On August 20, U.S. District Court Judge John Coughenour ruled that the lawsuit Washington State Republican Party v State will go to trial. This is the lawsuit that was filed in 2005 against the “top-two” system passed by the Washington voters in 2004. See this story. Here is the 29-page decision.
Although the U.S. Supreme Court had ruled in March 2008 that Washington state’s “top-two”, on its face, does not violate freedom of association for political parties, the Court had left open the possibility that “top-two” violates freedom of association for political parties, in practice.
Supporters of “top-two” have for the last 18 months been saying that the case against “top-two” is all over, but it is not over.
Judge Coughenour rejected the Libertarian Party’s ballot access and trademark arguments. He said that in Williams v Rhodes (the U.S. Supreme Court opinion that invalidated Ohio’s 15% of the last gubernatorial vote petition), the American Independent Party had no opportunity to reach the statewide electorate by any type of ballot. That is not true. The American Independent Party’s only candidate in 1968 in Ohio was George Wallace, running for president. The party made it clear that it had no interest in any candidate except George Wallace for President. Yet Wallace was free to have run for president in the Democratic presidential primary, and any Ohio voter was free to choose to vote in that primary.
Judge Coughenour also said “the Washington general election becomes, for all intents and purposes, a runoff election.” This may be true for state and local elections, but it is not true for Congressional elections. A federal law dictates that Congressional elections must be in early November, with run-offs permitted in late November, or December. That is why the U.S. Supreme Court unanimously ruled in Foster v Love that Louisiana could not hold its first round of Congressional elections in September, with a run-off in November.