On April 11, the state of California filed its brief in defense of the top-two system, in Peace & Freedom Party v Weber, n.d., 3:24cv-08308. This is the lawsuit filed last year by some of California’s minor parties, against the system that permits only two candidates for partisan state office and congress in general elections.
On page sixteen the state says the state interest in a top-two system is to “increase voter choice and voter participation by permitting voters to vote in the primary for whichever candidate they prefer regardless of political party affiliation or non-affiliation.” However, most states already have a system in which any voter can vote in any party’s primary without being a member of that party, and yet only two states restrict the general election ballot to just two candidates (Washington and California). This is the fatal flaw in the state’s argument. It is possible to give freedom to any primary voter to vote in the primary of his choice, without a top-two system.
The state’s brief tries to fool readers into thinking there are only two choices, a closed primary or a top-two system. Footnote one says, “A closed partisan primary is one in which each party-affiliated voter votes for the nominee of their party to proceed in the general election. A nonpartisan blanket primary is one in which any voter may vote for any candidate and only the top two vote recipients proceed to the general election.”
Other systems, not mentioned in the state’s brief, are: (1) an open primary, in which there is no such thing as registration by party and any voter can choose any party’s primary ballot; (2) a semi-closed primary, in which the law says any independent is free to vote in any party’s primary; (3) a Louisiana-type system, in which there is no primary and everyone runs in November; (4) an Alaska top-four system; (5) a blanket primary. Although blanket primaries were struck down in California Democratic Party v Jones in 2000, a state could still have a blanket primary if it provided that parties that object to a blanket primary for themselves would be free to nominate by convention.
The state says that another state interest in a top-two system is to “winnow” the choices in November, but the definition of “winnow” does not necessarily mean “just two.” And twelve US Supreme Court decisions on ballot access from 1968 through 1992 make it clear that states cannot restrict the ballot to just Republicans and Democrats. Even the losing cases always make this clear.
The state says the top-two law must be upheld because the State Court of Appeals upheld it in 2015, in Rubin v Bowen. But there are eight instances in history when a court upheld a ballot access restriction, and then a few years later another court invalidated the same law. Sometimes the first court makes errors that are later corrected. Rubin v Panish made some major factual errors. Rubin said that before top-two came into existence, independent voters could not vote in Democratic and Republican congressional/state office primaries, which was not true. Independents could vote in both Democratic and Republican primaries for congress and partisan state office 2002-2010. Also Rubin said the election system should be thought of as a general election in June, with a “run-off” in November. But the Rubin decision did not mention the U.S. Supreme Court decision Love v Foster, a 1997 unanimous decision that said federal law requires all states to hold congressional elections in all districts in November. A run-off, by definition, is only held when the first election failed to choose a winner, but in the case of congressional primaries held at a time earlier than November, no election is actually being held; no one can be elected. So the November election cannot be a “runoff.”
