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.