Thursday the WA state GOP filed a lawsuit in federal District Court seeking to throw out Initiative 872’s “top-two” primary. Both the Democratic and Libertarian parties quickly filed motions to join the suit, establishing this as one of those rare bipartisan issues.
Personally, I hope the parties succeed. As I’ve previously stated, I always thought the old blanket primary sucked, but the Louisiana-style top-two primary is even suckier. The purpose of a primary is for the parties to choose their own nominees, and our state’s penchant for nonpartisan elections is downright delusional.
But as the parties pursue their legal strategies, I thought it might be interesting to point out a curious and little-known quirk about I-872: it didn’t actually, technically, get rid of the Montana style ballot. Take a look at the post-872 RCW:
RCW 29A.36.104
Partisan primary ballots–Formats.Partisan primaries must be conducted using either:
(1) A consolidated ballot format that includes a major political party identification check-off box that allows a voter to select from a list of the major political parties the major political party with which the voter chooses to affiliate. The consolidated ballot must include all partisan races, nonpartisan races, and ballot measures to be voted on at that primary; or
(2) A physically separate ballot format that includes both party ballots and a nonpartisan ballot. A party ballot must be specific to a particular major political party and may include only the partisan offices to be voted on at that primary and the names of candidates for those partisan offices who designated that same major political party in their declarations of candidacy. The nonpartisan ballot must include all nonpartisan races and ballot measures to be voted on at that primary.
[2004 c 271
You’re right on, as usual. I’ll say it again: the top two primary is garbage. And once again, the flaws of the initiative process are revealed.
This is one GOP lawsuit I can support. “Top-two” is a stupid idea. How can you have a debate on public issues when only one party is on the ballot? This is something that should concern everyone regardless of party. Do we really want the GOP excluded from the ballot in Seattle legislative districts? That’s just as bad for our state and community as having no Democrats on the ballot in Eastern Washington districts. This will only further polarize our state. Stupid, stupid, stupid.
Goldy, nice try, but I think it falls a little bit short of the mark. Initiative 872 was adopted in November 2004, while the Montana primary law was adopted in April 2004. To the extent that the provisions are inconsistent, later adopted laws take precedence over earlier adopted laws.
Initiative 872 clearly states that a voter may vote for the candidate of their choice in the primary (without regard to party preference), that all candidates who file will be placed on the primary ballot, and that the top two vote getters will advance to the general election. To the extent that other sections of the RCW are inconsistent with those adopted or amended by Initiative 872, then Initiative 872 will take precedence.
It is true that the Montana primary provides for separate primary ballots, but this conflicts with I-872 allowing everyone to vote for whoever they please in the primary. Montana primary says the top vote getter from each party advances to the general, but I-872 says that only two advance, and regardless of party.
If the Dems and GOP “win” their election lawsuit, then I would propose the following solution to the problem, using what exists of current RCW sections:
1. Have an open primary ballot that any voter may vote — which lists all candidates for office — Dems, GOP, minor party, independent. If a voter chooses this ballot, they may vote for anyone in any race, regardless of party affiliation.
2. Have a Dem primary ballot that voters may choose if they want, which lists only the Dem candidataes. If a voter chooses this ballot, they may only vote for the Dem candidates in partisan races.
3. Have a GOP primary ballot that voters may choose if they want, which lists only the GOP candidataes. If a voter chooses this ballot, they may only vote for the GOP candidates in partisan races.
4. Since the Dems and GOP oppose the open primary concept, any votes cast for Dem or GOP candidates on the open primary ballot do not count in determining that candidate’s vote in the primary. Only votes cast on the respective Dem or GOP primary ballot will count to determine whether the Dem or GOP candidate is in the top two overall.
This will severely disadvantage Dem and GOP candidates for their parties’ disapproval of the open primary concept, by making it very difficult for Dem or GOP candidates to ever finish in the top two. However, it is not impossible, since the Dems and GOP could always try to convince enough people to take their primary ballots so that their candidates would finish in the top two.
