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U.S. Supreme Court reinstates Washington's Top-Two Primary

The U.S. Supreme Court yesterday, Tuesday, upheld Washington's open, Top-Two Primary in a 7-2 decision.

The decision follows years of court battles over the primary and the rights of voters to choose any candidate on the ballot.

In a Top-Two Primary, voters do not have to declare any party affiliation, and can vote for any candidate, regardless of the candidate's political party preference. In yesterday's decision, the Court rejected claims by the Republican and Democratic parties that the top-two is unconstitutional.

"We took the people's case to the nation's highest court and the people won," said Washington Secretary of State Sam Reed. "This is a victory for the voters of Washington because our democracy belongs to them."

In the decision, Justice Clarence Thomas wrote that overturning the Top-Two would be an "extraordinary and precipitous nullification of the will of the people."

On behalf of Reed and the state, Washington Attorney General Rob McKenna argued for the U.S. Supreme Court to reverse a Ninth Circuit Court of Appeal decision that struck down the Top-Two system. The case was McKenna's second before the U.S. Supreme Court- and his second victory.

"Washington voters have a long tradition of independent voting," McKenna said. "They told us they wanted the freedom to vote for the candidate of their choice regardless of party, and the U.S. Supreme Court agreed with them."

The State has been prevented from using the Top-Two Primary since shortly after it was enacted. In 2004, the Top-Two Primary passed overwhelmingly as Initiative 872. Since then, Washington has conducted a pick-a-party primary, which requires voters to affiliate with one of the major political parties and limit their selections to that party's slate of candidates.

The Court concluded that the Top-Two Primary is not a nominating process, is not intended to pick each party's nominee for the general election. Rather, the purpose of a Top-Two Primary is to reduce the number of candidates to two, allowing voters to select the two most popular candidates to advance to the general election. The two candidates with the greatest support advance regardless of party preference and regardless of whether they are a party's nominee or preferred candidate.

Among other things, the case focused on the ownership of the party designations "Republican" and "Democrat".

Justices considered whether the candidates have the right to decide which political party they prefer, or if that decision should be left to party leaders. In essence, the court concluded political parties cannot prohibit candidates from expressing their own political leanings.

The decision left Republicans and Democrats in the rare situation of actually agreeing. Noting the state's east-west political divide, the parties expressed concern that in some parts of the state only Democrats might appear on the ballot and in other areas only Republicans.

Washington will begin running a Top-Two Primary in August 2008.

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