CALIFORNIA COURT OF APPEALS UPHOLDS TOP-TWO IN A DEEPLY FLAWED DECISION

On January 29, the California Court of Appeals ruled in Rubin v Bowen that keeping minor party candidates off the November ballot is a "slight burden", and that this is true as a matter of law, so the plaintiffs are not entitled to a trial to dispute this finding. On February 12 a request for rehearing was filed, but the Court has not agreed to rehear the case. If the Court takes no action by February 27, the petition for rehearing is deemed denied.

The opinion describes the individual plaintiffs as "party members and candidates", but doesn’t say that they are also voters, and doesn’t discuss the rights of voters. The U.S. Constitution gives more rights to voters than to candidates. In November 2010, the last time California voters could vote for minor party candidates for statewide office in the general election, a very large number of voters voted for minor party candidates:

Nov. 2010 Minor Party Votes

Governor	539,645
Lt. Governor	1,073,984
Secretary of State	827,593
Treasurer	711,041
Controller	847,506
Attorney General	835,871
Insurance Cmsr.	1,116,826

In November 2014, the number of votes cast for minor party candidates for statewide office in California was zero, because the current election system does not permit voters to vote for anyone who didn’t place first or second in the June primary. California was the only state in November 2014 in which voters were not able to vote for anyone but Democrats and Republicans for all the statewide offices.

All the other states except New Hampshire, Pennsylvania, Alabama, and New Mexico had minor party or independent candidates on the November ballot for statewide office, and those four states at least permit write-ins in November, whereas California doesn’t. Washington is the only state that didn’t have any statewide offices up in 2014, but if it had, Washington also permits write-ins in November, so California would still have been unique.

Paradoxically, between October 2010 and October 2014, registration in California minor parties went from 803,072 to 942,359, an increase of 17.34%. The October 2014 figure is the most recent tally. The number of voters registered in parties other than Democratic or Republican is 5.29%, whereas four years earlier it was 4.65%. The registration data suggests that if Californians had been permitted to vote for minor party candidates in November 2014, the vote totals would have been higher than in 2010.

Decision is Based on Errors

The decision is based on three points, all of which are faulty because the Court made errors in support of each of its points.

U.S. Supreme Court Has Not Decided the Issue

The California Appeals Court said the U.S. Supreme Court has already upheld the constitutionality of top-two systems, in a 2000 decision by Justice Antonin Scalia, California Democratic Party v Jones, 530 US 567. That decision struck down California’s blanket primary. Scalia said the state would be free to "resort to a nonpartisan blanket primary." (italics in the decision itself). However, it is obvious that what he imagined was a system with no party labels on the ballot.

This is clear, because in 2008, when the U.S. Supreme Court ruled in Washington State Grange v Washington State Republican Party, 552 US 442, that Washington state’s top-two system doesn’t violate freedom of association on its face, Scalia dissented and said having a party label on the ballot next to the name of a candidate not favored by that particular party violates that party’s freedom of association.

Another indication that the U.S. Supreme Court hasn’t already decided the issue is that the 2008 Washington decision says in footnote eleven that the Court was not deciding whether top-two violates voting rights. The California Court of Appeals decision does not mention footnote eleven.

November is not a "Runoff" Because Federal Law Forbids It

The State Appeals Court believed that California’s June primary is the "election" and November is just a "runoff." The very first sentence of the decision says, "Three small political parties and several party members and candidates sought to invalidate California’s electoral system for statewide and legislative offices, contending the system, which consists of an open nonpartisan election followed by a runoff between the top-two candidates, deprives them of equal protection and associational and voting rights." (emphasis added).

Page 16 of the decision 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." Page 14 says, "Both elections (meaning the June primary and the November election) are ‘general elections’."