At the same time, this will give a tremendous boost to independent and minor party candidates who are willing to accept the open primary ballot. Their candidates will frequently be in the top two — usually to the exclusion of Dem and GOP candidates. The major parties opposed the top two primary, allegedly because it would keep minor parties out of the general. But with this interpretation, minor parties and independents will be far stronger than they ever were in the past.
Richard, I understand your legal argument… it is the same one the Sec. of State is taking, and as far as I know, the parties are not suing on this particular issue.
But my main point (apart from the fact that top-two sucks) is that this is a stupid way to legislate, and that the Grange was pretty arrogant and irresponsible in not refiling their initiative after the Legislature’s changes.
SPEAKING of messages, can we please lose the f-bombs?? I’ts hard to take you seriously
Goldy @ 4
The Grange cannot be called arrogant and irresponsible.
First, even if they could instantly redraft the initiative and file it with the Secretary of State (more on that below), it would have delayed matters by over a month — when they had a July 2, 2004 deadline to file sufficient signatures.
Keep in mind that Gary Locke waited until April 1, 2004 — two days before the deadline of April 3, 2004 (20 days after session adjournment, excluding Sundays) to partially sign and partially veto the primary election bill. Locke wanted to minimize the time in which a referendum challenge to the bill could be mounted.
I will use the current references to Chapter 29A.72 on initiatives and referenda — the RCW numbers were quite different before July 1, 2004 when the state election laws were reorganized (and sometimes slightly changed) in a housekeeping law not related to the primary election Montana bill.
RCW 29A.72.020 allows the Code Reviser seven business days to review (or screw around with) a proposed referendum before the SOS has to proceed further with it. This can be as much as 11 calendar days if two weekends fall within the seven business days — sometimes even longer if there are also legal holidays. Given the complexity of the Montana primary bill, the Code Reviser would have probably taken the full seven business days.
RCW 29A.72.060 gives the Attorney General five business days to come up with a ballot title and summary after that. This is seven calendar days — longer if legal holidays intervene. Christine Gregoire didn’t like the top two primary, and would have taken the full five days allowable.
(By contrast, Rob McKenna apparently likes the gas tax repeal initiative, and took only two business days to come up with a ballot title and summary after the Code Reviser finished screwing around with it. The Code Reviser took only four business days — but the gas tax repeal was very simple legislation.)
RCW 29A.72.080 then allows anyone to file with Thurston County Superior Court to challenge the ballot title and summary. This can be done within five business days — always at least seven calendar days, and sometimes longer if legal holidays intervene. This ballot title challenge is frequently filed by opponents for the sole purpose of delaying petition circulation and fucking with the supporters.
RCW 29A.72.080 requires the Thurston County Superior Court to decide the ballot title challenge within five business days of filing. However, that court generally hears motion calendars only on Fridays, and will often take more than five business days. There is not too much an initiative proponent can do when a judge sits on his or her ass. So figure at least seven calendar days in practice — usually the second Friday after the ballot title challenge is filed.
Only when the deadline to sue has passed without suit, or when the court has decided the ballot title challenge suit, can the initiative proponents proceed with signature gathering. Under RCW 29A.72.090, all initiative petitions must contain the ballot title and summary as finally established by this process.
So we are basically talking about a 32 calendar day delay AFTER the Grange filed a new initiative before they could have started gathering signatures. This would have taken more than one-third of the time between April 1, 2004 and July 1, 2004.
Had Locke signed the entire primary election bill (which mainly established a TOP TWO primary), then the Grange would have had not need to circulate I-872 at all. On the other hand, had the Grange wanted to draw a different initiative, they needed to wait and see what sections (if any) of the primary election bill Locke and what sections he vetoed.
Goldy @ 4
I forgot my second point. Namely, that ESB 6453 (the primary election bill) was so complicated after Gary Locke’s creative partial veto (to turn it into a Montana primary only) that it would not have been reasonably possible for the Grange to draft a new initiative without taking a few days or more to analyze what remained of the bill.
