Washington State Grange v. Locke, No. 75384-9.

• Court: United States State Supreme Court of Washington
• Writing for the Court: BRIDGE, J.
• Citation: 105 P.3d 9,153 Wash.2d 475
• Parties: WASHINGTON STATE GRANGE, Terry Hunt, Jane Hodde, Senator Tim Sheldon, Senator Joyce Mulliken, Senator Darlene Fairley, and Representative Fred Jarrett, Petitioners, v. Gary LOCKE, in his official capacity as Washington State Governor, Sam Reed, in his official capacity as Washington State Secretary of State, and Michael Murphy, in his official capacity as Washington State Treasurer, Respondents.
• Decision Date: 20 January 2005
• Docket Number: No. 75384-9.

105 P.3d 9
153 Wash.2d 475

WASHINGTON STATE GRANGE, Terry Hunt, Jane Hodde, Senator Tim Sheldon, Senator Joyce Mulliken, Senator Darlene Fairley, and Representative Fred Jarrett, Petitioners,
v.
Gary LOCKE, in his official capacity as Washington State Governor, Sam Reed, in his official capacity as Washington State Secretary of State, and Michael Murphy, in his official capacity as Washington State Treasurer, Respondents

No. 75384-9.

Supreme Court of Washington, En Banc.

Argued June 10, 2004.

Decided January 20, 2005.

105 P.3d 11

James Martin Johnson, Olympia, for Petitioners

Governor Gary Locke, Washington State Governor, Treasurer Michael Murphy, State Treasurer, Narda D. Pierce, Attorney General, Solicitor General, Thomas C. Morrill, Attorney General's Office, Secretary Sam Reed, Secretary of State, Olympia, Daniel Benjamin Ritter, Harry J.F. Korrell, Davis Wright Tremaine, LLP, Michele G. Radosevich, Seattle, for Respondents.

David Thomas McDonald, Jonathan Hart Harrison, Preston Gates & Ellis LLP, Seattle, for Amicus Curiae Paul Berendt and Washington State Democratic Party.

BRIDGE, J.

In 2003, the Ninth Circuit Court of Appeals held that Washington's blanket primary system was unconstitutional.¹ As a result, the Washington legislature was required to enact a new system for conducting primary elections in Washington, and during the 2004 session, the legislature responded by enacting Engrossed Senate Bill 6453 (ESB 6453), adopting the "Louisiana style" or "top two" primary system in Washington. ESB 6453 also allowed for implementation of a "Montana style" primary system as an alternative, should the Louisiana system be overturned by the courts.² Governor Locke then vetoed

105 P.3d 12

the sections of the bill enacting the Louisiana system, leaving the Montana system in place. Petitioners, including the Washington State Grange, two voters, and four legislators, filed an original action in this court challenging the validity of both the portion of the legislation allowing for the Montana system and the governor's veto. This court granted review to determine whether ESB 6453 or the final legislation, either because of the governor's veto or due to flaws in the legislative enactment process, violated article III, section 12 (governor's veto powers), article II, section 19 (single subject and subject in title rules), or article II, section 38 (limitation on amendments) of the Washington Constitution. On June 10, 2004, this court heard oral argument in this case. We then issued an order denying the writ requested by the petitioners. This opinion explains that decision

We hold that the governor acted within the power granted to him under the article III, section 12 veto power when he vetoed several numbered sections of ESB 6453. We also conclude that for the purposes of an article II, section 19 analysis, we must consider what a legislator or citizen would understand the title of a bill to mean upon reading that title for the first time, and that to do so, we must look to the common and ordinary meaning of the terms used in the title, rather than the meaning assigned to those terms in the text of the bill. The common and ordinary meaning of the title of ESB 6453, "AN ACT Relating to a qualifying primary," encompasses both a Louisiana style top two primary system and a Montana style primary system because either system qualifies candidates to appear on the general election ballot. E.S.B. 6453, 58th Leg., Reg. Sess. (Wash.2004). As a result, we hold that ESB 6453's bill title was adequate at all stages of the legislative process and no violation of article II, section 19 occurred. Finally, we hold that amendments that were adopted during the legislative process did not violate article II, section 38 of the Washington Constitution.

