Parties dig in heels on primary

The Democratic and Republican parties say the fight over the state primary isn't over yet and that if the election goes ahead as planned next month the results could be thrown out.

Attorneys for the parties wrote letters to the Attorney General's Office Monday saying the so-called "top-two" primary violates a 2005 federal court order.

That order prevented the citizen-approved primary system from going into effect. And, the parties argue, it is still valid despite a U.S. Supreme Court ruling in March that upheld the top-two primary.

Under the top-two primary, voters can select any candidate on the ballot for each race, and the two highest vote-getters advance to the general election regardless of their party affiliation. The old pick-a-party primary required voters to select a party ballot and vote for candidates only from that party.

"Proceeding with the planned August primaries and November elections in violation of this injunction will expose all of the results to challenge, potentially wasting significant taxpayer resources on elections that have to be redone," wrote Democratic Party attorney David McDonald.

Republican Party attorney John White told state attorneys, "This litigation is not over."

He said if the state conducts a top-two primary as scheduled Aug. 19, "it will be a willful violation of the injunction."

White said that if the top two candidates are certified by the secretary of state as the nominees for the November election, it would "constitute an 'error' in the administration of the election."

The injunction the parties are relying on was issued in 2005 by federal District Court Judge Thomas Zilly.

He ruled that the citizen ballot measure that created the top-two primary, Initiative 872, was unconstitutional because it infringed on the right of the political parties to nominate candidates for the general election.

He issued an injunction that prevented the state from implementing the top-two.

But a top state attorney says the issue is a technical one that shouldn't now stop implementation of the top-two primary. Deputy Solicitor General James Pharris said the U.S. Supreme Court ruling in March overturned Zilly's ruling and superseded his injunction.

"The Supreme Court order speaks for itself," Pharris said. "It would just be a technicality to go back and have that order dissolved now."

The letters from the political parties were prompted by an order from the 9th Circuit Court of Appeals last week that asked attorneys for supplemental briefing materials in the fight over the primary.

Pharris said the order shows that a three-judge panel of the Court of Appeals wants to determine whether there is any issue left to hear in the case.

The Supreme Court upheld the top-two primary on a so-called facial challenge, meaning that on the face of it, the law appears constitutional and should be implemented.

That did not foreclose subsequent legal challenges once the law was in place and the parties could show actual harm from the new primary.

Whatever issues remain, Pharris said, there won't be a substantive debate about whether Zilly's 3-year-old injunction remains in place.

"We don't know of any reason why it would still be alive," Pharris said.

State Elections Director Nick Handy said the primary is set and the voters pamphlet printed, and ballots will soon be mailed to military personnel overseas.

"The state is proceeding to implement the people's initiative as upheld by the U.S. Supreme Court," Handy said.

This material has been edited for print publication.

David Postman is The Seattle Times' chief political reporter. Reach him at 360-236-8267 or at dpostman@seattletimes.com.