By Susan Gilmore Seattle Times staff reporter 

In what both sides say is a surprise, the U.S. Supreme Court has agreed to consider whether Washington state’s voter-approved, top-two primary is constitutional. 

The announcement Monday came nearly three years after state voters overwhelmingly passed Initiative 872, sponsored by the Washington State Grange. 

The initiative provided that the two candidates with the most votes in the primary would move on to the general election, regardless of political affiliation. 

Federal courts tossed out the new primary system before it was ever used. 

Jim Pharris, an assistant state attorney general who defended the initiative, said “it was a long shot” that the Supreme Court would even take the case. 

Pharris said the high court may have decided to accept the appeal because it also agreed last week to take an elections case from New York state, where lower courts threw out nominating conventions for state judges. 

Since 1935, the state had operated under a “blanket” primary system, where voters could choose a candidate in the primary regardless of party label. 

Washington‘s primary history

1935: Washington adopts a “blanket” primary that allows voters to pick a favorite for each office without regard to party label. The top vote-getter from each party advances to the November general election. 

June 2000: The U.S. Supreme Court invalidates a similar system adopted by California. Washington continues to use its blanket primary, though, when U.S. District Judge Frank Burgess sides with the state. 

September 2003: The 9th U.S. Circuit Court of Appeals overturns Burgess and sides with the state’s political parties. 

March 2004: After the high court declined to hear the state’s appeal, lawmakers approved a top-two primary that allows the top two vote-getters to advance to the general election, without regard to party. But it also included a backup system, a Montana-style primary that requires voters to limit themselves to one party’s candidates. 

April 2004: Gov. Gary Locke vetoes the top-two part of the bill and leaves the state with the partisan Montana system. 

September 2004: Washington holds its first Montana-style primary. It proves very unpopular. 

November 2004: Voters approve Initiative 872, creating a top-two system, by a 60 percent yes vote. 

July 2005: U.S. District Judge Thomas Zilly throws out the top-two system, saying it infringes on the political parties’ right to pick their own nominees. That leaves the Montana plan in place. 

August 2006: The 9th U.S. Circuit Court of Appeals upholds Zilly’s ruling. 

Monday: The U.S. Supreme Court agrees to hear the top-two case. 

Source: Seattle Times archives, The Associated Press 

But in 2000 the Supreme Court invalidated a similar blanket-primary law in California, and in 2003 the 9th U.S. Circuit Court of Appeals, relying on the California decision, threw out Washington’s blanket primary. 

The Supreme Court refused to consider an appeal of that decision. 

After voters approved I-872, the political parties went back to federal court and the top-two primary was tossed out, before it was ever used. 

The parties successfully argued that the top-two primary infringes on their right to pick their own nominees for the general election. 

Since then, the state has been operating under a Montana-style primary, which requires voters to choose a party ballot before voting. 

“We’re very pleased,” said Tom Ahearne, the attorney for the Grange in the dispute. “It allows us to have the Supreme Court correct the 9th Circuit mistake.” 

Ahearne said Justice Antonin Scalia, in the California decision, specifically said a primary like the top-two system could pass constitutional muster. 

But the state’s political parties are convinced they’ll prevail. 

“We’re going to win, absolutely,” said Luke Esser, chairman of the state Republican Party. “We have the law, the facts, the common sense. Everything is on our side.” 

In a prepared statement, Dwight Pelz, chairman of Washington State Democrats, said he’s also confident the court will “uphold the right of political parties to choose their own nominees.” 

Attorneys expect the case will be argued in October, which means the state will have at least one more year with a Montana primary. 

Secretary of State Sam Reed, who supports the top-two primary, said he was surprised the high court agreed to take the case. 

“This is encouraging for the voters of the state who have felt so strongly that they have a right to vote for the person, not the party, in the primary and felt this was fundamental to having the right to control who their public officials are,” Reed said. 

The Grange, which sponsored the initial blanket primary, proposed legislation this year to make primaries nonpartisan, but the bill apparently has died. 

“People are not happy with the party-dominated system,” said Dan Hammock, a spokesman for the Grange. “We’re really excited about the fact the Supreme Court is taking this up.” 

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com 

Copyright © The Seattle Times Company 



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