On September 5, Alameda County Superior Court Judge Lawrence J. Appel upheld California’s top-two primary system, which has been in effect starting in 2011, and which is also known as Proposition 14. The case is Rubin v Bowen, RG11-605301. The case had been filed by the Green, Libertarian, and Peace & Freedom Parties. Here is the decision. Thanks to Bob Richard for the link.

The decision relies entirely on dicta in the U.S. Supreme Court decision Munro v Socialist Workers Party, issued in 1986. In that case, Washington state had a blanket primary, and said no one could be on the November ballot unless he or she polled at least 1% in the blanket primary. The holding in that 1986 case was that the 1% vote test is constitutional because the Court had already upheld petitions as high as 5%, and the Court felt that “the differences between the two mechanisms” (the petition method and the primary vote test) are not significant.

The Munro decision also pointed out that the vast majority of minor party and independent candidates in Washington state met the 1% primary vote test and therefore appeared on the November ballot. Footnote eleven says 40 such candidates (out of a total of 45 candidates) had met the 1% primary vote test since the system had started in 1977.

Unfortunately, the Munro decision also said that the harm done to parties and candidates and voters is “slight” when the candidate appears on the primary ballot but not the general election ballot. This part of the decision, which is at the very end, is dicta, because Washington state didn’t have a system in 1986 that kept all minor party and independent candidates off the general election ballot. This part of the decision didn’t determine the outcome and was just a gratuitous comment. But Judge Appel used this dicta to determine the outcome of the California case, and did not mention the actual holding of the case, which is that primary vote tests and petitions are equivalent. If Judge Appel had focused on that, he would he found that Proposition 14 may be unconstitutional, because the U.S. Supreme Court has limited petitions to 5%, and therefore logically it follows that prior vote tests also can’t exceed 5%. In practice, under a top-two system, a candidate may poll as much as 32% of the primary vote and still not qualify for the November ballot. If the case had not been dismissed, there would have been a trial in that same case in March 2014.

Another difference between the 1986 Munro case from Washington state and the current California law is that there were only four weeks between the Washington special U.S. Senate primary and the special general election. By contrast, in California, the time difference between the primary and the general election is five months. So whereas the Washington state plaintiffs were only excluded from a 4-week general election campaign, the California minor parties are excluded from campaigning in the five months before the general election, a difference five times greater than in Washington state. Judge Appel had discussed this time difference in his tentative ruling in this case back in June 2013, but he said nothing about it in the final decision. Thanks to Dave Kadlecek for this news. It is likely the minor parties will appeal to the State Court of Appeals.

On September 6, the Vermont Supreme Court unanimously upheld the ruling of a lower state court that put the Justice Party and its presidential nominee, Rocky Anderson, on the ballot in 2012. The case is Anderson v State of Vermont, 2013-vt-73. Here is the nine-page opinion.

Vermont allows a petition sheet to include signers from different towns. But, Vermont requires the petitioning group to submit the original sheets to each town clerk, and then to come back later and collect the sheets from the town clerks and give them to the Secretary of State. The Justice Party wanted to make photocopies of each petition sheet that had signatures from more than a single town. The purpose of the party’s desire to make photocopies, was that if a sheet had signatures from two towns, then the party could give the original sheet to one of the town clerks, and the photocopy of that same sheet to the other town clerk.

The state forbade photocopying the sheets before submission, so that the party had to take such a sheet to the first town, and then, after the first town clerk had finished checking that sheet, the party had to take the same sheet to the second town clerk, and have that clerk work on that same form. This not only required a lot of driving between towns, it consumed valuable time. The State Supreme Court agreed with the lower court that the ban on photocopying was harmful to the group and not really necessary.

On September 5, U.S. District Court Judge W. Keith Watkins, a George W. Bush appointee, upheld Alabama’s March petition deadline for newly-qualifying party petitions. The case is Stein v Bennett, 2:12-cv-42 and is 24 pages long. Here is the decision.

The decision says that because the Constitution, Green, and Libertarian Parties were able to place their presidential candidates on the ballot as independent candidates, the burden on those presidential candidates, who had the label “independent” is not severe. Of course, the parties put their presidential candidates on the ballot as independents because Alabama requires 5,000 signatures by September for independent presidential petitions, and 44,829 signatures by March if the parties want to appear with the appropriate party label.

The decision relies primarily on the 1997 U.S. Supreme Court decision Timmons v Twin Cities Area New Party, which upheld Minnesota’s ban on permitting two parties to jointly nominate the same candidate. The opinion says that if it is constitutional to prevent both parties from having their party labels on the ballot, next to the name of the single candidate they jointly nominated, therefore it follows that it is constitutional to force smaller parties to not appear on the ballot at all, if they can qualify their candidates as independents. This conclusion is not logical.

The decision does not mention that the U.S. Supreme Court said in 1974 in Storer v Brown that states must have constitutional procedures for both newly-qualifying parties and independent candidates. It also does not mention that the U.S. Supreme Court said in 1972 in Bullock v Carter “we can hardly accept as reasonable an alternative that requires candidates and voters to abandon their party affiliations in order to avoid the burden of the filing fees.” Bullock v Carter was a challenge to Texas filing fees. Texas defended the filing fees by saying that candidates who didn’t want to pay the fees could still get on the ballot without a fee if they ran as independent candidates.

The decision does not mention any of the 23 precedents that struck down early petition deadlines for newly-qualifying parties, except that the decision does mention the 1991 New Alliance Party decision that struck down Alabama’s April petition deadline. The decision implies, but does not say outright, that the 1991 decision is no longer good law. The 1991 decision was made by the Eleventh Circuit, a court that is superior in power to any U.S. District Court within the states of the Eleventh Circuit.