Alameda County Superior Court Tentatively Rules that California Minor Parties are Entitled to a Trial on Lawsuit Against Top-Two System

On June 7, Judge Lawrence John Appel issued a tentative decision in Rubin v Bowen, the case filed in 2011 by the Green, Libertarian, and Peace & Freedom Parties. The tentative decision says that the case is strong enough so that a trial is needed to determine if Proposition 14, the top-two open primary system, violates the voting rights of voters who want to vote for a minor party candidate in general elections.

The tentative decision will be reviewed in court on Monday, June 10. Generally, judges don’t revise their tentative opinions, but sometimes they do. A final decision will probably be issued late in the day on June 10, or perhaps shortly afterwards.

The tentative decision differentiates California’s top-two system from Washington state’s top-two system by pointing out that in California, the primary is in early June, whereas in Washington state it is in August. The date difference means that Washington state minor parties are at least permitted to carry on a campaign up until three months before the general election, but in California, such campaigns must stop in early June. More important, the tentative decision has the courage to criticize the Ninth Circuit opinion Washington State Republican Party v Washington State Grange, which upheld the Washington state top-two system. As the tentative decision correctly says, the Ninth Circuit dismissed the ballot access claim in the Washington state case by saying it was already settled by the U.S. Supreme Court in 2000 that top-two systems are constitutional. As Judge Appel’s tentative decision says, the Ninth Circuit should not have settled the Washington state case by relying on dicta from the 2000 case. The 2000 case struck down blanket primaries. Judge Scalia, who wrote the 2000 decision, which was called California Democratic Party v Jones, said that a non-partisan primary would be constitutional, and the Ninth Circuit then jumped to the conclusion that therefore the issue is foreclosed. The Ninth Circuit was obviously mistaken, because Judge Scalia in 2000 was discussing a system with no party labels on the ballot.


Alameda County Superior Court Tentatively Rules that California Minor Parties are Entitled to a Trial on Lawsuit Against Top-Two System — 8 Comments

  1. Not only does it disenfranchise minor party voters, but potentially Democratic or Republican voters as well. Imagine being a Republican and having to choose between Howard Berman or Brad Sherman. No other candidate is on the ballot, and there is no write-in space. Is that a free election? Is that what America should be about? One party Soviet-style elections?

  2. I’m glad the court made the right (tentative) decision, but the fact that it needed a judge’s permission just to bring this case to trial is a bit infuriating. The system is obviously and patently designed to disenfranchise people seeking alternatives to the ruling two-party Demopublican cartel, and that fact should be plain as day to anyone taking an honest look at the situation.

    Just as the Democrats and Republicans routinely shut alternative party candidates out of their debates, they also have numerous ballot access restrictions designed to make it difficult for alternative parties to even appear on voters’ ballots.

    If something similar was happening in a country like Iraq or Afghanistan, the U.S. government would probably tell the locals they needed to hold free and fair elections.

    With the increasing use of electronic voting machines and their susceptibility to hacking or being engineered to produce certain results, the integrity of the vote in this country is increasingly suspect.

    The United Nations and international NGOs should send election monitors to the United States and pressure the government in this country to reform its elections and stop using the unfair rules it creates to maintain itself in power.

  3. The intent of “Top-two” is to create a one-party state as in the old USSR and to end free elections in America.

    “Top-two” should be struck down in its entirety. Let’s hope the trial court will be wise enough to rule against this evil attempt by the “top-two” cabal to subvert the US Constitution and end Liberty in America.

  4. There is no evidence to support a claim that Justice Scalia was discussing a system where there were no party labels on the ballot.

    In his dissent in California Democratic Party v Jones, Justice Stevens wrote that Scalia was discussing the Louisiana system. Louisiana has ballot labels.

    Scalia himself wrote that candidates might be nominated by established parties, or petitions for independent candidates. If there were no ballot labels, it makes no sense to give state recognition to party nominations, since the only other purpose of state recognition is to kneecap the losers in the primaries.

    If the party nominations were truly private activities and no party information was on the ballot, then such a system is indistinguishable from the system that California uses for electing its county supervisors.

    Justice Thomas in the Washington decision said that Justice Scalia was not necessarily discussing a system where individual candidates might provide information about their political beliefs. While Scalia suggested the possibility of party nomination, he did not preclude a petition for all candidates.

    Justice Scalia called his posited system a “nonpartisan blanket primary” in Jones. Yet in his Washington dissent he refers to it as a “nonpartisan general election”. It is certainly possible that Justice

  5. I’m thinking Judge Appel is Jurist of the year for this. I want to see it as the beginning of the end for top-two, as the most noxious part of top-two gets exposure. It seems as though this procedure will ultimately push the judicial system to fully anoint the top-two concept as unassailable for the major parties convenience by deliberate examination of whether a state can say it may burden minor parties a lot because it’s just so enamored with top-two.

    If that’s the eventual result, the judicial system will be as rotten as most or nearly all state political-electoral arrangements.

    A more drastic/urgent relief plan would be needed then.

  6. The California Constitution requires the use of the Top 2 Open Primary. If a California statute causes the Top 2 Open Primary to be violate the US Constitution, then the remedy is to change the statute, in this case Elections Code Section 1201.

  7. If I remember last fall’s election news stories correctly, several organizations did send election monitors. Several states promptly threatened to have them arrested if they approached voting areas. Ah, democracy…

  8. The SCOTUS MORONS in the 2000 CA Donkey party case did NOT detect that there are PUBLIC nominations by PUBLIC Electors —
    i.e. by ALL of the Electors or by SOME of the Electors (party gang Electors with or without non-party gang Electors – in other parties or independents) — according to PUBLIC LAWS.

    i.e. NO party hack gang (large or small, old or new) of Electors has ANY *right* to get its party hack candidates on the ballots — regardless of such PUBLIC laws.

    The 2000 cases is just one more case on the list to be OVER-ruled ASAP.

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