Lost in all the news coverage and self-righteous editorializing over the most recent misstep in Washington’s drunken stagger toward a “top two” primary, is what could amount to the most monumental legal fuck up in state history… one which puts the legitimacy of our entire 2008 election in jeopardy.
Sure, Secretary of State Sam Reed deserves some of the blame for rushing to implement top two while a permanent injunction was still in place, but ultimately it is Attorney General Rob McKenna’s responsibility for signing off on Reed’s overeagerness without having first dotted and crossed all the legal i’s and t’s in the wake of the US Supreme Court’s recent decision.
“The Supreme Court order speaks for itself,” [Deputy Solicitor General James] Pharris said. “It would just be a technicality to go back and have that order dissolved now.”
No, the Supreme Court order does not speak for itself — under federal rules a “permanent” injunction remains in place until it is dissolved, and until that time, conducting a top two primary remains a violation of a valid court order. And if Pharris and McKenna were doing their jobs (competently) there would be no need to “go back” and address a so-called “technicality” just one month before the primary.
See, this is what you get when you elect an Attorney General who has never really been a practicing attorney. To date, McKenna and his office have never asked Judge Zilly to modify, dissolve or remove his injunction; they either plum forgot there even was an injunction, or simply do not know how court orders work. (HINT: They are orders, and as such one must comply with them until the court or a higher court says differently.)
For the AG’s office to dismiss a standing court order as “a technicality” is downright laughable coming from practitioners of a profession built entirely on technicalities. That’s what our legal system is: codified technicalities. Hell, rapists sometimes get off on technicalities, and this technicality has the potential to screw every voter in the state.
And how screwed could the state be? HA regular Richard Pope has outlined a pretty devastating worst case scenario in a letter to the Secretary of State’s office… devastating, that is, if you are a minor party candidate like Dino Rossi, seeking a prominent (or any) spot on the November ballot. Dismiss it as hyperbole if you want, but there are hundreds of races on the ballot throughout the state, and should the top two primary proceed in violation of a standing court order, Pope’s analysis would provide a legal basis for discontented voters to contest every single one of them. That’s the sort of electoral chaos to which McKenna and Reed’s monumental fuckup could potentially lead.
I wouldn’t be surprised, given what’s at stake, if Judge Zilly expedites these matters ahead of our August primary, but that doesn’t excuse McKenna for failing to do his job in a timely and professional manner. Our state’s editorialists miss the mark by attacking the parties and their attorneys for the precarious legal limbo in which we now find ourselves, when it is in fact their beloved media darling, Rob McKenna, who is to blame for an egregious error that is nothing short of legal malpractice.