U.S. District Court Judge Maxine Chesney will hear Peace & Freedom Party v Weber, n.d., 3:24cv-8308, on Friday, August 22, in San Francisco. The hearing starts at 9 a.m. and is on the 19th floor of the federal courthouse at 450 Golden Gate Avenue. It is in Courtroom 7.
The state will argue that the case should be dismissed because the California top-two system was upheld in 2015 in the State Court of Appeals. However, the 2015 decision has significant factual errors, a statement that the state does not dispute. Furthermore, other courts have sometimes struck down restrictive ballot access laws even though the same restriction had been upheld by a different court in an earlier case. The U.S. Supreme Court said twice (in Storer v Brown in 1974, and again in Mandel v Bradley in 1977) that the constitutionality of ballot access laws depends on how often the challenged law has been used. Therefore, history matters, and a law that has been challenged when it was new and upheld might be found to be too restrictive as the year pass.
For instance, in 1971 Arkansas created a petition of 7% of the last gubernatorial vote for a new party to get on the ballot. In 1972 the State Supreme Court upheld it. But in 1977, a U.S. District Court struck it down, on the grounds that it had not been used successfully in 1972, 1974, or 1976, a fact that could not have been known in 1972.
Since the California top-two system was put into effect in 2011, no minor party candidate has been able to appear on the general election ballot if both the Democratic and Republican Parties had a candidate on the primary ballot, with a single exception in 2024 for one Assembly seat. As to statewide office, California and Washington (which also has a top-two system) are the only states with a Democratic-Republican ballot monopoly during the 2020’s decade for offices covered by the top-two system. The top-two system does not cover presidential elections.
COURTS – HOW OFTEN NONSENSE TEST
“EQUAL* IN 14-1 AMDT
A March primary is not intrinsic to California’s implementation of Top 2. If there is a constitutional defect it is because California set a March primary a decade after the Top 2 Open Primary act was approved at the June 2010 primary. California had a June primary in every election year from 2008 to 2018. The plaintiffs in Rubin v. Padilla of course could not have argued “what if California were to move its primary to some other month?”
Secretary of State Debra Bowen adopted an interpretation of the Top 2 implementing act that was contrary to the literal words of the enacted statutes, and interpreted a voter’s party preference as something different than what it had meant for the previous century. The plaintiffs in Rubin v. Padilla adopted this same misinterpretation.
The explicit purpose of the Top 2 primary was to extirpate political supposed constitutional right to nominate candidates for the general election. There is no such constitutional right. California permits political parties to endorse candidates in both the primary and general election, and even publishes those endorsements.