On April 10, California Superior Court Lawrence John Appel, of Alameda County, heard oral arguments in Rubin v Bowen, the case filed last year by the Peace & Freedom, Libertarian, and Green Parties. The judge won’t issue any injunction against the operation of Proposition 14, the top-two system. However, even though he feels the law is facially constitutional, he is allowing the plaintiffs to amend their complaint and make an as-applied challenge. The next status conference is on July 10. By then the results of the June 5, 2012 California primary will be known.
The judge was very familiar with all the relevant cases. He knew, without attorneys for either side mentioning it, that the March 2008 U.S. Supreme Court decision Washington State Grange v Washington State Republican Party contains a footnote eleven (the judge mentioned the footnote by number) saying the Court’s decision does not resolve, or deal with, the ballot access issue. The 9th circuit decision of January 19, 2012, in that same case, erroneously said the U.S. Supreme Court had already ruled that top-two does not violate any of the ballot access precedents. The 9th circuit judges knew less about the U.S. Supreme Court output on this than Judge Appel does.
The April 10 hearing was the first time that any court has held oral arguments over whether top-two systems violate the voting rights of minor party members and voters. The previous litigation over top-two has either dealt with two particular aspects of California’s top-two system (labels on the ballot and write-ins), or has dealt only with freedom of association. Attorneys for the minor parties argued that the 9th circuit 2012 decision does not control this case because: (1) California’s primary is in early June whereas Washington state’s is in late August; (2) the California Constitution gives greater protection to free speech rights than the U.S. Constitution does. Attorneys for California, and for the intervenors who support Proposition 14, denied that the California Constitution gives any more rights than the U.S. Constitution does in the elections context.
Hooray for Judge Appel. He and his assistant thoroughly researched the issues–not surprising to folks who have seen him at work before. He always starts at the beginning and works through a matter before him completely.
The CA gerrymander commission is useless.
The CA top 2 primary is useless.
i.e. the election law reformers are New Age MORONS.
——-
P.R. and nonpartisan App.V.
Unfortunately, the judge was interested in: what does the law say. For me the issue is one of fairness. When I was in Nicaragua, I was able to speak with the director of the fourth branch of government, the Elections Branch. He said that when they were designing the new electoral system that they were at first going to set up a system just like the United States, but they soon realized that if they did that the Sandanistas would win a super majority of the National Assembly and they would be accused of being dictatorial. That is why they decided to turn to Europe and put in a list system of Proportional Representation with a 1% threshhold for winning a seat in the 99 member National Assembly. Maybe it is time that all of the alternative parties together and with people from labor, people of color, women and lgbt communities looked very seriously at working to qualify a ballot initiative for Proportional Representation in California.
The 9th circuit decision of January 19, 2012, in that same case, erroneously said the U.S. Supreme Court had already ruled that top-two does not violate any of the ballot access precedents. The 9th circuit judges knew less about the U.S. Supreme Court output on this than Judge Appel does.
This is not accurate. The 9th Circuit decision explains why Washington’s system does not violate the standards set in Anderson v Celebrezze, Munro v Socialist Workers Party, Bullock v Carter, and Williams v Rhodes
Given the enormous increase in independent candidates under the Top 2 Open primary system in California it can not be seriously argued that there are serious ballot access restrictions.
If the 9th Circuit believed that the US Supreme Court had resolved the ballot access issues, they would not have included it in their remand to the Washington district court; the Washington district court would not have ruled on the issue; and the 9th Circuit would not have reviewed the district court decision de novo.
The source of your confusion is part [10], where the 9th Circuit said that in the US Supreme Court decision in California Democratic Party v Jones said that electoral system in which all candidates competed in the primary, and two advanced to the general election was presumptively constitutional. The US Supreme Court confirmed that is what they had said in their ruling in the Washington case. Judge Scalia in his dissent in that case did not challenge that as a mis-characterization of what he had written in the California case.
You have not previously been able to explain what you think distinguishes California’s Top 2 primary from that used for the Nebraska legislature with respect to the difficulty of a candidate qualifying for the general election.
My story is accurate. The quote from the 9th circuit opinion is, “The Supreme Court has expressly approved of top two systems.” That was a factual error, and the existence of footnote 11 in the US Supreme Court opinion of March 2008 proves it.
@4: quotes Richard Winger that the 9th Circuit decision “erroneously said the U.S. Supreme Court had already ruled that top-two does not violate any of the ballot access precedents”, then responds that this isn’t accurate because the “9th Circuit decision explains why Washington’s system does not violate the standards set in Anderson v Celebrezze, Munro v Socialist Workers Party, Bullock v Carter, and Williams v Rhodes“.
