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Status of Washington's Primary System

In September, I blogged on the present state of Washington's "top two" primary system. In brief, after being sued by the Republican, Democratic, and Libertarian parties to invalidate the "blanket primary," which allowed voters to vote for any one candidate for each office in the primary, regardless of party, and then sent the top vote getter from each party to the final election, voters passed on initiative a "top two" primary which permitted candidates for so-called "partisan" offices to list their party preference, but otherwise ignored parties, sending the top two vote-getters to the final election. In this system, we do not, properly speaking, have a nominating primary. Rather, we have a general election in September (as of yesterday, I guess it's in August - see here), and a run-off in November.

As I reported in the previous post, the political parties have sued again. The parties argue that the top two primary infringes upon their freedom of association by forcing them to endorse candidates not chosen exclusively by their members, and therefore the entire system should be struck down. The state and the grange counter that (a) the parties do not endorse the candidates; the candidates merely state their preference for one party over another, and (b) the portion of the act permitting candidates to state their party preference could be struck down, if unconstitutional, without striking down the entire system.

The case was heard by the federal district court for western Washington, beginning May 19, 2005. On July 29th, Judge Thomas Zilly issued a permanent injunction against the enforcement or implementation of any portion of the top two primary initiative (I-872).

This Monday, February 6, oral arguments in the case will be heard by the Ninth Circuit. I'm not a legal expert, and I don't necessarily know about the history of Ninth Circuit rulings, but I can't see how they can (or, for that matter, how the district court could) strike down the entire statute on the basis of a minor provision relating to a statement of party preference. Furthermore, I must again (and again) state my utter disgust at the Libertarian Party of Washington State's decision to participate in this lawsuit. The Libertarian Party doesn't participate in state run primaries, even in states where it has major party status (as it did in Washington until recently) because it opposes the idea of states running primaries. Here, the Party has decided to oppose a measure which it should, according to principle, support, because before the measure was passed, it had a gauranteed place on the November ballot, and with the measure it won't! Well, now it doesn't anyway, because it has lost its major party status, but it continues to pursue this extremely unprincipled lawsuit. If the Libertarian Party wishes to pass itself off as "the party of principle," it MUST hurry up and back off of this lawsuit. I discussed in my previous post the ways in which the Libertarian Party can exercise "quality control" over candidates running under its name in this kind of "free market" context.

I will try to post news as soon as I'm able to find it regarding the outcome of the arguments on Monday. In the meantime, all the official documents are here.