On April 10, California Superior Court Lawrence John Appel, of Alameda County, heard oral arguments in Rubin v Bowen, the case filed last year by the Peace & Freedom, Libertarian, and Green Parties. The judge won’t issue any injunction against the operation of Proposition 14, the top-two system. However, even though he feels the law is facially constitutional, he is allowing the plaintiffs to amend their complaint and make an as-applied challenge. The next status conference is on July 10. By then the results of the June 5, 2012 California primary will be known.

The judge was very familiar with all the relevant cases. He knew, without attorneys for either side mentioning it, that the March 2008 U.S. Supreme Court decision Washington State Grange v Washington State Republican Party contains a footnote eleven (the judge mentioned the footnote by number) saying the Court’s decision does not resolve, or deal with, the ballot access issue. The 9th circuit decision of January 19, 2012, in that same case, erroneously said the U.S. Supreme Court had already ruled that top-two does not violate any of the ballot access precedents. The 9th circuit judges knew less about the U.S. Supreme Court output on this than Judge Appel does.

The April 10 hearing was the first time that any court has held oral arguments over whether top-two systems violate the voting rights of minor party members and voters. The previous litigation over top-two has either dealt with two particular aspects of California’s top-two system (labels on the ballot and write-ins), or has dealt only with freedom of association. Attorneys for the minor parties argued that the 9th circuit 2012 decision does not control this case because: (1) California’s primary is in early June whereas Washington state’s is in late August; (2) the California Constitution gives greater protection to free speech rights than the U.S. Constitution does. Attorneys for California, and for the intervenors who support Proposition 14, denied that the California Constitution gives any more rights than the U.S. Constitution does in the elections context.

On April 5, Maine LD 1826 passed the House. Also on April 5, the Senate placed the bill on the Appropriations Table, so the bill’s future is uncertain. The bill abolishes the ability of state income taxpayers to use the income tax form to send a small contribution to the taxpayer’s desired political party.

But the bill has other provisions about the state income tax form, and some of the provisions in the bill permit new public funding for libraries. The bill, as a whole, appears to cost the State Treasury more money than it saves. Therefore, the bill can’t advance until the budget is determined. The legislature adjourns on April 13 and returns in May.

The Maine Green Party gets over half its budget from the state income tax check-off provision. There have been some calendar years in which the Green Party received more money from the fund than the Republican Party received.