The Resurrection of the "Top Two"

The U. S. Supreme Court has issued a ruling on an election system that is nearly identical to one that Mississippians have clamored for, off and on, since the 1960s.

Nonpartisan elections are popularly called "open primaries" in Mississippi and Louisiana. In this system, there are no party primaries, and all candidates run in the same election, with the top two vote-getters, regardless of party, advancing to the runoff. I have proposed a plan for giving Mississippi voters greater choice by eliminating party primaries in our local elections.

I have also written about the efforts, between 1966 and 1979, to impose nonpartisan state and local elections in Mississippi, and about Louisiana having had such elections since 1975.

The Monster From Puget Sound

Since 2001, I have followed with fascination the controversy surrounding Washington state's election process. Starting in 1935, the state used a blanket primary: all candidates of all parties were listed on a single ballot, with the top vote-getter from each party proceeding to the general election. Thus, as in the Louisiana system, the voter could, in the first round, cross party lines from office to office. In early 2004, the federal courts put the final nail in the coffin of the blanket primary, and later that year, Washington began using a system of separate party primaries. In November 2004, however, Initiative 872, which provided for a Louisiana-style "top two" system, was on the ballot and passed with nearly 60 percent of the vote.

The "top two" has not been implemented in Washington, since, in 2005, the state's Republican, Democratic, and Libertarian parties brought suit against it in federal court. The U. S. District Court ruled against it, as the Ninth U. S. Circuit Court of Appeals also did. At that point, most observers wrote the "top two" off and basically forgot about it (as my friend Richard Winger, publisher of Ballot Access News, can attest, I was one of the few who predicted that the U. S. Supreme Court would agree to hear the state's appeal of the case. Most people were surprised when the high court did indeed say that it would review the case).

The "top two" system is used to elect most judges, many county officials, and the big majority of municipal officials in the United States. While it's a good idea for those offices, it is, in my view, a terrible concept for state and congressional elections. This is underscored by the fact that only one state-- Louisiana-- has heretofore used the "top two" for all of those elections[1] (and the Bayou State has this year restored party primaries for its congressional elections). Nevertheless, bad ideas are not always unconstitutional, and I predicted that Washington would ultimately have some version of the "top two." My confidence was somewhat shaken, though, by the attitudes displayed by several of the justices during oral argument of the case on October 1, 2007.

The Supremes Breathe New Life Into The "Top Two"

On March 18, 2008, in a 7-2 vote, the Supreme Court reversed the two lower courts and said the "top two" is constitutional on its face. Justice Clarence Thomas wrote the majority opinion, with Chief Justice John Roberts concurring, while Justices Antonin Scalia and Anthony Kennedy dissented. The question was whether allowing candidates to put their party preferences on the "top two" ballot without the parties' consent was constitutional (Washington, unlike Louisiana, does not register voters by party).

It seems certain that there will be further litigation vis-a-vis the "top two," as the justices left the door open for an "as-applied" challenge to the system after it has been used once. Also, footnote 11 of the opinion lists several possible grounds for challenge.

Moreover, the Washington "top two," as I see it, is clearly unconstitutional for congressional elections. In 1872, Congress set the first Tuesday after the first Monday in November of even-numbered years as federal election day. Through a series of rulings, the Supreme Court has established that any congressional candidate who has shown a five percent "modicum of support"-- and who has not sabotaged his own party-- must be listed on the November ballot. The Washington "top two," however, has set a 30 percent "modicum of support" for a candidate to be on the November ballot (30 percent is the average vote of the second-place finishers in Washington's state and congressional primaries, 1992-2001).

The first round of the "top two" is scheduled for August 19, with the second round, of course, on November 4 (the main difference between the Washington and Louisiana systems is that there is always a second round in the Evergreen State, whereas Louisiana only has a runoff if no candidate gets 50-plus percent in the first round). UPDATE (5/30/08): At the behest of the state party, Washington's county Democratic leaders have nominated candidates. These candidates will have the party's backing, but other Democratic candidates may compete against them in the August 19 election. In at least one instance, two Democrats have been endorsed for the same office. The Republicans have made nominations optional for their county leaders.

Thinking of the probable future litigation[2], I am reminded of the last words of Stephen Boyd's character in the movie Ben-Hur: "It goes on... it goes on, Judah. The race is not over."

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[1] Proposals for a system like the "top two" were rejected by California voters in 1915 and 2004. North Dakota voters defeated a similar measure in 1921. Five times between 1966 and 1979, the Mississippi legislature passed such a measure, but the system was blocked each time from taking effect.

[2] UPDATE (3/30/2008): The Washington Republican Party has already taken new legal action to invalidate the "top two."