For example, ESB 6453 (as signed by Gary Locke) “repealed” 73 existing sections of the RCW in Section 193. However, nearly all of these 73 “repealed” RCW sections were re-enacted, sometimes with identical language or with minor changes in Sections 102 to 192.
In addition, Governor Locke should have signed Section 57 of ESB 6453, but vetoed it instead. Section 57 would have repealed 11 existing RCW section (most, but not all, of which were re-enacted somewhere in Sections 102 to 192. While Section 57 was part of the top two primary portion, its repeals were necessary for the RCW to be consistent, even with the enactment of the Montana primary.
For example, Section 57(10) would have repealed RCW 29A.52.130, an important part of the old blanket primary law which is STILL on the books. RCW 29A.52.130 (which is STILL in the RCW code) says:
RCW 29A.52.130 Blanket primary authorized.
Except as provided otherwise in chapter 29A.56 RCW, all properly registered voters may vote for their choice at any primary held under this title, for any candidate for each office, regardless of political affiliation and without a declaration of political faith or adherence on the part of the voter.
When applied to a partisan nominating primary (i.e. to select nominees of each party), RCW 29A.52.130 has been determined to be unconstitutional. A different result should apply to a top two primary system — where the only constitutional challenge with any merit is whether parties may restrict use of their party name by candidates.
Incidentally, while Gary Locke was stupid enough to leave RCW 29A.52.130 on the books (after spending over $100,000 on private counsel to advise and represent him on primary election matters — a law firm that Gregoire hired to advise Locke and whose members contributed heavily to all of her various political campaigns), this inconsistency was resolved by the Secretary of State in favor of the Montana primary provisions enacted by ESB 6453. While RCW 29A.52.130 was still on the books, the party ballot Montana primary later enacted by ESB 6453 was clearly inconsistent and was what the SOS enforced.
Richard Pope @ 3
I have a better solution to satisfy the political parties’ concerns, which will take advantage of the inconsistent laws now on the books, be acceptable under the First Amendment, and not be quite as ridiculous as what I proposed earlier.
Let the political parties choose one official nominee for each office, through whatever process they desire. If that person accepts the nomination, then they will be placed in the Dem or GOP section of the primary ballot (as appropriate) as the only candidate for that office in that ballot section.
All other candidates will be on the general section of the ballot. Since the official party nominees will be in a separate section of the ballot, the use of a party name by any other candidate shouldn’t pose any constitutional problems. The voters will be clearly able to distinguish who the Dems and GOP have nominated, and who they have not.
In order to vote for the official Dem or GOP nominees in the primary, a voter will have to select that party’s ballot and vote for only that party’s candidates. (The official nominees will not be listed in the general section of the ballot, so there won’t be any confusion by voters seeing their names appear twice on the ballot.)
The Dems and GOP also want to require voters to publicly affiliate with their party in order to cast their primary ballot. This desire can be accomodated — and will likely further reduce the number of people taking Dem or GOP ballots, versus the general free-for-all ballot.
The top two vote getting candidates will advance to the general election, regardless of party affiliation. If the Dems and GOP can inspire enough party loyalty to get enough voters to select the party specific ballot (and mark it for their sole official nominees for each office), then their respective official nominees can advance to the general election.
More likely, the voters will say “FUCK YOU” to the parties, and very few will choose a party specific ballot. These voters will therefore not be voting for any of the official party nominees, and it is unlikely that either party’s official nominee will advance to the general election. Instead, the top two candidates will likely be independent-minded candidates, who choose not to participate in an official nominating process.
This solution has the brilliance of reconciling seemingly contradictory and irreconcilable sections of the RCW. It also gives the political parties exactly what they are asking for and preserves their extremely precious political rights — while also satisfying the desires of the vast majority of voters for an open primary.
The Preakness is going in 10 minutes or so==
My trifecta pick==
Afleet Alex
Noble Causeway
High Fly
Regardless of the value of the proposition itself, isn’t this all parties going against the will of the people?
Interesting how the will of the people is only useful when it supports one’s views.
