U.S. Supreme Court reinstates Washington's Top 2 Primary

News Release
Issued: March 18, 2008

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 2 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 2 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 2 would be an "extraordinary and precipitous nullification of the will of the people."

On behalf of Reed and the State, Washington Attorney General Rob McKenna argued for the U.S. Supreme Court to reverse a Ninth Circuit Court of Appeals' decision that struck down the Top 2 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 2 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 2 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 2 Primary is not a nominating process, is not intended to pick each party's nominee for the General Election.  Rather, the purpose of a Top 2 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, 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 2 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.

Background:

The citizens of Washington enjoyed the freedom to vote for the person, not the party, from 1936 to 2003.  That privilege is a fundamental part of Washington state's populist political culture which believes that people, not the parties, ought to control the process of electing their leaders.

Read the Supreme Court Decision (PDF)