by Devin Braun

As states like Arizona contemplate changes to their electoral primary systems, it’s important to give an update of how Washington State, one of the nation’s premier laboratories of the Top Two primary, along with Louisiana and California, has fared politically and legally since its overhaul in 2004. Washington’s system emerged from the wreckage of the Supreme Court’s rejection of blanket primaries in the 2000 case California Democratic Party v. Jones. In Washington, all eligible candidates list their party of preference, including but not limited to classics like the Employment and Wealth Party, and the top two vote-getters regardless of party advance to the general election. The logic behind such a model is that by opening up the primary to more candidates at one time, the likelihood will be greater of having to get the necessary support from closer to the political center. This would, in turn, produce more moderate politicians, activate greater interest among politically independent voters, and cut back against the corrosive influence of party machines.

It should be noted that, contrary to isolated races occurring in other Top Two states, Washington has experienced relatively little change in its electoral landscape since adopting the Top Two method. All of the congressional and gubernatorial races since 2004 have still featured Democrats running against Republicans in the general election, and the candidates who have emerged have not tended to be significantly more moderate than their predecessors. In marquee races, at least, the perennial advantages of incumbency and personal resources have still ruled the day in spite of candidates’ ability to claim their own party labels. State legislative elections have seen some interesting developments, however, with multiple general election districts fought between members of the same party in 2010 and another similar instance in this year’s 46th district election. Critics note, however, that Washington’s history of non-partisanship and ideological moderation may mask the genuine effects that a Top Two system would likely have on a more polarized state like Arizona, whose residents vote on the issue of adoption this November.

The constitutionality of the Top Two system has not been without challenge. As recently as October 1st, a petition for certiorari was denied by the Supreme Court in Washington State Democratic Central Committee v. Washington State Grange. Petitioners argued that the state’s open primary system, in which candidates declare on the ballot which political party they prefer, risked confusing voters over party affiliation and unjustly burdened political parties’ First Amendment rights of association. Even with disclaimers, the Washington state ballot falsely suggested that parties are endorsing the given candidates, petitioners claimed. The Ninth Circuit earlier rejected the notion that the state must bear the burden of proving the absence of voter confusion as a result of the ballot’s structure. In a facial challenge of constitutionality of the Top Two system in 2008, the court held that the mere potential for voter confusion was not robust enough to assert a facial abridgement of parties’ First Amendment rights, though as-applied challenges could and have emerged. Given the strong-worded dissent from Justices Scalia and Kennedy and the openness to future challenges from Chief Justice Roberts at the time, the Court’s denial of certiorari this term is somewhat surprising.

Another interesting legal question concerning the Top Two system generally is that of competitiveness. In more partisan states and districts, the potential is great for single parties filling the general election ballot. While this scenario may be competitive in the sense of accurately reflecting a jurisdiction’s ideology and preferences, it certainly inhibits party competition. Top Two primaries in heavily-Democratic Chicago, for example, seem likely to shut out Republicans, while the reverse is plausible in rural Southern districts. In New York State Board of Elections v. Lopez Torres, Justice Scalia noted that a political party does not possess the constitutional right to a “fair shot” at winning elections, but one wonders if the potential tendency towards one-party control in partisan jurisdictions under the Top Two system would stretch his reasoning.

While Washington State is the standard-bearer of the Top Two primary system, the legal and political implications arising from the electoral format are in many ways less evident within the state. Both parties remain consistently competitive in congressional and most statewide races, and the panacea of ideological moderation within the state has yet to materialize. Questions surrounding political partisanship, political parties’ right to nominate their own candidates, and party competition continue to be relevant, though, as additional states consider changes to their electoral frameworks. The fact that legal challenges to the system have come from both the Democrats and Republicans suggests that perhaps the one thing that can unite America’s major parties is the desire for guaranteed competition against each other.


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