Alameda County, California Superior Court Hears Oral Arguments in Minor Party Case Against Top-Two System

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.


Alameda County, California Superior Court Hears Oral Arguments in Minor Party Case Against Top-Two System — 38 Comments

  1. Any body found any language in any constitution saying that X percent of the voters in a FACTION have a constitutional RIGHT to have the FACTION candidates on general election ballots with the FACTION name/logo ???

    P.R. and nonpartisan App.V
    NO moron primaries of ANY type.

  2. In the 2008 assembly elections, there were 19 general election candidates who were neither Democrat nor Republican. Only 2 (11%) received more than 10% of the vote, and they did it against relatively sparse competition – 12.9% in a 2-candidate race, and 14.7% in a 3-candidate race.

    Contrast this to the 2012 primary, where 5 of 16 (31%) candidates surpassed 10%, often against larger fields – 45.7% in a two-way contest, 20.3% in a 5-way contest, and 15.0% in 6-way contest.

    While the claim is made that voters in June are clueless, they were able to pick out independent candidates from a crowded field and do so in a discerning way (there was more variance in 2012, with the worst non-major party candidates doing worse than in 2008.

    This suggests that under a partisan primary system, voters would be as likely to vote for Nancy Nota as Larry Libertarian – that is voters who turned out for the presidential race were voting against what they perceived as a lack of choice rather than any articulated political beliefs.

  3. A similar pattern can be seen in congressional races.

    In the 2008 general election there were 30 candidates not affiliated with the two major parties. Only 3 (10%) surpassed 10% support, including 2 that were running in two person races. Two of the three were independent candidates.

    In the 2012 primary there were 36 non-Democrat/Republicans, including 26 independents. 8 (22%) received more than 10% of the vote, including 7 independents.

    All 8 were in races with 3 or more candidates, including 24.6% in a 8-candidate race, 18.3% in a 6-candidate race, and 15.0% in a 5-candidate races.

    4 qualified for the general election, including one who faced opponents from 4 other parties (he received more votes than the combined total of 3 of the partisan candidates.

  4. Why not rely on Stevens’ remarks in Jones and argue that the measure, passed by initiative, cannot be applied to congressional elections? Violates Article I’s Elections Clause, which delegates to State Legislatures this authority. And if it cannot be applied to congressional elections, it may be practically difficult to apply to local elections, thus spelling its demise.

  5. #2-3, I again repeat my plea that you tell us why you support top-two. What are the characteristics of top-two that you feel will improve society? Why do you favor it? You comment quite a bit about why the courts ought to uphold it, but we crave a statement from you of why you like it so much.

    By the way, there is only one independent candidate for the legislature on the California November ballot this year.

  6. An alternative to the top-two system ought to be considered. Instead of a top-two primary, have each qualified party nominate in any manner determined by their rules. If their rules require a primary, they ought to run and pay for it themselves, or pay the state to run it for them. Non-party candidates would get on the ballot by petition. If, in the general election, no one got 50%+, then there should be either a French-style run-off election, or Instant Runoff from ranked voting.

  7. #4, in the Jones decision, Stevens was speculating, and said so. It is possible that the Elections Clause should include initiatives passed by the voters as legislative acts. Actually, I think that’s more than possible.

    In the case of Prop. 14 was put on the ballot by the legislature; it wasn’t an initiative. My guess is that most courts would conclude that putting election rules in a state constitution doesn’t violate the Elections Clause — especially when the it was the legislature that proposed putting them there.

  8. Rereading Scalia’s statements in both Jones and Washington I, Richard is obviously correct. When Scalia used the word “non-partisan”, he meant non-partisan as in Nebraska. He did not mean top two.

    The Nebraska legislature is internally non-partisan. There are no officially recognized caucuses described in statutes or the rules of the body. The opposite is true in California, where majority and minority caucuses are recognized in statutes. I don’t know about Washington.

    Nebraska Congressional elections are partisan elections, and the federal House and Senate are organized along partisan lines.

    After more than two years of thinking about this, I’m still trying to wrap my brain around the idea of holding non-partisan elections for partisan offices. What the heck does that mean, anyway?

  9. I want to read something that will half way convince me that there does exists ballot access justice (Yes, Virginia, there is a.. . )in this country with the best examples of such a thing.

