Top-Two Supporters File Brief in Rubin v Bowen, the Minor Party Challenge to California’s Top-Two System

On June 18, supporters of the California top-two system filed a brief in the California Court of Appeals, in Rubin v Bowen, A140387. This is the lawsuit in which the Peace & Freedom Party, the California Libertarian Party, and the Alameda County Green Party challenge California’s top-two system. The Superior Court had ruled against the parties earlier this year.

The brief tries mightily to persuade the court that California now has nonpartisan elections for Congress, state legislature, and state elected executive officers. The brief also tries very hard to persuade the Court that the election itself for these offices is now in June, and that the November election is just a “runoff.” The Introduction, on page two, says, “Proposition 14 works just like the nonpartisan system by which thousands of local officials and all judicial officers have long been elected in California.” The “Factual and Procedural Background”, on page five, says, “Except for the candidate’s ability to list his or her party ‘preference’ on the ballot, this system works much like the nonpartisan general/runoff system by which many local officials in California are elected.” Part IV of the brief, on the First Cause of Action, on page 19, says, “It is beyond debate that Proposition 14 established a nonpartisan (“nonpartisan” is in italics) electoral system for voter-nominated offices.”

Having tried to cause the reader to believe that Proposition 14 set up nonpartisan elections, the brief then says the minor parties, in order to prevail, “must establish that nonpartisan elections – which have been used throughout the country for more than a century – are per se unconstitutional.”

However, California elections for Congress, state legislature, and executive statewide office (other than Superintendent of Public Instruction) are not non-partisan elections. Section 334 of the California Election Code defines “Nonpartisan office” to mean judicial, school, county, and municipal offices, and to exclude congressional, state legislative, and state executive positions.

Further evidence that Proposition 14 does not set up a nonpartisan system is that in California Democratic Party v Jones, in 2000, Justice Scalia described a theoretical election system which would, in his eyes, be constitutional. He called it a “nonpartisan blanket primary”. Obviously he meant a system with no party labels on the ballot. We know this, because in 2008, when Washington state’s top-two system, which does provide for party labels, was before the U.S. Supreme Court, Scalia’s dissent said that type of system, with party labels, violates Freedom of Association.

The brief makes no mention of the federal law that requires states to hold their congressional elections in November, and if they wish to have a run-off, the run-off must be after November. The brief makes no mention of Foster v Love, the unanimous U.S. Supreme Court opinion that required Louisiana to stop holding congressional elections in September.

The brief tries very hard to persuade the reader that the U.S. Supreme Court already rejected the ballot access claims in its 2008 decision, without telling the reader that the 2008 decision has a footnote eleven, explaining that the U.S. Supreme Court in that decision was not settling the ballot access issue.

Finally, the brief shows its contempt for the minor parties by repeatedly putting the term “minor parties” in quotations, as though there really aren’t any such things as minor parties, except in the eyes of the minor parties themselves. The U.S. Supreme Court has mentioned minor parties in several dozen decisions, and it never put the term in quotations.

California’s minor parties have done very well in actual nonpartisan elections. Several hundred registered members of California’s minor parties, during the last forty years, have been elected to non-partisan office, and some are in such office today, in small cities and also medium-size cities. They have also won County Supervisor elections in Calaveras, El Dorado, Mendocino, Placer, and San Francisco County. California’s Proposition 14 is the absolute worst world for minor parties. The presence of party labels on the ballot guarantees that minor party members will not be allowed to run in general elections, if there were at least two major party candidates for the same office (the evidence already submitted in this case shows this). In a true nonpartisan system, that would not be true.


Top-Two Supporters File Brief in Rubin v Bowen, the Minor Party Challenge to California’s Top-Two System — No Comments

  1. So many fallacies in the brief supporting Top Two. It is good to see three third parties joined in coalition to challenge this cursed election process, and I know Richard Winger’s hand is somewhere very close to the rudder of that unified ship.

  2. As usual I note that –
    Either ALL voters nominate or SOME (a FACTION of the) voters nominate candidates for PUBLIC offices —
    much too difficult for the 2000 Jones SCOTUS MORONS to detect (due to the MORON arguments and briefs in Jones).

    i.e. NO *constitutional* right for an arbitrary X percent of the voters in a FACTION to have THEIR candidates on the general election ballots.

    All nomination stuff is PUBLIC stuff —
    — nominations for PUBLIC offices by such ALL or SOME PUBLIC Electors/Voters
    — according to PUBLIC L-A-W-S.

    i.e. Too many MORON lawyers doing the ballot access cases since 1968 — matched only by the SCOTUS party hack MORONS.

    The party hacks in their PRIVATE groups can do whatever PRIVATE moron stuff they want to.
    NO primaries.
    P.R. and nonpartisan App.V.

  3. We should all be like Georgia and have runoff elections for final two if winner doesn’t get 50%

  4. Tom, the problem with your thinking is that in the end there is only one winner per district (25 million people?) and that is too small.

    When we start electing multi-winner at-large districts we bring the threshold per person down proportionately. So while a threshold for one person is 50% plus one vote and a two-person it’s 33.33% plus one vote, three person, it’s 25% plus one vote, etc., the fairness to average voters gets increased proportionately as well.

