Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

May 13 2008

OLYMPIA — While the U.S. Supreme Court’s decision restoring Washington’s top-two primary system in March gave voters much to celebrate, the battle to preserve it is far from over.

Secretary of State Sam Reed, the state’s chief elections officer, and Attorney General Rob McKenna, are vigorously defending the system from a new round of challenges brought by the state’s Democratic and Republican parties, and remain optimistic that voters will get their wish for wide-open primary voting that allows them pick their favorite for each office, regardless of party label. The high court ruled 7-2 in favor of the voter-approved system that will winnow the field of candidates and send the two most popular vote-getters forward to the general election in November.

The Republican Party, followed by the Democrats, recently filed amended complaints in the U.S. District Court in Seattle, asserting that Initiative 872 was legally flawed in the form that was approved by voters in 2004. The parties want the federal courts to invalidate the new system.  Their view is that the ballot measure did not correctly reflect the language of primary legislation that lawmakers passed and then-Gov. Gary Locke partially vetoed.

The attorney general, backed by the initiative sponsor, the state Grange, argues that the high court has clearly upheld the top-two approach and that a so-called “as-applied” challenge is premature until the state has actually run the new primary and the parties could attempt to show any harm. The state also strongly believes that any challenge on state constitutional grounds must be brought in the state court system, not the federal judiciary.

U.S. District Judge Thomas Zilly has not indicated when he will rule on the motions. The court could set oral argument, shut the case down, or dispose of it in some other manner. 

The parties have not asked for an injunction to bar use of the top-two primary this year, and the state and county auditors are proceeding with plans to implement it.  The regular filing period for candidates is June 2-6, although candidates may also submit their paperwork by mail starting this Friday, May 16.

Under the new system, candidates may state their preference of political party, using up to 16 characters, but voters will be advised that this doesn’t necessarily mean the candidates have been endorsed or nominated by that party, or that the party approves of or associates with them. The same self-description of the candidate’s political affiliation will also be used for candidates who advance to the Nov. 4 general election. Candidates also may choose to not list a party preference.

Democrats are holding nominating conventions to anoint a favorite for each office, and state Republicans  are leaving it up to their local subdivisions. The state-run, taxpayer-financed primary is not considered a nominating process and the party nods cannot be designated on the ballot. The nominations may be publicized by candidates themselves and can be mentioned in the state Voters’ Pamphlet and Video Voters’ Guide. 

Reed, a longtime advocate of the top-two system ever since the courts threw out the popular “blanket” primary in 2000 after nearly 70 years of usage, said voters will be delighted with the new system, which allows them to “vote for the person, not the party,” without having to restrict themselves to only one party’s candidates.

“We are moving forward with great care to give voters the `People’s Choice’ primary they approved by nearly 60 percent of the vote back in 2004,” Reed said. “We are mounting a robust defense of our new system.  We believe this exciting new primary will indeed happen, and that the voters will be very, very  pleased with it.”

“The Supreme Court made it clear that an injunction to stop this primary would be, in the words of the court “an extraordinary and precipitous nullification of the will of the people,”’ McKenna said. “We are confident we can defend this primary against the parties’ challenges.”

On a separate legal track, the attorney general is trying to recover about $107,000 in legal fees it paid the Democratic, Republican and Libertarian parties after they prevailed in earlier federal challenges of the new system. Since those victories have been erased by the Supreme Court ruling, the taxpayers deserve reimbursement, McKenna said. This motion is in the 9th Circuit Court of Appeals in San Francisco.

For more information, including FAQhistory, and copies of all legal briefs and rulings, please visit the Secretary of State’s web site, clicking on the top-two icon.


 Contact:  Janelle Guthrie, Attorney General’s Office Communications Director, (360) 586-0725; Cell: (360) 584-3046
David Ammons, Secretary of State Communications Director, (360) 902-4140, cell (360) 280-3944