    It has always seemed this area of the law, political law, is understood, rationally if cynically, that convenience to the political establishment is the defacto standard, and the best way to maintain that is to have no bright lines that prevent anything like political justice.

    Anything at all besides Baker v Carr?

  10. #7. My understanding of California law is that regardless of whether proposed by the State Legislature or initiated by the People, a successful initiative cannot be undone by simple legislation. That is, the repealing initiative would have to be put to the People, too. If that is correct, I don’t think it matters that the Legislature submitted Prop. 14 to the People. It still violates the Elections Clause in Article I of the US Constitution, because the Legislature would not be in control of congressional elections. That is the result suggested by Justice Stevens in Jones and by the Chief Justice, Justice Scalia, and Justice Thomas in Bush v. Gore.

  11. Top 2 = Having a mere 2 plurality extremists among all gangs

    — instead of 1 plurality extremist for each faction gang.

    Any body found the # 1 language ???

    For the genius lawyers on this list – the Jones case was one more SCOTUS perversion of election LAW.

    Principle – Public nominations by public electors via PUBLIC LAWS —
    1. ALL electors doing the nominations or
    2. Only SOME faction electors doing the nominations (with or without other faction electors).

    The SCOTUS MORONS in Jones did not detect the PUBLIC LAWS in the sentence.

    How many times has SCOTUS said that indirect State Legislature = direct SOVEREIGN State Voters in the making of State laws ???

  12. Obviously toptwo is worse than approval voting or IRV, but I do believe toptwo is better than the “normal” system of voting. In places like Alabama and Texas, it is pretty obvious that the Republican nominee will win all statewide races. Toptwo gives voters who aren’t Republicans a say in which Republican wins the statewide offices. Same thing in Democratic states like California and Vermont.

  13. #12, Texas, Alabama, and Vermont are all open primary states. Any person can vote in any party’s primary. That is what an open primary is. 20 states have open primaries, and there is no such thing as voter registration by party. So you can have what you want, and there is still no restriction on voter choice in November. Open primaries are popular. That is why many top-two supporters constantly use the term “open primary” when they mean “top-two primary.” They are deliberately confusing people.

  14. #4 Before Proposition 14, the California Constitution provided that candidates for partisan office be nominated in primaries. If I understand your position, you are arguing that with regard to congressional elections this was not binding on the legislature. Since the authority to regulate the manner of congressional elections does not derive from the State constitution, but rather from the US Constitution, then only the legislature may act.

    The essential purpose of a State constitution is to prescribe the institutions of government (i.e. how the legislature is constituted, how it legislates, etc.). Thus while a State constitution can not prescribe the manner of congressional elections, it almost certainly must prescribe the manner of legislative elections.

    In 2009, the California legislature passed a law, SB 6, implementing a Top 2 Open Primary. They also referred a constitutional amendment to the People, which would provide for a Top 2 Open Primary for (most) statewide offices, the legislative, and congressional offices.

    SB 6 would be effective only if the constitutional amendment (Proposition 14) was approved. For Statewide and legislative offices, passage of Proposition 14 was essential. The legislature can not implement the details of a Top 2 Open Primary without the constitutional framework.

    But for congressional elections, the constitutional amendment was irrelevant. The only part of Proposition 14 that mattered was its passage – not as a basis for implementing congressional Top 2 elections, but as a triggering mechanism. The legislature may have a legitimate interest in having consistent election methods used for both congressional and legislative elections, and so they would want the People to approve Top 2 elections for the legislature, rather than unilaterally implementing them for congressional elections.

    Since Congress could require Top 2 Open Primaries OR outlaw them for congressional elections, it is clearly within the authority of the California legislature to provide for them regardless of what some provision of the California constitution may purport to require.

    You may have a better case with the redistricting initiatives in California. They were true initiatives, without involvement of the legislature.

    There were separate initiatives for the legislative and congressional redistricting, and they were approved at different elections. There are different standards for congressional districts than legislative districts.

    The congressional measure also tweaked some standards for legislative districts, but they were incidental to providing for congressional redistricting.

    The second initiative would not have been proposed to simply impose those tweaks. It was essentially log-rolling.

    A Mark Brown SCOTUS would overturn the congressional redistricting initiative. The only issue is whether it would overturn all provisions as applied to legislative redistricting.

  15. #5 Since I have repeatedly explained why, I ponder the source of your confusion.

