On January 4, an Alameda County Superior Court held a status conference in Rubin v Bowen, the lawsuit in which the Peace & Freedom, Libertarian, and Green Parties challenge the essence of the California top-two system. The judge set another status conference for March 4, and said he is working very hard on an opinion as to whether the case should be dismissed. That opinion will be released before January 29.
This lawsuit may ultimately be dismissed or lose because the plaintiffs have failed to include much of the “Lubin v. Panish” arguments which could have been made.
Peace and Freedom Party in particular did not use the expertise of one of their own registrants, Marge Buckley, who was the attorney for Don Lubin and who won a unanimous decision for him from the United States Supreme Court.
ANY *disputed* FACTS in the case ???
If NO, then automatic legal judgments on the legal questions.
Time enough to get to SCOTUS BEFORE the 2014 nomination times ???
Whether (and how many) disputed factual questions there are in the case depends on how the judge rules in the opinion Richard reports will be released by January 29th. Some areas in which there may need to be evidence at a trial are the significance of the difference between the five months from primary election to general in California and the corresponding two and a half months in Washington, and the actual effects of the top two primary on “minor parties”.
Peace and Freedom Party is not the lead plaintif in Rubin v Bowen and it was not asked at this point to provide any arguements. That will come later if the case gets by this first hurdle. Also, I have heard nothing about Marge Buckley offering any advice and I am one of the eleven plaintifs.
#1 How does Lubin v Panish apply? Don Lubin was not attempting to run for a partisan office. In response to the SCOTUS decision, California implemented the current in lieu of petition standards.
#3 The Top 2 Open Primary is enshrined in the California Constitution. The June primary date is mere statute. If there is a conflict between the two, the constitution wins, and either the court or the legislature will move the primary.
Secretary of State Debra Bowen misinterpreted and misapplied SB 6, in a manner which is in conflict with both the US and California constitutions. Eventually, California will be forced to change the standards for party recognition.
I tend to doubt the US Supreme Court even knew that Lubin was running for a non-partisan office. Nothing is said about that in the decision. Lubin presented himself as a Peace & Freedom Party candidate. There were no Californians on the US Supreme Court at the time, and the vast majority of states have partisan elections for county office, so probably the Court thought Lubin was running for a partisan office.
#7 The Oyez project has a recording for the oral arguments for the case. If the SCOTUS did not know that Lubin was running for a non-partisan office, then they were not listening. While that may be possible for Justices Douglas and Marshall, I doubt that it was true for the entire court.
In fact, Lubin’s counsel in her opening statement appears to emphasize that distinction:
“This case first begin a year ago in February, at which time approximately 22 people who were desir[ous] of becoming candidate [in] the forthcoming elections came to me and we all proceeded to the office of the registrar, the Recorder Registrar in the County of Los Angeles.
Included among these 22 people were men and women, Black and White, most[ly] [Peace and] Freedom Party members but also two members of the Democratic Party, a member of the Republican Party and a member of the American-Independent Party.
They had two things in common, they wanted to be candidates because they had something to say to the electors and they could not afford to pay the filing fees.
Now, there was one other distinction also and that was that most of the people who wanted to become candidates, who are running for a primary position at political office which required them to be a member of the party.
But in county and city elections in California, most of the offices are nonpartisan and therefore, Donald Lubin who wished to run for the office of board of supervisor was running in a general election, not a primary election.
He was not a member of a party for purposes of ballot status.”
(The counsel for the Los Angeles County Registrar corrected her misapprehension that the June election was a general election).
The SCOTUS (apparently) took the case directly from the California superior court, and remanded it to them. It is inconceivable that a California court, or the California legislature in fashioning the in lieu of petition standards that are still in effect, could have been unaware that county offices were non-partisan.