This Georgia blog associated with the Atlanta Journal-Constitution mentions HB 58 favorably. HB 58 is the bill to sharply reduce the number of signatures needed for independent and minor party candidates for U.S. House, legislature, and partisan county office. In the past Georgia ballot access bills have been ignored by Georgia’s important news outlets.
The California Secretary of State here lists the parties that invited independent voters to vote in their primaries for the period 2004 through 2012. This proves that before the top-two system was put into effect, independent voters could vote in both the Republican and Democratic primaries for congress and state office.
This Secretary of State’s list only starts with 2004, but both major parties allowed independents to vote in their primaries in 2002 as well. Evidence for this is in “America Votes”, Volume 25, authored by Richard Scammon, Alice McGillivray, and Rhodes Cook, and published by Congressional Quarterly in 2003. Page 61 says, in 2002, “California has a semi-open primary.” It then says, “Voters registered with a recognized party in California could vote only in their party’s primary. Other voters could participate in the primary of the Democratic, Republican, American Independent or Natural Law Parties.”
Here is the 27-page opinion in Rubin v Padilla, the California State Court of Appeals decision upholding the top-two system. The opinion shows that the three judges who signed the opinion are ignorant of two important points: (1) that federal law requires the states to hold congressional elections in November, with any run-off after November; (2) that during the decade before top-two was implemented in California, independent voters were allowed to vote in all Democratic and Republican primaries for Congress and partisan state office.
The fact that the three judges do not know about the federal law that requires states to hold congressional elections in November, with any run-offs afterwards, is evident from pages 14 and 16. Page 16 says, “A hypothetical illustrates the point. Plaintiffs’ constitutional objection would appear to be mooted if California simply eliminated the general election and awarded elective office to the winner of the primary election.” This is exactly what Louisiana did between 1978 and 1996, but the Louisiana system was invalidated by a unanimous opinion of the U.S. Supreme Court, Foster v Love, 522 U.S. 67 (1997). The opinion in Rubin v Padilla does not mention Foster v Love and it is clear that the judges didn’t know about it. Foster v Love was mentioned in an amicus brief, but not in the briefs filed by the parties to the lawsuit. It is likely the judges didn’t read the amicus.
Page 14 says, “Both elections (meaning the June primary and the November election) are ‘general elections’.” Again, Foster v Love negates that definition. Only November is “the” election, for Congress. Also, page one of the Rubin decision refers to the November election as a “run-off.”
A worse misunderstanding occurs in the part of the decision that talks about the supposed exclusion of independent voters from California congressional and state office primaries before 2011. Whole paragraphs of the decision are dependent on the judges’ erroneous belief that independent voters were excluded, before the top-two system was passed. Page 14 says about the old California system, “The candidates in the general election were chosen by party members, not by voters generally.” Actually in the old system they were chosen by independent voters as well as party members.
Page six says, “Those nominees were selected by the vote only of members of the party they represented.” Page 21 says, “Yet, so long as the primary election served to select party nominees, the state was precluded by the Supreme Court’s decision in Jones, from granting independent voters the right to participate…in effect, their choices at the general election could be determined for them by the members of the qualified parties.” This statement is wrong for three reasons: (1) in the old system, independents could vote in California primaries; (2) also under the old system, all voters were free to petition to put independent candidates on the November ballot, a right that no longer exists; (3) lower courts do not agree that the Jones decision invalidates state laws that allow independents to vote in primaries; the Jones decision established that members of other parties could be barred from a particular party’s primary.
Page 20 says the primary purpose of the top-two system is to “permit independent voters to participate in the process of narrowing candidates for the general election” and says this purpose alone is sufficient to uphold the top-two system. The entire opinion upholding top-two thus depends on the judges’ misunderstanding that independent voters were not permitted to participate in the old system. In fact, under the old system, independent voters had more power than party members at primaries, because party members had to accept their own party’s primary ballot, but independents were free to choose either major party primary ballot.
A third misunderstanding by the judges is on page ten. The opinion says that Judge Antonin Scalia’s hypothetical election system, described by him in 2000 in his opinion in California Democratic Party v Jones, says a top-two system would be constitutional. But it is obvious that Scalia’s hypothetical system in 2000 is not the same as the actual top-two system, because in 2008, when the U.S. Supreme Court upheld the Washington state system on freedom of association grounds, on its face, Scalia dissented. Scalia’s hypothetical system in his 2000 decision was a system without party labels on the ballot. It is inconceivable that Scalia would have written in 2000 that a top-two system is OK, when he then said in 2008 that the actual top-two system violates freedom of association. Furthermore, footnote eleven in the 2008 Washington state case said that the court was not deciding the ballot access issue. If the US Supreme Court said in 2008 that the ballot access issue in top-two systems is still undecided, it is clear that the 2000 California Democratic Party v Jones could not have decided it.
On January 29, the California State Court of Appeals ruled that California’s minor parties are not entitled to a trial, to present evidence showing that the top-two system injures voting rights of voters who wish to vote for minor parties in the general election. The case is Rubin v Padilla. The decision came down only two weeks after the hearing. I haven’t see a copy of the decision yet but when I get a copy, I will do my best to create a link to the decision. The decision was written by Judge Margulies, who was the least favorable judge at the hearing. At the hearing, she said that the First Amendment isn’t violated by a system in which minor party candidates are off the general election ballot, because minor parties are free to advocate to their supporters that they vote for one of the two major party candidates.
At the hearing, Judge Margulies also referred to the general election as a “runoff”, which shows that she appears not to know that federal law, for congressional elections, mandates that the election itself is in November and any runoff must be afterwards. Judge Margulies also revealed at the hearing that she did not know that, before the top-two system started in California, independent voters were able to vote in all Democratic and Republican primaries for congress and partisan state office. Unfortunately, at the hearing, the attorney for the minor parties did not mention that she was wrong.
On January 29, the Ninth Circuit heard arguments in Arizona Libertarian Party v Bennett, 13-16254. The case is about the Arizona paper voter registration forms. The state law says only the two largest parties should be listed on the form, each with a checkbox. If a voter wants to register as an independent, or into any other party (even a qualified party) the voter must write-in that choice on a blank line that is less than an inch long, and check the “other” box. The plaintiffs are the Libertarian and Green Parties.
The three judges were M. Margaret McKeown, Marsha Berzon, and A. Wallace Tashima, all Clinton appointees. Judge McKeown asked the most questions. The judges seemed skeptical that there is any genuine reason for the state to refuse to list all the qualified parties on the form. The state’s defense was that the Libertarian and Green Parties are not harmed by not being listed on the form, and that it is more efficient to only list the two largest parties. A decision is likely in several months. The hearing was in Tucson. It is somewhat unusual for the Ninth Circuit to sit in Tucson.
UPDATE: here is a news story about the hearing.
