Primary possibility: Don't mention party

What's an election without a party?

Party affiliation, that is.

The Washington State Grange may want to find out, even though the state's voter-approved "top-two" primary election system — the result of an initiative sponsored by the Grange — has lost again in court.

The 9th U.S. Circuit Court of Appeals on Tuesday upheld last year's ruling that the "top-two" system is unconstitutional.

In response, the Grange may suggest dropping party affiliations of candidates from the ballot, similar to what voters face when they choose judges or city council members. Partisan races would essentially become nonpartisan.

"This is our most viable option, no party designation," said Dan Hammock, spokesman for the Grange, which sponsored Initiative 872, the top-two primary measure that passed overwhelmingly in 2004.

Under a top-two primary system, the two candidates with the most votes in the primary move on to the general election, regardless of political affiliation. The primary was challenged in court before it was ever used.

Last summer, U.S. District Court Judge Thomas Zilly tossed out I-872, saying it infringed on the rights of Washington's political parties to select their own candidates. On Tuesday, a three-judge panel of the 9th Circuit agreed.

"In attempting to craft a primary system that does not unconstitutionally burden political parties' right of association under the First and Fourteenth amendments, Initiative 872 fails to do so," the judges wrote.

"Rather, the initiative retains a partisan primary, in which each candidate may self-identify with a particular party regardless of that party's willingness to be associated with that candidate. We hold that Initiative 872 is unconstitutional in its entirety."

Tuesday's ruling leaves in place Washington's current Montana-style primary, in which voters must select a party ballot and can vote only for that party's candidates.

"This decision tells us we're going to continue with the Montana-style primary," said Steve Excell, assistant secretary of state. "The decision was pretty clear on its face and we'll be following it."

Hammock said the Grange has been considering another initiative that would eliminate party designations since Zilly's ruling last year.

"Now is the time for the voters of this state to unite to take control of elections back from the political parties," state Grange President Terry Hunt said. "The Grange will go forward with the top-two initiative, and follow the court's direction by removing any and all party designations on the ballot."

But Hammock said the cost of staging another initiative campaign could be prohibitive for the nonprofit agency and that instead it could pursue change through the state Legislature.

Meanwhile, the state's political parties were pleased by Tuesday's 9th Circuit ruling.

"This means Democrats and all political parties will be able to have a direct voice in choosing their nominees for office," said Dwight Pelz, state Democratic Party chairman. "The state will adapt to the new system and democracy will move forward."

Diane Tebelius, state Republican chairwoman, also cheered the ruling. "The 9th Circuit affirmed the importance of the First Amendment and emphasized that candidates do not have the right to hijack the party name for personal political ambition," she said. "We believe it's a victory for everyone."

The state has 90 days to decide whether to appeal the ruling to the U.S. Supreme Court. The high court six years ago tossed out California's so-called blanket primary, which was similar to Washington's at the time.

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.

In response, lawmakers in 2004 approved the top-two primary, including a backup Montana-style primary. But then Gov. Gary Locke vetoed the bill, leaving the state with a Montana-style primary.

The Grange sponsored Initiative 872 on the November 2004 ballot to restore the top-two primary.

Attorney Thomas Ahearne, who represented the Grange in the legal case, said the state and the Grange now have three options: Ask for an appeal to the full Court of Appeals, appeal to the U.S. Supreme Court, or draft another initiative that removes party affiliations from the ballot.

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