On January 15, the California State Appeals Court based in San Francisco heard oral arguments in Rubin v Bowen, the case in which minor parties sued to overturn the top-two primary system on the grounds that the system disenfranchises voters in the general election who wish to vote for minor party candidates.
The hearing began badly when the first question asked by any of the three judges was to the attorney for the minor parties. The judge asked whether or not, before Proposition 14, any voters were barred from participating in the primaries. Then she amended her question to ask specifically if independent voters were barred from voting in partisan primaries. The correct answer is “No”, because between 2001 and the beginning of the top-two system in 2011, independent voters were permitted to vote in all Democratic and Republican primaries for congress and partisan state office.
Unfortunately, the attorney for the minor parties did not know this, and he answered the question by saying that before Proposition 14, independent voters were not permitted to vote in Democratic and Republican primaries. The judge then interjected that 20% of the voters were independents, which is true. Clearly this judge believed that Proposition 14 enhanced voting rights for independents in the primary, and nothing was said in the hearing to illustrate the truth.
The minor parties have stressed that ending all minor party campaigns in June, five long months from the general election, curtails their campaigns. The Washington state top-two system has been upheld by the Ninth Circuit, but the Washington state primary is in late August, and the California minor party briefs stressed that there is a significant difference between early June and late August, and that they at least should be given a hearing to present facts about the concrete differences between Washington and California. California requires all candidates for Congress and partisan state office to file in March. But the attorney for the intervenors told the judges that even March petition deadlines for general election ballot access are constitutional, and he cited the only published decision that upholds a March petition deadline for independent candidates or minor parties, Lawrence v Blackwell, a 6th circuit case from Ohio. No attorney told the court that Lawrence v Blackwell is an outlier, and petition deadlines as early as March have been struck down in Alaska, Arizona, Arkansas, Idaho, Kansas, Maine, Maryland, Massachusetts, Missouri, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, and Tennessee.
The attorney for the state told the panel that the fact that few minor party or independents qualify for the November ballot is immaterial. In 1986, the U.S. Supreme Court upheld Washington state’s old system, a blanket primary in which all candidates ran in the September primary, and candidates who failed to get 1% of the vote could not run in November. This case was Munro v Socialist Workers Party, 479 US 189. The attorney for the state said that in the Munro case, the law was constitutional even though only one minor party candidate had managed to qualify for the November ballot. Actually footnote 11 of the decision says that there were 45 minor party and independent candidates during the years the 1% rule was in effect, and 40 of them passed the 1% vote test.
The judges were told by the attorney for the intervenors that the top-two system is “exactly the same as California non-partisan elections” that require runoffs. This is not true. In California non-partisan elections that require run-offs if no one gets 50%, the first round is an election because candidates can be, and usually are, elected in the first round. By contrast, under California’s top-two system, no one can be elected in June. Thus November is the election itself, not a “run-off.” Unfortunately, one of the judges said that the November election is a “run-off” and no voice was raised to dispute that point.
A decision is expected in the next sixty days.
Sounds like the attorney for the minor parties was not at all well-prepared or briefed. Hopefully there will be sufficient reasoning for an appeal if the Appeals Court upholds “Top Two” and that then the minor parties will have a better-prepared attorney.
Richard would have done a better job,it sounds like.
The judges asked, even if we gave you a trial, what evidence could you submit that would make a difference? That evidence could show that the top-two system, while not discriminatory on its face, is discriminatory in practice. Evidence shows that voters don’t pay attention to minor party or independent candidates in the primary. Jesse Ventura only got 3% of the vote in Minnesota’s open primary in mid-September 1998, yet he went on to win in November. Audie Bock, the Green elected to the California legislature in the special election in 1999, only got 8.5% in the first round but went on to win. Some Progressive Party legislators in Vermont have got as few as 10 votes in the open primary in September, yet went on to win in November. Unfortunately none of this was said out loud in court.
Richard, have you considered filing a friend of the court brief? I dont know if they allow those in California, but might be worth looking into.
http://legal-dictionary.thefreedictionary.com/Friend-of-the-court+brief
It’s too late, but thanks for suggesting it. I wish one of the judges would read this blog post!
Here’s another source of evidence that would be valuable but would take a lot of work to assemble. Go through the five or ten largest newspapers in the state for several elections before the first top two election in 2012. Count the number of column inches devoted to each party’s candidates (with a separate count for independents) before both the June and November votes. Testable hypothesis: from June to November coverage increased by a much larger percentage for minor party and independent candidates than it did for major party candidates. The press paid a token amount of attention to minor parties in November, but almost no attention in June.
1. How about suing the USELESS lawyers for MALPRACTICE — i.e. for being INCOMPETENT ???
Will the USELESS lawyers at least read the hearing transcript and file more info with the court (using the BAN RW super database) ???
2. ALL voters nominate – top 2 areas.
SOME voters in FACTIONS nominate – other areas.
ALL according to PUBLIC laws.
Sorry – such FACTIONS are NOT independent empires — doing what they want to get stuff on ballots.
3. How STUPID are the judges in ballot access cases ???
4. When will SCOTUS file a FINAL HAMMER opinion on ALL of the genius MORONS involved in ballot access cases ???
When California had the blanket primary in 1998 and 2000, minor party candidates did better in the primary than they did in the general election in those races where the candidates on the primary ballot were the same as on the general election ballot.
What you refer to as an “open primary” is a segregated partisan primary where a voter may choose their party (pick your poison) on election day.
Why would someone choose the Independence Party ballot when there were no contested races? And in the November general election, the legislative candidates of the party did very poorly. If Minnesota had a Top 2 Open Primary, Jesse Ventura would have targeted his campaign at the primary, or he wouldn’t have been elected. Remember, Minneapolis had a Top 2 Open Primary for mayor and city council.
Frank Russo received 4 times the vote that Audie Bock did in the special primary. Under the Top 2 Open Primary he would have advanced to the runoff.
When a Democrat runs independently of the Progressive candidate, the Democrat wins. To vote for the Progressive nominee for state representative, a voter would have to give up their right to vote in meaningful races for other offices. If Vermont had a Top 2 Open Primary, the Progressive candidate would likely win.
The Minnesota Independence Party has frequently had contested primaries. Even in 2014, it had five candidates in its primary for US Senate.
Jesse Ventura was only at 10% in the polls in September 1998 in Minnesota. If Minnesota had had a top-two system, he would have been excluded. He understands that, and that is why he came out against top-two systems when it was on the ballot in California in 2004.
Less than 2% of voters in the 2014 primary selected the Independence Party ballot.
If Ventura wanted to be governor under a Top 2 Open Primary, he would have targeted the primary, or he would not have been elected governor.
Brooklyn Park uses a Top 2 Open Primary, and presumably did so in 1990 when Ventura was elected mayor.
Most judges in America are patronage appointees drawn from the membership of the two controlling political parties. I do not wish to suggest that this causes American Judges to be biased. But, consider the limited range of experience of someone who has never needed to circulate a minor party or independent candidate ballot access petition in order to vote for a tolerable candidate.
An attorney CANNOT testify. So an attorney’s argument or statements are not evidence. Judges, on the other hand, are required to take judicial cognizance of statutes. That is evidence not requiring testimony.
Whoever hired those incompetent fools should get the record amended before a decision is made.