On May 23, Duf Sundheim, speaking at the Commonwealth Club in San Francisco, predicted that the California legislature will put a repeal of the top-two system on the California ballot in 2018. The top-two system is embedded in the state Constitution, so the legislature cannot repeal it, but can only put a repeal on the ballot for the voters to decide.

Sundheim is a past California Republican Party state chair, and a candidate for U.S. Senate this year. He says he still supports the top-two system. In response to the point that it bars minor party and independent candidates from the November ballot, he said they weren’t winning even when they were on the November ballot. Actually several dozen minor party and independent candidates get elected to state office in every general election, around the U.S. Also his point ignores the fact that voters want a free choice of candidates in the election itself, even if many of those choices are not likely to win.

On May 23, the Ohio Libertarian Party asked the Sixth Circuit to put it back on the ballot. Libertarian Party of Ohio v Husted, 16-3537. The party was removed from the ballot in November 2014 because it did not poll 2% for Governor. It couldn’t poll 2% for Governor because its gubernatorial candidate was not on the ballot. He was not on the ballot because the Republican Party of Ohio, and the John Kasich re-election campaign, had challenged his primary ballot status.

The 39-page brief argues that the Republican Party of Ohio was a state actor when it became involved in the challenge. The brief depends on U.S. Supreme Court precedents that say political parties are state actors when they influence who appears on a ballot, either primary or general.

On May 22, the U.S. Supreme Court unanimously upheld the Virginia U.S. House districts that were drawn earlier this year by a 3-judge U.S. District Court. Wittman v Personhuballah, 14-1504. The U.S. District Court had redrawn the districts because it found the legislature’s plan, enacted after the 2010 census, to be a racial gerrymander.

The U.S. Supreme Court opinion is only eight pages and is by Justice Stephen Breyer. It does not decide the issue of whether the legislature’s plan was a racial gerrymander. Instead, the U.S. Supreme Court only decided that no one challenging the 3-judge U.S. District Court decision any longer has standing.

The Virginia State Board of Elections was controlled by Republican appointees when the original case was filed, in 2013. In Virginia, the State Board of Elections has three members, and two members must be members of the Governor’s party. Democrats won the governorship in November 2013, so under the new Governor, Terry McAuliffe, an all-new Board of Elections switched to a Democratic majority. The new board did not wish to appeal the decision of the U.S. District Court to the U.S. Supreme Court, so some Republican members of Congress from Virginia intervened in the case, and said they have standing because the new districts injure them, because the new district boundaries removed a portion of their “base”, and replaced them with “unfavorable Democratic votes.” The U.S. Supreme Court ruled that these members of Congress don’t have standing because they failed to submit any evidence that these allegations are true.

Thus, the case turned on the technicality that attorneys for the Republican members of Congress failed to prove that a Republican member of Congress is harmed by a redistricting plan that tilts the partisan balance of his or her district toward the other major party. Certainly, if the attorneys for the Republican members of Congress had realized that the U.S. Supreme Court would take advantage of this technicality, they easily could have proved this, but they probably assumed it was obvious and that no proof was needed.