The 9th Circuit opinion does examine Washington’s top-two system in light of the standards in the ballot access decisions, wrongly (in my view) concluding that it doesn’t impose a “severe burden” on candidates from minor parties. However, they also go on to state at the end of that analysis that Washington’s top-two system may “make[] it more difficult for minor-party candidates to qualify for the general election ballot than regulations permitting a minor-party candidate to qualify for a general election ballot by filing a required number of petition signatures. This additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems.” This last sentence is where they got it so clearly wrong.
What makes this particularly relevant in this case in state court is that, as Judge Appel said at the hearing yesterday, the 9th Circuit is “not in [his] food chain”. State court judges are bound to follow precedent from higher state courts and from the U.S. Supreme Court, but precedents from federal appeals courts are only persuasive. Thus if the U.S. Supreme Court had in fact decided that top-two systems in general met ballot access standards, then the state court would be forbidded from independently examining the issue (except to the extent that the state constitution’s protections for freedom of speech and association are stronger than the U.S. constitution’s). However, if only the 9th Circuit has decided (or assumed) that top-two systems in general meet ballot access standards, the state court is free to independently examine the issue and possibly come to a different conclusion.
///Attorneys for the minor parties argued that the 9th circuit 2012 decision does not control this case because:///
///(1) California’s primary is in early June whereas Washington state’s is in late August.///
This demonstrates that the plaintiffs had read the 9th Circuit’s opinion regarding ballot issues; in which they distinguished the case in _Anderson v Celebrezze_ from that in Washington, where they compared the March nominating petition required for John Anderson in Ohio v. the August primary in Washington.
It is laughable to think that the court would rule Proposition 14 unconstitutional because SB 6 failed to change the date of the primary. If there were to be such a ruling, it would be that the June primary was too early, and it would as equally apply to the primary elections for superintendent of public instruction and county supervisors.
BTW, Washington’s primary will be August 7, 2012.
Congress essentially requires a primary no later than August, and because Washington counts late-arriving mail ballots they need an earlier primary.
///(2) the California Constitution gives greater protection to free speech rights than the U.S. Constitution does.///
The plaintiffs in the _Edelstein_ case made the same argument. The California Supreme Court opinion said that the plaintiff’s had failed to articulate what that greater protection might be.
Imagine that the US Supreme Court ruled that a prohibition of yelling fire in a crowded theater was not a violation of the 1st Amendment. Someone couldn’t merely assert that because the California Constitution afforded greater free speech protection, that a California law against yelling fire in a crowded theater was therefore in violation of the California Constitution, but would have to articulate the reason.
In Alaska, the political parties were able to successfully articulate a claim under the Alaska Constitution, preserving the voluntary blanket primary. The political parties in California and Washington were so obsessed with getting rid of the blanket primary, they did not consider that.
I suspect that if, for example, that the Green Party wanted to permit Coffee Party voters to vote in their presidential primary, that the California Supreme Court might cite the Alaska decision and order that voters affiliated with the Coffee Party be permitted to vote in their presidential primary.
Or a candidate who prefers some party not qualified to have a presidential primary or have its endorsements appear in the sample ballot, could have the right under the free speech provisions of the California Constitution, as well as the Top 2 provisions in the Constitution to have that party preference appear on the ballot.
Decisions such as _Jenness v Fortson_, _Storer v Brown_, and _Libertarian Party v Eu_ simply are not applicable to access to the primary ballot under a Top 2 Open Primary system.
#7, the US Supreme Court decision Munro v Socialist Workers Party, which you don’t mention above, said that there is no constitutional difference between a petition for a candidate to get on the general election ballot, and a prior vote test to get on the general election ballot. Because petitions can’t exceed 5%, neither can prior vote tests. But the effect of requiring a candidate to place first or second in a qualifying round is the equivalent of requiring that candidate to get, on the average, 30% of the vote.
#6
///This additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems.” This last sentence is where they got it so clearly wrong.///
That no more than two candidates advance to the general election, and a 3rd candidate might receive 30% of the vote _is_ an inherent feature of a Top 2 system. While it might be a bit strong to claim that the Supreme Court “approved” of a Top 2 system, they clearly believed it would be constitutional.
Justice Scalia characterized what he called a nonpartisan blanket primary with the following:
(1) The State determines what qualifications it requires for a candidate to have a place on the primary ballot;
(2) Each voter, regardless of party affiliation, may then vote for any candidate;
(3) and the top two vote getters then move on to the general election.
Washington and California have determined what qualifications it requires for a candidate to have a place on the primary ballot. Both require a filing fee, and California requires a modest petition.