    It appears that you are more concerned about the results of elections than the process itself. So when you ask me “why”? There is an implied question – “Do you favor Top 2 Open Primary because it will make the trains run on time, put a chicken in every pot, or some other outcome?”

    But who is elected is irrelevant to my position. How they are elected and by whom is. I believe that the whom, is obvious – public officers should be elected by the People they represent and serve. You may not agree – but at least try to understand my position.

    The direct participation of political parties in elections is not necessary. It is OK for political parties to encourage me to vote for a particular candidate, or to encourage particular individuals to become candidates. There should be no role for them in dictating to me who I may or may not vote for.

    And Top 2 will ensure equal opportunity for all candidates – whether as originally implement, or after the courts start applying equal protection.

  16. “By the way, there is only one independent candidate for the legislature on the California November ballot this year.”

    Yes, he received 45.7% of the vote in the primary and may become the first legislator elected as an independent since Quentin Kopp (Lucy Killea was elected as a Democrat, and Audie Bock was never elected as an independent.

    There are also four independent candidates on the congressional ballot. IIRC, there had only been 12 total in the previous 50 years (since 1964).

  17. #16, the one independent on the ballot will not win in November. The reason he did so well in the primary is that there were only two candidates on the primary ballot and he spent approximately as much money as his Democratic opponent. The California June 2012 primary had a much higher Republican turnout than a Democratic turnout. The incumbent Democrat will do much better in November than he did in June.

    It is not realistic for anyone to assert that top two ensures “equal opportunity for all candidates”, even forgetting that some of them have their party label of choice and others don’t. No type of primary can guarantee “equal opportunity for all candidates” because (1) party labels are on the ballot and anyone with a major party label has a big advantage over anyone with a minor party label, simply because the two major parties have so many more adherents; and (2) some candidates have far, far more money to spend than some other candidates. The closest that any law can do to “ensure equal opportunity for all candidates” would be a law that gave public funding in equal amounts to all candidates, and banned private spending on campaigns. I am not saying I favor such a law. Another law that would tend toward “ensuring equal opportunity for all candidates” would be taking all party labels off the ballot. I am not saying I favor that either. Would you favor taking party labels off the ballot? Do you agree that taking party labels off the ballot would be a step toward ensuring equal opportunity for all candidates?

  18. #15, Jim Riley (and others who think about parties the way he does) is living in a world of analytical abstractions. In the real world, people do not make decisions and act solely as individuals. They also make decisions and act collectively, as members of groups. That’s why political parties are a vital part of democratic government and politics.

    If political parties don’t play a role in who runs for office, then the only thing left to determine who runs for office is money. That’s only in the real world, of course. In Jim Riley’s analytical model, anybody could run for office because organizational and/or financial backing wouldn’t matter. Good luck making that happen!

    Much of the evil that people attribute to political parties as such is really the result of having exactly two of them.

  19. Reality check since 1929 —
    LOOTER gangs (from govt taxes, fees and borrowing) and LOOTEE victims.

    Nothing new in 6000 plus years of EVIL LOOTER gangs.

    The U.S.A. is now as bankrupt as Greece — due to the accumulated borrowing since 1929.

    Roughly 24 percent more govt spending (via borrowing) each year than govt income (ALL govts in the U.S.A. — U.S.A. govt regime is about 5 times more bankrupt than the State/local regimes).

    The economy has NOT totally collapsed ONLY because enough moron foreign folks have made loans to the U.S.A. regime (from the U.S.A. foreign trade deficits since the early 1980s – Reagan-Bush I voodoo economics).

    Thus – LOTS of LOOTER candidates working for the LOOTER gangs in the many gerrymander districts — with or without top 2 primaries.

    P.R. and nonpartisan App.V.

  20. #8 “After more than two years of thinking about this, I’m still trying to wrap my brain around the idea of holding non-partisan elections for partisan offices. What the heck does that mean, anyway?”

    King County (Washington) was trying to implement a replacement for the blanket primary for election of its council. Under the blanket primary, a voter could simply vote for a council member and not really concern themselves too much with party.

    The county charter specified “partisan elections”, and so had switched from the blanket primary to the Pick-a-Party primary. This forced voters to choose a party before voting for a county council member.

    An initiative was proposed switching to non-partisan elections, which in Washington is held on the primary date, with a runoff if necessary (the same as Top 2, unless the leading candidate happened to receive a majority).