The Court obviously did not know that federal law, since 1872, makes this hypothetical idea illegal, as applied to congressional elections. In 1997 the U.S. Supreme Court unanimously invalidated Louisiana’s election law, which provided for a congressional election in September and a run-off in November if no one got 50% in September. Foster v Love, 522 US 67. The decision says states must hold congressional elections in all districts in November, and if the state wants a runoff, it must be afterwards. The only states with general election runoffs are Louisiana and Georgia.

Independents Could Vote in Primaries Before Top-Two

Whole paragraphs of the decision are dependent on the judges’ erroneous belief that independent voters were excluded from voting in major party congressional and state office primaries, before the top-two system went into effect. Page 14 says, "The candidates were chosen by party members, not by voters generally." Page six says, "Those nominees were selected by the vote only of members of the party they represented." (emphasis added).

The decision says that the top-two system is justified, if only because it makes it possible for independent voters to vote in congressional and partisan state office. The court didn’t know that independent voters were permitted to vote in all Republican, Democratic, and American Independent primaries between 2001 and 2010.

The Court also 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." Therefore, the most essential part of the decision, the state interest in the top-two system, is based on a misunderstanding. The decision says, "So long as the primary system 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." This sentence is mistaken.

The U.S. Supreme Court Jones decision is based on the principle that parties have a right to exclude members of other parties from voting in their primaries. There is no reported decision that says parties have a constitutional right to exclude independent voters from their primaries.

Neither the Republican Party nor the Democratic Party has ever filed a lawsuit to prevent independent voters from voting in primaries. Major parties have filed lawsuits in Hawaii, Idaho, Mississippi, Montana, South Carolina, and Virginia to close their primaries, but these cases were all based on a party’s objection to letting members of other parties in their primaries. The evidence in these cases all concerns members of other parties, not independents. Even at that, only one of the lawsuits, the Idaho one, has won so far.

At least five states require parties to let independent voters vote in primaries, and none of these laws has been challenged by either major party. Those states are Nebraska, Arizona, Massachusetts, New Hampshire, and Rhode Island. In a majority of states, independent voters can vote in either major party primary for Congress and partisan state office.

What a Trial Would Show, if a Trial were Permitted

The Appeals Court said top-two is not discriminatory. But the U. S. Supreme Court has said that whether a system is discriminatory depends on evidence, and that "sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike (Jenness v Fortson)." A trial would show that most voters don’t look at independent or minor party candidates until the primary is over. Minor parties and independent candidates don’t win partisan elections very often, but when they do, they usually get little attention until the primary is over.

~	2010	2014	Ratio
La.	40.0	45.1	1.13
Wis.	52.0	56.5	1.09
Neb.	38.7	41.5	1.07
Ark.	37.9	40.1	1.06
Col.	51.7	54.5	1.05
N.H.	46.1	48.4	1.05
Me.	55.9	58.5	1.05
Ky.	42.4	44.0	1.04
N.C.	39.8	41.2	1.04
Ak.	52.9	54.4	1.03
Fl.	42.2	43.3	1.03
Ks.	42.6	43.4	1.02
Or.	53.8	53.5	.99
Ia.	50.7	50.2	.99
Mt.	48.4	47.3	.98
N.D.	46.6	45.0	.97
Mi.	45.1	43.2	.96
Ill.	43.1	40.9	.95
Ga.	40.6	38.5	.95
Va.	39.1	36.6	.94
R.I.	45.4	42.2	.93
Ct.	45.9	42.5	.93
Id.	42.9	39.6	.92
Hi.	40.3	36.5	.91
Mn.	55.8	50.5	.91
Ma.	49.4	44.6	.90
Md.	46.4	41.5	.89
S.C.	40.3	35.2	.87
Tex.	32.1	28.3	.87
N.J.	37.7	32.5	.86
Wy.	46.0	39.3	.85
Pa.	41.7	36.0	.85
WV.	36.8	31.2	.84
NM.	42.8	35.7	.83
S.D.	53.9	44.9	.83
Tn.	34.6	28.6	.83
Ut.	36.8	30.2	.82
Az.	41.5	34.1	.82
N.Y.	36.3	29.0	.80
Wa.	54.3	43.1	.79
Oh.	46.1	36.2	.79
Ms.	37.0	28.9	.78
Vt.	49.4	38.8	.78
Ok.	38.8	29.8	.77
Ala.	43.3	33.2	.77
Ind.	38.1	28.8	.76
Del.	47.5	34.4	.72
Mo.	44.5	31.8	.71
Nev.	41.3	29.0	.70
CAL.	45.8	30.8	.67

