On January 19, the 9th circuit upheld the Washington state “top-two” system. Here is the decision. The part of the decision about ballot access is very short. It quotes the dicta from the U.S. Supreme Court decision Munro v Socialist Workers Party that says the burden on minor parties is slight as long as their candidates can run in the primary. But it does not mention the holding in Munro v Socialist Workers Party, that there is no constitutional distinction between a petition for ballot access to the November ballot, and a prior vote test.
It says, “We recognize the possibility that I-872 makes it more difficult for minor-party candidates to qualify for the general election ballot than regulations permitting a minor-party candidate to qualify for a general election ballot by filing a required number of petition signatures. This additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See California Democratic Party v Jones, 530 U.S. 567, 585-86 (2000).”
The U.S. Supreme Court did not expressly approve of top-two systems in the 2000 decision that struck down blanket primaries. Justice Scalia wrote the 2000 decision that struck down the California blanket primary, and he added that a non-partisan system with no party labels would be constitutional. It is obvious that Justice Scalia did not mean in his dicta to approve of the type of top-two system used by California and Washington currently, because he dissented in the March 2008 decision Washington State Grange v Washington State Republican Party.