"Judge strikes down "top two" primary in Washington state"
A U.S. District Court judge today struck down Washington state's new "top two" primary system, approved by voters last fall, as unconstitutional, saying it infringed on the rights of political parties to pick their own nominees for office.Good.In a 40-page ruling, Judge Thomas Zilly said the state cannot allow voters to skip back and forth along party lines as they pick a favorite candidate for each office. Nor can it allow candidates to identify themselves by party without that party's approval, the ruling said
Judge Zilly's ruling is posted here, courtesy of Secretary of State Sam Reed, who had his ass handed to him on a paper plate this afternoon.
UPDATE: A source close to lawsuit believes that the Grange and the Secretary of State will appeal the decision, but aren't likely to get a stay before this Primary. The punchline is that we appear to have a Montana Primary this year similar to the 2004 primary and that if the Ninth Circuit considers the appeal it will be next year. If the Grange fails on appeal, they may attempt an initiative to make all state offices non-partisan, which would really be an abomination.
Posted by Stefan Sharkansky at July 15, 2005 03:24 PM | Email ThisWhat about the rights of voters to select their party?
There is no reason they should not be able to change parties as often as they want. Hour by hour if they want.
Posted by: BananaLand (aka Iguana) on July 15, 2005 03:43 PMhttp://www.unicam.state.ne.us/learning/history.htm
"Another unique aspect of Nebraska’s legislature is its nonpartisanship. Before becoming a unicameral, the Nebraska Legislature was a partisan one. The change to nonpartisanship was included in the successful 1934 unicameral amendment.
Being a nonpartisan legislature means that a candidate's political party is not listed on the election ballot. The two candidates who obtain the most votes in the primary election face each other in the general election. In other states, each party selects a winner in the primary, and the winners of each party run against each other in the general election.
Unlike other states, Nebraska's legislative leadership is not based on party affiliation.
Norris, who advocated nonpartisanship said that such a body would allow senators to concentrate on local interests without being influenced by national party lines. National party lines, he argued, often have little to do with local government. A voter who votes according to party lines might vote for a state candidate who disagrees with him or her on matters over which the senator will have jurisdiction.
Norris worked to eliminate partisanship in the legislature because he believed that elected officials would stand on their own records. Nonpartisanship would allow lawmakers to base their actions on their own convictions and the needs of their districts, rather than according to party dictates."
As for Mr. Dunn, we are back with the Montana party primary like last year, so the party nominating conventions are meaningless now. Any one can run, and it is up to the people who choose to call themselves Republicans or Democrats to chose.
Posted by: JDB on July 15, 2005 03:55 PMYou still can, JDB. Just not during the party's nomination process for the General Election - ie, the primaries.
Put the shoe on the other foot - do you really want people like me - a staunch conservative - deciding who the Democrat's candidate for the General Election should be? No, of course not. Nor should it be the other way around.
It's a simple concept that Washington's famously 'independent' voters aren't willing to accept.
Posted by: jimg on July 15, 2005 04:04 PMThey can switch parties EVERY SINGLE DAY, EVERY HOUR, EVERY SECOND if they want, but they just can't pick the nominees for members of parties that they don't belong to.
You don't see me walking into Albertsons and telling them who they should hire to manage their store. I'm not a part of their store, I'm just a customer. If I don't like who they hire to manage it, then I can go shop at another store.
The same principle applies. If you don't like who the parties nominate, vote for another party. But unless you are part of that party, what right do you have to tell them who they should nominate? Their nomination doesn't do a damn thing to you unless you vote for them in the general.
Anyhow, this is a great day for the constitutional right to freedom of association.
And any day Sam Reed gets embarrassed is a good day as well. It's funny, I supported him in November IN SPITE of the fact that he was for this unconstitutional system. I kinda wish I had left the ballot blank now.
Posted by: Cliff Smith on July 15, 2005 04:16 PMNo no no, you misunderstand it completely: the only reason the convention was even HELD was because of the top-two system. It's irrelevant now, and we will have the same primary we had last year.
