Peter Callaghan writes in the Tacoma News-Tribune that state political party leaders are trying hard to find a silver lining in the Supreme Court's 7-2 approval of Washington's top two primary. But he also suggests that the pols are kidding themselves: The decision offers little hope that the court will find a top two primary any less constitutional in practice than it did in principle.
Voters passed Initiative 872 to establish a top two primary in 2004, after the 9th Circuit Court of Appeals ruled that the state's 70-year-old open primary — in which people were free to cross party lines, Democrats voting for Republican candidates and vice versa — violated party members' constitutional right of free association. The parties had challenged the open primary before, but this time, the U.S. Supreme Court's recent Jones decision, which tossed out California's blanket primary, gave them a winning hand.
The parties quickly challenged the top two primary, too, but they faced an uphill struggle. Just as Jones doomed the state's blanket primary to the scrapheap of history, it paved the way for finding a Top Two primary constitutional. The court majority that just upheld the top two observed that in Jones, it had found "the partisan California primary was not narrowly tailored to further [California's interests in promoting fairness, affording voters greater choice, increasing voter participation, and protection privacy] because a nonpartisan blanket primary, in which the top two votegetters advance to the general election regardless of party affiliation, would accomplish each of those interests without burdening the parties' associational rights. The nonpartisan blanket primary [i.e., top two] had 'all the characteristics of the partisan blanket primary save the constitutionally crucial one: Primary voters [were] not choosing a party's nominee.'"
The parties also argued, in effect, that however the top two primary might work in theory, in practice, voters would be too dumb to know the difference. The Court showed little patience with that one: The parties claimed "voters will assume that candidates on the general election ballot are the nominees of their preferred parties. This brings us to the heart of [the parties'] case — and to the fatal flaw in their argument. At bottom, [their] objection . . . is that voters will be confused. . . they argue that even if voters do not assume that candidates on the general election ballot are the nominees of their parties, they will at least assume that the parties associate with, and approve of them. This, they say, compels them to associate with candidates they do not endorse, alters the messages they wish to convey, and forces them to engage in counterspeech to disassociate themselves froma the candidates and their positions on the issues. We reject each of these contentions for the same reason: They all depend . . . on the possibility that voters will be confused." But that, the Court said, "is sheer speculation."
If the ballot made it look as if someone whom a party hadn't chosen was representing that party, the Top Two law would be unconstitutional as applied. But devising a ballot that doesn't mislead voters seems a pretty low hurdle for the Secretary of State to clear.
Subsequently, as Callaghan noted, the Court laid out some possibilities for a top two primary ballot that would meet constitutional muster.
He's right. The parties shouldn't hold their breath.