On February 18, the Oklahoma House Elections & Ethics Committee passed HB 2181 by 7-0. It lowers the number of signatures for a newly-qualifying party from 5% of the last vote cast, to 1%. The bill’s sponsor, Jeffrey Hickman, is House Speaker.

If this bill is signed into law, no state will any longer have mandatory petitions for statewide independent candidates or newly-qualifying parties harder than 3% of the last vote.

On February 5, the South Dakota Senate passed SB 69, which makes ballot access more difficult in three different ways:

Deadline for new parties: the bill moves the petition deadline from March to February, even though the last time the deadline was in February, in 1984, the Libertarian Party won a lawsuit against that deadline.

Independent candidate petitioningrestriction: the bill says no one can sign a petition for an independent candidate unless the signer is not a member of a qualified party. There is currently no state with a restriction like that, and in all U.S. history, only two states ever had a law like that. Louisiana repealed its restriction in 1948. Arizona passed such a restriction in 1993, but it was held unconstitutional in 1999.

Primary petitions for new parties: the bill says when a new party gets on the ballot, its members can’t get on that party’s primary ballot unless they obtain the signatures of party members equal in number to 1% of all the independent voters in the state. This is wildly illogical, because independent voters can’t sign such petitions.

The ACLU lobbyist pointed out the problems with these provisions to the Senators, but they acted anyway. The bill still hasn’t been scheduled for a committee hearing in the House.

Connecticut: on February 13, three Republican State Senators introduced SB 222, which changes the definition of a party that is entitled to a primary from one that got 20% of the last gubernatorial vote, to 15%. It also lowers the alternate registration test from 20% to 15%.

Kansas: on February 20, Representative Steven Johnson (R-Assaria) introduced HB 2274. It lowers the number of signatures for a newly-qualifying party from 2%, to 1%, of the last gubernatorial vote. It also expands the petitioning period from any six months of the group’s choice, to a year of the group’s choice.

The Green Party persuaded Johnson to introduce this bill. The Green Party has never been on the Kansas ballot, although Ralph Nader, the party’s 2000 presidential nominee, qualified as an independent that year. No new party has qualified in Kansas since 1996. Before 1965, Kansas did not require any petition for a new party to get on the ballot. In 1965 the petition was created, at 3% of the last gubernatorial vote. That was lowered to 2% in 1984. The only parties that ever complied with the Kansas party petition are the Libertarian Party in 1990, the Reform Party in 1996, and the U.S. Taxpayers Party in 1998. The latter two parties are no longer on the ballot.

Maryland: on February 16, Maryland Delegate David Moon (D-Montgomery County) introduced HB 626. It lowers the number of registered members for a party to remain ballot-qualified from 1% of the state total (approximately 40,000), to exactly 10,000. If the bill were to pass, the Libertarian and Green Parties would probably not need to petition in the future. Both parties are now on the ballot, but under current law they will go off in November 2016 unless they poll 1% for President. In January 2015 the Libertarian Party had 15,310 registrants and the Green Party had 8,616.

Pennsylvania: on February 18, State Senator Mike Folmer (R-Lebanon) introduced SB 495, which eases ballot access for independent candidates and small political parties. The bill says any party that has registration of at least one-twentieth of 1% (but under 15%) would be entitled to nominate by convention, and its nominees would be on the November ballot automatically. If the bill were enacted, the Libertarian and Green Parties would qualify for ballot status.

The bill reduces petitions for independent candidates from 2% of the winner’s vote in the preceding election, to exactly 2,000 for statewide office, 1,000 for U.S. House, and smaller numbers for lesser office.

