Here is the 27-page opinion in Rubin v Padilla, the California State Court of Appeals decision upholding the top-two system. The opinion shows that the three judges who signed the opinion are ignorant of two important points: (1) that federal law requires the states to hold congressional elections in November, with any run-off after November; (2) that during the decade before top-two was implemented in California, independent voters were allowed to vote in all Democratic and Republican primaries for Congress and partisan state office.
The fact that the three judges do not know about the federal law that requires states to hold congressional elections in November, with any run-offs afterwards, is evident from pages 14 and 16. Page 16 says, “A hypothetical illustrates the point. Plaintiffs’ constitutional objection would appear to be mooted if California simply eliminated the general election and awarded elective office to the winner of the primary election.” This is exactly what Louisiana did between 1978 and 1996, but the Louisiana system was invalidated by a unanimous opinion of the U.S. Supreme Court, Foster v Love, 522 U.S. 67 (1997). The opinion in Rubin v Padilla does not mention Foster v Love and it is clear that the judges didn’t know about it. Foster v Love was mentioned in an amicus brief, but not in the briefs filed by the parties to the lawsuit. It is likely the judges didn’t read the amicus.
Page 14 says, “Both elections (meaning the June primary and the November election) are ‘general elections’.” Again, Foster v Love negates that definition. Only November is “the” election, for Congress. Also, page one of the Rubin decision refers to the November election as a “run-off.”
A worse misunderstanding occurs in the part of the decision that talks about the supposed exclusion of independent voters from California congressional and state office primaries before 2011. Whole paragraphs of the decision are dependent on the judges’ erroneous belief that independent voters were excluded, before the top-two system was passed. Page 14 says about the old California system, “The candidates in the general election were chosen by party members, not by voters generally.” Actually in the old system they were chosen by independent voters as well as party members.
Page six says, “Those nominees were selected by the vote only of members of the party they represented.” Page 21 says, “Yet, so long as the primary election served to select party nominees, the state was precluded by the Supreme Court’s decision in Jones, from granting independent voters the right to participate…in effect, their choices at the general election could be determined for them by the members of the qualified parties.” This statement is wrong for three reasons: (1) in the old system, independents could vote in California primaries; (2) also under the old system, all voters were free to petition to put independent candidates on the November ballot, a right that no longer exists; (3) lower courts do not agree that the Jones decision invalidates state laws that allow independents to vote in primaries; the Jones decision established that members of other parties could be barred from a particular party’s primary.
Page 20 says the primary purpose of the top-two system is to “permit independent voters to participate in the process of narrowing candidates for the general election” and says this purpose alone is sufficient to uphold the top-two system. The entire opinion upholding top-two thus depends on the judges’ misunderstanding that independent voters were not permitted to participate in the old system. In fact, under the old system, independent voters had more power than party members at primaries, because party members had to accept their own party’s primary ballot, but independents were free to choose either major party primary ballot.
A third misunderstanding by the judges is on page ten. The opinion says that Judge Antonin Scalia’s hypothetical election system, described by him in 2000 in his opinion in California Democratic Party v Jones, says a top-two system would be constitutional. But it is obvious that Scalia’s hypothetical system in 2000 is not the same as the actual top-two system, because in 2008, when the U.S. Supreme Court upheld the Washington state system on freedom of association grounds, on its face, Scalia dissented. Scalia’s hypothetical system in his 2000 decision was a system without party labels on the ballot. It is inconceivable that Scalia would have written in 2000 that a top-two system is OK, when he then said in 2008 that the actual top-two system violates freedom of association. Furthermore, footnote eleven in the 2008 Washington state case said that the court was not deciding the ballot access issue. If the US Supreme Court said in 2008 that the ballot access issue in top-two systems is still undecided, it is clear that the 2000 California Democratic Party v Jones could not have decided it.
This and the previous posting indicate two things: (1) judges continue to be ignorant and their own research is absolutely minimal and (2) the lawyer for those opposed to Top Two was woefully inadequate. Third Parties and Independents need to find more knowledgeable and able lawyers to represent them in ballot access type cases. Demo Rep has several times made a very valid point – that there is no penalty for enacting or misinterpreting bad ballot access laws.
On the merits – AGAIN —
1. ALL voters nominate as in top 2 primary States.
2. SOME voters nominate as in all other States.
NO mention in the USA or CA State Consts. that X percent of the voters in a FACTION have a *right* to have the FACTION candidates on the official general election ballots — i.e. the 2000 SCOTUS hacks messed up the point — per usual.
How soon before SCOTUS has the FINAL hammer opinion regarding top 2 stuff ???
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P.R. and nonpartisan App.V.
NO primaries.
Ballot access ONLY by equal petitions.