    In King County, the county council may propose alternatives to initiatives. They proposed that non-partisan elections be used – except candidates could specify their party preference. So it would be a non-partisan election with party labels.

    An initiative in King County is first on the primary ballot. The voters choose whether the original initiative or the council alternative is “nominated” for the general election ballot – and also whether it is place on the general election ballot. The chosen alternative then is actually approved or not at the general election. So King County ended up with conventional non-partisan elections (no party labels and runoff if needed).

    A “non-partisan primary” is one where the votes in the first (or primary) stage of an election are counted without regard to partisan affiliation of the candidates, and where voters are not restricted to their candidates choices based on their party affiliation.

    A “partisan primary” is one where the votes in the first (or primary) stage of an election are counted on the basis of party affiliation and determine party nominees, and where voters are restricted based on their party affiliation.

  21. #17 Could you quantify how much better you guess that Paul Fong will do?

    Voting in the 2012 June primary was up 17% over the 2008 June primary – which was conducted under the old partisan primary system. It appears that a large share of this was among NPP voters, though the Secretary of State did not account for the party breakdown as in previous primaries.

    Given the increased participation by independent candidates and independent voters it is clear that the 2010 ballot language “INCREASES RIGHT TO PARTICIPATE IN PRIMARY ELECTIONS” was absolutely correct.

    You appear to have forgotten that Debra Bowen’s misinterpretation of SB 6 will not withstand close scrutiny. So far it has been only the intevenors who have suggested that her interpretation may be in error. The plaintiffs have been more intent on turning Libertarian Party v Eu on its head, or defending the barriers to minor party and independent candidates.

    Popular candidates will have an advantage it is true. But equality of opportunity does not guarantee equality of results. Some candidates have better speaking voices, and others have curly hair. Should California try to account for those advantages?

    I favor taking party labels off of county and judicial races and eliminating the straight ticket device. Houston does not have party labels [1] on its ballots, but it would be naive to think that political parties are not involved. Perhaps it is different in smaller cities such as San Francisco.

    [1] Actually, the city charter does allow party labels, it doesn’t allow Democratic, Republican, Libertarian, or Green that contest State elections.

  22. comment #21, which says voting in June 2012 was up 17% over the June 2008 primary, is literally true, but very misleading. California had two primaries in 2008, one for president in February 2008 and one for US House and legislature in June 2008. Comment #21 only mentions the June 2008 primary and says nothing about the February 2008 primary, which had double the turnout of June 2012.

    I still don’t understand why, if equal treatment for all candidates is the #1 goal, Jim doesn’t come out in favor of taking party labels off the ballot for all office.

  23. # 14. Assuming that the Legislature passed a valid law applying top-two to congressional elections, that would satisfy Article I. I have not looked at SB 6, but it could be sufficient.

  24. # 23. The last section of SB 6 says it is only effective if the initiative ‘is approved by voters.’ One might argue that the portion of the initiative applying top-two to congressional elections was not properly approved by voters because it violates Article I. SB 6 would then not be operative to this extent either. Or perhaps there is another way to link the two so that the statute falls with the initiative. Hard argument, I admit, but I can find no other federal challenge.

  25. #18 Bob Richard misunderstands my position.

    Citizens, either individually or collectively, have a right to (attempt to) influence the outcome of elections through support of candidates.

    This collective action may be in the form of political parties, ad hoc groups (eg Mainiacs for King), PACs, etc.

    Bob Richard ascribes a “vital” role to political parties, that I do not. I might assign “vital” to provision of education, sewage treatment, or roads.

    By assigning political parties a “vital” role, one may be tempted to see them as gatekeepers, as agents of the government, who may determine who runs for office.

    Under the old system that Bob Richard and Richard Winger are seemingly defending, if someone registered as a Democrat, and then later decided that they wanted to run for the legislature, they would first have to run in the Democratic primary. It would not matter that they sincerely wanted to serve all the people, or to appeal to all voters. They would first have to win the support of a small segment of the electorate before they could appeal to the entire electorate at a later date.

    They couldn’t even change their registration and run, unless they did so well in advance of the election. Lucy Killea had the good fortune to already be in the legislature when she decided to do this – she was able to get the deadline for the switch changed.

    If our candidate managed to leave the Democratic Party in time, they would then have to collect thousands of signatures simply to have a place on the general election ballot.

