Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


OLYMPIA—Attorney General Rob McKenna today argued on behalf of Washington citizens before the US Supreme Court, defending Initiative 872, the “Top-Two Primary” initiative passed by about 60 percent of voters in 2004.

State of Washington, et al. v. Washington State Republican Party, et al. was McKenna’s second argument before the US Supreme Court as Attorney General and the first case the US Supreme Court will hear for the fall term.

McKenna represented the people of Washington and Secretary of State Sam Reed in the challenge to I-872 brought by the state’s major political parties. If the state prevails, Washington voters will no longer have to choose a political party to vote in the state’s primary.

“I believe we have a very reasonable chance of winning this case,” McKenna said at a media availability earlier today. “This is an issue of parties versus voters. The parties are trying to create a new concept of forced association between the candidate and the party outside the nominating context.  We will see if the Court is inclined to do so or not.”
Under the Top-Two Primary, people may vote for any candidate they choose and are not forced to select a party ballot. The two primary candidates who receive the most votes —regardless of party affiliation—proceed to the general election. While I-872 allows candidates to indicate a party preference, the candidate’s preference does not reflect a party endorsement. Under I-872, the political parties are free to set up their own nominating processes, such as conventions, and their nominees may compete with all other candidates in the primary election.

The U.S. District Court for the Western District of Washington struck down I-872 in 2005, saying that the new system infringed on the rights of political parties to choose their own nominees. In August 2006, the 9th Circuit upheld the lower court ruling.

The US Supreme Court has made a transcript of the oral arguments available.

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Media Contact:
Janelle Guthrie, Communications Director, 360-586-0725 or 360-584-3046 (cell)