Trial in “Top-Two” in Washington State Set for October 4, 2010

On October 20, U.S. District Court Judge John C. Coughenour set a trial date in Washington State Republican Party v State, cv-05-927. This is the lawsuit over the constitutionality of the “top-two” election system. The attorneys estimate the trial will last for four or five days and will involve social science experts.


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Trial in “Top-Two” in Washington State Set for October 4, 2010 — 10 Comments

  1. Agreed.

    Am curious, tho. Is the challenge that the election should be over if one candidate already got a majority of voters’ votes (so unconst’l to force winner to face runoff)?

  2. It is quite common to have a primary system that advances two candidates (or 2 X number of seats to be filled) regardless whether any of them have a majority. It is not a concept that Justice Scalia invented and promoted. In some places, the primary is cancelled if there are only one or two filing candidates, since the purpose of a Top 2 primary is to winnow the field to two candidates.

    It is the system that is used in Nebraska for its legislature, and numerous cities also use it. Omaha, Minneapolis (before this year), it is an option in North Carolina. In Nebraska, it is not unknown for a candidate to receive a majority in the primary, and have that result reversed in the general election.

    The system used in Louisiana is not properly a Top 2 primary, though the first election there is referred to as a primary, but rather a general election with a conditional runoff. Louisiana is somewhat unique in that if there is only one filed candidate, they also cancel the primary and hold no election at all.

  3. The Washington state trial will be about the issue of whether letting each candidate have his or her party “preference” would cause a substantial number of voters to believe that, therefore, that candidate represents the views of that political party.

  4. Define *substantial* — one more weasel adjective used by the MORON courts to mystify everything.

  5. This would appear to give enough time for the legislature to pass SB 5681 (or its equivalent), which would clean up the language of Washington’s election law, and would in particular:

    (1) Define political party and major political party. A major political party would be one whose presidential candidate receives 1% of the vote (current standard in Washington is 5%). A minor political party would be established by petition of 100 persons.

    Thus a preference for a political party would be for a political party recognized by the state.

    A major political party would have a presidential preference primary and be permitted to nominate candidates for president/vice president, and elect precinct officers (at the general election). A minor political party could nominate a presidential candidate but would require 1000 signatures.

    Contact information for political parties would be included in the voter’s pamphlet.

    The primary would be explicitly defined as not having the purpose of nominating candidates.

    Assuming the Forces of FUD don’t block this from happening:

    This would leave the only substantive issues:

    (1) Whether the state may provide a place for expressing a party preference on filing papers. Presumably any candidate has a 1st Amendment right to express partisan information in a statement in the Voter’s Pamphlet.

    (2) Whether appearance of party preferences on the primary ballot gives voters the impression that the purpose of the primary is to nominate, or indicate any other sort of formal relationship between the party and the candidate.

    (3) Whether appearance of party preference information on the general election ballot gives the impression that the candidate was nominated by the party, is a preferred candidate of the party, or any other formal relationship.

    If Judge Coughenour decides that there is an unconstitutional forced political association, then he will issue an injunction against publication of party preference information on ballots. This will occur after the 2010 election, which will give another couple of years for appeals to be made.

    The Supreme Court will uphold Coughenour’s decision, and people will realize that the whole system of government support and recognition of private political activities is illegitimate. By 2020, partisan primaries, government-sponsored partisan activities, including publication of endorsement on the ballot will be a thing of the past.

  6. This scheduling of the trial in the Washington “top two” case for October 2010 means that the constitutionality of the “top two” will still be unresolved when Californians vote on their “top two” initiative in June 2010.

    #6, last paragraph: For that to happen, the US Supreme Court would have to reverse a ton of its own rulings. I wouldn’t bet the ranch on that if I were you.

  7. #7 Judge Coughenour in his August 20, 2009 order wrote:

    “Now that the Supreme Court has held that I-872 can be implemented without violating Plaintiffs’ right to
    association, Plaintiffs will not be able to strike down I-872 in its entirety. Instead, the best that
    Plaintiffs can achieve is to invalidate certain portions of I-872’s implementation and enjoin the
    State from implementing I-872 in specific ways that lead to voter confusion or other forms of forced association. For example, if Plaintiffs’ challenge the specific wording used on the ballot or in the voter’s guide, they should identify the language currently used and request specific relief to remedy any resulting confusion.”

    There is simply no unresolved constitutional issues regarding Top 2 per se, only certain details about its implementation.

    As for the last paragraph, the Supreme Court will simply say that in the previous cases, the wrong question was asked – that plaintiffs were generally challenging the manner in which the States regulated party affairs, rather than the fact that the State regulated them. The reason that the court has so far upheld State regulation has been because the State’s have given parties a formal role in the administration of elections, making them quasi-governmental agencies. But ultimately this will be recognized as restricting the right to vote.

    #8 Strictly speaking the power of referendum is when the People seek to overturn a statute that was passed by the legislature. Since the open primary constitutional amendment in California is proposed by the legislature, it is not an initiated constitutional amendment, but it is not a referendum either.

  8. #9: The definition you give in your last paragraph is for the Referendum (capital “r”). When the legislature refers a measure to the ballot, that’s a referendum (small “r”).

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