On February 26, the U.S. Supreme Court accepted Washington State’s appeal of the “top-two” primary case. The voters of Washington state had passed that type of primary in November 2004. But in 2005 the U.S. District Court had ruled it unconstituitonal, and the 9th circuit agreed last August. The case is Washington v Republican Party, 06-730.
It could be that the Supreme Court has agreed to hear this case because the justices don’t like the 9th Circuit’s ruling against the “top two.”
In the 2000 California blanket-primary case, Scalia wrote that the “top two” is constitutional because “… voters are not choosing a party’s nominee.”
As I’ve said repeatedly, the issue of whether party labels may be put on the “top two” ballot is a “tempest in a teapot.” Either way, it’s a nonpartisan system. (Louisiana puts party labels on its “top two” ballots.)
In my view, the only thing unconstitutional about Washington’s “top two” is the timing of congressional elections.