Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


US Supreme Court to hear arguments on Top-Two Primary on 10/1

OLYMPIA—On Oct. 1, Attorney General Rob McKenna will argue on behalf of Washington's people 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. will be 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 represents the people of Washington and Secretary of State Sam Reed in a 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.

“Washington has a long history of independent voting,” McKenna said. “When our state’s blanket primary was declared unconstitutional, the people voted overwhelmingly to support the “Top-Two Primary” as the next best alternative. Unfortunately, they have not had a chance to use it.”

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.

“We have successfully asked the Supreme Court to reverse the 9th Circuit in many cases,” McKenna said. “The political parties challenge I-872 on the grounds that it allows candidates to state a party preference on the ballot. The parties claim that fact makes Initiative 872 a party nominating process, and that it unconstitutionally associates parties with candidates they dislike.

“The parties are wrong on both counts,” he said.  “The Top-Two primary initiative was crafted to withstand constitutional scrutiny. The new primary process established through this initiative does not nominate party candidates."

"Candidates are allowed to state their party preference, which does not make them party nominees," McKenna continued. "The parties may nominate their candidates as they choose, and those candidates may compete in the primary for a spot on the general election ballot using the “Top-Two primary” qualifying system. Unlike a nominating primary, the political parties are not guaranteed a spot on the general election ballot for their nominee, which of course infuriates them. The voters have effectively taken away from the parties their taxpayer-funded nominating election and replaced it with the Top-Two qualifying election.”

Oral arguments are scheduled for 10 a.m. (Eastern daylight time) on Oct. 1 (7 a.m. PDT). Each side will have 30 minutes to present its arguments. The state has made a motion to divide time with counsel for the Washington State Grange, the organization that sponsored I-872.  The state will have 20 minutes (15 to open, and five minutes for rebuttal) and Tom Ahearne, who represents the Grange, will have 10 minutes.

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