Mr. Cynical, are you playing the horses with your money, BIAW’s money, or taxpayers’ money? Just curious.
Afleet Alex wins.
Patrick–
You are a guv’mint worker who blogs on taxpayers time using taxpayer’s paid for computers and taxpayer’s paid internet connections in taxpayer paid office in a taxpayer paid building..and you are so worried about me???
Let’s see now….Afleet Alex was 3-1…$50 to win =$150 profit.
Lost $16 betting the trifecta
Net gain=$134 Cool!
Patrick, it’s probably money from his crack distribution ring. You can tell he personally QA tests the product before it hits the streets!
Man this is a snoozer topic. You and Shark on toast once the Gov thing is over (ok, he is still a novelty in soviet seattle)
Mother or not, you really did not want to become a lawyer. I did and after three years before the utterly corrupt King County Superior Court, I lost whatever respect I once had for the legal system. Terry Lukens, Richard McDermott, Dean Lum, Cheryl Carey – anyone who votes for these stooges is a fool.
Here’s law school: $30k a year at SU, Gonzaga, or out of state (forget about the UW), hours and hours of pointless work before a self-selected group of dilletantes who know little or nothing about the actual practice of the law, and very little sleep. It sucks, and you can learn what you need to know from a law dictionary and Nolo Press.
And nobody gets to be a judge in Washington without friends at the Washington State Bar Association, the mothership of all of the legal corruption in the entire State. What we have now cannnot reasonably be called a system of justice.
Goldy wrote “The purpose of a primary is for the parties to choose their own nominees, and our state’s penchant for nonpartisan elections is downright delusional.”
Democrats get to nominate Democrats, without assistance from those with no affiliation to the party.
The “Will of the People” argument misses the point. In most surveys around a third of the people claim D, a third claim R and a third claim something else not D or R. Choosing a party nominee is not open to the opinions of those not willing to take the party’s ballot. Parties have a free-association privilege to to nominate the candidate who best represents the party’s members.
This is likely the only subject Goldy and the Shark will aqree on, but they both understand the issue. Applause all around.
Thanks for the rational and reasoned comment, Goldy, and please understand that the F bomb will severely limit your opportunities for advancement. You are capable of better. Take a minute and look at the top 250 classic devastating insults and rejoinders, and report back how many were unrepeatable on the radio today.
“Are you glad to see me, or is that a pickle in your pocket?”
Reply to 12, I really shouldn’t dignify this crap with an answer, but to set the record straight, I am not a government (if that’s what you mean — learn to spell, idiot!) employee, I am not blogging on work time, and I am using my own computer.
I get the feeling Mr. Cynical is less than honest about some other things, too.
I agree with Terry J. The F-bomb stuff and other like stuff makes you LESS credible. Not more so. Learn it now and get ahead. Hey, we’re just trying to help!
Btw, I agree. The top-two thing is garbage. Let democrats choose their nominee and let Republicans choose theirs. Period.
I know you all don’t rise early, but where’s the fanfare for your Pravda (err Times) story this Sun am?
Comment on 20, isn’t that so like the wingos … attack the newspaper when they report unpleasant reality instead of right wing proganda. BTW I haven’t seen the Times yet today; what new outrage of the Bush administration came to light this AM?
Are you referring to the Seattle Times story today that says the Times’ analysis of felon votes USING THE GOP METHODOLOGY shows Gregoire winning by 112 votes? The Times’ story provides numbers, details, explanations.
And your response is to label the Seattle Times “Pravda.” Cute. Real cute. So very Wingo.
Today’s Seattle Times story does provide the best anecdotal evidence to date of who the felons voted for. Heretofore, our knowledge of that subject has been limited to what 8 or 9 people told reporters (all but 1 said they voted for Rossi).
Of 53 felons on the GOP list interviewed by the Times, 25 voted for Gregoire, 18 for Rossi, 1 for Bennett, 2 didn’t vote for governor, and the rest wouldn’t say.
