The "Top Two" in Washington and Oregon

"Top two" describes a nonpartisan election system, in which there are no party primaries. All candidates, including independents, are listed on a single ballot, with the top two vote-getters, regardless of party, proceeding to the runoff.

This year Washington becomes the second state-- the other is Louisiana-- to use the "top two" system. The first round in the Evergreen State is scheduled for August 19.

In addition, it now seems all but certain that a "top two" initiative will appear on the ballot in Oregon next November 4 (the popular term for this system in Oregon is "open primary," just as in Louisiana and Mississippi).

Following are excerpts from an exchange on the "top two" that I had on a blog of The News Tribune in Washington state, primarily with a commenter named jimrtex:

Steve: The U. S. Supreme Court said that the "top two" does not violate the political parties' associational rights, and that was the only question the court considered in that case. The 9th Circuit will next consider a challenge to the Washington "top two" on ballot access and trademark grounds.

California voters rejected the "top two" in 1915 and 2004, as did North Dakota voters in 1925, so it's definitely not a new concept.

Why should the voters be limited to two choices in the final, deciding election? In a system of party primaries, each party may have a nominee in the final election, and there is no limit on the number of independents who can be on the general election ballot.

Louisiana has had the good sense to restore party primaries in its congressional elections.

RegisteringFool: Apparently, too, the Ninth Circuit still believes that the injunction against the "top two" primary is still in force, because it wants more briefing on "the appeal" from the district court's ruling. "Top two" supporters should take note that there is nothing in the Supreme Court ruling to suggest the injunction should be reversed. The only thing the Supreme Court reversed was the Ninth Circuit's rationale for affirming the district court.

jimrtex: ... letting the top two candidates [have a runoff] ensures that there will be a majority in the second election - that it will be decisive. If you had more than two candidates, you would have to provide for the possibility of a 3rd election.

Steve: 29 states today register voters by party, and another 13 states publicly record each voter's choice of party on primary day. What's wrong with the parties knowing which voters nominate their candidates?

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The "top two" is used in many local and judicial elections in the U. S., so those officials are elected with 50%-plus. Georgia is the only state that has party primaries AND runoff general elections; there are potentially FOUR elections-- the primary, the runoff primary, the general election, and the runoff general election.

You obviously think that candidates getting elected with 50%-plus is more important than the voters having more than two choices in the final, deciding election. I disagree.

In the California blanket-primary case (Jones), the 9th Circuit adopted the district court's ruling as its own, and the Supreme Court reversed it in 2000. In 2003, the 9th Circuit followed the Jones precedent in striking down Washington state's blanket-primary law[1].

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Steve: [jimrtex asks] "If the first election that reduces the field to two candidates does not make party nominations, why do the parties need to know who voted for their candidates?"

You've here underscored why the parties oppose the "top two" monstrosity. The parties, to be sure, have the right to nominate/endorse candidates prior to the first round of the "top two," but those candidates are chosen by far fewer people than in a system of party primaries. Of course, it's much easier for the parties to control who participates in a convention or a caucus.

In Scalia's Jones dicta on the "nonpartisan blanket primary" ["top two"], he said that the State could require the parties to nominate candidates as the first step in the process. Obviously, that's not the way that Nebraska's nonpartisan state legislative elections work.

coovertc makes a good point in his #2. In Louisiana's 1996 U. S. Senate race, there were five or six major Republican candidates, and it appeared that they would split the vote and enable two Democrats to make the runoff (just as had happened in the 1987 governor's race). At the last minute in 1996, the Republican bigwigs got behind one candidate, who made the runoff against the Democrat Mary Landrieu.

Since 1996, there has been less competition in Louisiana's major races. Two ex-governors have "tested the waters" and decided not to run; if the Bayou State had had party primaries, they very likely WOULD have run, thus providing more choices for the voters.

In the "top two," the top two vote-getters are required to finance and conduct TWO general election campaigns, since all voters in the jurisdiction are eligible to vote for them. This makes campaigns more expensive and discourages candidates from running.

"3. Which voters are disenfranchised?"

When the two runoff candidates in the "top two" are from the same party, all other parties' faithful voters are disenfranchised. Not to mention the fact that the two runoff candidates' party is split in the final, deciding election.

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[1] In California's and Washington's blanket primaries, all candidates of all parties were listed on the same ballot, and the top vote-getter from each party advanced to the general election. Thus, the primary voter could cross party lines from office to office.