Which means it will be Reagan Dunn vs. Steve Hammond in a normal primary.
Dunn will smash his face.
Posted by: Cliff Smith on July 15, 2005 04:18 PMSo glad to hear!
Posted by: Sarah of WA on July 15, 2005 04:25 PMI agree with you, I am only trying to point out that the parties have the right to decide who will run under thier flag. Unfortunatly I also think the Steve will have a very difficult time against The GOP's Golden Child.
I supported Hammond at the convention and I'll support him in the primary. As far as "smash his face", well that sounds like the same junk Reagan was saying before the convention and we both know how that turned out.
But I will say this if Reagan wins in the primary I'll vote for him in November, and I bet Steve will to, he is after all a man of his word.
Posted by: HS on July 15, 2005 04:29 PMA significant part of Judge Zilly's ruling was to declare unconstitutional that portion of Washington law (and it was in the Montana primary law as well as the top two law) that allows open filing: that is, that allows any person who wants to to go down and file as a Republican (or Demopcrat or whatever). The court held that infringes upon the right of the party to determine who may use its name.
So, we no longer have wide-open filing in Washington.
Now, as to the Dunn-Hammond race, the Republican Party rules under which the convention was held were written to deal with the situation where we operate under Top Two, and also the situation under Montana. The rules specifically had a "Litigation Contingency" section that anticipated that Judge Zilly would do what he has, in fact, done.
Under "Top Two", the party nominates its candidate.
Under Montana, a person seeking to file as a Republican must get 25% of the vote at his party's nominating convention. Dunn received more than 25% of the vote, and therefore qualifies to be certified to the ballot under the party rules.
In other words, since we are going to have a partisan primary in which only Republicans (and independents taking Republican ballots) can vote, both Hammond and Dunn can appear on the Republican ballot.
Posted by: DIck on July 15, 2005 04:42 PMGood luck with that.
What is it they say about un-ringing a bell?
Posted by: alphabet soup on July 15, 2005 05:05 PM One thing that those of you continue
to forget about reagan dunn. Is he promised
that he would drop out of the race if he
lost at the convention.So it doesn't
matter what kind of election is run.
he should keep his word.
Now I realize that he has already
broken his promise.We all know the
variety of stupid and baseless excuses
he keeps coming up with.You people that support
reagan dunn need ask yourselfs if he is
not able to keep his word about this.
How can he be trusted with anything else?
If you want to know more about the real reagan
dunn. Just look at my blog rightofseattle.blogspot.com
Now would be a good time to re-float the Instant Runoff Voting Initiative, in the hopes of actually _solving_ a few of our elections difficulties....
Posted by: A Moderate on July 15, 2005 07:40 PMJudge Zilly clearly says that a political party can prohibit a candidate from running under its banner by appropriate action by the party under its rules. Also, Judge Zilly holds that a political party can regulate or define the qualifications of voters to participate in its nomination selection process.
The same reasoning used to strike down the partisan "Top Two" primary can now be used by the political parties to challenge aspects of the Montana primary -- just file a new lawsuit once the I-872 lawsuit has concluded.
First of all, the political parties will want to end the right of candidates to self-designate party affiliation. Instead, a candidate will be able to file in the Democrat or Republican primary only if they are pre-approved under party rules to file. For example, the GOP has a party rule requiring 25% support at a party convention in order to file in a primary. The Democrats may well adopt a similar rule.
Next, the parties will, at the very minimum, want to do away with the secret ballot aspect of the Montana primary. Both the Democrats and Republicans have rules requiring public disclosure of party ballot selection in order to participate in their primaries. With Judge Zilly's decision, this aspect of the Montana primary will likewise be unconstitutional. People will now have to publicly identify with a party in order to participate in its primary. The parties will also be free to impose additional regulations on primary voters.
The only way to avoid these problems is to make all races non-partisan on the ballot. Anyone can file, no one can designate a party preference on the ballot, and the top two candidates face off in the general election. Political parties will be free to nominate and endorse candidates in these non-partisan races to their hearts' content, and urge their supporters to vote for these candidates. But only the candidate name will appear on the ballot, and nothing else.