    So while a two-member district is better that a one, you must consider that more thresholds need to be lowered to elect as team, and any single-member district won’t have team psychology.

    I repeat; Any single-member district won’t have “team psychology”.

    Team psychology = accountability, teamwork, taking turns, “two heads are smarter than one” and “the more the better. Voting is more random than people think so we need bigger teams to make better decisions.

  5. For any unaware folks – P.R. math

    Close but NOT exact —

    Party Seats = Party Votes x Total Seats / Total Votes

    Exact —
    Voting Power of Party Seat winners = Party Votes

    Various complex or simple methods IF all candidates are NOT winners.

    i.e. IF all candidates were winners, then each would have a voting power equal to the votes each gets — i.e. agents of/for the voters.

  6. Justice Stevens in his dissent in ‘California Democratic Party v Jones’ said that Justice Scalia was describing the system used in Louisiana. Since the justices must have circulated their opinions, Scalia missed the opportunity to clarify.

    If he had meant elections such as Calfornia had elected its county supervisors for close to a century, why didn’t he just say so?

    In ‘Washington State Grange v Washington State Republican Party’, Justice Thomas, said that the court in the California blanket primary in its dicta had not anticipated party labels on the ballot. Again, Scalia missed the opportunity to clarify what he had meant in the opinion that he authored.

    Even Scalia may not know what he had meant, so why should we even try to guess?

    Washington Attorney General Rob McKenna successfully argued that the party preference of a candidate was a personal political expression, and not an expression of support by the political party. That is, it removed the critical factor cited by Scalia – that in a blanket primary, the nominee represented the party, and there was a violation of freedom of political association when members of other parties could interfere in the selection of a party’s nominee.

    A primary election is the first stage of an election process. The word primary is an adjective meaning first. A partisan primary is where the political parties choose nominees for the next stage, commonly called the general election. California does not have a partisan primary, except for president.

    The fact the Dan Hamburg was supported by the Green Party does not mean his election as Mendocino County supervisor was in a partisan primary.

    Prior to the use of government-printed ballots, there were no state-recognized party nominations. While someone might use party-supplied ballot, they were not required to. A hand-written vote for “Ahe Lincoln” was just as valid as one printed on a Whig ballot, or added on to a ballot supplied by the Democrats (and scratching off “Peter Cartwright”). But you would not call such elections non-partisan.

    But neither Lincoln (1846) nor Hamburg (2014) participated in a partisan primary, one which determined the nominee of a political party.

    You overlook Elections Code 332.5 that defines “nominate” as not being a procedure by which a political party selects a candidate that they prefer for a non-partisan or voter-nominated office; and Elections Code 337 which defines a partisan office to be president or party office.

    Voter-nominated and non-partisan offices share the critical element that Scalia identified in California Democratic Party v Jones, the primary does not choose the nominee of the party.

    Did the plaintiffs make any mention of the federal law or ‘Foster v Love’ in their brief to the state appeals court? Why should the intervenors address arguments that the plaintiffs failed to, or chose not to make?

    Louisiana was actually issuing certificates of election in September or October, and was not holding any election in November, with the polling places locked or boarded up.

    You know quite well that ‘Foster v Love’ does not apply to state elections, and Louisiana continues to elect its state officials and legislators in an October election. And it was a federal district court that switched the election calendar moving the Open Primary for congressional elections to November, a change upheld by the 5th Circuit in ‘Love v Foster’. The Love party had hoped that a court would have imposed a reversion to the old partisan election system. That is they were trying to use the date of election as a wrecking gambit.

    The California Constitution provides for the Top 2 Open Primary for congressional elections. The only alternative that a court has with respect to a hypothetical ruling similar to ‘Foster v Love’ would be to move the Open Primary for congressional elections to November.

    But that would likely trigger congressional action on a change to the law. You can ignore 6 representatives from Louisiana, especially since most are elected in November. You can’t ignore 71+ representatives from across the country.

    California election law does not use the term “minor party”. It is proper to use the term in quotes, particularly in a case being tried in California courts.

    When was the last time a minor party candidate elected a county supervisor positions? Was it before or after January 1, 2011?

    Wasn’t a Green Party candidate elected to the city council when Minneapolis used a Top 2 primary with partisan labels?

  7. Jim Riley, it puzzles me that you, who is so well-informed about elections, can say that there is no difference between the system by which 57 of California’s 58 counties elect county supervisors, and a top-two system. In California’s county supervisor elections, the election is in June. An “election” is an event at which someone can be elected. Only if no one gets a majority (which is seldom) is there a run-off in November.

    Granted, our common U.S. vocabulary is very flawed in this area of thought. When the definition of words is unclear, that interferes with clear thinking.

  8. Election in the law is making a choice among various choices/options.

    Thus – primary election, runoff primary election, general election, runoff general election.

    Most States at the moment obviously only have a primary election and a general election.

    i.e. the State LAW declares in which *elections* candidates may or shall be *elected* and later take office.

    As usual, SCOTUS can and should be blamed for being STUPID as usual for its incorrect election language.

    NO primaries.
    P.R. and nonpartisan App.V.

  9. The United States Constitution says that a primary is a type of election.

    BTW, how come filing closes for SF supervisor on June 10? Are the IRV ballots that complex?

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