The Top-Two Survives -- But So Do Partisan Elections


Krist Novoselic at House of Blues, March 2008. Photo by Tate Wittenburg.

In a surprise ruling, the United States Supreme Court has refused to strike down I-872, Washington State's partisan, top-two primary. The Supreme Court upheld I-872 mostly because it was a facial challenge. (Since the system was never implemented, there was no actual evidence of any harm.) This leaves the door open for further litigation. But for now, the respondent political party’s could settle on some kind of official affiliation cue on the ballot or voters guide.

Even though it’s convoluted, the Supreme Court has thrown partisan elections with actual grassroots participation a lifeline. Popular dissatisfaction with the Pick-A-Party primary would have eventually led some in our state to push for a non-partisan blanket primary.

We must also observe that Washington has now abandoned plurality elections for a majoritarian system. This is a welcome step forward with democracy in our state.

In 2000, the majority on the Supreme Court laid out what associational rights mean to political organizations in the context of partisan elections. Be it a fraternal order, club or political party: group power to determine their own membership and message is the crux of free speech associational rights. Washington’s old Blanket Primary, and it’s successor, I-872, were struck down at every juncture in lower court rulings referencing this principle.

In the March 18 ruling, the Court majority diluted the notion above. Regardless of how hard the members of the group have volunteered to build up the name of the political organization, that name is now up for grabs. Any candidate recognizing to benefit from the work of others can now put that party imprimatur as their preference on the ballot.

With I-872, there could be two Republicans, three Democrats (or any other combination thereof) on the August ballot. The same goes for third party and independent candidates. Only the top-two vote getters advance to November, regardless of party affiliation.

The Court didn’t, and couldn’t, totally discard associational rights. They suggested some kind of indication of partisan authenticity on the ballot or other state materials. This will likely occur as a cue in the Washington Voters Pamphlet that will acknowledge nomination. Wording like OFFICIALLY PARTY ENDORSED could appear next to the name and photo in a candidate’s statement.

There will need to be some kind of private process to determine who will carry the official endorsement. This means party caucuses, nominating conventions, web-based voting or even back-room coronations: however the association deems fit.

If affiliation is merely a candidates’ preference and not an authentic association, the validity of their claim must be considered. It’s up to the individual voter to inform themselves and determine the actual political leanings of a candidate. Therefore, besides the top-two component, I-872 is not much different than a non-partisan election.

I-872 is not the end-all for elections in our state. Like any new system, it will have to be put into practice to see how it really works. Ranked Choice Voting is another partisan majoritarian system that's new on the scene. It also will be watched this fall. And you can bet we'll be watching both!!!!!!!!

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