Current law does not permit a party to be on the ballot automatically unless it has registration of 15%.

Senator Folmer is chair of the committee that will hear the bill in theSenate, and the bill has 5 Republican sponsors and 5 Democratic sponsors. The Senate has 50 members.

On February 17, the New Hampshire House Election Law Committee voted against HB 665, which lowers the petition requirement for independent candidates and the nominees of unqualified parties. For statewide office, the petition would have dropped from 3,000 to one-tenth of 1% of the state’s population, which would be 1,317 this decade.

In New Hampshire, bills defeated in committee are still brought up on the House floor, so technically the bill isn’t dead, and it may get a roll call vote. New Hampshire was one of only four states in November 2014 with no minor party candidates on the ballot for statewide office. Petitioning in New Hampshire is more difficult than in most states, because only one signature per sheet is permitted.

At the Committee hearing, some legislators said they wish they could eliminate the ability of candidates to run as independent candidates.

On February 10, U.S. District Court Judge Ronnie White, an Obama appointee, ordered election officials in St. Louis County to put the Constitution Party nominee for County Council on the ballot in an upcoming special election. The St. Louis County Charter says that when special elections for County Council occur, only the nominees of the two parties that placed first and second in the last gubernatorial election can be on the ballot. Constitution Party of Missouri v St. Louis Co., e.d., 4:15cv-207.

On February 12, the Judge added to his order, and set forth procedures for independent candidates to get on the ballot. They will need a petition signed by 2% of the last vote cast, the same petition requirement that is already in the state election laws for independent candidates for state disrict office.

Alabama: on February 12, the Eleventh Circuit ruled that the state is breaking federal law by holding its runoff primaries only 42 days after the primary. Since 2009, federal law has required states holding federal primaries or elections to mail overseas ballots at least 45 days before election day. Obviously, if the runoff primary is only 42 days after the primary, a state cannot comply with the federal law.

Alabama argued that the federal law is not clear and allows for exceptions, but the decision rejects the state’s interpretation. U.S. v State of Alabama, 14-11298.

California: on January 30, a Superior Court in San Diego County refused to stop the city of Del Mar from holding an internet election on an advisory ballot measure. Mohns v City of Del Mar. State election law does not permit normal elections in California to be conducted on the internet. But the city argued that because the election is merely advisory, it is analogous to an opinion poll, and the judge agreed.

City residents get a unique password in order to vote. The measure asks residents to say which of three designs for a new city hall they favor.

New York: on February 17, U.S. District Court Judge Jack B. Weinstein, an LBJ appointee, ordered Governor Andrew Cuomo to call a special election to fill the vacant U.S. House seat in district 11 no later than February 20. Rossito-Canty v Cuomo, e.d., 15-cv-568.

The seat had been vacant since January 5. Governor Cuomo had not only not called the special election, he had not indicated why he was waiting, nor when he would call it. The decision points out that the Declaration of Independence criticized King George III "has dissolved representative houses (colonial legislatures) …and he has refused for a long time, after such dissolutions, to cause others to be elected."

Straight-ticket devices appear on the general election ballots of eleven states. They enable a voter to cast a vote for the nominees of just one party automatically, just by the voter’s decision to use the device, which always appears at the top of the ballot. Such voters need not even peruse the ballot to see who is running for any office. In the states with the device, usually between 40% and 50% of the voters use the device.

Bills to repeal the device are pending in Indiana, Iowa, Michigan, Texas, and West Virginia. The West Virginia bill, SB 249, already passed the Senate on February 3 by 25-8. All the "no"votes were by Democrats.

The six other states that have the device are Alabama, Kentucky, Oklahoma, Pennsylvania, South Carolina, and Utah.

Countering the national trend, Kris Kobach, the Kansas Secretary of State, is asking the legislature to pass HB 2108, which restores the straight-ticket device that Kansas repealed in 1923. HB 2108 passed the House Elections Committee on February 3.

