Supreme Court grills McKenna on Washington state's "top-two" primary

WASHINGTON — State Attorney General Rob McKenna faced sharp questioning from U.S. Supreme Court justices today, as the court opened its new season with a case that challenges the state's "top-two" primary as unfair to political parties.

The top-two system, approved by voters in 2004, allows candidates to designate their own party preference on the ballot and sends the two top vote-getters to the general election — even if they are from the same party.

The state's political parties fought the law, saying they had the right to decide which candidates can run under their party label. A federal judge and appeals court agreed, tossing the primary before it could take effect.

Today, the justices began peppering McKenna with questions just minutes into his argument in defense of the top-two system.

Justice Antonin Scalia asked McKenna why, under the top-two primary, a candidate can associate with a party, but a party can't disassociate from a candidate.

Scalia wrote a crucial opinion in a California election case in 2000 invalidating primaries, including Washington's old "blanket primary," in which people could vote for anyone, regardless of party.

That decision led to the top-two primary system, which has been on hold pending court appeals.

McKenna argued on behalf of the state and the Washington Grange, which sponsored Initiative 872 that created the top-two primary.

The Republican, Democratic and Libertarian parties, who joined together for the case, were represented by Republican Party attorney John J. White.

In his argument, White said the top-two primary lets the state put someone on the ballot "using our party name" even if he or she has no connection to the party.

Scalia asked McKenna if the proposed ballot would indicate whether a party actually endorsed someone who identified themselves as one of their members.

When McKenna began a lengthy response, Scalia cut him off. "Please answer yes or no," he said.

McKenna said no.

Chief Justice John Roberts said he worried that "people will be confused" if party endorsement isn't clear.

Justice John Paul Stevens said such confusion is unlikely if the parties hold conventions and recommend candidates.

"Everybody reads the newspapers, they know who the Republican nominee is ... that's publicized generally throughout the state," Stevens said.

Justice Samuel Alito asked why the state couldn't include more useful information when identifying candidates on the ballot.

"Somebody may want to say, 'I'm the pro-environment candidate,' or 'I'm the no-new-taxes candidate,' " Alito said. "Why do you limit them to saying Democrat, Republican, Libertarian, et cetera?"

McKenna argued that most of the state's voters now vote by mail, and are an educated electorate. They would have additional information available describing the candidates, and would, presumably, read it.

GOP attorney White, however, said the ballot label is the only information instantly available "at the critical point" when a voter enters the polling place.

Roberts compared the parties' ability to pick their own candidates to companies that can trademark their own brands. Why should companies be allowed to trademark products, but political parties can't, he asked?

McKenna said the issue isn't about trademark law.

Party leaders would have many opportunities to object to "false statements" made by candidates who identify themselves with a party on the primary ballot, he said, but whose positions or actions conflict with that label.

After the court session, McKenna said he felt more confident about winning the case after going through the oral arguments.

"It's a very dangerous game to handicap the Supreme Court based on oral arguments alone," he said, but added "we felt that there were more than two and maybe as many as five or six justices who were sympathetic to our position. But you don't know until you know."

Party officials, likewise, felt the court was sympathetic to their cause.

"I thought the court had a lot of questions for the state and they were not friendly questions," said David McDonald, a Seattle attorney at the hearing on behalf of the state Democratic Party.

The justices, he said, "seemed to have a lot of concerns that the state was not addressing. It's kind of hard to see five votes their [the state's] way."

Secretary of State Sam Reed, who came to D.C. for the case, said part of Scalia's issue is "one of deep concern to elected officials," because ultimately, he said, parties want "a litmus test."

Democrats don't want people identifying themselves as Democrats if they are anti-abortion, and Republicans don't want candidates using their name if they support a gas tax, he said.

State Sen. Tim Sheldon, a maverick conservative Democrat from Potlatch, Mason County, was also on hand to support McKenna. "I've run eight times as a Democrat, but the party will not endorse me," he said.

The court is expected to rule by June. If the state prevails, there would be enough time to prepare the top-two primary system before the August primary, Reed said.

Staff reporter Andrew Garber and The Associated Press contributed to this story. Alicia Mundy: 202-662-7457 or amundy@seattletimes.com