State's primary is in hands of top court

OLYMPIA — The U.S. Supreme Court takes up a case next week that could turn Washington's election system on its head.

The justices are being asked to reinstate a type of primary that lets the top two vote-getters advance to the November election — even if they're from the same party.

Voters approved the "top-two" primary in 2004 by passing Initiative 872, but federal courts ruled it unconstitutional before it ever was used.

The state's major political parties hate the whole idea, saying it infringes on their right to pick their own nominees for the general election.

Under such a system, "you do have the possibility that the top two candidates could be Democrats" in some statewide races and heavily Democratic districts, said Todd Donovan, a political-science professor at Western Washington University. "And you wouldn't have a real Republican on the November ballot."

In heavily Republican districts, there's a chance you could have two GOP candidates in the general election.

Candidates also wouldn't have to belong to any party. They'd be free to write whatever description they want to appear on the ballot, such as "moderate Democrat" or "conservative Republican."

Currently, only candidates who identify themselves as Republican or Democratic can participate in the primary.

The case going before the Supreme Court Oct. 1 is the result of a long political brawl over how general-election candidates are picked.

For most of Washington's history, the state had a "blanket" primary that let people vote for any candidate, regardless of party. Republicans could vote for Democrats and vice versa. The top vote-getter from each party advanced to the November general election.

Although the blanket primary winnowed 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.

Suit led to current system

The parties sued in 2000 to get rid of the system. State lawmakers replaced it with a different primary, more to the liking of the political parties, which forces voters to choose one party's ballot before voting. They could no longer vote for candidates in the opposing party.

That's the system currently in effect.

Blanket-primary supporters counterpunched with I-872. But before it could be used, the parties sued to get it tossed out.

The parties have won two rounds — in U.S. District Court and in the 9th U.S. Circuit Court of Appeals.

Which brings us to the Supreme Court.

State Attorney General Rob McKenna contends his office has a good chance of winning and getting the top-two primary reinstated.

He said the Supreme Court in an earlier decision in a California case indicated that a nonpartisan primary similar to the one created by I-872 could pass constitutional muster.

"They say if you have a primary where you are selecting the top two vote-getters to go to the general election, then you don't have constitutional problems because you're not picking the parties' nominees," McKenna said. "The top-two vote-getters advance to the general election regardless of their party."

McKenna also notes that the Supreme Court overturned the 9th Circuit Court of Appeals 17 of 19 times in the last term.

David McDonald, an attorney representing the state Democratic Party, and John White, who represents the state GOP, disagree.

They argue the parties have the better case, saying the top-two primary set up by I-872 is significantly different from the one discussed earlier by the Supreme Court.

The model outlined previously by Justice Antonin Scalia called for parties to pick their candidates for the primary ballot, McDonald contends, and for voters then to decide which two candidates should move on to the general election.

Under that type of primary, he said, candidates would not be allowed to call themselves a Democrat or a Republican without party approval.

That's different from the top-two primary established by I-872, which would allow candidates to identify themselves as Republican, Democrat or any other party without party approval.

McDonald also dismissed McKenna's comment that the 9th Circuit is frequently overturned, calling it "a Hail Mary point."

Firmer grip for parties?

There's a good chance Washington's politics will change regardless of who wins, said Donovan, who has served as an expert witness for the state Attorney General's Office on the subject.

If the state wins and the top-two primary is reinstated, you could have cases where previously uncontested races in districts that are predominantly Democratic or Republican would suddenly have competition from the same party in the general election.

It also could lead to third parties, such as the Libertarian Party, being largely shut out of the general election, Donovan said, because Democrats and Republicans would likely get the top two spots.

If the parties win and the court upholds the 9th Circuit opinion, that could lead to parties gaining an even firmer grip over who can call themselves a Democrat or Republican.

Although Washington's current election system requires voters to pick a party ballot before voting in a primary, candidates are free to call themselves a Democrat or a Republican without party approval.

If the Supreme Court upholds the 9th Circuit, parties could gain the right to determine who runs for office under their banners, Donovan said.

That type of system would likely cause trouble for politicians like state Sen. Tim Sheldon, a maverick conservative Democrat from Potlatch in Mason County who often votes with Republicans.

Democratic Party activists have long wanted to replace Sheldon with a more liberal candidate. Local party officials tried, without success, to unseat him in the 2006 primary by backing a challenger.

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