Washington State

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Bob Ferguson

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SEATTLE-- Calling the decision an extraordinary victory for voters, Secretary of State Sam Reed and Attorney General Rob McKenna today applauded the U.S. Supreme Court for upholding Washington’s wide open Top-Two Primary.

The 7-2 decision handed down today follows years of court battles over the primary and the rights of voters to choose any candidate on the ballot. In a Top-Two Primary, voters do not have to declare any party affiliation, and can vote for any candidate, regardless of the candidate’s political party preference. In today’s decision, the Court rejected the political parties’ claims that this type of primary is unconstitutional.

“We took the people’s case to the nation’s highest court and the people won,” said Reed. “This is a victory for the voters of Washington because our democracy belongs to them.”

In the decision, Justice Clarence Thomas wrote that overturning the Top-Two would be an “extraordinary and precipitous nullification of the will of the people."

Washington Attorney General Rob McKenna argued the case on behalf of Reed and the State, urging the U.S. Supreme Court to reverse a Ninth Circuit Court of Appeals’ decision that struck down the Top-Two system. The case was McKenna’s second before the U.S. Supreme Court- and his second victory.

“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 with them.”

The State has been enjoined from using the Top-Two Primary since shortly after it was enacted. In 2004, the Top-Two Primary passed overwhelmingly as Initiative 872. Since then, Washington has conducted a pick-a-party primary, which requires voters to affiliate with one of the major political parties and limit their selections to that party’s slate of candidates.

In Washington et al v. Washington State Republican Party et al. and Washington State Grange v. Washington State Republican Party et al., the Court considered whether the Top-Two Primary is in fact a nominating process exclusively for members of political parities, or a winnowing process open to the public at large.

The Court concluded that the Top-Two Primary is not a nominating process and is not intended to pick each party’s nominee for the General Election. Rather, the purpose of a Top-Two Primary is to winnow the number of candidates to two, allowing voters to select the two most popular candidates to advance to the General Election. The two candidates with the greatest support advance to the General Election, regardless of party preference and regardless of whether they are a party’s nominee or preferred candidate.

Among other things, the case focused on the ownership of the party designations “Republican” and “Democrat.” Justices considered whether the candidates have the right to decide which political party they prefer, or if that decision should be left to party leaders. In essence, the court concluded political parties cannot prohibit candidates from expressing their own political leanings.

Washington will begin running a Top-Two Primary in the 2008 August Primary. The Top-Two Primary is overwhelmingly supported by the public and familiar to citizens who vote in nonpartisan elections in odd-numbered years.

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Janelle Guthrie, APR, Communications Director, Attorney General's Office, (360) 586-0725
Trova Heffernan, Communications Director, Secretary of State's Office,  (360) 902-4140