Appeals court: Top 2 primary OK, recall limits not

SEATTLE (AP) - A federal appeals court upheld Washington's top-two primary system on Thursday, but in a separate ruling it found that the state's $800 limit on contributions to recall campaigns is likely unconstitutional.

Voters adopted the top-two primary system in 2004, after courts threw out the long-used open primary system. Under the new scheme, the top two finishers in a primary advance to the general election, even if they're both Democrats or both Republicans.

The U.S. Supreme Court upheld the system in 2008 but acknowledged that whether it would continue to pass constitutional muster would depend in part on how the ballots were actually written. The political parties challenged the system again, saying that allowing candidates to identify themselves as Republicans, Democrats or Libertarians on the ballot could confuse voters, who might believe the candidates are the nominee of a party.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said there's no evidence such confusion occurred, upholding a decision by U.S. District Judge John C. Coughenour. The system does not violate the parties' First Amendment rights to free association by forcing them to be linked on the ballot with a candidate they don't like, the panel said.

"Once again, the courts have made clear that our top-two process is legal and is being administered in a clear and thoughtful fashion," Secretary of State Sam Reed said in a news release. "I would hope the parties will accept the judgment of the courts, including the Supreme Court, and cease their litigation, which costs the taxpayers and the parties precious resources of time and money."

The top-two primary "honors our political tradition in this state of allowing us to vote for our favorite primary candidate for each office, without regard to party preference," he said.

The chairman of the state GOP, Kirby Wilbur, said the party is reviewing the decision. Democratic chairman Dwight Pelz called an appeal likely.

"We are disappointed that the 9th Circuit Court of Appeals would maintain a system that allows candidates to force associations onto political parties," Pelz said. "We maintain that the top-two law is a blow to our political system."

In a separate ruling, a different appeals court panel ruled that the state's limit on recall campaign contributions likely violates the free-speech rights of donors. The panel unanimously agreed with the decision of U.S. District Judge Robert Bryan in Tacoma, who issued an injunction blocking the state from enforcing the limit pending a trial on its constitutionality.

Washington bans contributions of more than $800 to recall campaigns, though political parties and their official committees can give more. The appeals court said the state hasn't demonstrated that it has an important interest that would justify limiting the First Amendment rights of people who want to donate more to recall campaigns - in this case, an effort to recall Pierce County Assessor-Treasurer Dale Washam.

The Supreme Court has noted that states have a legitimate interest in limiting campaign contributions in order to prevent corruption or the appearance of corruption. But in recall campaigns, there are no candidates who might possibly be "bought" with high contributions, the judges said.

The effort to recall Washam was headed by a retired Naval officer and political novice named Robin Farris, who accused him of dysfunctional management, wasting public resources and retaliating against his own employees. She failed to collect enough signatures to place the question on last fall's ballot.

The libertarian law firm Institute for Justice took up her case, noting that several people would have contributed more if they had been allowed.

"This is just an artificial restraint on the ability of the people to effectuate needed political change," said Bill Maurer, who heads the firm's chapter in Washington state.

The case now returns to the federal district court in Tacoma for a trial on whether the limit is constitutional.