Three California Minor Parties File Federal Lawsuit Against Top-Two System

Posted on by November 22, 2024

On November 21, three California minor parties filed a federal lawsuit against the California top-two system, a system which has been in existence since 2011. Peace & Freedom Party v Weber, n.d., 4:24cv-08308. The parties are Peace & Freedom, Green, and Libertarian. Here is the 12-page Complaint.

In its almost fourteen years of existence, the California top-two system has barred all minor party members from appearing on the general election ballot, except in races in which only one of the two major parties ran someone in that race. There is only one exception to that statement; in 2024 an American Independent Party candidate for Assembly qualified for the general election ballot, even though there had been candidates from both major parties in the race.

No federal court has ever upheld the California top-two system. The Ninth Circuit did uphold the Washington top-two system in 2012, but the decision said that it was not a severe burden on the Washington minor parties to be kept off the general election ballot, because those candidates were on the late August primary ballot. The Ninth Circuit felt the late August primary was close enough in time to the general election to give the minor parties an opportunity to participate in the election. The Ninth Circuit said it would be an entirely different case if the primary had been in March. But in California, in presidential years, the primary is in early March; and in midterm years it is in June. In presidential years, California is the only state in which it is impossible to appear on the general election ballot for Congress unless the candidate files in the year before the election (barring running as a write-in in the primary).

The California top-two system was upheld in the State Court of Appeals in 2015, in Rubin v Padilla, but that decision was marred by three factual errors. It said that the state interest in the top-two system was to enable independent voters to vote in partisan primaries. But the Court did not know that even before top-two came into existence, independent voters were free to vote in all congressional/state office primaries of the major parties. That was true for the period 2002-2010. Also the State Court of Appeals said it would be appropriate to consider the primary the general election and the general election the run-off. But the Court did not seem to know that the U.S. Supreme Court had said in 1997 in Foster v Love that it is illegal for states to hold congressional elections at a time earlier than November of even-numbered years. The very first sentence in Rubin v Padilla refers to the general election as a “runoff”, which implies the Court of Appeals thought of the primary as the election itself.

Finally the State Court of Appeals said the U.S. Supreme Court had already upheld top-two when the U.S. Supreme Court said in 2000 in California Democratic Party v Jones that whereas the blanket primary was unconstitutional, a state would be free to hold nonpartisan elections with all candidates in the primary and only two in the general election. Justice Scalia wrote California Democratic Party v Jones in 2000. But Scalia meant a system with no party labels on the ballot. Thiis is obvious, because when the U.S. Supreme Court considered the Washington state top-two, it said in footnote eleven that it was not deciding whether the ballot access restriction of a top-two system is constitutional. Instead all it did was consider whether top-two violates freedom of association. It did not decide whether top-two violate freedom of expression; it remanded the case back to the lower courts to decide that. Scalia dissented in the 2008 Washington state case, saying it was obvious that top-two violates freedom of expression and therefore there was no need for a remand.

The lead attorney is David Schoen, who has won constitutional ballot access cases in Alabama, Illinois, Maryland, Utah, and the District of Columbia. The case is assigned to U.S. District Court Judge Maxine Chesney, a Clinton appointee.

Comments

Three California Minor Parties File Federal Lawsuit Against Top-Two System — 26 Comments

  3. ca top 2 primary

    more non-votes — MORE/MORE VOTERS NOT VOTING FOR ANY COMMIE D / FASCIST R —

    ESP IF 2 D OR 2 R ON GENL BALLOTS FOR AN OFFICE
    —-
    CA ASSEM 2025 –
    WILL 41 D [OF 80 TOTAL ALL PARTIES] BE ELECTED WITH UNDER 20 PCT OF TOTAL VOTES – DUE TO ABOVE IN PART ???

    ABOUT 10 ASSEM DISTS WITH MANY INVADERS COUNTED IN 2020 CENSUS

  7. Should that word in the first sentence of paragraph #4 be “marred” instead of “married”?

  9. JFK MURDER-

    TX LAWS SUBVERTED
    JFK BODY TAKEN TO DC
    —
    LATER USA LAW/JURISDICTION RE CRIMES AGAINST USA OFFICERS

  13. In his dissent in ‘California Democratic Party v. Jones’, Justice Stevens wrote that what the Court (i.e., in the majority opinion Justice Scalia was writing on behalf of the Supreme Court) meant by a non-partisan primary was the system used in Louisiana which has partisan labels.

    Justice Scalia wrote that:

    “Finally, we may observe that even if all these state interests were compelling ones, Proposition 198 is not a narrowly tailored means of furthering them. Respondents could protect them all by resorting to a nonpartisan blanket primary. Generally speaking, under such a system, the State determines what qualifications it requires for a candidate to have a place on the primary ballot–which may include nomination by established parties and voter-petition requirements for independent candidates. Each voter, regardless of party affiliation, may then vote for any candidate, and the top two vote getters (or however many the State prescribes) then move on to the general election. This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee. Under a nonpartisan blanket primary, a State may ensure more choice, greater participation, increased “privacy,” and a sense of “fairness”–all without severely burdening a political party’s First Amendment right of association.”

  14. Richard Winger implicitly recognizes that a later primary for the Top 2 system would be constitutional. The March/June primary is not intrinsic to Top 2. Until WWII California held its primary in August.

    On remand, the federal district court in ‘Foster v. Love’ harmonized the conflict between the election dates and federal law, by changing the date of the Louisiana election. This decision was upheld by the 5th Circuit in ‘Love v. Foster’ and subsequently codified by the Louisiana legislature.

    Note that the Love plaintiffs were trying to sabotage the Open Primary based on the date, rather than the fundamental structure of the primary. That is apparently what the California plaintiffs are apparently attempting to do.

    They would be better served by moving the primary to October, and getting the Socialist Workers, Common Sense, and Constitution parties to join the suit so that candidates who prefer those parties could have it expressed on the ballot.

  15. Under the old system an independent voter could not participate in the selection of a Republican gubernatorial nominee, a Democratic senatorial nominee, and a Libertarian congressional nominee; even though they would be utterly free to contribute to each campaign, to display bumper stickers and yard signs in support; to personally advocate for the candidates by block walking. It is only where they express support in the most fundamental way, by pulling a lever that they are denied.

    If you are given your choice of where you are imprisoned that is not liberty.

  17. Jim, if you want all the candidates on one ballot, why not the general election when the largest number of voters participate? If a runoff is needed after that, fine. But any Top-X primary is a system that allows a minority that votes in primaries remove entire categories of candidates as choices for the majority who vote in general elections.

  18. There should be only one election every year, voice vote or standing count – no ballots. Most people will be completely illiterate by 2050, especially young people. For people born after 2040, the percentage who will learn the ABCs will most likely be in the low single digits.

  21. “They would be better served by moving the primary to October, and getting the Socialist Workers, Common Sense, and Constitution parties to join the suit so that candidates who prefer those parties could have it expressed on the ballot.” This is impermissible because of qualifications for election to congress. Washington State used to have a September vote, but had to move this stage of the election earlier to August. Congress wanted more time for overseas voters (military) to vote in primaries.

  23. In which CA district did that AIP candidate get on the general election ballot? I initially thought it was Assembly District 9, but the Democratic candidates in that primary were write-ins.

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