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Tuesday, September 16, 2003 - Page updated at 12:00 AM

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Washington's blanket primary rejected as unconstitutional

Seattle Times staff reporter

A federal appeals court yesterday threw out Washington's unique blanket-primary election as unconstitutional, potentially leaving it up to the Legislature to craft a new voting system.

Secretary of State Sam Reed, who defended the blanket primary in court, said no decision has been made whether to appeal yesterday's ruling by a three-judge panel from the 9th Circuit Court of Appeals. But Reed, who oversees state elections, said regardless of whether there is an appeal, the Legislature should craft an alternative before the 2004 election.

Yesterday's decision could spell the end of the popular primary, which was adopted in 1935. The only one of its kind in the nation, the blanket primary allows voters to choose among all candidates on a ballot regardless of political party. For example, a voter could select a Democratic candidate for governor and a Republican candidate for Congress.

But it has long been unpopular among the state's political parties. After the U.S. Supreme Court found California's similar blanket primary unconstitutional, the state's Democratic, Republican and Libertarian parties sued to end the blanket primary here.

The three-judge panel, in overturning a lower-court ruling, unanimously agreed that the blanket-primary system violated the First Amendment rights of the political parties to free association.

The primary "... denies party adherents the opportunity to nominate their party's candidate free of the risk of being swamped by voters whose preference is for the other party," wrote Judge Andrew J. Kleinfeld of Alaska in the decision.

Democratic and Republican party leaders hailed the ruling. The parties argued the blanket primary encourages "crossover" voting as a strategy, with supporters of one candidate voting for another party's candidate in the primary.

"We're very pleased that the 9th Circuit Court issued a clear statement that the First Amendment rights of political parties have to be respected," said state Republican Party chairman Chris Vance.

Reed, whose office argued to keep the system, was disappointed. He noted that a 2001 poll showed nearly three-quarters of Washington voters disapproved of efforts to make them pick a party before they vote.

"The single most compelling reason for keeping the blanket primary is that it works in Washington, and has for 65 years," said Reed. "The voters overwhelmingly endorsed this system, and I personally believe it's a perfect fit for our state."

Yesterday's decision was the latest step in a lengthy court battle. Last year, in upholding the blanket primary, U.S. District Court Judge Franklin Burgess of Tacoma ruled that Washington's primary is not like California's was. California, for example, required voters to register by political party. Washington does not.

But the 9th Circuit judges found that the two state laws were the same. "The right of people adhering to a political party to freely associate is not limited to getting together for cocktails and canapés," Kleinfeld wrote in the decision.

The panel, which included M. Margaret McKeown from Seattle and Charles R. Breyer from Northern California, also said the supposed unfairness of depriving voters who don't want to declare their party affiliation, "... seems to us less unfair than permitting nonparty members to hijack the party."

What comes next is still unclear.

Terry Hunt, president of the Washington State Grange, which sponsored the original blanket-primary initiative in 1935, says his organization will either appeal the ruling or ask for a legislative fix. Reed said he spoke with Attorney General Christine Gregoire yesterday morning and expects a decision in the next couple of days on whether the state will appeal.

State Democratic chairman Paul Berendt said he hopes the state lets the decision stand.

"This is costing the state of Washington millions of dollars to fight this case, and it's obviously unconstitutional," he said. "It's a civil-rights case that couldn't be clearer."

Reed said the cost of an appeal will be a consideration, "but I think the people of the state feel strongly about this, and I don't think (cost) will be a major issue in deciding whether or not to do it."

Reed said he also plans to urge legislative leaders to have an alternative primary plan approved, even if the case remains under appeal. Otherwise, said Reed, the state could be faced with the chaotic possibility that all candidates on the primary ballot would go to the general election.

If the decision stands, finding a replacement system is likely to be contentious.

When the state first thought it would have to end its blanket primary two years ago, Reed presented two options to the Legislature.

One was based on the so-called "Cajun Primary" in Louisiana, where the top two candidates move to the general election regardless of what party they belong to. The second is the "open primary, private choice" system used in Montana and eight other states, where voters have to pick one party's ballot for the primary but no record is kept of their party preference. Democratic and Republican party officials didn't like those alternatives. In the past, they have sought a system that bars people from voting across party lines and requires voters to identify their party affiliation.

Reed predicted that forcing voters to choose a political party would likely reduce voter turnout and would have a "chilling effect" on voters who wouldn't want their political allegiances made public.

"The blanket-primary system historically has meant the state of Washington had more centrist-elected officials representing the middle of the electorate," said Reed.

Susan Gilmore: 206-464-2054 or sgilmore@seattletimes.com

Copyright © 2003 The Seattle Times Company

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