Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


OLYMPIA — The state’s political parties lost another battle against Washington’s popular Top 2 primary today. It's a loss state officials hopes will put an end to years of litigation.

US District Court Judge John Coughenour in Seattle today ruled the Top 2 primary as implemented in partisan elections “is constitutional because the ballot and accompanying information eliminate the possibility of widespread confusion among the reasonable, well-informed electorate.”

The court also struck down the state-run election of political-party precinct officers in elections where all voters are allowed to cast ballots.  

“Today’s ruling is great news for the independence of elections in the state of Washington,” said Attorney General Rob McKenna. “Voters sent a clear message when they passed Initiative 872 creating the Top 2 Primary, the US Supreme Court gave Washington clear direction as to how to implement this primary in a Constitutional manner and the Secretary of State’s Office did an exceptional job in following the Court’s guidance and conducting the Top 2 Primary in a clear and Constitutional way.”

“I am absolutely delighted with this great and sweeping victory for the voters of Washington state,” said Secretary of State Sam Reed.  “The people created this Top 2 Primary system by an overwhelming statewide vote in 2004. It keeps voters in the driver’s seat in choosing their finalists for office in this state and it honors our wonderful political heritage of allowing us to vote for our favorite candidate for each office without regard to party preference.”

The Washington State Grange ran I-872, creating the Top 2 primary, in 2004 after a 2003 Ninth Circuit Court of Appeals decision rendered Washington’s blanket primary unconstitutional and the US Supreme Court declined to hear the case. Voters approved I-872 by nearly 60 percent.

The parties filed suit challenging the constitutionality of the new primary in May 2005. A lower court ruled in their favor. The state of Washington and the Washington State Grange then defended the primary all the way to the US Supreme Court where McKenna argued on state’s behalf.

The U.S. Supreme Court issued a 7-2 decision restoring Washington’s top-two primary system in March 2008, indicating the political parties had failed to demonstrate that “no set of circumstances exists under which (the primary) would be valid.” 

The political parties then filed a new challenge in May 2008, claiming the Top-Two Primary was unconstitutional as applied in Washington because “it creates voter confusion that unconstitutionally infringes on their First amendment associational freedoms.”

The political parties also challenged the implementation of the election for the parties’ precinct committee officers as a violation of their associational rights. The court today upheld that challenge, indicating “Washington’s method of electing political-party precinct committee officers is unconstitutional because it allows non-party members to vote for officers of the political parties.

Coughenour issued today’s 24-page ruling based entirely on the parties’ briefing, finding oral argument that had previously been scheduled for next week unnecessary.


For more information, including FAQhistory, and copies of all legal briefs and rulings, please visit the Secretary of State’s Top 2 Primary web site.


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