Washington Top Two Primaries, Initiative 872 (2004)
in Washington State
|Initiatives to the People|
|Initiatives to the Legislature|
|Statutes referred by Legislature|
|Political topics on the ballot|
|Laws • History|
I-872 changed the way that partisan primary and general elections in Washington are conducted. It replaced the system of separate primaries for each party with a system in which all candidates for each partisan office appear together on the primary ballot. Candidates are permitted to express a party preference or declare themselves independents, and their preference or status appears on the ballot.
The primary ballot includes all candidates filing for the office, including major party and minor party candidates and independents. Voters are permitted to vote for any candidate for any office, and are not limited to a single party.
The general election ballot is limited to the two candidates who received the most votes for each office in the primary, regardless of whether these two candidates are or the same or different parties.
|Initiative 872, "Top Two" Primary|
Official ballot question
The question that appeared on the ballot was:
- Initiative Measure No. 872 concerns elections for partisan offices.
- This measure would allow voters to select among all candidates in a primary. Ballots would indicate candidates’ party preference. The two candidates receiving most votes advance to the general election, regardless of party.
- Should this measure be enacted into law?
Estimated fiscal impact
The estimated fiscal impact of I-872 as estimated by the Washington Office of Financial Management was:
- "Initiative 872 would authorize a primary election allowing the two candidates with the most votes to advance to the general election, regardless of political party, starting with the primary election in September 2005. Annual costs for this primary election system could be as much as $6.0 million lower for the state and counties compared to current law. The lower cost of the primary election system is due to ballot size, the number of ballots, and associated processing procedures. One time costs for public education and voter notification of changes in the primary election system may cost the state $1.3 million."
In the wake of the affirmative vote on I-872, a lawsuit was filed by most of Washington State's political parties against the new law. The lawsuit was filed in 2005 in federal court. It worked its was up to the U.S. Supreme Court, where in March 2008, the Supreme Court upheld the law.
Supreme Court ruling
In 2008, the U.S. Supreme Court ruled that the "top-two" system does not appear to violate freedom of association for political parties but left open the possibility that it might be a violation in practice.
A hearing on the amended complaints will be heard by the federal court in Seattle, Washington, in November 2010.
The 2010 legal action is in response to what the country's highest court said in their 2008 ruling on the question of whether or not voters are confused about the party affiliations of the names they see on their November general election ballots. The plaintiffs said in their original 2005 lawsuit that voters will be confused about this. In their 2008 ruling, the court said that this concern about voter confusion is "sheer speculation." The reason the court said this is that at the time the original lawsuit was filed and then heard, there was no empirical evidence available about what voters, in fact, believe about the partisan affilations of the names on general election ballots because no such votes under the "Top Two" system had taken place.
In 2010, with empirical evidence now available to help the courts discover what voters do, in fact, believe about the partisan affiliations of the names they see on November general election ballots, the plaintiffs have gone back to the federal courts with this new evidence which they claim proves their earlier assertion about what voters believe.
After I-872 passed, Washington's three largest political parties -- Democrats, Republicans and Libertarians -- filed a federal lawsuit seeking to have I-872 declared unconstitutional. The political parties prevailed in their trial. The State of Washington filed an appeal to the Ninth Circuit. The Ninth Circuit agreed with the trial court and the political parties. The State of Washington then appealed to the Supreme Court of the United States and the country's highest court overturned the lower courts and declared that I-872 and the "Top Two" primary system is constitutional.
The Ninth Circuit, when it ruled in favor of the political parties, ordered the State of Washington to pay them for the legal fees they had incurred to bring the lawsuit: $55,097 for the GOP, $37,673 for the Democrats and $16,301 for the Libertarians. When the Supreme Court overturned the lower court's ruling, it also ordered that the political parties repay the State of Washington for those costs. In January 2010, a federal district judge ordered that the GOP and Libertarian Parties proceed forthwith to repay their part of the bill; the Democratic Party had already done so.
Key supporters of I-872 included:
- Terry Hunt, president of the Washington State Grange
- State senator Bill Finkbeiner
- State representative Brian Hatfield
- Secretary of State Sam Reed
- John Stanton, Chair and CEO of Western Wireless
- State senator Darlene Fairley.
About $725,000 was raised and spent on the campaign in favor of I-872.
Top donors included:
- Washington State Grange: $678,510
- John Stanton, $10,000
Arguments in favor
Arguments made by those who were in favor of passing I-872 as included in the official voter's pamphlet were:
- "Vote for the person, not for the party".
- Last year the state party bosses won their lawsuit against the blanket primary, and in 2004 they convinced the Governor to veto legislation allowing voters to continue to vote for any candidate in the primary. Most of us believe this freedom to select any candidate in the primary is a basic right. Don’t be forced to choose from only one party’s slate of candidates in the primary. Vote Yes on I-872.
