Democrats, Republicans and Libertarians share a gripe about Washington’s top two primary: The system lets a candidate claim the party label even if the party itself has endorsed his opponent.

In constitutional terms, this is “forced association.” It’s a no-no. Big time.

Does Washington’s primary do this?

The law tries to evade the problem by not letting a candidate simply put “Republican” or “Democrat” behind his name on the ballot. Instead, he or she “prefers Republican Party” or “prefers Democratic Party.”

In the latest challenge to the law, the Democratic Party cites evidence that the “prefers” business doesn’t clarify anything.

Washington ballots carry a disclaimer informing voters that a candidate preferring a party isn’t the same thing as a party preferring a candidate. If everybody got this, there’d be no constitutional problem.

But there’s no reason to assume every voter does get it. If every voter were that educated, you wouldn’t get people like Dale Washam or Michael Hecht elected to important positions.

The Democrats’ new petition to the Supreme Court recounts experiments by Mathew Manweller, a political scientist at Central Washington University.

Testing active voters’ reaction to ballot replicas – complete with disclaimers – Manweller found that 35 percent of them perceived that the candidates who “preferred” a party were actual nominees of the party.
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This editorial will appear in Sunday’s print edition.

The Democratic and Libertarian parties are taking another hard legal swing – maybe their last – at the state’s top two primary. We hope it connects.

The primary, which has nuked Washington’s smaller parties, has been upheld in principle by the U.S. Supreme Court. The remaining quarrel is over whether it violates the First Amendment right of association as it is being applied in Washington state.

Top two is popular largely because it successfully counterfeits the state’s cherished blanket primary, which was killed by federal courts a decade ago. The old primary allowed voters to pick any candidate from any party up in any contest.

Party leaders couldn’t leave well enough alone. They argued – correctly – that the system allowed Democrats to choose Republican candidates and vice versa, forcing them to accept nominees their political opponents may have helped select.

It was a slam-dunk Bill of Rights argument. But their victory in the Supreme Court led voters to adopt the top two system, a supposed replica of the blanket primary. Under top two, citizens can still vote for anyone in the state primary regardless of party. The top two candidates – only the top two – move on to the general election in November.

The high court says this passes muster, and who are we to argue? But the fact that a law is constitutional – or popular – doesn’t make it a good law.
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California voters will decide in June whether to adopt an open primary election similar to the one Washington has used since 2008. Secretary of State Sam Reed took some time before preparing to jet to Washington, D.C., this week for the Supreme Court’s hearing on Referendum 71 petitions to pen this San Francisco Chronicle op-ed encouraging California to give Top Two a go:

A nonpartisan winnowing primary gives maximum independence of thought and choice, and lets all voters know that their voice is important. This method really fits our political heritage in the West and honors our proud tradition

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