I

Facts and Procedural History

Since 1935, Washington has conducted "blanket" primaries, under which primary voters have been permitted to vote for the candidate of their choice for each office, regardless of the candidate's political affiliation and without the voter being required to declare affiliation with any political party. Democratic Party of Wash. State v. Reed, 343 F.3d 1198, 1201 (9th Cir.2003), cert. denied, 540 U.S. 1213, 124 S.Ct. 1412, 158 L.Ed.2d 140 and ___ U.S. ___, 124 S.Ct. 1663, 158 L.Ed.2d 392 (2004). The top vote getting candidate from each party has then advanced to the general election. In 2000, the United States Supreme Court declared a similar California system to be unconstitutional because it violated the political parties' First Amendment right of association. Cal. Democratic Party v. Jones, 530 U.S. 567, 575, 577, 586, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). Subsequently, the democratic, republican, and libertarian parties in Washington challenged Washington's blanket primary system, claiming that it too violated their freedom of association. Democratic Party of Wash. State, 343 F.3d at 1201. In 2003, the Ninth Circuit held that Washington's blanket primary system was indeed unconstitutional and the United States Supreme Court refused to review that decision. Id. at 1204, 1207. The federal courts have enjoined Washington from using the blanket primary in future elections. U.S. Dist. Ct. Order of Clarification at 1, Wash. State Democratic Party v. Reed, No. C00-5419FDB (May 10, 2004). Therefore, the 2004 legislature was faced with the task of developing a new primary system for Washington State.

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In response to this dilemma, Bill 6453 was introduced in the Washington Senate. Statement of Agreed Facts (SAF) at 3. The original title of the bill was "AN ACT Relating to the modified blanket primary." S.B. 6453, 58th Leg., Reg. Sess. (Wash.2004). The original bill provided only for a "Louisiana style" or "top two" primary system. The full Senate considered Senate Bill 6453 on March 2, 2004, and amended the bill by adopting Senate Amendment 757. SAF at 3. The Senate Amendment changed the title of the act to "An Act Relating to a qualifying primary." See E.S.B. 6453; S. AMD. 757, § 1. Under the resulting Engrossed Senate Bill, primary elections would not function as a procedure to determine the nominees of political parties, but would instead qualify candidates for the general election ballot. E.S.B. 6453, § 1(2). Candidates would be allowed to identify a political party preference, but only in order to provide voters with a brief description of the candidate's political philosophy. Id. Each voter, regardless of party affiliation, would be able to vote for any candidate listed on the ballot and the two candidates who received the most votes (the top two vote getters) would advance to the general election so long as they received at least one percent of the total votes cast for that office. Id. The Senate concluded that "[n]o registered voter of the state of Washington should be required to divulge to any public or private entity his or her party affiliation, if any, as a prerequisite to voting." E.S.B. 6453, § 1(3)(c). In sum, under ESB 6453

"Primary" means a statutory qualifying procedure in which each registered voter eligible to vote in the district or jurisdiction is permitted to cast a vote for his or her preferred candidate for each office appearing on the ballot, without any limitation based on party preference or affiliation on the part of the voter or the candidate, with the result that not more than two candidates for each office qualify to appear on the general election ballot.

E.S.B. 6453, § 5. Finally, the Senate included an emergency clause, indicating that the legislation would take effect immediately. S. AMD. 757, § 60; E.S.B. 6453, § 205. The Senate passed ESB 6453 by a vote of 28 to 20 and the bill was sent to the House. SAF at 3.

On March 8, 2004, the House of Representatives considered ESB 6453 and amended it. See H. AMD. 1184. The House amendment added a second part to the legislation (sections 101-193) establishing the "Montana style" primary as an alternative to the Louisiana top two primary, should the Louisiana primary be struck down by any court of competent jurisdiction. H. AMD. 1184, § 101; E.S.B. 6453, § 101.

The amendment declared that the Montana primary was intended to protect the general election ballot for minor party and independent candidates and to maintain the candidate's right to self-identify with any major political party, while preserving voter privacy and rejecting mandatory voter registration by political party. E.S.B. 6453, § 140. Under the Montana system, major political party³ candidates for most partisan elected offices⁴ would be nominated by way of a primary election using one of two possible ballot formats. E.S.B. 6453, § 139. The consolidated ballot format requires a voter to check a box to indicate the major political party for which he or she chooses to vote. E.S.B. 6453, § 126. Checking the box of a particular party would allow a voter to vote for primary candidates of that party, but not of the other major party or parties. E.S.B. 6453, § 142(1). A primary vote would not be

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tabulated if the voter either checked more than one party box or failed to check a party box at all. Id. Under the alternative, physically separate ballot format, a voter would receive several ballots, one for each major political party and one nonpartisan ballot. E.S.B. 6453, § 142(2). The voter would choose which party's ballot to vote but could not vote on more than one party ballot. Id. A voter who did not choose to vote any major party ballot would be left to vote only the nonpartisan offices on the nonpartisan ballot in the primary election. See id. Under either ballot format, no minor party or independent candidate would appear on the primary ballot.

Under ESB 6453's Montana option, no record would be created identifying which party a voter chose to vote, and under no circumstances would an individual be required to affiliate with or declare a preference for a political party upon...