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Sunday, December 10, 2023 | Back issues
Courthouse News Service Courthouse News Service

Washington Ballot Plan Gets Approval of the 9th

(CN) - Washington's "top-two" primary system does not violate a political party's right to free association, the 9th Circuit ruled Thursday, finding that the state's Democrats, Republicans and Libertarians had failed to show that the system causes "widespread voter confusion."

The strange bedfellows have fought together against Washington's primary system since Initiative 872 became effective in December 2004. Some 60 percent of voters approved the system, which eschews party nominations in favor of a primary that pits all the candidates against each other for one of two slots on the general election ballot. The primary ballots list whatever party preference that the candidates want to indicate, regardless of whether the party actually supports them. Those same preferences appear on the general election ballot for the candidates with the highest and second-highest vote totals.

Challenging I-872 on First Amendment grounds, the parties' state-level committees sued Washington and the Washington State Grange, a civic organization that supported the measure.

Though U.S. District Judge John Coughenour in Seattle ruled for the parties and stopped the initiative from becoming law, and the 9th Circuit affirmed on appeal, the U.S. Supreme Court eventually reversed.

The high court found that the primary system did not violate the parties' right to associate, and disagreed that the initiative would effectively allow unaffiliated voters to choose the parties' nominees. It left unresolved the question as to whether the process creates widespread voter confusion, however, finding that that issue hinged on the design of the state's ballot.

On remand in Seattle and in the wake of the state's implementation of the primary system, the political parties claimed that the ballot had created confusion and thus violated their rights. They moved for summary judgment, as did the defendants.

This time the District Court ruled against the political parties, saying that a disclaimer on the ballot, along with voter education efforts, had served to alleviate any potential confusion.

The 9th Circuit affirmed from Pasadena Thursday, finding no evidence of the confusion the parties had feared.

"The ballots, and related informational materials, inform voters that, although each candidate for partisan office may specify a political party that he or she prefers, a candidate's preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate," Judge Raymond Fisher wrote for the three-judge panel. "Given the design of the ballot, and in the absence of evidence of actual voter confusion, we hold that Washington's top two primary system, as implemented by the state, does not violate the First Amendment associational rights of the state's political parties, the appellants here."

The panel also affirmed dismissal of ballot-access and trademark claims brought by the Libertarian Party of Washington, finding that the new system gives minor candidates more access to voters rather than less.

"Libertarian Party candidates thus have an opportunity to appeal to voters at a time when election interest is near its peak, and to respond to events in the election cycle just as major party candidates do," the panel ruled. "In addition, whereas conventional systems guarantee major-party candidates a place on the general election ballot, I-872 gives minor-party candidates the same opportunity as major-party candidates to advance to the general election."

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