As Judge Zilly indicated in his oral comments during the arguments on Wednesday, non-partisan races are the only way to avoid having political parties dictate the rules of the election. With anything else, any primary election law will be unconstitutional as applied to a given political party if the law is not exactly what the party demands it be at the moment.
Posted by: Richard Pope on July 15, 2005 08:17 PMThe so-called "primary" this September will be a JOKE for the partisan offices in King County. The GOP will be running candidates for only six of the nine council seats, and the Dems for only seven of the nine council seats. So about 25% of the people who get a Dem or GOP primary ballot won't even have anyone in their own district to vote for their local King County Council seat.
Neither party will have a primary election contest for King County Executive -- that race will be meaningless. Only about 15% of the voters will have any party primary contest at all for their King County Council candidates -- GOP voters in District 9 (Dunn-Hammond) and Dem voters in District 1 (Ferguson-Edmonds).
It is bad enough to be forced to hold a party ballot primary, when the voters are strongly against the idea (60% voted for the top two system). It is even worse to be forced into this by a judicial decision, which also says the parties can even dictate and alter the terms of the Montana primary if they don't like them either.
But why should we be forced to hold a party "primary", when the overwhelming majority of the races are either one choice or no choice? Nothing says we have to hold a "primary" in order to have partisan races -- every party can be forced to hold nominating convention and place its candidate on the general election ballot.
So if we don't go to non-partisan races, I would suggest that we adopt a "USE IT OR LOSE IT" approach. If a political party doesn't ensure that at least two candidates appear on its primary ballot for a given level of office, then NO PRIMARY will be held for any office at that level.
At the statewide level, a political party would have to place at least TWO candidates on the ballot for Governor, Lt Gov, Treasurer, SOS, AG, Auditor, Ins Comm, and Land Comm. If not, then NO PRIMARY would be held for that party at the statewide level, and only convention nominees would appear on the November ballot for that party. The party would also forfeit the right to elect PCO's in the September primary.
At the legislative district level, the party would have to place two names on the ballot for each of the two State Rep positions, and two candidates for State Senate (if that position was up). Otherwise, no primary election for state legislature in that district for that party.
At the county level, the party would have to list two candidates for each and every county office up in that election, including county-wide offices and district offices. Otherwise, no primary.
I am sick and tired of hearing the parties -- especially the GOP -- complain that anyone can "steal" their party label and file in the primary (even under the Montana system). This is even more sickening when the parties rarely have primary election contests for most offices, and often -- especially the GOP -- don't even bother to put up nominees for important offices.
If the political parties like the privilege of holding a primary, then they should be forced to either USE IT OR LOSE IT!
Posted by: Richard Pope on July 15, 2005 08:52 PMRunning non-partisan would be fine too! As soon as we clean up our state elections......
The key here is to clean up our elections laws, policies and procedures. First we have to kick out those responsible for the history of fraud and errors. Then we need to elect those who are worthy of the people's trust and who are capable of identifying the problems and fraud potential and eliminating them.
There is just so much broken in our state, county and city election departments - and yet, these should be THE MOST IMPORTANT AND TRANSPARENT departments in our state! Everything that impacts the people - flow from elections!
I am so grateful that *elections* have become an important issue with the people. Many are now opening their eyes to what has been going on here for decades!
Posted by: Deborah on July 15, 2005 08:59 PMLook at Washington Judges to see what a failure additional non-partisan officals would be.
Posted by: dl on July 15, 2005 09:40 PMWhat I am interested in is breaking the stranglehold the two parties have on the system.
Posted by: BananaLand(aka Iguana) on July 15, 2005 11:42 PMIn Washington, with no party registration, you are free to change your party every hour on the hour if you choose. But when you come to vote in the primary you are still a member as you define it of one or the other and have no right to pick the other party's candidates. And if you are NOT a member you should have NO right to do so and should proceed directly to the general election.
Two other points.
