On July 28, two congressional candidates (in the 2012 election)  and four voters filed a lawsuit in Superior Court in San Francisco, arguing that two aspects of the California top-two system are unconstitutional, as applied to them.  The case is Field v Bowen, cgc10-502018.  Here is the complaint.  Here is the brief.

The California Constitution was amended in 2002 to provide that all valid votes must be counted.  Nevertheless, the implementing language for California’s Proposition 14 says that write-in votes in November, for Congress and state office, may never be counted.  Proposition 14 and its implementing law, SB 6, did not repeal the law that says write-in space must be printed on the ballot in November for those offices.  Nor did  Prop. 14 and SB 6 repeal the law that provides that write-in candidates in November may file a declaration of write-in candidacy.

The voter plaintiffs say it is very likely, given the limited number of candidates on the ballot in future general elections in California (only two candidates per office), that they will want to cast a write-in vote in November, and they want their write-ins counted.

Although the U.S. Supreme Court said in Burdick v Takushi in 1992 that states may abolish write-in space on ballots, it has also ruled that the U.S. Constitution protects the right of voters to have their votes counted.

The two candidate-plaintiffs are Rodney Martin, who is a registered member of the Reform Party, and Jeff Mackler, who is a registered member of Socialist Action Party.  They wish to run for Congress in 2012, and they want their party to be printed on the primary ballot next to their names.  But Prop. 14 and SB 6 provide that only candidates who are registered members of qualified parties may have their party “preference” on the ballot.  Martin and Mackler have no choice but to have “no party preference” printed on the ballot next to their names.  Disclosure:  one of the voter plaintiffs is Richard Winger.

The Day, the daily newspaper of New London, Connecticut, has this op-ed criticizing the 2nd circuit’s decision of July 13 in Green Party of Connecticut v Garfield.  That decision said it is constitutional for a state to make it completely impossible for the nominee of a new party, or an independent candidate, to obtain any public funding at all, even if that new party nominee or independent candidate raises a large number of small private contributions.  At the same time, the same law gives very big amounts of public funding to any nominee of a party that had polled 20% for Governor at the last election, if that nominee raises a large number of small private contributions.