    What if instead of legislator, they wanted to run for county supervisor? Ummm? They would simply file for office and run against all the other candidates appealing to all the voters.

    What if our Democrat wished to support the candidacy of another candidate, who happened to be a Republican? Could they write a check to their campaign? Yes of course. Could they put a yard sign advocating their election? Surely. Could they encourage their neighbors and coworkers to vote for the other candidate? Yes. If they were both running, could they have purple signs with both their names on them? That is their right.

    John Burton may be dismayed, but that does not mean that this should be illegal, does it?

    Now let’s look at what happens under a Top 2 Open Primary. Our Democrat who wants to be a legislator simply files for office, just as they did when they ran for the school board.

    Will they win? Probably not without a lot of effort on their part, and lots of support by other individuals working together for their election. But shouldn’t voters dictate that result and not the government through its laws?

    Imagine during the primary that they are going door to door. Under the old system, they might knock on a door in May. The voter may seem to be sympathetic to their candidacy. They are registered to vote, and even likely to vote. But they turn out to be a Republican. The candidate hastily leaves. And then in October, they return, and pretend that the incident in May never happened.

    That is absurd.

    A wise candidate would not spend too much campaigning among voters who won’t vote for him under any circumstance. He would make sure that his most likely supporters will actually vote. And then he will spend a lot of time on the undecideds convincing them to vote for him.

    Why should it be illegal for some voters to vote for certain candidates in June, when they can write them a check, put a yard sign up, or advocate among their neighbors?

  26. Any links to the paperwork in the case ???

    Namely the COMPLAINT and the claimed legal reasons about the illegality of the CA top 2 primary ???

  27. Some of the court stuff is on

    Any predictions on what day will be the END of the top 2 machinations — at least in wonderful CA ???

    i.e. does SCOTUS have the time and energy for yet one more top 2 case on the merits of ALL constitutional issues regarding top 2 ???

  28. #22 The presidential undervote in the June 2012 primary appears to be around 20%. People weren’t showing up because of the presidential primary.

    It appears that there was an especially large increase in the NPP/Other vote, but because your Secretary of State is either incompetent or actively sabotaging Top 2, the numbers of voters were not reported at the state level.

    The #1 goal is equal treatment of all voters. How does removing a minimal amount of information from the ballot about candidate’s political beliefs cause voters to be treated more equally?

  29. #29, the Libertarian Party has elected hundreds of members to non-partisan office in California, including mayors of two cities with over 100,000 population and a third one near 100,000. The two larger cities were Simi Valley and Moreno Valley, and the third one was the one Art Olivier was Mayor of. I forget the name of that city but it is in Los Angeles County. The Green Party has also elected several hundred people to office, and once had the Mayor of Santa Monica, and still has the Mayor of Richmond, and a majority on the Fairfax city council. The Peace & Freedom Party once had a majority of the Cotati city council. La Raza Unida once had a city councilman in East Los Angeles. The American Independent Party has had a county supervisor in El Dorado County.

    Removing party labels from the ballot would be the single greatest step for making the playing field equal, which you say is your ultimate goal.

    Louisiana once put the race of each candidate on the ballot. In 1964 the US Supreme Court unanimously struck down the law for racial labels, Anderson v Martin. The state said, “We’re treating everyone equally” but the Court looked at reality and knew that hurt black candidates.

    The party affiliations of all the candidates could be listed in the voters pamphlet.

  30. #24 Imagine that a legislature passed a resolution ratifying a federal constitutional amendment, and then either gave it to the governor to sign, or submitted it to the People for approval.

    The governor signed the resolution or the People approved the amendment. Would the ratification by the legislature be void because of the extraneous actions?

    Would it matter if some legislators would not have voted Aye, except because they wanted to let the governor or People be involved? What if the number of such legislators was critical to ratification?

    I don’t think it matters.

    In the California case, I don’t think it matters that the constitutional amendment specified the manner of congressional elections – even if some voters may have been indifferent to its application to non-congressional elections – or vice versa. This is particularly true since we don’t know what the SCOTUS might rule.

    The SCOTUS has been clear cut in instances where the legislature was not legislating (e.g electing US senators or ratifying constitutional amendments. And in the latter case, it might have hinged in part that the Congress may assign the authority to ratify to bodies other than the legislature).

