District Court Judge Thomas 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 his 40-page ruling yesterday.

To get around the new top-two primary, the parties held recent nominating conventions to choose candidates for this fall's primary election ballot. Those selections apparently won't be needed in light of Zilly's ruling.

"It's going to be a good old-fashioned primary," said Republican King County Councilman Reagan Dunn, who lost in the nominating convention for his County Council seat but was told yesterday by the party he now could run as a Republican. "I think this is a momentum-shifting event."

On the Democratic side, King County Councilman Bob Ferguson, who won his party's nominating convention, said much the same. "From my standpoint, I've already won the Democratic nomination and I will again in September," he said. "It doesn't change my campaign one iota."

County Councilwoman Carolyn Edmonds, who lost to Ferguson at the convention, had planned to file as a Democrat with or without yesterday's court ruling. The incumbents are facing each other because redistricting put them in the same district.

"It doesn't change in any way my campaign," Edmonds said.

Secretary of State Sam Reed said he was unhappy with Zilly's ruling. "I'm disappointed for the people of Washington who just really believe they have the right to vote for the best person and not the party," said Reed, who backed I-872.

But Reed said the decision does not spell the end of the top-two primary. He said Zilly's ruling "seems to go out of its way" to indicate that a top-two election system could be constitutional, but not Washington's version that allows candidates to choose a party preference.

The state's political parties cheered the ruling.

"I'm pleased but hardly surprised," said Republican Party Chairman Chris Vance. "This was a legal slam dunk. The top-two is clearly and obviously unconstitutional."

He and Democratic Party Chairman Paul Berendt said they hope the state will now negotiate with the political parties to find an agreeable primary system.

"It is well past time for the governor, the attorney general, the Legislature and the secretary of state to sit down and enter into serious negotiations to come up with a primary system that is constitutional and that we can all live with," Berendt said.

The state has fought the parties since a U.S. Supreme Court ruling five years ago that tossed out California's so-called blanket primary, which was similar to Washington's at the time.

Berendt said the parties only want to bring Washington state's primary in line with nearly every other state in the country.

"What the judge did is he affirmed our right to choose our nominees and choose the individuals who represent our party on the ballot," he said.

In his ruling, Zilly said, "a political party does not have a constitutional right to have its candidate on the general election ballot; however, it does have a constitutional right to nominate its standard bearer."

Tom Ahearne, attorney for the Washington State Grange, which wrote I-872 and joined the state in defending it, said the Grange also will appeal to the 9th U.S. Circuit Court of Appeals.

"Zilly is a good judge, but in this case I think the decision was incorrect," Ahearne said.

"The U.S. Supreme Court indicated in 2000 that states could create top-two primaries that would be independent and not interfere with the association rights of political parties," Grange President Terry Hunt said. "The initiative was drafted to meet that standard."

Ahearne said he hopes either Zilly or the 9th Circuit will stay yesterday's ruling during the appeal, which would mean a top-two primary could be used this September.

Assistant Attorney General Jim Pharris, who represented the state in the case, said he was disappointed by the decision.

"If we can't conduct a top-two, probably redoing Montana is better than anything else," Pharris said. "We can't go back to the blanket primary or start over and make up a whole new system."

For more than 65 years, Washington voters chose their candidates through a blanket primary, which allowed voters to vote for any candidate, regardless of their party. The top vote-getter from each party advanced to the general election.

But the courts said such primaries infringed on the rights of the parties to decide who runs for office under their labels.

Last fall, the state used the Montana-style primary, which required voters to select one party ballot and vote only for that party's candidates. That system was replaced in November by I-872, which passed with 60 percent of the vote.

Zilly's order said the state would return to the Montana-style primary. He wrote:

"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."

He said the state and the Washington State Grange can file objections by July 27. The court then will rule on a permanent injunction against I-872.

Staff reporters David Postman and Nick Martin contributed to this story.

Susan Gilmore: 206-464-2054.