The Very Partisan Nonpartisan Top-Two Primary: Understanding What Voters Don\u27t Understand

In 2008, following a series of legal battles, Washington State adopted an open nonpartisan “Top-Two” primary system in which only the top two vote earners, regardless of party affiliation, advance to the general election—the same system California adopted via a 2010 ballot measure. The new primary system is described as a nonpartisan primary but allows candidates to describe their “political party preference.” The state allows candidates to place on the ballot “Prefers Republican Party” or “Prefers Democratic Party” next to their name while arguing that the primary is nonpartisan. Upon adoption, both political parties objected, arguing that they were being forced to associate with candidates they did not select. The state countered that the winners of the Top-Two primary are not “nominees” because the new election is not a primary but a “winnowing election” for the purposes of producing a general election ballot. After the Top-Two primary was struck down on its face by the U.S. Ninth Circuit Court of Appeals, the U.S. Supreme Court, in Grange v. Republican Party (2008), reversed the decision arguing that the new system may be unconstitutional as applied but only if the parties could demonstrate the new primary caused “voter confusion.” This article measures the extent of voter confusion caused by the Top-Two primary system. The findings are based on a series of cognitive experiments run on Washington State voters. Participants were asked to read and answer questions about one of three mock ballots modeled off of Washington State\u27s traditional partisan ballots and newer Top-Two ballots. The questions were designed to determine if voters could distinguish between the older partisan primary where the winning candidate was the “nominee” of the party and the newer Top-Two system in which the winner is not the “nominee” of the party. Results indicate that voters are highly confused in terms of a perceived relationship between parties and candidates, but less confused about their status as an official nominee of the party