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.