1) The US is the only representative government with political parties that choose their candidates by a primary election process. In parliamentary systems such as Canada, Great Britain, Australia, et al. local party associations and central party offices make these designations.
2) The prospect of non-partisan elections for everything in Washington is ridiculous. Last year the voters of New York City rightly rejected Mayor Bloomberg's effort to establish a non-partisan ballot for municipal offices. As a NYC native and hard-core Republican (no not mutually exclusive!) I think non-partisan elections are appropriate for small towns and cities but not in a city of 8 million--larger than most states! What NYC needs is a competitive GOP, not non-partisan elections. Same for Washington State.
Posted by: Howard Hirsch on July 16, 2005 12:00 AMI would say that I agree with republicans more often than demos, but you are both smoking crack on this issue. It is my sovereign right to choose whoever the hell I see fit to perform a government function regardless of parties. thinking inside party mentalities is a sure way to civil war. Apparently both Republicans and Democrats always conviently forget that there are other views and parties, and that at the end of the day we are all Americans (well, those of us who are citizens) entitiled to have a say in our government. I remember something about a government deriving its power from the consent of the justly governed or something like that.
Posted by: Aaron on July 16, 2005 12:21 AMMany thanks to Chris Vance for being out front on this issue (quite unnecessarily, I might add) so the people will now hate the party hierarchies even more.
Great job.
All of this crap for a list.
Posted by: Who.... me? on July 16, 2005 12:30 AMNo one is suggesting that your choice in the general election should be restricted by party. You can vote for anyone on the ballot or write in anyone who's not on the ballot.
Although I think the court was wrong to throw out the top-two primary (horrible as it is), neither form of primary restricts your general election choice in any way.
Posted by: ScottM on July 16, 2005 06:16 AMIf the government imposes rules for primary elections (i.e. election laws) that the political parties don't like, then these rules are unconstitutional, since they violate the parties' first amendment rights to freedom of speech and freedom of association.
Judge Zilly's decision not only holds the "top two" system unconstitutional (basically because candidates could freely self-designate their party affiliation on the ballot), but also rules that "freedom of association" would allow a political party to restrict which candidates could run in a normal party ballot primary (such as our Montana primary) or which votes could vote in such a primary.
While technically the Montana primary is not at issue in the present litigation, it is only a matter of time before one of the political parties picks up this sword. The GOP will likely sue in the future to keep certain people from filing for office in their primary and the Dems will likely sue to prevent people from voting in their primary without publicly identifying themselves as Democrats.
Once we pass laws to allow party affiliations to be listed on the ballot, we go down a slippery slope where the "freedom of association" rights of political parties allow our election laws to be dictated by whatever the parties decide their internal rules should be for governing candidates.
The best way to remedy this problem is not to list any party affiliations on the ballot whatsoever. This has worked very well for the vast majority of elected offices in this state -- cities, school boards, judges, port commissions, water/fire/sewer districts, etc. -- and can work well for the remaining offices as well.
Eliminating party affiliations from the printed ballot would not violate the "freedom of speech" or "freedom of association" rights of political parties in any way -- as Judge Zilly's decision recognizes. Parties could use their "freedom of association" to organize in whatever manner they desire and to nominate candidates for any offices they see fit in whatever fashion they desire. Then parties could use their "freedom of speech" to communicate and advertise to the voters which candidates they had nominated to each office -- instead of having this done through "government speech" on the printed ballot.
Judge Zilly was extremely tempted to eliminate the constitutional problems in the "Top Two" primary through the simple expedient of eliminating all party designations from the ballot. Unfortunately, he did not do so, since he wasn't sure whether the voters would have wanted a ballot without party designations in the event this portion (i.e. candidate freedom of party designation) of the "Top Two" initiative was found to be unconstitutional.
Posted by: Richard Pope on July 16, 2005 08:33 AMThere were no parties when the constitution was written. How can the courts infer rights for them that rival and even superced the rights of individuals that actually enumerated in the constitution?
Then again this is the 9th District.
Posted by: Deadwood on July 16, 2005 08:35 AMRichard you are so right. Just don't print party afilliation on the ballot!
