On August 22, the 9th circuit affirmed a lower court decision that Washington state’s “top-two” primary system is unconstitutional. Washington State Republican Party v State, 05-35774. The voters of Washington state had passed an initiative in 2004, setting up the “top-two” system. This is a system in which every candidate runs on a single primary ballot. Every voter uses that ballot. Then, in November, only the two candidates who placed first or second can be on the ballot.
The 9th circuit focused on the fact that the Washington “top-two” system still provides for party labels on the ballot. The court said that if party labels appear on the ballot, then the election is a partisan election. And in partisan elections, the First Amendment’s Freedom of Association clause protects the use of the party’s name. If party labels are involved in an election, then parties have a right to insist that only party members participate in choosing those candidates who will have that party’s label next to their names on the ballot.
The decision has good language about the importance of party labels, and will be a useful precedent for ballot access cases in states such as Ohio and Tennessee, which generally force minor party nominees to appear on the ballot without a party label.
I suggest that anyone who has not done so (including, obviously, those 9th Circuit judges) read what Justice Scalia wrote about the Top Two (“nonpartisan blanket primary”) near the end of his ruling in California Democratic Party v. Jones.
Scalia said that state law MAY require the parties to nominate a candidate for each office. He said that the Top Two passes constitutional muster because “voters are not choosing a party’s nominee.” (Obviously, then, IF state law DID require the parties to nominate, it would have to be by a method other than party primaries.)
Putting party labels on a Top Two ballot doesn’t make it a partisan system. This is usually done mainly for the voters’ information, but, in any case, a voter who wants this information can get it. (Louisiana puts party labels on the ballots in its “top two” system.)
Here in my state of Mississippi, we elect county election commissioners on a nonpartisan basis, with no party labels. We don’t have voter registration by party, and yet the party affiliations of all 410 election commissioners are known.
What is clearly unconstitutional about the measure that the 9th Circuit struck down is the timing of congressional elections.