The Democratic and Republican parties have been at each other's throats over the closest governor's race in state history. Soon, however, they will turn on a common enemy: Washington voters. On Nov. 2, the electorate had the temerity to assert its independence by approving Initiative 872, which creates a nonpartisan primary election. The Washington State Grange sponsored I-872, which calls for a primary in which the top two vote-getters advance to the general election—regardless of party, meaning that in races for partisan office, the general election could pit two candidates of the same party against each other.
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Despite opposition of Washington's major and minor political parties, the League of Women Voters, and Gov. Gary Locke, I-872 rang up nearly 60 percent of the vote, carrying every county in the state, whether red, blue, urban, rural, east of the Cascades, or west. Now the parties are preparing to thwart the will of the people, hopefully before the 2005 primary election. "This is about what is legal or illegal," says Washington State Republican Party Chair Chris Vance. "Our attorneys believe there are massive technical flaws."
Unfortunately, this is not mere rhetoric. In 2001, we had a popular electoral system, the blanket primary, enacted after a Grange-sponsored initiative in 1934, in which voters could cross party lines on the same ballot. But federal courts struck it down earlier this year because it denied the parties First Amendment rights to free association. In response, the Legislature and the governor enacted an alternative, a partisan primary, sometimes called a Montana primary, which requires voters to choose among a slate of candidates from only one of three parties—Democratic, Republican, or Libertarian. That's what we had in September, and judging by the 60 percent support for I-872, we missed our freedom to cross party lines.
The first problem that Democratic and Republican party lawyers mention about the top-two primary created by I-872 is that the measure did not explicitly repeal the partisan primary. I-872 was drafted last January, and the state Legislature didn't pass the Montana primary into law until March, so the initiative made no mention of it. "The law may require that we have two primaries," says Preston Gates attorney David McDonald, who likely will represent the Democratic Party if there is litigation over I-872. "One to nominate the candidates, another to winnow it to the top two."
Replies state Supreme Court Justice–elect Jim Johnson, who drafted I-872 for the Grange: "Ha! I doubt Mr. McDonald will sign a pleading that will raise that issue." Johnson says attorneys know that a subsequently passed law like I-872 supercedes a previous one, like the partisan-primary legislation, whether the newer statute explicitly repeals the older one or not. Johnson, who has considerable experience in initiative law, says there is legal precedent for this.
Washington Assistant Attorney General Jeff Even, whose office must defend the will of the voters, wouldn't comment on the specifics of the I-872 case but did say Johnson's description of precedence is generally accurate.
The Democrats' McDonald isn't dumb, though. He defeated the Grange's Johnson and the AG's Even in legally challenging the blanket primary in the first place.
Republican Vance says there is a fundamental problem that the blanket primary and the top-two primary share. "The Grange wants a system where people who are not members of political parties do the most important thing that political parties do—nominate candidates for office," he says, pointing out that courts have held that the right to control the nominating process belongs to the parties and their members. The voters, for their part, control the election process—they have the right to choose from among the political parties' and independent candidates.
I-872 sought to finesse this issue by creating a "qualifying" election in which the top two candidates would advance regardless of party. In theory, future general elections could feature face-offs between two Republican candidates for an office or two Democrats. The best example from recent political history is the 1996 gubernatorial election. If the top-two primary had been in place, Democrats Locke and former Seattle Mayor Norm Rice would have opposed each other in the November general election, while Republican Ellen Craswell would have been eliminated in the September primary. With the blanket primary, Locke and Craswell advanced to the general election, and Locke won.
Republican Vance and Democrat McDonald say that if the state proceeds with the top-two primary, the parties will hold closed nominating conventions that can only be attended by members of their respective parties. At those conventions, the delegates would choose one candidate to put on the top-two primary ballot. "It would be a goofy and stupid system," says Vance. "Who wants a system where the parties go back to closed-door conventions to choose candidates?" Yet the parties believe the alternative is worse: I-872 created a primary election in which Democrats can vote for Republicans and vice versa.
Of course, that's why the Grange's election specialist, Don Whiting, likes the system. It allows people to vote for a person, not a party. Whiting says the parties can hold whatever conventions they like, but it won't change how many Democrats or Republicans are on the primary ballot. He says I-872 allows candidates to determine what partisan political label will appear next to their name on the ballot. "The candidate is not asserting that he or she has been endorsed by the party or nominated by the party, simply which party he or she prefers, if any," explains Whiting.
Yet even Justice-elect Johnson, the Grange's former attorney, predicts it will be legal for parties to hold conventions and nominate a single candidate to represent them on the top-two primary ballot. "The parties will nominate people," he says. Political parties, he says, will be able to designate their nominees with very specific names on the ballot like "Washington State Democratic Party," but other candidates will be able to use more generic names like "Democrat," or unique monikers like "Freedom Democrat."
Democratic lawyer McDonald disagrees: "We have the right to who uses the Democratic name."
The fight between the Grange and the political parties over the future of I-872 will begin in the next legislative session, which starts in January. Each side will lobby to pass new laws to support or weaken the top-two primary. Don't be surprised if the matter eventually ends up in court.