Posted by: Deadwood on July 16, 2005 08:41 AMI never heard anybody from Reagan's camp saying he was going to 'smash face' at the convention, but regardless, I think he will smash Hammond in a real primary system, frankly, becase Hammond's supporters from my experience are big on fanatacism and short on any sort of real reasons as to why there candidate is better.
As for me, I've never heard a grown man whine as much as Mr. Hammond has every time I've seen him. All I've ever heard him do is complain how it isn't fair that he has to have a primary, and that he was elected (barely) and Reagan was appointed. I disliked him from the first time I heard him speak, and have ever since.
Reagan, on the other hand, clearly has a lot of upward mobility, and at the very least hasn't spend every speech I've heard complaining. And while he's clearly helped by his mother's name, he hasn't exactly just tried to ride it, like, say Billy Tauzan III. He's got a lot of experience for someone his age in a variety of areas.
holyscroller: I agree, Reagan was kinda fudging technicallities, but he did allow himself a loophole, and he went through it. Get over it, that's politics.
And, as I just said, Hammond is one of the biggest whiners I've ever heard, so, yah, if he had a corps that I thought could get elected instead of him, I'd be inclined to support him. I have no problem with his record on the council, but it seems to me he's a detriment to our cause in many other ways.
Posted by: Cliff Smith on July 16, 2005 10:31 AMYour question obviously cannot be answered w/o knowing each person's vote - but if you want a recent example of what I'm talking about, look no further than the GOP primary for governor in 1996. Whether they actually did or not, several Democrats claimed they voted - or intended to vote - for Craswell as they believed (rightly, imo) that Craswell was the weaker candidate to face Locke in the General Election.
Again, whether or not those Democrats did that is immaterial. The fact that they COULD is the issue here.
Conversely, many Republicans (admittedly, myself included) considered taking the Democrat ballot in the Montana-style primary last year in order to cast a vote for Deborah Senn, the weaker D candidate in the primary in the AG race against the likely GOP candidate, McKenna.
While I can be persuaded to agree to have the parties foot the bill for their nomination process, there is no way Democrats should be able to choose - or influence - who will be the Republican banner carrier for the General Election - and vice versa.
Posted by: jimg on July 16, 2005 01:09 PM you obviously have not heard steve hammond speak
that often.He did a great speech at the county
convention and at the 47th district meeting.
where they endorsed him.
Now as to reagan dunn I will never understand
some of you people.I continue to hear how reagan is
more upwardly mobile.That yeah he's cut a few
corners but that's okay its only politics.
The fact is character and integrity should still
matter to all of us in who we elect.
Reagan Dunn said if he lost at the convention
he would drop out of the race.Now I know he
never thought he would lose that's why he agreed
to it.But you reagan dunn supporters and I mean
all you Would be screaming bloddy murder and
demanding steve hammond get out if the situation
were reversed.I know this because other than
bob strauss none of you have publicly told reagan to drop out.
Cliff another thing steve hammond has a right
to be upset the king gop leadership did
everything they could to derail his campaign
they failed but they sure tried.So steve is
well within his right to complain.
I see you are of the same whiny cloth that Hammond is cut from.
You also seem to have a knack for fudging on the facts. Reagan didn't 'cut corners', he left himself a loophole (saying he wouldn't run if his opponent played nice), which he 'might' have taken. It's not clear, because the top-two was struck down. NOBODY said they wouldn't run if the top-two was struck down, which it was. Now, the Republican population as a whole, not only activist wingnuts, can decide who the nominee is going to be.
And nobody would give a rat-crap if Hammond ran anyway, because in a wide-open race, he doesn't stand a chance in hell. He can't raise money, and appeals to few out of his strange click.
And I've heard Hammond talk 3 times, and his supporters a few more. Never in my life have I heard more whiny self-richeousness in every speech. I went in liking Reagan Dunn, but honestly wanting to have an open mind. He didn't giveme much of a chance.
