WASHINGTON — Washington state's "top-two" primary was upheld 7-2 by the Supreme Court on Tuesday, but the justices seemed to leave the door ajar for additional legal challenges.
Writing for the majority, Justice Clarence Thomas noted that the state's primary system had been overwhelmingly approved by voters. Overturning it would be an "extraordinary and precipitous nullification of the will of the people," he wrote.
In his dissent, Justice Antonin Scalia argued the only state interest behind the primary system was the "Washington Legislature's dislike for bright-colored partisanship."
Scalia and Thomas are rarely on opposite sides in a decision, but they had sharply different views in the Washington state primary case. Justice Anthony Kennedy joined Scalia in the dissent.
Both Thomas and Scalia said the final test of whether the top-two primary system passes constitutional muster would be when the state designs a ballot. Thomas was hopeful a proper ballot could be designed; Scalia appeared skeptical.
Despite being approved with 60 percent of the vote in 2004 as Initiative 872, the system has never been implemented.
Under the primary system, the two top vote-getters will appear on the general election ballot even if they're from the same party.
The top-two system will be in place for the state's August primary, and state officials said they were confident they could design a ballot that would survive any new court challenge by the Democratic and Republican parties.
"I think our attorneys have a pretty good understanding, so we can put it together without violating the parties' rights," said Washington Secretary of State Sam Reed.
State party leaders said they were disappointed by a ruling that would make elections in Washington "more complicated" and leave voters wondering who was the Republican candidate and who was the Democratic one.
"The state must make clear on the ballot which candidate is nominated by the Democratic and Republican parties," said Dwight Pelz, state Democratic Party chairman. "Until we see how the ballot is designed, we will not be able to conclusively gauge our response to today's court ruling."
For nearly 70 years, Washington state had a blanket primary system, which was similar to the top-two system by allowing voters to pick their candidates regardless of party. The top Democrat, top Republican and third-party candidates advanced to the general election. But the top-two system allows only the two candidates who receive the most votes to advance, even if they are from the same party.
The initiative was challenged by the state Democratic and Republican parties, who alleged it was unconstitutional, in part because it allowed candidates to list their preference on the ballot without any input from the parties.
Both a U.S. District Court and the 9th U.S. Circuit Court of Appeals ruled the top-two primary system was unconstitutional, violating the rights of the parties to nominate their own candidates and forcing parties to associate with candidates they didn't support.
The Supreme Court disagreed.
Thomas noted that because the primary system had never been implemented, there was no way to tell how party preference would be indicated on the ballot. But Thomas added it would "not be difficult to conceive" of a ballot that addressed potential legal issues by including such things as prominent disclaimers explaining a candidate had not received an official party endorsement.
Scalia wrote that while the high court's majority had endorsed a "wait and see approach" when it came to how the primary system would be implemented, he believed it was clearly unconstitutional and there was "no good reason to wait until Washington has undermined its political parties to declare that it is forbidden to do so."