On June 7, Judge Lawrence John Appel issued a tentative decision in Rubin v Bowen, the case filed in 2011 by the Green, Libertarian, and Peace & Freedom Parties. The tentative decision says that the case is strong enough so that a trial is needed to determine if Proposition 14, the top-two open primary system, violates the voting rights of voters who want to vote for a minor party candidate in general elections.

The tentative decision will be reviewed in court on Monday, June 10. Generally, judges don’t revise their tentative opinions, but sometimes they do. A final decision will probably be issued late in the day on June 10, or perhaps shortly afterwards.

The tentative decision differentiates California’s top-two system from Washington state’s top-two system by pointing out that in California, the primary is in early June, whereas in Washington state it is in August. The date difference means that Washington state minor parties are at least permitted to carry on a campaign up until three months before the general election, but in California, such campaigns must stop in early June. More important, the tentative decision has the courage to criticize the Ninth Circuit opinion Washington State Republican Party v Washington State Grange, which upheld the Washington state top-two system. As the tentative decision correctly says, the Ninth Circuit dismissed the ballot access claim in the Washington state case by saying it was already settled by the U.S. Supreme Court in 2000 that top-two systems are constitutional. As Judge Appel’s tentative decision says, the Ninth Circuit should not have settled the Washington state case by relying on dicta from the 2000 case. The 2000 case struck down blanket primaries. Judge Scalia, who wrote the 2000 decision, which was called California Democratic Party v Jones, said that a non-partisan primary would be constitutional, and the Ninth Circuit then jumped to the conclusion that therefore the issue is foreclosed. The Ninth Circuit was obviously mistaken, because Judge Scalia in 2000 was discussing a system with no party labels on the ballot.

The Economist has this article about polarisation in the United States. Near the end, it says, “There’s one Constitutional change that could unlock the crippling polarisation in American politics: a switch to a proportional-representation or single-transferable-vote system in one house of Congress. That would make multiple parties viable.”

UPDATE: also see this article by Krist Novoselic, published in Salon on May 17.

On June 6, a conference committee in the Arizona legislature amended HB 2305 to make it vastly more difficult for members of small qualified parties to get themselves on a primary ballot. Current law sets the number of signatures needed for a candidate to get on his or her own party’s primary ballot as a percentage of the number of members of that party. But the bill changes that, so that the number of signatures needed is a percentage of all the registered voters from all parties.

Existing law requires signatures equal to one-half of 1% of party membership, to get on the primary ballot for statewide office. Thus Libertarians only need about 125 signatures of party members, and Greens only need about 27 signatures, and members of Americans Elect only need about 2 signatures. If the bill is signed into law, members of all parties, large and small alike, would need 5,376 signatures of party members to get on a primary ballot. For statewide office, the bill requires one-sixth of 1% of all the registered voters. It would continue to be true that only party members, and registered independents, could sign these primary petitions. This is the same type of system used in Massachusetts and Maine to keep small qualified party members from getting on their own party’s primary ballot.

If the bill is signed into law, there is reason to believe it would be held unconstitutional. In Storer v Brown, the U.S. Supreme Court said that petitions should be evaluated by arithmetic…if the number of required signatures, divided by the number of eligible signers, is greater than 5%, the law is almost certainly unconstitutional. HB 2305, as applied to the Green Party, would require a number of signatures approximately equal to the number of all the registered Greens in the state. The state would probably defend the law by saying that Greens have the ability to get primary signatures from the ranks of registered independents. But the party could argue that it has a constitutional right to exclude independents from voting in its primary, and if it did that, its members then couldn’t get primary signatures from registered independents.

The number of write-ins (for parties other than newly-qualifying parties) needed to be nominated in a primary is equal to the number of signatures needed to get on the primary ballot, so using write-ins at the primary would also be virtually impossible if the bill becomes law.