On October 29, Alameda County Superior Court Judge Lawrence John Appel heard arguments in Rubin v Bowen, the case filed last year by the Peace & Freedom Party, the California Libertarian Party, and the Alameda County Green Party, against Proposition 14, the top-two primary system. The hearing lasted one hour and twenty minutes.
This is the first case in which the main issue is the plight of voters who wish to vote for minor party candidates, and for independent candidates who are neither incumbents nor have well-funded campaigns. Top-two systems invariably leave voters with only incumbents and well-funded challengers in November. That, in turn, shrinks the range of ideas that are expressed during the general election campaign season.
The hearing was to determine if the case can continue. The state of California, and the intervenors who support Proposition 14, are trying to get the case dismissed now. Judge Appel understands the point of view of the plaintiffs, and it is difficult to predict how he will rule. The case for the minor parties was presented very well. The attorney for the minor parties, Dan Siegel, distinguished the Washington state top-two system from the California system by noting that Washington state’s congressional/state office primary is in August, whereas California’s is in June. He also emphasized the very low turnout in California’s June 2012 primary, and used this as evidence that the impact in minor party voters and candidates is severe, because the California primary is now not an event which attracts much voter interest. And he noted that it is so obvious that primary turnout is low that recently the legislature passed a bill, which was signed into law, that puts all statewide initiatives on the general election only, because it doesn’t seem fair that the paltry primary turnout should decide the fate of statewide initiatives.
The attorney for the intervenors argues that a top-two system is no different than California’s local non-partisan elections. This argument is flawed. Congress and the California state legislature are partisan bodies. They are organized into party caucuses, with each party choosing its own legislative leaders. Furthermore, under Prop. 14, California elections for Congress and state office have party labels on the ballot. Finally, the first round of California’s non-partisan elections are actual elections, because candidates get elected in the first round most of the time. Only when no one gets as much as 50% is a run-off held. By contrast, California congressional and state offices are connected with a June event which does not, and cannot, elect anyone. Even if someone gets 100% of the vote in June, he or she is not elected, and must run in November. The law is written this way because federal law, since 1872, has required states to hold congressional elections in November, and if the state wants a run-off, it must be later than November.
Attorneys for the state, and the intervenors, argue that when the U.S. Supreme Court declared California’s blanket primary unconstitutional in 2000, in California Democratic Party v Jones, the majority decision by Justice Antonin Scalia said that a non-partisan top-two primary would be constitutional. But it cannot be true that Justice Scalia’s remark about a hypothetical system he visualized means that the California and Washington state systems are automatically constitutional, because Justice Scalia dissented in 2008 in the U.S. Supreme Court opinion upholding the Washington state top-two system, which is called Washington State Grange v Washington State Republican Party. It cannot be that Justice Scalia had the Washington/California top-two law in mind in 2000, because he obviously would not propose an idea that he thought was unconstitutional. Probably Justice Scalia was imagining a system with no party labels on the ballot.
Furthermore, in the March 2008 Washington state top-two case, the opinion, by Justice Clarence Thomas, said in footnote eleven that the U.S. Supreme Court was not deciding the ballot access issue. It is obvious that the U.S. Supreme Court could not have decided the ballot access for top-two primaries in 2000, because otherwise the 2008 footnote makes no sense.
The attorney for the state argued that the state interest in a top-two system is to elect more moderate, pragmatic officials, but there is no evidence that top-two systems actually do this. All the political scientists who have studied top-two systems in Washington and Louisiana, and who have studied the California blanket primary used in 1998 and 2000, agree that officials elected under top-two systems are no different than officials elected in a normal partisan system. It would be very desirable of Judge Appel permits a trial in this case, because then this information could be entered into the record.