If the U.S. Supreme Court gave Washington state one piece of advice on how to implement the “top two” primary, it was this: Don’t do anything to make voters think candidates are endorsed by any political parties if they’re not.
In a surprising 7-2 ruling last month, the nation’s top court upheld Initiative 872. That cleared the way for a new primary that no longer nominates a candidate from each party but instead advances the two candidates with the most votes.
Because it’s a winnowing process and not a party primary, “top two” could be constitutional, the court said.
However, the court warned that if the state screws up and implements a system that confuses or fools voters into thinking that a nonendorsed candidate is nominated by the party, then the parties would be welcomed back into court for another constitutional challenge.
That was the backdrop for the release last week of proposed rules for the first “top two” primary, on Aug. 19. Both the ballot and the voters pamphlet will have language that says the candidates listed aren’t necessarily the choices of the party organizations.
The ballots will now say the candidates “prefer” a given party or that they have no party preference.
The parties are free to endorse and even nominate. But that information will not appear on the ballot (although candidates are free to reveal that to voters in their own voters pamphlet statements).
So far, so good, at least as far as the court decision is concerned. But things get strange in how the proposed rules allow candidates to state their preferences. On the declaration of candidacy form are 16 blank spaces between the words “Prefers and “Party.” The candidates use those spaces to describe their party preferences.
According to assistant director of elections Katie Blinn, Secretary of State Sam Reed thinks most candidates will take a traditional path and write in Republican, Democrat, Libertarian or Green. Some might be more descriptive but still honest with phrases like “Liberal Democrat” or “Fiscal Conserv.”
“Will there be some goofiness?” Blinn asked. “Yes, but there always has been.” Goofiness as in coming up with a fanciful name for a party such as the one Spokane newspaper reporter Rich Roesler suggested: “Prefers A Good Budweiser Party.”
Blinn thinks there’s nothing like having to spend a lot of money to file for office to sober up the silly candidate. To file for governor, for example, costs 1 percent of the salary for the office, or $1,636.18. Even a candidate for the Legislature has to pay $412.
But it’s not the goofy candidate that should worry the state and its lawyers – it’s the mischievous one.
Imagine if a nonendorsed candidate uses his 16 letters to say something like “Endorsed Dem” or “Nominated GOP” or “Official Libert.”
And since the state doesn’t edit the voters pamphlet, and the state Supreme Court has tossed out laws punishing lying by candidates, what’s to stop candidates from writing in the pamphlet that they’re the official candidates of a party even when they’re not?
Blinn said it would be up to the parties to prevent that by taking the secretary of state to Superior Court. But the parties would most likely return to federal court, which still holds jurisdiction over the original case.
Or they might just let it go and use it in a post-election challenge to the initiative as evidence that the “top two” system is in fact confusing to voters and allowed candidates to co-opt the name of the party.
Clearly the Legislature needs to clean up the election statutes to make the initiative work more cleanly and to protect it against more party lawsuits. But in the meantime there’s no reason why the secretary of state can’t at least prevent candidates from using the ballot or the pamphlet to deceive voters.
Peter Callaghan: 253-597-8657
peter.callaghan@thenewstribune.com
blogs.thenewstribune.com/politics