Rossi fans should cheer this information, because it shows more felons voting for Gregoire than Rossi. (Remember, however, this comes from the GOP’s cherry-picked list.) The Times identifies and quotes some of these felon voters. Most didn’t know they couldn’t vote. I see in the Times data no evidence that ex-felons were reticent to vote for Gregoire because she was Attorney General (i.e., the state’s top law enforcement official). The Times does not provide a gender breakdown, but the felon votes for Gregoire include both men and women. In other words, the new anecdotal evidence tends to debunk some of the Democratic arguments against the GOP’s proportional analysis methodology.
But according to the Times, under that methodology, Rossi loses anyway.
I imagine Frank Blethen will be amused to find out he’s publishing a commie propaganda sheet.
Patrick@23
Damn, Patrick, how thin can your thinking be? You are actually trying to imply that an ex felon is going to tell you the truth about whom they illegally voted for? Wow you are trusting!
You can always depend on Goldy to want to ignore the will of the people.
Reply to numskull at 25, well if they all lied that means 25 voted for Rossi and 18 voted for Gregoire.
Reply to 26, until a court decides otherwise the will of the people is Gregoire 1,373,361, Rossi 1,373,232.
http://vote.wa.gov/general/recount.aspx
Comment on 18, wingos are blowing up the world and you’re worried about Goldy use the F word?
Patrick@28
Ahem, excuse me I was refering to the primary, but you obviously have a guilty concience, Patrick….
Cheesy Chuckie @ 30
Then what’s your point? Gregoire won the primary with over 70% of the votes.
Patrick@31
Perhaps you need to read more…you seem to shoot of too quickly. The article that I was refering to was as follows:
News Flash: I-872 left Montana-style ballot in place
by Goldy, 05/21/2005, 10:22 AM
Thursday the WA state GOP filed a lawsuit in federal District Court seeking to throw out Initiative 872’s “top-two” primary. Both the Democratic and Libertarian parties quickly filed motions to join the suit, establishing this as one of those rare bipartisan issues.
Personally, I hope the parties succeed. As I’ve previously stated, I always thought the old blanket primary sucked, but the Louisiana-style top-two primary is even suckier. The purpose of a primary is for the parties to choose their own nominees, and our state’s penchant for nonpartisan elections is downright delusional.
But as the parties pursue their legal strategies, I thought it might be interesting to point out a curious and little-known quirk about I-872: it didn’t actually, technically, get rid of the Montana style ballot. Take a look at the post-872 RCW:
RCW 29A.36.104
Partisan primary ballots–Formats.
Partisan primaries must be conducted using either:
(1) A consolidated ballot format that includes a major political party identification check-off box that allows a voter to select from a list of the major political parties the major political party with which the voter chooses to affiliate. The consolidated ballot must include all partisan races, nonpartisan races, and ballot measures to be voted on at that primary; or
(2) A physically separate ballot format that includes both party ballots and a nonpartisan ballot. A party ballot must be specific to a particular major political party and may include only the partisan offices to be voted on at that primary and the names of candidates for those partisan offices who designated that same major political party in their declarations of candidacy. The nonpartisan ballot must include all nonpartisan races and ballot measures to be voted on at that primary.
[2004 c 271 § 126.]
Yes, that’s right, our post-872 election statutes – as codified in the RCW – specify that our primaries must still be conducted using Montana-style partisan ballots… although now, only the top-two vote-getters, regardless of party, will proceed to the general election.
How did this happen? Well… the Grange filed the initiative before the 2004 legislative session, but didn’t start circulating the I-872 petition in earnest until afterwards. Unfortunately, during the intervening weeks, the Legislature amended the RCW in ways that the initiative authors did not anticipate. The Grange was warned about the initiative’s flaws, but chose to avoid the time and expense of rewriting the initiative’s language and printing new petitions.
So what we were left with was an initiative campaign that promised voters one thing, but initiative language that delivered something else entirely.
Surprise!