    But it also extended the meaning of “legislature shall prescribe” to include actions by persons who are not part of the legislature.

  31. #30 The people of Simi Valley, Moreno Valley, Bellflower, and Santa Monica elected mayors. Those mayors were affiliated with the Libertarian or Green parties.

    It is false to claim that the Libertarian or Green parties elected those individuals.

    I wrote:

    “The #1 goal is equal treatment of all voters”

    You responded:

    “Removing party labels from the ballot would be the single greatest step for making the playing field equal, which you say is your ultimate goal.”

    Did you read what I wrote?

    How does removing information about candidates equalize the playing field among voters?

  32. #33, it seems obvious to me that removing party labels equalizes the playing field, in the same way that removing or keeping off information about a candidate’s race and/or religion does the same. Do you agree with the US Supreme Court decision from 1964 that removed information about the race of candidates from the ballot? And do you agree with Cook v Gralike, in which the US Supreme Court, in another unanimous decision, removed information about how congressional and legislative candidates feel about congressional term limits from the ballot?

  33. A number of States use non-partisan primaries for municipal offices (including some where party affiliation appears on the ballot). In some instances they cancel the primary if two or fewer candidates file (2N or fewer if for a multi-seat office).

    You have failed to articulate how this meaningfully interferes with the political association rights of voters.

    Let’s say the results from the primary are:

    Case I:

    Andy Anderson 51%
    Betty Banducci 44%
    Carlos Chavez 5%

    System 1: Andy Anderson is elected with majority.

    System 2: Anderson and Banducci advance to general election.

    Case 2:

    Andy Anderson (Apple) 51%
    Betty Banducci (Bread) 44%
    Carlos Chavez (Chorizo) 5%

    System 1: Andy Anderson is elected with majority.

    System 2: Anderson and Banducci advance to general election.

    Case 3:

    Andy Anderson 49%
    Betty Banducci 45%
    Carlos Chavez 6%

    System 1: Anderson and Banducci advance to runoff.

    System 2: Anderson and Banducci advance to general election.

    Case 4:

    Andy Anderson (Apple) 49%
    Betty Banducci (Bread) 45%
    Carlos Chavez (Chorizo) 6%

    System 1: Anderson and Banducci advance to runoff.

    System 2: Anderson and Banducci advance to general election.

    Are the supporters of Chavez better or worse off under any of the 4 cases? Why does it whether or not he has a party label with respect to a ballot access claim.

  34. #34 Make sure you re-read Anderson v Martin, it is a short decision.

    Do you think that having the party names on the ballot induces political prejudice at the polls? If so, is this is the equivalent of racial prejudice, given that candidates may choose their political party, and generally may not do so with respect to race.

    But doesn’t the practice of holding separate primaries for each political party induce political prejudice by encouraging voters to identify with that political party? How do you justify political segregation? Separate but equal?

    Which would be worse in your opinion: (1) racially segregated primaries; (2) race of candidates on the ballot?

    “Nor can the attacked provision be deemed to be reasonably designed to meet legitimate governmental interests in informing the electorate as to candidates.” – Anderson v Martin

    Are you saying that including information about a candidate’s political beliefs is not reasonably designed to meet legitimate governmental interests in informing the electorate as to candidates?

    In Cook v Gralike, Missouri instructed its representatives to advocate for a particular policy, and then placed on the ballot whether or not they had done so.

    California does not dictate which policies political parties may advocate for. At worst, the misinterpretation of the law by your Secretary of State may induce candidates to express preferences for more popular political parties. But that is not a reason to get rid of Top 2, but rather to get rid of your Secretary of State.

    You are not doing a good job of explaining how removing information about a candidate’s political views is leveling the playing field for voters. Perhaps California could institute an illiteracy test, where voters who could read and may be more aware of political issues could be excluded from voting since it may give them an advantage over more ignorant voters.

  35. #13 In Texas one may only vote in one party’s partisan primary. They may not vote for any candidate. To refer to this system as “open” simply because the decision as to which restricted to is made sooner rather than later is deception.

  36. #2&3 – So your claim is that it is better for California voters to have nonDorR congressional candidates in only 4 districts (2012) compared with 30 in 2008? BTW, that’s 43 nonDorR congressional candidates in 2004 and 113 such candidates in 2000, according to Calif. Secty of State. You are saying that fewer choices is better.

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