On June 10, a hearing was held in Rubin v Bowen, the case filed in 2011 by the Green, Libertarian, and Peace & Freedom Parties in Alameda County Superior Court. The hearing was to determine whether a trial in the case should go forward. The state argues that a trial should not be held because the case law has already determined that all top-two primary systems are constitutional.
After one hour and fifteen minutes or argument, Judge Appel asked for supplementary letter briefs from both sides. They are due on June 18. He wants to know if the U.S. Supreme Court, and other courts of importance, have stated that the U.S. Constitution protects the right of voters in elections to have a range of choices. The state argues that there is no voter interest in having more than two choices on the general election ballot, because a system like that guarantees that the winner has support from the majority of voters.
This argument is faulty because even under the existing California top-two system, in November there were several congressional and legislative races in which no candidate got a majority of the voters who cast a ballot.
In November 2012 in California, in races with only one party represented on the ballot, approximately 25% of the voters who cast a ballot left the ballot blank. This is the sort of fact that would be entered into the record, if a trial is allowed.
The state argued that the general election is actually a run-off election, and the primary is the election itself. The attorney for the plaintiffs rebutted that by pointing out that even someone gets a majority in a California primary for Congress or state office, there is still an election in November. Let unsaid was that additional point that federal law tells all states to hold congressional elections in November, and if a state wants a congressional run-off, that must be held afterwards. Two states, Louisiana and Georgia, provide for congressional run-offs in December if no one gets a majority in November.