I spoke with Assistant WA Secretary of State Steve Excell, and he says that Sam Reed intends to follow the intent of the initiative – not the letter of the law – and will instruct the counties to use the top-two ballot the initiative sponsors promised, rather than the Montana-style ballot their poorly drafted language actually left in place. Excell emphatically insists that the legislative intent of I-872 includes an “implied repealer” of the Montana-style ballot, and expects defense of top-two primary, on this or any other issue, to be a “slam dunk in court.”
Hmm. With the usual caveat that I am not an attorney (much to my mother’s chagrin)… my recollection is that the Washington State Supreme Court somewhat addressed this issue in its recent ruling on I-776.
The distinction between a proposed measure’s legal substance and its policy fluff was tersely drawn in an early opinion of this court: ‘A law is a rule of action. An argument is not. . . . {A} preface or preamble stating the motives and inducement to the making of {the law} . . . . is without force in a legislative sense . . . . It is no part of the law.’ State ex rel. Berry v. Superior Court for Thurston County, 92 Wash. 16, 30-32, 159 P. 92 (1916). Just as the common inclusion of dicta in judicial opinions does not compromise the legal effect of a decision,(8) policy expressions in a bill or initiative are ‘no part of the law.’ Because I-776’s ‘rule of action’ was $30 license tabs and because its policy statements were ‘no part of the law,’(9) I-776 did not embrace two unrelated laws or enactments.
Indeed, the Sec. of State was worried enough about I-872’s problems, that he quietly pushed for legislation to fix it (SB 5745), and remove the Montana-style language from the RCW. The official Senate Bill Report addresses the issue quite bluntly.
The specific mechanics of administering such a top two primary election were not included in the language of I-872, nor did the initiative strike provisions relating to the “Montana” primary.
…
The bill harmonizes existing election laws with the provisions and intent of I-872. The bill removes the “Montana” primary from election statutes. The separate ballot requirement for each major political party is eliminated, as is the option to use a consolidated ballot. The term “primary” is redefined as a procedure for winnowing candidates for public office to a final list of two as part of a special or general election. References throughout election laws to the primary as a nominating process are changed and refer to the primary as a qualifying process.
“Slam dunk”, indeed. Ironically, because I-872 had recently changed this part of the code, amending the RCW to implement the initiative’s actual intent would have required a two-thirds vote in both houses, a requirement that virtually assures that the Montana-style ballot will remain on the books – if not used at the polls – through at least 2006.
Whatever.
Regardless of whether the “top-two” survives its legal challenges, I think this incident demonstrates once again the inherent flaws of an initiative process, where some guy sits down in his bonus room to draft a piece of legislation, without input from the public or collaboration from lawmakers, only to shove it before the electorate for an up or down vote. More often than not, we end up with really, really sucky legislation that turns the RCW into indecipherable spaghetti code, while failing to deliver on the initiative’s promises. Excell seemed to imply that the Grange could be excused for I-872’s shoddy language, because the Legislature tampered with the primary statute after the initiative was filed… but as far as I’m concerned, that’s too damned bad. If the Grange didn’t have time to file a new, properly written initiative, and collect enough signatures before the 2004 deadline, then they should have held off until 2005. After all, the initiative process is no more or less sacred than the legislative process.
Initiatives are often promoted as an opportunity to “send a message to the Legislature”… and that message is usually “fuck you”. If I-872 ends up sticking us with a Montana-style ballot, but a top-two general election – what many voters would consider to be the worst of both worlds – I hope it sends an equally strong (and equally vulgar) message back to
But as I said, you seem to have a guilty concience….Patrick.
You’re right … I have a guilty conscience. I voted for some Republicans when I was too young to know better.
Patrick@34
And what has sweet chrissy done to impress you so far?
Patrick@34
Was it the increased gas tax with no real plan?
Patrick@34
One last question for you…some years back I set up a bungee jump group off of the Carbanado bridge. One guy that was with us named Patrick whimped out and his girlfreind jumped in his place…halter top fell off and all…get the picture? Yea she was stacked! Question is…you sound like the same whimp….does a green SS Chevelle mean anything to you? Curious….