State wants legal fees back from political parties after top-2 primary upheld

It's the $109,000 question: Should the political parties repay the state after losing their fight to block the new top-two primary?

That's the amount the state paid the Democratic, Republican and Libertarian parties to reimburse their legal fees after the federal District Court and the 9th U.S. Circuit Court of Appeals ruled the voter-approved primary was unconstitutional.

Even though the state planned to appeal that ruling to the U.S. Supreme Court, it reached the $109,000 settlement with the parties to keep interest on the debt from accruing during the appeal process.

But after the nation's highest court reversed the ruling and affirmed the top-two primary system, the state asked for its money back.

The issue of fees was sent back to the 9th Circuit Court, and the political parties assert there are still issues involving ballot access and trademark claims not settled by the Supreme Court that could invalidate the new primary.

The first top-two primary, approved by voters in 2004 through Initiative 872, will be held on Tuesday.

Under the new system, the top two vote-getters in each partisan race will advance to the general election regardless of party affiliation. The old pick-a-party primary required voters to select a party ballot and vote for candidates only from that party.

"Our position is, no, the only thing in front [of the court] is the request to get the taxpayers' money back," said Jeff Even, assistant state attorney general, who worked on the top-two case. "The parties see a range of issues, and that's where the disagreement is."

The parties assert that an injunction issued by the federal district court against running the primary is still in place, despite the Supreme Court ruling. They want it enforced.

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. The ruling, however, does not foreclose subsequent legal challenges if the parties can show actual harm from the new primary.

Both the Republican and Democratic parties said in briefs filed last week with the 9th Circuit Court that the top-two primary violates their right to decide who can claim to be a party member and to use party names and symbols.

"The right of a political party to protect the use of its name is well-recognized," the Democratic Party argued.

Under the new primary, each candidate identifies which party he or she "prefers," and that preference is listed on the ballot along with the candidate's name. Candidates also can claim party affiliation in their advertisements.

The Libertarian Party also argued that the new primary deprives it of reasonable ballot access, but the state said access to the ballot by any political party is "wide open."

Even, the assistant state attorney general, said he doubts the 9th Circuit Court would nullify the new primary, but said it could schedule oral arguments or send the case back to the district court.

Either way, Even doesn't think it will affect Tuesday's election. "It wouldn't unring the bell if the primary has already been conducted," he said.

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