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.