Late on August 15, U.S. District Court Judge Maxine Chesney canceled the hearing in Peace & Freedom Party v Weber, n.d., 3:24cv-8308. She will rule on the pleadings. This is the lawsuit on the California top-two system. Here is the order.
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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.
The Texas Tribune here reports on growing opposition to a plan for the Texas Republican Party to block candidates from the primary ballot on ideological grounds.
On August 5, the New Jersey gubernatorial nominee, Stephen Zielinski, withdrew from the race for health reasons. The party then substituted Lily Benavides as its new nominee.
Under a unique New Jersey law, an unqualified party can substitute, but it must do an entirely new ballot access petition. So the party is now re-petitioning. The replacement petition is due August 21. See this story. No other state has such a law. In every other state, either an unqualified party can replace the candidate listed on the petition, or it can’t, but there is no provision in any other state for a new petition.
New Jersey qualified parties can replace withdrawn nominees without any burdensome procedure.
On July 30, U.S. District Court Judge Norman Moon, a Clinton appointee, issued an opinion in Lynchburg Republican City Committee v Virginia Department of Elections, w.d., 6:25cv-29. The city of Lynchburg’s Republican Party had sued to stop a new law that requires parties that nominate by convention to make provision for absentee voting for people who cannot attend the convention. The judge wrote that the case is not yet ripe for a decision. The specific state rules have not yet been set out, and the judge felt the case must wait until there is greater clarity about whether the law will prove burdensome.