At least fifteen state legislatures have bills to move presidential primary dates. There are four types of bills. National party rules don’t permit any state except New Hampshire and South Carolina to hold primaries earlier than March. In Florida, Michigan, and Utah, current primary dates are not compliant with party rules, and the bills would mover the primaries to March, putting those three states in compliance.

On the other hand, bills in three states would move primaries earlier than March, notwithstanding party rules. Arizona has HB 2015, to hold the primary on the same day as the Iowa caucus, which in 2012 was January 3. Texas has HB 1214, which would move the primary to January. Vermont has SB 76, which would move the primary to the same day as the New Hampshire primary. In 2012, New Hampshire’s primary was on January 10.

There are also bills to move primaries somewhat earlier, but to still comply with party rules. Bills in Arkansas, Connecticut, Idaho, Mississippi, New Mexico, and Washington would all move primaries to March (or, in the case of Mississippi, to a date earlier in March).

Finally, there are states with bills moving to a later date. Illinois HB 193 would move from March to June. Two bills in Maryland would move to a later date in April. Oklahoma’s SB 233 would move from early March to late March.

Wisconsin Congressman Mark Pocan has introduced HJR 25, a constitutional amendment. It says, "Section One. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election. Section Two. Congress shall have the power to enforce and implement this article by appropriate legislation."

~	Libertaran	Indpc	Wk Fam	Green	Consti	Ind Pty	oth(1)	oth(2)	independent
Alab.	0	0	0	0	0	0	0	0	33,486
Alas.	0	0	0	0	0	0	0	0	8,329
Ariz.	2,392	0	0	0	0	0	7,494	0	35,645
Ark.	0	0	0	0	0	0	0	0	8,460
Cal.	0	0	0	0	0	0	0	0	0
Colo.	20,849	0	0	13,019	7,876	0	0	0	0
Conn.	0	0	35,272	4,408	0	21,695	0	0	156
Del	113	0	0	0	0	369	0	0	0
Fla.	47,652	0	0	0	0	0	0	0	77,972
Ga.	0	0	0	0	0	0	0	0	0
Hi.	7,862	0	0	0	0	0	0	0	0
Ida.	0	0	0	0	7,354	0	0	0	4,266
Ill.	0	0	0	0	0	0	0	0	0
Ind.	8,865	0	0	0	0	0	0	0	0
Iowa	893	0	0	0	0	0	0	0	5,612
Ky.	0	0	0	0	0	0	0	0	0
Me.	0	0	0	14,871	0	0	0	0	3,809
Md.	0	0	0	0	0	0	0	0	0
Mass.	2,272	0	0	0	0	0	0	0	8,824
Mich.	16,217	0	0	0	4,154	0	0	0	2,088
Mo.	1,727	0	0	0	0	0	0	0	0
Mont.	451	0	0	0	0	0	0	0	0
Nev.	4,409	0	0	0	5,568	0	0	0	0
N.H	0	0	0	0	0	0	0	0	0
N.Y.	738	195,338	134,655	11,217	0	0	263,325	9,539	237
No.C.	1,412	0	0	0	0	0	0	0	0
No.D.	0	0	0	0	0	0	0	0	0
Ohio	0	0	0	0	0	0	0	0	14,967
Okla.	0	0	0	0	0	0	0	0	3,575
Ore.	18,916	0	0	1,917	5,985	0	0	0	0
Pa.	0	0	0	0	0	0	0	0	14,794
R.I.	0	0	0	0	0	0	0	0	12,914
So.D.	0	0	0	0	0	0	0	0	8,070
Tenn.	0	0	0	9,366	1,139	0	0	0	13,634
Tex.	165,284	0	0	2,397	0	0	0	0	3,166
Utah	1,643	0	0	0	1,939	0	0	0	0
Vt.	4,113	0	0	0	0	0	31,834	1,807	13,818
Wa.	0	0	0	0	0	0	0	0	64,611
W.V.	2,192	0	0	1,221	1,722	0	0	0	7,800
Wis.	20,020	0	0	0	0	0	0	0	9,943
Wyo.	0	0	0	0	0	0	0	0	1,631
TOT.	328,020	195,338	169,927	58,416	35,737	22,064	302,653	11,346	251,674

Parties in the "Oth(1)" column are: Americans Elect (Arizona), Conservative (New York), Progressive (Vermont).

