Court Approves Washington State System of Limiting November Ballot Access to Two Candidates

Sunday, January 22, 2012
Washington State’s open-primary law has withstood a key legal challenge in federal court, giving hope to reformers opposed to the two-party system that has dominated elections.
Approved by voters in 2004, it immediately came under legal attack by the state's Republican, Democratic and Libertarian parties. The parties sued on grounds that the open primary limited their constitutional right of association by taking away their power to choose their candidates.
Under the new system, the top two vote-getters in a primary advance to the general election, regardless of party affiliation. For instance, if two Republicans receive the most votes in a primary, both wind up on the general election ballot.
The legal challenge reached the Ninth Circuit Court of Appeals, which ruled unanimously in favor of keeping the law in place.
The Libertarian Party also argued that the law discriminated against smaller parties, but the court said the opposite was true because “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.”
The decision bodes well for California's "top two" primary format, which took effect last year. The California law is also being challenged by that state's Democratic and Republican parties.
Richard Hasen, professor of election law at UC Irvine, told the Los Angeles Times that the ruling on the Washington case makes it "extremely likely" that the California primary system also will be deemed constitutional.
-Noel Brinkerhoff
Washington Ballot Plan Gets Approval of the 9th (by Tim Hull, Courthouse News Service)

Washington State Republican Party v. Washington State Grange (Ninth Circuit Court of Appeals) (pdf) 


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