Posted by: Cliff Smith on July 16, 2005 08:01 PM
I don't have any strong preference between Dunn and Hammond, and don't live in the 9th district.
But what, in your opinion, is "the Republican population as a whole" that will be deciding this nomination come September -- now that we have this "Montana" party ballot primary courtesy of Judge Zilly?
Voters in the 9th district will have three choices in September: Democrat, Republican, or Non-Partisan Only. (The Libertarians were eliminated from major party status in the 2004 general election.) Each voter's choice will be a secret, known only to the voter.
No reason to pick a party based on the County Executive race -- only Ron Sims and David Irons are running in their respective parties. The only other partisan race is for County Council. Democrats have only one candidate -- Roger Larson (who is he, anyway?)
So the only partisan race that 9th district voters can have any influence in would be the GOP nomination for County Council between Reagan Dunn and Steve Hammond.
Every smart voter in the 9th district -- including Democrats -- who wants to have any choice in September should check the Republican oval on the ballot, so they can vote for either Dunn or Hammond in the GOP side of the council race. No one will be the wiser for this, since the choice is a secret one.
Presumably, we will have an awful lot of Democrats voting in the Dunn-Hammond race as a result -- probably far more than whatever the ultimate victory margin between Dunn and Hammond is. Many Democrats will vote for Hammond, because Dunn's mother was a GOP bigwig for so many year and Dunn is supported by the GOP establishment. Other Democrats will vote for Hammond, if they feel he is extreme and therefore easier to beat in November.
Too bad Judge Zilly struck down the entire Top Two system (since he felt one flaw meant the whole law had to go), instead of only allowing party nominees to file under the given party banner. We could have had several hundred dedicated Republicans choosing the nominee at the convention last month. Now we will have several thousand crossover Democrats choosing the nominee in the September primary.
I appreciate your response but sometimes you
just don't know what your talking about.
It isn't whinning when you have passion in
who or what you believe in.
The reason steve hammond won at the convention
is that his supporters on the south side were
energized to come out and vote for him.I keep
hearing this story about steve hammond breaking
the 11th commandment.I'm here to tell you it
never happenend.Since reagan dunn has never
had the guts to say specifally what the hammond
campaign did.The reason is he knows it never
happenend.
Even michael young the king gop chairman
on more that one occasion has said that
neither hammond or dunn broke the 11th
commandment.What I find interesting here
is that wasn't even reagan's original reason
for staying in the race.
First it was the outcome was to close
we need to let the people decide.Then
it was 11th commandment.Then it was well
if they throw out the top two primary I won't
run.
Tell the people on the south side that they would
give a rats crap if hammond ran.I will have you
know that the democrats were unable until
the day of there convention to get anyone
to run against hammond.In fact there favorite
barbara hagby said and I quote I want no
part of steve hammond.
The reason they had such trouble getting
someone to run is because they know that
steve appeals to alot of democrats.Mostly
because of his stance on property rights.
Hence is the endorsement of the teamsters
unions.
So yeah your right hammond only appeals
to a few.
Deadwood: You say, "It is a sad day for democracy when the courts hold political parties to have more rights than the voters."
That description doesn't match the facts. Political parties ARE voters: groups of voters who get together to put up resources to get a candidate on the ballot, and elected. You can participate if you wish to, but what you want is to take away THEIR rights.
Everyone, all voters, have the same rights here. Show me just *one thing* the political parties can do that you can't, or admit you're wrong.
Richard Pope writes: Eliminating party affiliations from the printed ballot would not violate the "freedom of speech" or "freedom of association" rights of political parties in any way -- as Judge Zilly's decision recognizes. Parties could use their "freedom of association" to organize in whatever manner they desire and to nominate candidates for any offices they see fit in whatever fashion they desire. Then parties could use their "freedom of speech" to communicate and advertise to the voters which candidates they had nominated to each office -- instead of having this done through "government speech" on the printed ballot.
To what end? What problem are you trying to solve here? You are basically advocating the elimination of the primary altogether, since its only purpose is for parties to nominate their candidates. If your goal is to provide a blanket primary, this doesn't do it.