A few hours after the hearing on January 15, I hand-delivered a letter to each of the three judges. I gave it to the clerk’s office. The one-page letter contained proof that independent voters were permitted to vote in all congressional and state office primaries, including instructions to election day officials on how to inform independent voters of their rights. I didn’t expect my unofficial letter to be made part of the court record, but I was hoping at least one of the three judges would read the letter. But a few days later my letters were returned to me by the clerk, so I will never know if any judge looked at the letter. Their opinion seems to indicate they didn’t. Of course judges don’t like to make factual errors in their opinions. I believe the attorney for the minor parties is free to request a rehearing and mention some of the things the judges got wrong.
For younger folks —
The SCOTUS robot party hack MORONS have been screwing up ballot access since 1968 — now a mere 47 LONG years ago –
Williams v. Rhodes
Armies of lawyer and justice MORONS – unable to detect that each election is NEW —
i.e. has ZERO to do with any event since the alleged Big Bang forming the Universe — except the number of actual voters in the election area involved in the prior election.
The Louisiana system was not invalidated by the US Supreme Court. On remand, the Love plaintiffs attempted to have the Open Primary dismantled, with a return to old segregated partisan primaries which existed prior to the Open Primary. Instead, the district court modified the election schedule, so that election could not occur prior to the current statutory date set by Congress. The Love party appealed to the 5th Circuit (Love v Foster) who rejected it. Louisiana later codified the decision of the district court.
The Supreme Court warned of the type of wordplay that you are engaging in here. In Louisiana, writs of election were being issued in October. The polling places were not even open in November.
Governor Jerry Brown has not in 2012 nor 2014 of writs of election prior to the November date for any congressional candidate (barring of course special elections to which the federal statute does not apply).
Section IV of ‘Foster v Love’ clearly limits its scope to congressional elections.
Does the election of county supervisors in June in California violate federal law? What about the election of superintendent of public instruction?
Wouldn’t it be better to pursue a claim based on ‘Foster v Love’ in federal courts and base it on the appropriate parts of the US Constitution (Article I) and federal statute and limit it to congressional elections?
Richard Winger writes:
“Page 14 says about the old California system, “The candidates in the general election were chosen by party members, not by voters generally.” Actually in the old system they were chosen by independent voters as well as party members.”
But the opinion says “In applying the Supreme Court decisions addressing the right to ballot access, it is
essential to recognize the difference between
the electoral system enacted by Proposition 14 and the
classic system considered in these decisions.”
“These decisions” refers to cases such as “Williams v Rhodes”, “Jenness v Fortson”, and “American Party of Texas v White”, not specifically to the system used in California from 2002 through 2010, which there have been no Supreme Court decisions in regard to.
I don’t see the relevancy that political parties could invite independent voters to vote in their primary, and a few of them did to the issue at all. You aren’t suggesting that if the Democratic and Republican party had not permitted some voters to vote in their primaries, that Top 2 would be constitutional are you?
It is amazing how many judges are uninformed about the law.
We really don’t know what Justice Scalia meant in ‘California Democratic Party v Jones’. In his dissent in that decision, Justice Stevens said that Scalia was referring to the Louisiana system. Presumably the dissent had been circulated, and Scalia could have clarified if he did not mean a system like Louisiana where partisan labels appear on the ballot.
But Scalia said that his system might include nomination by political parties of candidates to appear on the non-partisan blanket primary ballot.
It would be somewhat strange that candidates could be placed on a ballot by nomination, but without the identity of the nominators shown. Ohio uses partisan nomination of judges in primaries, but the party affiliation does not appear on the general election ballot, so that system is not totally unheard of.
But Justice Thomas in the Washington case said that the court had not considered the possibility of partisan labels.
Justice Scalia’s dissent gives no insight since he doesn’t mention the earlier case.
The court did err on the issue of candidates who preferred a non-qualified party having that party name appear on the ballot. Gautam Dutta had made such a claim in his briefs in ‘Field v Bowen’, but then argued before the Superior Court that such candidates had a right to have “Independent” appear on the ballot based on a bizarre interpretation of ‘Libertarian Party v Eu’. When he later made the same argument before the 9th Circuit, one of the judges had to remind Dutta that has she had carefully read that decision, and that he was misconstruing it.
It was the intervenor in “Field v Bowen” that suggested that the Secretary of State was misreading SB 6. It is unlikely that any of the current plaintiffs have standing to argue the point. So no one with standing has challenged Bowen’s misinterpretation.
