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Federal judge rules Washington primary election system constitutional

By Maureen Cosgrove

[JURIST] A federal judge on Tuesday ruled [opinion, PDF] that Washington state's "top-two" primary election system is constitutional. Judge John Coughenour of the US District Court for the Western District of Washington [official website] held that voters were not confused [Seattle Times report] by the current version of Washington state's ballot, which allows candidates to list which political party they prefer even if that party does not back the candidate. The top two vote-getters in a primary then advance to the general election regardless of party affiliation, according to Initiative 872 [text, PDF], which was passed in 2004. In the court opinion, Coughenour enumerated factors suggesting that Washington's implementation of its primary election ballot would not confuse the reasonable, well-informed electorate:

Washington's ballot contains a prominent, unambiguous, explicit statement that a candidate's party preference does not imply a nomination, endorsement, or association with the political party. The ballot repeatedly states that candidates merely "prefer" the designated parties. Ballot inserts and the Voters' Pamphlet further explain the new system. Washington employed a widespread education campaign via various media outlets to inform voters about the new system. And Washington voters themselves, not simply their elected representatives, approved I-872.

Furthermore, the court stated that the ballot was "consistent with the Supreme Court's conception of a constitutional ballot." The court also noted that the evidence of voter confusion offered by the political parties is both irrelevant and unpersuasive, and that the constitutionality of the ballot must not be considered from the viewpoint of an unreasonable, uninformed voter. David McDonald, attorney for the Democratic Party, a joining plaintiff, said he is certain the decision will be appealed to the US Court of Appeals for the Ninth Circuit [official website], with the possibility of being heard by the US Supreme Court [official website; JURIST news archive].

California is considering a similar "top-two" approach for primary elections. California congressional candidates and voters filed a lawsuit [complaint, PDF] in July 2010 seeking to enjoin enforcement [motion, PDF] of Proposition 14 [text], which alters the primary election system, creating an open primary where only the top two vote-getters would advance to the general election. Proposition 14, based largely on the system used in Washington, was approved by voters [JURIST report] in June 2010 and changes elections to create a system in which all candidates for a state or federal office except for president would run in a single primary regardless of political affiliation. In 2008, the Supreme Court upheld Washington's primary election system [JURIST report] as constitutional against a First Amendment [Cornell LII backgrounder] challenge, overturning a contrary decision by the Ninth Circuit. Louisiana has a similar system, but, under that system, a candidate who garners over 50 percent of the vote in the primary will forgo the general election.

Full post as published by JURIST - The Paper Chase on January 12, 2011 (boomark / email).