Massachusetts State Representative Andy Vargas (D-Haverhill) writes that voters should not vote for the top-two initiative, because if it passes, it would bring the same problems that it has brought to California and Washington.

On October 23, U.S. District Court Judge Maxine Chesney held a hearing in Peace & Freedom Party v Weber, n.d., 3:24cv-8308. This is the case filed by several minor parties against the California top-two system and some of its characteristics. The state wanted the lawsuit dismissed. Judge Chesney did dismiss the part of the case that challenges the essence of the top-two system. But she kept the case alive on the issue of ballot labels for candidates who are registered into unqualified parties. Current law says they must have “party preference: none” on the primary ballot. Thus, when California candidates registered into such parties as the American Solidarity Party, the Socialist Workers Party, the Constitution Party, and the Working Class Party run, they cannot have their party label on the ballot.

Now there will be a trial on the party label issue.

The larger issue in the case is the constitutionality of forcing minor party candidates to file in December of the year before the election. The Ninth Circuit had cast doubt on such an early deadline when it upheld the Washington state top-two system. The Ninth Circuit had said it is not a severe burden on minor parties to be excluded from the election itself because they can run in the late August primary, which is near enough in time to November as to be part of election season. Then the Ninth Circuit had said it would different if the Washington primary were in March. By coincidence, the California primary for congress and state offices is in March, in presidential years. Judge Chesney was reminded of this quote from the Ninth Circuit at the hearing, but it wasn’t enough to persuade her that the California system might be unconstitutional. Eventually that part of the case will be appealed to the Ninth Circuit.

The U.S. Supreme Court has been consistent in all its ballot access precedents to say that the Constitution does not require all candidates to be treated alike. It has said the major parties and minor parties are dissimilar entities, and the states can treat them differently. Sometimes that means the state can discriminate in favor of the major parties. But sometimes the states must discriminate in favor of minor parties, and that is especially true for timing. Anderson v Celebrezze, the Supreme Court’s leading decision on deadlines, makes this clear. In that case, Ohio had argued that the state treated all presidential candidates alike: they all needed to file in March, whether they were running in a presidential primary, or whether they were independent candidates. But the Court rejected Ohio’s argument, and said states must give later deadlines to minor party and independent candidates. It said that history shows that sometimes the voters are dissatisfied with the major party nominees, and they must be given a chance to support the entry of new candidates, after the major parties have chosen their nominees. This point didn’t seem to have entered the thinking of the U.S. District Court Judge. She said orally that she saw nothing wrong with a system in which all candidates are subject to the same timeline.