The Washington Secretary of State has proposed rules for implementing the “top-two” primary which survived Supreme Court scrutiny in the Washington State Grange case. The rules call for listing a candidate's party “preference,” not affiliation, whether that party likes it or not--or even if the "party" does not exist.

The candidates in the first round of the blanket primary will not have a political party identification next to their names on the ballot. Instead, underneath each candidate’s name will be the phrase "Prefers Democratic Party" or "Prefers Republican Party" or a similar note for another party–or even for a tag-line which is not a real political party.

This could actually be fun. Each candidate will have 16 characters with which to identify a “preference.” It is assumed most will choose "Prefers Democratic Party" or "Prefers Republican Party," but there is nothing proposed to stop someone from choosing "Prefers No New Taxes Party" or another made-up name.

SCOTUS held that the top-two system was not obviously and necessarily unconstitutional (this is called “facial” unconstitutionality) and invited further litigation about whether the system was unconstitutional as applied, in particular, whether there was actual voter confusion about the party affiliations of persons and rights of political parties to freely choose their own candidates.

Given the near-certainty of further litigation about voter confusion, a real problem for the Secretary of State was coming up with a way of explaining to voters that a candidate may “prefer” a party but that same party may not “prefer” the candidate in any way. It could even be actively opposing him or her.

The solution proposed so far: a disclaimer on each ballot and on a separate sheet enclosed with the mailed ballot: "Each candidate for partisan office may state a political party that he or she prefers. A candidate's preference does not imply that the candidate is nominated or endorsed by the party, or that the party approves of or associates with that candidate."

That should clear it all up!

The Washington Office of the Secretary of State posted text of the rules on its Web site at http://secstate.wa.gov.