State ballot could pit two from same party

OLYMPIA — A U.S. Supreme Court ruling Tuesday shoved Washington politics into a strange realm where two candidates from the same party could run against each other in the November election.

The decision also means minor political parties could largely vanish from the general-election ballot. And it may help more moderate candidates win office.

All of that, and perhaps more, stems from the 7-2 ruling that upholds a top-two primary system approved by state voters in 2004.

"This is a very big deal for the state of Washington," Secretary of State Sam Reed said, adding he expects the decision to fundamentally change politics in the state.

Only one other state — Louisiana — uses a similar primary system in which the top two vote-getters advance to the general election, regardless of party affiliation.

The Supreme Court decision caps — for now — nearly eight years of litigation over whether voters should be able to vote for any primary candidate, no matter which party they claim.

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

However, in 2000, the state's major parties sued to get rid of the system. They complained that it allowed interlopers — voters who didn't share their beliefs — to help select their candidates, and that it infringed on their right to pick their own nominees for the general election.

The parties won those early court decisions, and in 2004 state lawmakers replaced the blanket primary with a different system, more to the liking of the parties, that forced voters to choose one party's ballot before voting. They could no longer vote for candidates in the opposing party.

Blanket-primary supporters countered that year with Initiative 872, which established a top-two primary. But before it could be used, the parties sued again and won in the U.S. District Court and in the 9th U.S. Circuit Court of Appeals.

The U.S. Supreme Court apparently had the final word Tuesday, overturning the earlier decisions and reinstating I-872. "There's no appeal from the United States Supreme Court," Attorney General Rob McKenna said Tuesday.

Republican State Party Chairman Luke Esser suggested there soon could be more court action to try to block the top-two primary.

But for now — starting with the primary this August — Washington voters once again will be able to vote for any candidate regardless of party, just as they did under the blanket primary.

But there's a twist. The new primary will send the top two vote-getters to the general election, regardless of party.

That means two Democrats, or two Republicans, could run for the same seat in November.

McKenna said he expects that would rarely happen. "I'm guessing it won't be as common as people suppose," he said.

Yet a review of past primaries shows that since 1972, there were 10 instances — including three governor races — in which the top two vote-getters for statewide offices were from the same party. It's happened nine times in congressional or U.S. Senate races. In all but two of those cases, the top two candidates were Democrats.

The most significant example was in the 1980 governor's race, when the top two vote winners in the primary were Democrats Jim McDermott and Dixy Lee Ray. Republican John Spellman, who went on to beat McDermott in the general election, was in third place.

In 1996, Democrats Gary Locke and Norm Rice both outpolled Republican Ellen Craswell in the primary. Locke went on to beat Craswell in the general election.

Having two candidates from the same party advance to the general election might be a good thing in some local races, said Todd Donovan, a political-science professor at Western Washington University.

In urban Seattle legislative districts, whichever Democrat wins the primary is a shoo-in to win the general election. The same is true for Republicans in many Eastern Washington districts. In those areas, a top-two primary will increase the likelihood of competitive — albeit intraparty — general-election races.

"A lot of people who have been running virtually unopposed in November will probably not be running unopposed anymore," Donovan said.

But what if the top-two primary leads to an all-Democrat general-election race for governor, or an all-Republican race for a congressional seat? "That might dramatically change people's perspective on this," Donovan said.

Tuesday's ruling also was a blow for third-party candidates. Democrats and Republicans are likely to be the top vote-getters in most races.

"This pretty well wipes out the third parties ... in terms of getting on the general-election ballot," said Ruth Bennett, who was the Libertarian Party's candidate for governor in 2004.

Paul Berendt, a former chairman of the state Democratic Party, predicts the new primary will mean more moderate candidates will be elected because voters from both parties will be able to cross over.

"There will be Democrats in some Republican areas who will cross over en masse and vote for someone with a Republican Party label who is not very reflective of that party in that area," he said, noting the same thing would happen in Democratic districts. "That will change the nature of the people elected."

From Berendt's perspective, that's not a good thing. "Having everyone who is exactly the same isn't a good thing for American politics," he said.

If history holds true, the state's major political parties aren't likely to give up their effort to kill the top-two primary.

Richard Hasen, a law professor at Loyola Law School and operator of a blog focusing on election law, said the Supreme Court ruling "does leave open the possibility of further litigation in which the parties can try to prove that voters are confused by the system and think this is still a party primary."

"It's going to be important for Washington election officials in order to fend off such a challenge to make it very clear in their ballot materials that it is a nonpartisan primary and the party identification is just a self-description of the candidates and not the official endorsement of the parties," he said.

Esser, who met with his attorneys Tuesday, said if the party thinks it can make the case that the election would cause voter confusion, it might seek an injunction to halt this year's primary. He also said the party could go to court after the election.

Esser, who spoke briefly with Reed Tuesday, said he's open to negotiating a new primary system with the state. "Though it's hard to imagine what that compromise would be," Esser said.

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