An easy, constitutional fix for Top Two

First Amendment rights aren’t trivialities.

Washington’s political parties have legitimate concerns about the erosion of their constitutional right of association under the state’s new Top Two primary. State leaders should be addressing those concerns.

The unusual Top Two system – which simply advances the two leading candidates to the November election, regardless of party – was upheld by the U.S. Supreme Court last year. But the decision had caveats.

The court affirmed Top Two in principle but not necessarily in practice. The parties’ grievance with Washington primaries has been twofold: Outsiders are allowed to help choose their November candidates. And candidates are allowed to pose as Democrats, Republicans or whatever, whether the parties like it or not.

That’s “forced association,” which the judiciary has found unconstitutional under the First Amendment.

The Supreme Court found that the peculiar nature of Top Two clears it of the first charge, because it merely winnows a field of candidates without purporting to nominate them. But the court left plenty of room to challenge the way the system was being run if voters were left confused about which candidates were actually endorsed by the parties they claimed.

Last week, a federal judge in Seattle re- affirmed that Washington’s Democratic, Republican and Libertarian leaders can continue challenging the way Top Two is operating on the ground. So legally, the system – enacted by initiative 2004 – isn’t out of the woods yet.

One solution would appear to be quite simple.

Top Two ballots, considered by themselves, virtually guarantee confusion. They let any candidate claim a party affiliation, as in “prefers Republican Party” or “prefers Green Party.” At the same time, the state forbids candidates from listing an actual party endorsement.

Hypothetically – very hypothetically – Dino Rossi could claim affiliation with the Democratic Party on the Top Two ballot. And – very unhypothetically – Chris Gregoire would be prevented from stating that she has her party’s official blessing. According to the ballot, her Democratic affiliation is merely a “preference.”

The counter-argument is that candidates and the party faithful can run ads, make speeches and so on to clarify things. But why should the ballot be allowed to create the confusion in the first place – and give candidates the burden of clearing it up?

The obvious fix: Give voters some clue, on the ballot, that a particular candidate doesn’t merely “prefer” a party but has in fact been endorsed by that party, through its convention process or however else it chooses.

Maybe that’s too easy and simple. The Legislature hasn’t considered it or any other remedy. But the lawmakers and other state officials who tremble at the thought of adjusting Top Two ought to be doing more trembling over an erosion of the First Amendment.