On December 6, the California Attorney General filed this 16-page brief in the California Supreme Court, urging that Court not to hear Field v Bowen, the case that challenges some of the characteristics of the top-two system. The only issue presently before that Court is whether the implementing legislation is defective because it allows some candidates to show their party on the ballot, but not other candidates.
The state continues to maintain that the new law does not permit members of non-qualified parties to list their party on the ballot. The state also argues this separate treatment is constitutional. The state erroneously says on page two that California has never permitted party labels on the ballot if the parties were not qualified, but this is not accurate. California did permit candidates who used the independent procedure to choose a party label, that was printed on the ballot, between 1891 and 1915.
The state says there is no difference between “independent” and “no party preference” on the ballot, and does not mention the decisions of the Massachusetts Supreme Court and the Minnesota Supreme Court, each of which said the label “independent” is too significant and essential to be banned. The Massachusetts legislature had passed a law requiring independent candidates to be listed as “unenrolled” on the ballot, but the Court struck down that law. The Minnesota Secretary of State had told independent candidates that they couldn’t use the word “independent” on the ballot because, at the time, the Republican Party had changed its name to the Independent Republican Party, and therefore that party had exclusive title to the word “independent.” The Minnesota Supreme Court reversed the decision of the Secretary of State. These cases are relevant because the California top-two system does not permit anyone to describe himself or herself on the ballot as an Independent.
The intervenors who support California’s top-two system filed this longer brief. They argue that they do not know whether the law permits members of unqualified parties to list their party label on the ballot or not. They say that if the law does not permit this, that is constitutional. Alternatively, they say that perhaps the law does permit anyone to list a party label on the ballot, although they argue this would be harmful and would confuse voters.