FairVote Top Two Brief (WA State)

Last fall, Washington state voters approved Initiative 872 (“I-872”), which would have instituted what is popularly known as a top-two primary system. Candidates seeking nomination to office under this system have their names placed on a single ballot with their self-declared party preference. Voters may select a single candidate of their choice for each position and the two candidates receiving the highest number of votes advance to the general election, regardless of party affiliation.

Proponents of the top-two primary system, including the Washington state Grange, argued it created a greater range of choices for voters by allowing them to freely vote for primary election candidates without limiting the choices based on their own party registration or preference. Opponents of this system and the Plaintiffs in this case alleged it violated political parties’ constitutionally protected free association rights. As a result, the state Republican, Democratic and Libertarian parties sued in May to block implementation of the system.

District Court Decision

In July of 2005, U.S. District Judge Thomas S. Zilly struck down the system as unconstitutionally burdening the First Amendment rights of political parties by allowing candidates to run on a party’s label without the party’s permission and by permitting voters to skip back and forth among parties as they pick a favorite candidate for each office. Judge Zilly found the Plaintiffs unable to demonstrate a sufficiently compelling state interest “allowing any voter, regardless of their affiliation to a party, to choose a party’s nominee" and “allowing any candidate, regardless of party affiliation or relationship to a party, to self-identify as a member of a political party and to appear on the primary and general election ballots as a candidate for that

The effect of Zilly’s ruling means the state defaults to a "Montana-style" primary system, as was used in last fall's election. Under that system, rejected by voters in the referendum on I-872, voters choose a single party’s ballot and are limited to the choices within that ballot. Washington state officials, Secretary of State Sam Reed and Attorney General Rob McKenna, joined by the Grange, appealed to the 9th U.S. Circuit Court of Appeals, which recently granted an expedited appeal of these issues. As a result, FairVote decided to file an amicus brief, in collaboration with a number of Washington state residents, to help aide the Court of Appeals in understanding the various consequences of electoral systems choices. Moreover, we sought to show the parties and the court how ranked choice systems could alleviate many of the concerns raised by the parties (such as the spoiler problem created by I-872), and achieve many of their otherwise mutually exclusive goals (ie: increased voter choice, prevention of party vote dilution, etc).

Though the parties to the case have challenged the filing of this brief, the 9th Circuit Court of Appeals has not yet decided on whether the amicus brief will be permitted. Nevertheless, we provide it here to demonstrate how a better understanding of electoral systems design can aid in the resolution of otherwise difficult conflicts.

FairVote's Amicus Brief