Clearly there is a constitutional right to register with a non-qualified party, and California’s procedure for party qualification is dependent on that ability. Before the June 2010 Election at which Proposition 14 was approved, the Secretary of State sent a memo to county election officials stressing the distinction between registrants with non-qualified parties and Decline To State (DTS) voters. While the invitees to the Democratic and Republican primaries were popularly referred to as DTS voters, the statute referred to them as voters not affiliated with parties participating in the primary. In 2012, the Americans Elect party notified the SOS that the party was not participating in the presidential primary. Therefore, even though AE was a qualified party, affiliated voters were eligible to request an American Independent or Democratic ballot.
Proposition 14 said that existing registrations would be converted, and SB 6 detailed that conversion process. SB6 made a distinction between DTS and party-affiliated voters. It made no distinction between voters affiliated with qualified parties, and voters affiliated with non-qualified parties. All party-affiliated would have their affiliation converted to a party preference. Only DTS voters would be converted to No Party Preference (NPP) voters.
SB 6 said that a candidate’s party preference was that which they had expressed on their affidavit of voter registration. Registration affidavits are signed by the registrant to certify that the information on them is truthful and correct, subject to perjury charges.
Proposition 14 said it was its intent to comply with the Washington Top 2 decision. In that case, Washington successfully argued that a candidate’s party preference was a personal political belief, and not an indication of party endorsement.
As personal political expression it is protected free speech. California might limit it to form, such as length, or use of Latin script (for the English version at least), or proof that exist. California already has similar limits on the occupation designation. Compelling the use of “No Party Preference” is clearly contrary to ‘Gralike’ since it would indicate that the candidate had committed perjury when they registered to vote, and is patently false.
California does not have the authority to restrict speech to popular speech. The 1st Amendment is intended to protect unpopular speech. Popular that the government agrees with does not need protection. Candidates have demonstrated the modicum of support to appear on the ballot when they collect their few dozen signatures. While California has in the past has required bazillions of signatures for nomination by petition, or to qualify a party, it has not done so for offices in which there are no nominations, such as superintendent of public instruction, or county supervisor.
The California Constitution says that the State may not make distinctions among candidates based on their party preference. Making a distinction based on whether the party preference is for a party qualified to have a presidential primary, make presidential nominations, or elect party offices is contrary to the intent of Proposition 14 which was to extirpate nominations by parties which had previously been qualified to do so.
Hello Richard, Like you, I’m disappointed that the judges did not read your letter. But they couldn’t have read it in any case unless it was properly introduced into the record of the case. In the future, could you please contact me and see if we could make it an amicus brief. Then, even if they don’t read it, it will still be part of the record when/if it goes up to the Supreme Court.
If there is a petition for review by the Supreme Court then I strongly urge you to make your letter into an amicus.
It now takes a super computer to keep up with ALL of the hair splitting comments by SCOTUS regarding all election related stuff — or perhaps merely about a 5,000 page book.
See the old Gordian Knot stuff and Alexander the Great.
“Wouldn’t it be better to pursue a claim based on ‘Foster v Love’ in federal courts and base it on the appropriate parts of the US Constitution (Article I) and federal statute and limit it to congressional elections?”
Isn’t that basically what was being done here? The ballot access claim was that you can’t limit the general election to only two candidates. If California wanted to adopt the current Louisiana system, that would be fine, because then the general election would not be limited to two candidates. If California wants to say that the “general election” encompasses the election in June, then it can’t include congressional elections in that schedule under federal law.
These aren’t just word games. The November election is the real election at which candidates win their offices and in which most voters participate. Limiting that election to two candidates is antithetical to democratic principles and illegal when applied to congressional elections, no matter what words you use to describe it.
No it isn’t. ‘Foster v Love’ had absolutely no effect on the manner in which Louisiana elected its governor, or legislature.
Nebraska has been using Top 2 to elect its legislature for 80 years, with the final choice being made at an election coincident with the congressional election.
If your interpretation of federal statute, and ‘Foster v Love’ is correct, it should be a slam dunk case to win in federal court.
Why cloud the case with extraneous side issues?
The only reason I can think of is because the plaintiffs really don’t care one way or another about ‘Foster v Love’.
A sample of the RESULTS of the CA 2014 general election after using the top 2 primary —
***** 24.2 ***** percent of the voters in 2014 elected the 41 Democratic Assembly persons with the lowest votes — of 80 Assembly members.
BLATANT violation of the RFG language in USA Const Art IV, Sec. 4 and the EPC in 14th Amdt, Sec. 1.
Too many math MORON lawyers and judges to count.
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Basic ANTI-Democracy gerrymander math –
1/2 or less votes x 1/2 pack/crack gerrymander districts = 1/4 or less CONTROL.
In most non top 2 primary States the minority rule is about 30 percent.
I.E. due to the CA gerrymander districts NOT having 1 D and 1 R the control percentage was DOWN about 5 percent.
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P.R. and nonpartisan App.V.