Washington’s “top-two” law, in effect since 2008, is quite similar to the California “top-two” proposal that will be on the ballot in June 2010, but there are significant differences. In each instance, the Washington state version is significantly kinder to minor parties than the California proposal.

1. Washington state lets anyone running for office choose any ballot label he or she desires. For example, in Washington state a candidate for the legislature appeared on the primary ballot with “Prefers Salmon Yoga Party”, and in 2009 a candidate for County Office filed and requested the label “Prefers Grange Party”.

By contrast, the California proposal only lets candidates “prefer” the name of a qualified party. This interpretation was confirmed on October 19 by former State Senator Steve Peace, a leader in the drive to pass “top-two.” He consulted with the attorneys who drafted the California proposal.

2. Washington state will count write-ins in the general election if the vote-counting computers indicate a write-in candidate could possibly have outpolled the candidates on the November ballot. By contrast, the California proposal says write-ins at general elections are never to be counted.

3. Washington state’s primary is in late August, and California’s primary is in early June. The Washington system allows for candidates to enter the race as late as May 15 of an election year. By contrast, California’s proposal does not allow anyone to appear on a ballot unless that person enters the race by March 12 (except, theoretically, one could enter the California first round in May as a write-in, and conceivably might place first or second and thereby appear on the November ballot, but this is very unlikely). Each election year’s calendar is slightly different; those particular dates are the ones that would apply in 2010.

If the California proposal passes, California, Texas and Nevada would be the only states in which all practical routes to have one’s name printed on a ballot would be closed off by mid-March. Furthermore, Texas and 43 other states would still permit someone to enter a general election as a write-in candidate, so one could argue that California would be one of only 6 states that closes the door to any candidacy that is announced later than the summer (the earliest state deadline to be a qualified write-in candidate in November is Florida’s July 20 deadline).

4. “Top-two” does not affect presidential elections, but the California “top-two” proposal indirectly makes it more difficult for minor parties to place a presidential candidate on the November ballot. Because, under the California proposal, parties would no longer have nominees for state office or for U.S. Senate, the existing law that lets a party remain on the ballot if it polls 2% for any statewide race in a midterm year would effectively cease to exist. Therefore, all parties would go off the ballot, but those with registration of at least 1% of the last gubernatorial vote would instantly re-qualify. 1% of the last gubernatorial vote will probably be 100,000 registered members, which means the Peace & Freedom Party (which has fewer than 60,000 registered voters) would almost certainly lose its qualified status, and no longer be able to place a presidential candidate on the ballot. Peace & Freedom Party nominated Ralph Nader for president in California in 2008. If “top-two” had been in effect in 2008, this means it is overwhelmingly likely that Nader would not have been on ballot in California in 2008. The independent petition requirement in 2008 for a presidential candidate, 158,372, was so severe that Nader could not have qualified.

By contrast, Washington state lets any independent presidential candidate, or the presidential candidate of an unqualified party, appear on the ballot with a petition of 1,000 names, due in August.

One final contrast: Washington state supporters of the “top-two” system are honest enough to use that label. California supporters insist on calling the idea the “open primary”, even though the California proposal has nothing in common with the standard open primary used in over 20 states.

On October 19, U.S. Supreme Court Justice Anthony Kennedy ordered the Washington Secretary of State not to release the names and addresses of people who signed the R-71 Referendum petition until after the U.S. Supreme Court has had time to think about the case, which is called Doe v Reed. See this story. UPDATE: here is the state’s 35-page brief to the U.S. Supreme Court.

On October 19, the 9th circuit held oral arguments in Coronado v Brewer, 08-17567. The main issue is whether the 24th Amendment requires Arizona to let ex-felons register to vote, even if that ex-felon owes restitution or fines. The 24th amendment says, “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”

The three judges on the panel were Alex Kozinski, Sandra Ikuta, and Sandra Day O’Connor, who is of course retired from the U.S. Supreme Court. Justices who retire from the U.S. Supreme Court sometimes participate in panels of U.S. Courts of Appeals in their home states. The hearing was held in Tempe, Arizona, on the campus of the State University. The hearing seemed to go well for the attorneys who are representing the individuals who desire to register to vote. This is an ACLU case.