Parties in the "Oth(2)" column are: in New York: Stop Common Core 5,200; Women’s Equality 3,409; Tax Revolt 930. In Vermont, Liberty Union.

In the charts above, "Indpc" = Independence Party; "Wk Fam" = Working Families; "Ind Party" = Independent Party; "Consti" = Constitution. States not named had no partisan state senate elections in 2014.

In 2010, when these same seats were up, Libertarian candidates received 375,367 votes; independent candidates received 302,051; Conservative Party candidates received 266,537; Working Families candidates received 173,714; Independent Parties in various states received 171,527; Constitution received 45,145; Tea Party received 36,998; Greens received 17,972; Working Families received 160,250; other parties received 18,806.

States that elect state representatives in midterm years, but don’t elect State Senators in midterm years, are Kansas, Minnesota, New Mexico, and South Carolina. They elect all their State Senators in presidential years.

On January 26, Missouri State Representative Keith English (D-Florissant) announced that he has left the Democratic Party and is now an independent. This is the second instance of a new independent state legislator during January, because, as reported in the February 1 B.A.N., independent candidate Joseph Morrissey was elected to the Virginia House of Delegates on January 13.

The partisan lineup of the Missouri House is now: 117 Republicans, 45 Democrats, and one independent.

At the November 2014 election, 23 independent or minor party candidates were elected to state legislatures around the nation. It is possible that Connecticut will elect a member of the Working Families Party to the State Senate at a special election on February 24. The WFP nominee, Edwin Gomes, is in a tight race with the Democratic nominee, Richard DeJesus. The election, in the 23^rd district in Bridgeport, also has a Republican and two independents.

Merlin Miller, a Tennessee film-maker and the 2012 presidential nominee of the American Third Position Party, has helped form a new party, called the American Eagle Party. The announcement was made in The Nationalist Times, which says the new party stands for: (1) ending U.S. involvement in wars around the world; (2) curtailing immigration; (3) improving the national economy. The Nationalist Times is a monthly print publication that was once the voice of the Populist Party that existed 1984-1994.

A new registration tally from Oregon shows that the ballot-qualified Independent Party now has enough registrants to qualify for a government-administered primary of its own. The law permits parties with 5% of the registration to nominate by primary at state expense.

The Independent Party has been holding primaries, at its own expense. It will be the first Oregon party, other than the Republican and Democratic Parties, to have a government primary since the Progressive Party had one in 1914.

On February 2, the California Secretary of State ruled that Americans Elect is no longer a ballot-qualified party. The law would have permitted it to remain qualified if it had either polled 2% for any statewide race in June 2014, or if it had registration equal to .33% of the number of registered voters. However, its only statewide candidate in June 2014, Alan Reynolds, only polled 1.34%, and the party doesn’t even have one-tenth of the number of registrants required by the law. The party’s checkbox on the voter registration form will now be removed.

On February 12, the Democratic Party said it will hold its 2016 presidential convention in Philadelphia. The last time any party chose its national ticket in Philadelphia was in 2000, when the Republican Party met there.

The Prohibition Party will hold its presidential convention in Helen, Georgia, June 5-7, 2015. The Prohibition Party has been holding its presidential conventions in the year before the presidential election ever since 1943. Helen is a small resort town in the north Georgia mountains.

The February 1, 2015 B.A.N. carried a chart showing the number of votes in each state in November 2014 for independent and minor party candidates for lower house of the state legislature. Unfortunately the heading for this chart says it relates to the 2010 election. The heading should have said "2014", not "2010."