State's blanket primary upheld

Political parties failed to show their rights were violated, district judge rules

PATRICK CONDON, THE OLYMPIAN

Originally published Thursday, March 28, 2002

"The political parties' evidence that there is a burden on their

constitutional right of association is, for the most part, incompetent

and inadmissible, and at best, it is insubstantial and speculative."

-- District Court Judge Franklin Burgess

OLYMPIA -- A federal judge on Wednesday threw out a challenge to the state's blanket primary, shooting down a nearly two-year effort by the leading political parties to have it declared unconstitutional.

If District Court Judge Franklin Burgess' ruling withstands appeals, the state's 67-year-old primary will retain its independent structure, and voters will not have to align themselves with one political party in order to vote in the primary election.

Leaders of the Democratic and Republican parties led the charge against the blanket primary, arguing that its wide-open nature leaves the parties with little control over which candidates ultimately carry their party label in the general election.

In his 30-page decision, Burgess wrote that the parties didn't prove their case.

"The political parties' evidence that there is a burden on their constitutional right of association is, for the most part, incompetent and inadmissible, and at best, it is insubstantial and speculative," Burgess wrote. "The political parties have failed to carry their burden of proof."

Democratic and Republican party chairmen said an appeal to the U.S. Court of Appeals is likely.

For the defenders of the current system, though, Burgess' decision was a stunning reversal of fortune. Last year, most felt certain that the state's blanket primary was on the brink of extinction.

"This is a great day for the state of Washington," said Secretary of State Sam Reed, the chief defendant in the suit. "Elections should be controlled by the people. They should have the right and the duty to pick who their elected officials will be."

The parties' suit had been based on a U.S. Supreme Court decision in 2000 that a similar blanket primary in the state of California was unconstitutional.

"I'm surprised and disappointed," said Paul Berendt, chairman of the Democratic Party. "We thought case law was on our side."

Both Berendt and his Republican counterpart, Chris Vance, said they'd have to confer with their executive boards -- and each other -- before proceeding with an appeal. But Vance pointed out that in the California case, both district and circuit court judges upheld the blanket primary before the Supreme Court ultimately struck it down.

"The fact remains that the U.S. Supreme Court held, by a 7-2 majority, that blanket primaries are unconstitutional," Vance said.

Berendt added: "I believed, and I still believe, that we have a great case."

The state's lawyers had argued that California and Washington are different in that California had grafted a blanket primary on top of an existing party-controlled primary, where the longer-established Washington system had always been intended to give the voters ultimate control in the primary.

Attorney General Christine Gregoire, whose office led the defense, said she hopes the parties will think twice before appealing, "in light of how decisive this decision is."

If the parties do proceed, Gregoire added, "I think we're in an extremely good position to make sure that Judge Burgess' decision is upheld."

With that decision, the state's September primary will look the same as its predecessors. The only obstacle would be if the parties ask the federal appeals court to place an injunction on the blanket primary -- something Gregoire predicted would not likely be granted.

The conflict had divided the party leadership from the very elected officials who make up the party elite -- like Reed, a Republican, and Gregoire, a Democrat.

The Legislature waded into the fracas in the 2001 session, at a time when the blanket primary appeared the most endangered. Several legislative committees tried to craft a replacement that would pass constitutional muster while still giving voters some measure of independence.

One proposal that nearly passed would have allowed the parties to reject ballots from voters who did not identify themselves as a member of that party.

"That would have been a disaster," said Sen. Tim Sheldon, D-Potlatch, a supporter of the blanket primary. Sheldon, who often sides with Republicans on economic issues, is alienated from Mason County's Democratic leadership and could have seen his political career extinguished under a primary election controlled by party-line voters.

"This made my day," Sheldon said of Burgess' decision.

Those who defended the blanket primary said it has always been clear consensus that the state's independent-minded voters valued the freedom of the current system.

Reed pointed out that in California, the two primary elections conducted under the blanket system garnered record turnout; this year, with the old system back in place, Reed said, turnout there dropped by nearly 20 percentage points.

If the Washington system withstands appeals, Gregoire said she expects it could become a national model for boosting voter turnout in primary elections.

"The voters want it, and the voters are proud of it," Gregoire said. "They're the winners at the end of the day."

Patrick Condon can be reached at 360-753-1688 or at pcondon@ olympia.gannett.com.

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