These ballot access requirements are quite reasonable, and the only issue is the timing. For partisan candidates affiliated with qualified parties, these are no different than they were before the Top 2 Open Primary.
For candidates affiliated with non-qualified parties, and those not affiliated with any party the filing is earlier, but the number of signatures is substantially less than previously required. I think it would be hard to establish that is unconstitutional given that 37 independent candidates have qualified for the 2010 elections for Congress and the legislature, compared to a total of 11 for the previous 12 elections.
Question for Jim Riley:
Since under Prop. 14 the Secretary of State’s Office, if it hasn’t already, will be listing the past 10 years registration of ALL candidates on the primary ballot. It will be interesting to see just how MANY of the 37 Independent candidates changed their party registration to Independent from one of the 2 major parties since the beginning of 2011 for tactical purposes in the primary.
#10, here is the list: http://www.sos.ca.gov/elections/2012-elections/june-primary/pdf/party-preference-history-2012.pdf.
#8 ///the US Supreme Court decision Munro v Socialist Workers Party, which you don’t mention above,///
But which the 9th Circuit did quote in their decision:
“It can hardly be said that Washington’s voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election.”
How do you distinguish the Top 2 system used for the Nebraska legislature, and that used for California’s legislature, among other offices?
ALL of the SCOTUS ballot access cases in 1968-2012 have been arbitrary, irrational and UN-equal — since ALL of the SCOTUS robot party hacks LOVE the ANTI-Democracy gerrymander Donkeys/Elephants being in power since 1865 (repeat 1865)
— some sort of SCOTUS institutional WAR GUILT for the SCOTUS opinion in Dred Scott v. Sandford in 1857
— which produced John Brown in 1859
— which produced the secession stuff in 1859-1861
— which produced about 750,000 (latest estimate) DEAD Americans on both sides in 1861-1865.
What part of the nearly dead U.S.A. Const says that ANY political party (of whatever size, new or old) has a constitutional RIGHT to get its candidates on ANY ballot ???
How much FREE ADVERTISING regarding robot party hack labels in the CA top 2 primary ???
P.R. and nonpartisan App.V.
ONE election.
ONE ballot access process – i.e. equal nominating petitions.
http://www.sos.ca.gov/elections/ccrov/pdf/2012/march/12097jlb.pdf
Has the explanation of voter-nominated offices in English, Chinese, Hindi, Japanese, Khmer, Korean, Spanish, Tagalog, Thai, and Vietnamese.
Pingback: California State Court Won’t Enjoin Proposition 14 Now, but Keeps Minor Party Ballot Access Issue Alive | ThirdPartyPolitics.us
#10 These are the numbers for those running for US representative. Any indicated changes came in the past 3 years: 1 in 2010, 24 in 2011, 14 in 2012.
105 Democrats: 99 long-time, 6 recent converts: 4 Republicans, 1 Reform, 1 new to state.
97 Republicans: 85 long-time, 12 recent converts: 3 Democrats, 2 American Independent, 1 American Independent+Reform, 5 No party preference, 1 new to state.
6 Greens: 3 long-time, 3 converts: 1 Democrat, 2 NPP.
3 Libertarian: 1 long-time, 1 convert: 1 Republican.
1 Peace&Freedom: 1 long-time.
28 No Party Preference: 10 long-time, 18 converts: 10* Republicans, 4 Democrats, 2** American Independents, 2 Greens.
*3 of the former Republicans were short-time (they changed registration twice in the past 3 years): 1 No Party Preference, 1 Libertarian, 1 Democrat.
**1 of the former American Independents is Chad Condit, son of former Blue Dog Democrat Congress Gary Condit. Chad Condit registered American Independent when he moved to California in 2011. He had last been registered in California in 2003 as a Democrat.
Conversion to No Party Preference from a partisan preference tended to be more recent (that is in 2012), with 9 of 14 2012 conversions in that direction; while conversion to a party or different party were concentrated in 2011.
It is impossible to say from the registration data, whether the changes were tactical or not. Some may simply be recognition of their true leanings – if someone decided to run for Congress in the last few years, as opposed to someone who had it penciled in as part of their life plan, their motivation might be disgust with the two parties. Their former partisan registration might itself have been expedient or tactical, in order of being sure to be able to vote in the primary, or they may have found out that they had a partisan registration when they decided to run (I assume that is what happened with Chad Condit).
There were two candidates who had been registered with the Reform Party. That the SOS had to list these registrations documents the logical bankruptcy of Debra Bowen’s thinking.
# 16 How many of the changes in registrations are/were due to the latest rigged gerrymander districts ???