Washington state held a “top-two” primary on August 19, at which all voters received the same ballots. Each ballot listed all candidates, with party labels worded “Prefers (such-and-such) Party.”

The Constitution Party candidates for Secretary of State, and for Auditor, each polled over 6%. If this had been the November general election, such showings would have entitled the Constitution Party to become a qualified party, since the law defines “party” to be a group that polled 5% for any statewide race. However, it doesn’t count, since this was just a primary. Furthermore, despite their good showings, the Constitution Party candidates won’t have their names printed on the November ballot, since they didn’t place first or second.

For Secretary of State, Constitution Party member Marilyn Montgomery polled 88,728 votes, or 6.46%. For Auditor, Constitution Party member Glenn Freeman polled 94,148 votes, or 6.89%.

On September 29, Steve Peace, a former Democratic State Senator from San Diego, filed a proposed initiative with the California Attorney General that would establish the “top-two” election system in California. The proposal is more similar to Washington state’s “top-two” law, than it is to Oregon’s “top-two” initiative. The California initiative would abolish the practice of asking voters about party membership, on voter registration forms. By contrast, the Oregon initiative, on the ballot in the current election, retains partisan registration.

The California initiative appears to have been drafted hastily and carelessly. It fails to re-define “political party”. Under existing law, the chief means that parties have for getting on the ballot is by persuading people to join that party, as shown on voter registration forms. Since the initiative abolishes partisan registration, one would have expected the initiative to re-define “political party”. However, it does not do that.

The initiative also says that a the list of people who vote in any party’s presidential primary would be given to that party, but not to anyone else. Similar laws have been held unconstitutional this year or last year in Michigan and New Hampshire. The initiative has careless mistakes, such as referring to the existing California elected office known as “Superintendent of Public Instruction” as “Superintendent of Public Education.” The initiative has no intent to change the name of that office, since in other places it refers to the office by its original name.

Here is the text of the initiative. Thanks to Rick Hasen’s ElectionLawBlog for the news.

On October 2, the 9th circuit issued an order in Washington State Republican Party v State, 05-35774. The U.S. District Court is directed to “allow the parties to further develop the record with respect to the claim that Initiative 872 unconstitutionally constrains access to the ballot and appropriates the political parties’ trademarks, to the extent these claims have not been waived or disposed of by the Supreme Court.” Thanks to Richard Shepard for this news.