Supreme Court upholds top-two primary

State officials call it a victory for the people.

Washington State Attorney General Rob McKenna is batting a thousand in decisions from the U.S. Supreme Court. His most recent victory gives state voters the type of election system they asked for in 2004, before the political parties sued to stop the top-two primary’s use.

“Washington voters have a long tradition of independent voting,” McKenna said. “They told us they wanted the freedom to vote for the candidate of their choice regardless of party and the U.S. Supreme Court agreed.”

The top-two primary’s use will eliminate the pick-a-party primary, where voters are allowed to vote only within one party and independent or third-party candidates are required to conduct conventions and submit petitions to be on the ballot.

With the top-two primary, all candidates are treated the same and appear the same on the ballot, other than stated party affiliation. Voters can select whichever candidate they prefer rather than having to declare a party affiliation and choose a candidate from that party.

The top-two primary also sends the top-two vote winners to the general election, regardless of party affiliation, meaning two members of the same party could face off for a position.

In the 7-2 court decision, Justice Clarence Thomas wrote that overturning the top-two primary would be an “extraordinary and precipitous nullification of the will of the people.”

The political parties argued the primary violated their right to free association. The federal District Court and Court of Appeals agreed with the parties in 2005 and 2006, but the highest court in the country sided with the state in a March 18 decision after four years of litigation.

“This year, with so many partisan races, there would be some very unhappy voters if they had to vote on a straight ticket, only voting within one party for all the positions,” Clallam County Auditor Patty Rosand said. “What will be interesting is how the new ballot will look, the state is still forming the election rules for the open primary.”

While the initiative outlines how the top-two primary will operate, certain details are left with the state’s elections officer, such as whether the parties will be able to designate a party’s preference on the ballot.

In the court decision, judges said candidates can affiliate themselves with a party regardless of the party’s endorsement of that candidate, so parties hope to find a way to show their preferred candidate on the ballot.

The decision affects Clallam County Commissioner Mike Chapman, R-Port Angeles, who chose to run for re-election in 2008 as a Republican although the county’s chapter of the Republican Party had shunned him in February. The party’s executive committee stated Chapman would no longer be a “Republican in good standing” after he endorsed fellow Commissioner Steve Tharinger, D-Dungeness, in June 2007, an alleged violation of the chapter’s bylaws.

“I’m proud to be a Republican and I’m proud of the county’s bipartisan work, so if I’d filed as an Independent I don’t think I would have effectively carried the commissioners’ bipartisan record to voters,” Chapman said. “I really believe that voters want both parties working together. Even though I’m not a member of the local chapter, I will still bring the core principles to the seat, like I have for the past eight years.”

For more information on the top-two primary system and a history of the state’s election system, visit

“I really believe that voters want both parties working together.”

— Mike Chapman, Clallam County commissioner

Frequently asked questions of the top-two primary include:

• What is it? — It allows candidates to file for partisan office regardless of party endorsement and appear on the ballot. Voters pick a candidate regardless of party affiliation and the top-two winners go on the general ballot.

• How did it come about? — In 2004, voters approved by nearly 60 percent an initiative to institute the open primary but it was challenged in court by the Republican and Democratic parties.

• Same party candidates? — Two candidates from the same party may contend for the same position in the general election.

• Is it over? — Political parties may sue over the decision, possibly affecting the top-two primary but not in time to stop its use in 2008.

• Presidential primary effects? — The top-two primary is for state elections only; it will not affect the presidential election.

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