- "More competitive primaries and general elections"
- Under I-872, the two candidates with the most votes in the primary win and go on to the general election ballot. No political party is guaranteed a spot on the general election ballot. Parties will have to recruit candidates with broad public support and run campaigns that appeal to all the voters. That’s fair – and that’s right.
- "Protect privacy and increase participation"
- Under I-872, you will never have to declare party or register by party in order to vote in the primary. In the primaries in 2000, the turnout in Washington was more than twice as high as in states with party primaries – because voters in this state could support any candidate on the primary ballot. Vote Yes on I-872.
- "Return control of the primary to the voters"
- The September primary this year gave the state party bosses more control over who appears on our general election ballot at the expense of the average voter. I-872 will restore the kind of choice in the primary that voters enjoyed for seventy years with the blanket primary. Protect Washington’s tradition as a state that elects people over party labels. Vote Yes on I-872.
- "Rebuttal of argument against"
- I-872 gives voters more choices in the primary and better choices in the general. All the voters will decide who is on the November ballot. Whether it’s one Republican and one Democrat, one major and one minor party, or even an Independent — they will be the candidates the voters want the most. The primary and general election should be decided by voters, not by exclusive party organizations that might be dominated by special interests!
Key opponents of I-872 included:
- Judy Golbert, Chair, President of Washington League of Women Voters
- Gary Locke, a former Governor of Washington
- Ken Eikenberry, a former Washington Attorney General
- Jocelyn Langlois, acting chair of the Libertarian Party of Washington
- Jody Grage Haug, Membership Chair of the Green Party of Washington
- Joan Thomas, past President of the Seattle League of Women Voters
Arguments made by those who were opposed to I-872 as included in the official voter's pamphlet were:
- "I-872 reduces your election choices."
- Vote No on I-872! Don’t be fooled. I-872 creates a Louisiana-style primary that would sharply reduce your choices in general elections. Over a third of the statewide and congressional candidates who appeared on the general election ballot in 2000 would have been eliminated in the primary if I-872 had been the law.
- Third Parties and Independents Eliminated: If I-872 is passed, third parties, minor parties and even independents will be eliminated from the general election ballot, leaving (in most cases) one Republican and one Democrat. In November 2000, 180,000 voters who voted for third party candidates in the general election would never have had that choice if I-872 had been the law. Insulating the top two political parties from competition is a bad idea.
- Single-Party Elections Will Result: Under I-872 many voters will not be able to vote for a candidate that represents their philosophy because the two top vote-getters in a race may be of the same party resulting in only one party being represented on the November ballot. In one-third of the races for Governor in the last twenty-five years, I-872 would have resulted in two general election gubernatorial candidates from the same party. In fact, the voters’ ultimate choice for Governor in 1980, John Spellman, would never have appeared on the November ballot.
- We urge you to preserve Washington’s independent, multi-partisan election system by voting No on I-872.
- "Rebuttal of argument for"
- The League of Women Voters and many others believe I-872 is bad for Washington. I-872 does not “restore the kind of choice” voters had in the past. It reduces everybody’s choice in the general election.
- It decreases general election ballot diversity by eliminating third party candidates and independents. Some November ballots may have choices from only one party for an office.
- Support good government and general election choices. Vote No on I-872. 
The campaign in opposition to I-872 spent about $55,000.
Most of the donors were Democratic and Republican party committees, including the state committees of each party. The largest single donor in opposition was the Democratic Party of Washington State, which gave $33,900 to the effort to defeat 872.
- 2004 Online Voters' Guide: Measures
- 2004 Washington Ballot Measures Details
- List of all 2004 Initiatives to the People
- Election results for the 2004 ballot measure election
- ↑ Seattle Post-Intelligencer,"State's 'top 2' primary in limbo again after court ruling," August 20, 2009
- ↑ Ballot Access News,"Washington “Top-Two” Will Have Trial in U.S. District Court," August 21, 2009
- ↑ Ballot Access News,"Washington State Major Parties File Amended Complaint in Case Against “Top-Two Open Primary”," January 22, 2010
- ↑ 4.0 4.1 San Francisco Chronicle, "Parties weigh longshot challenges to Proposition 14", June 28, 2010
- ↑ 5.0 5.1 "Seattle Times" Judge orders GOP, Libertarians to repay state $70K, January 6, 2010
- ↑ Donations to "Yes on I-872"
- ↑ Washing Secretary of State - Arguments For, and Against
- ↑ Washing Secretary of State - Arguments For, and Against
- ↑ "Donors to No on 872