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.

On July 21, the Socialist Party of Michigan filed a lawsuit in state court, seeking a declaration that the number of signatures needed to place a new party on the ballot violates the Michigan Constitution.  Michigan and Kansas are the only two states in which the number of signatures required to put a new party on the ballot is a higher number than the number of votes needed for an old party to remain ballot-qualified.  Therefore, the law seems discriminatory against new parties, and seems to favor old parties.  UPDATE:  here is the complaint, which is much more interesting than most complaints, and has lots of information about the modern-day history of the Socialist Party in Michigan.  It is 40 pages.

The case is Socialist Party of Michigan v Land, Ingham County Circuit Court, 10-867-CZ.  The case depends on a decision of the Michigan Supreme Court in 1982, Socialist Workers Party v Secretary of State.  In that 1982 case, the State Supreme Court struck down the old Michigan requirement for new parties to get on the ballot that had been passed in 1976.  That old law required new parties to submit a petition, and then also poll a number of votes in the August primary equal to three-tenths of 1% of the turnout in that primary.  The “vote” for the party in the August primary was peculiar.  Voters who were voting in the primary saw a section of the ballot that asked if they wished certain petitioning parties to appear on the November ballot.  Primary voters who voted “yes” were not permitted to vote for any candidates of any party in the primary.  The State Supreme Court noted that this was not only very difficult to comply with, but that it was also discrminatory, because the old ballot-qualified parties were not subject to that August primary vote test.

Michigan currently requires 38,024 signatures to put a new party on the ballot, which is 1% of the last gubernatorial vote.  But it only requires approximately 20,000 votes for an old party to remain ballot-qualified.   The formula for the vote test for a party to remain on the ballot requires a vote of 1% of the winning candidate for Secretary of State’s vote total.  Obviously the vote cast for the winning candidate is considerably less than 1% of the entire vote cast.

The Michigan Socialist Party brief also notes that there is some evidence that this year’s Tea Party petition cost $100,000.  The Socialist Party has nominated seven candidates for office this year and asks the court to place its nominees on the November ballot.  The party has two U.S. House candidates, one state legislative candidate, and four statewide nominees.

The Socialist Workers Party filed a somewhat similar lawsuit against Massachusetts in 1970.  That case turned out badly.  The lawsuit pointed out that a new party needed a petition signed by 3% of the last gubernatorial vote.  But an old party could remain ballot-qualified as long as it had polled one-tenth of 1% for Governor in each of the last three gubernatorial elections.  The court upheld the 3% but ruled the vote test to be unconstitutional.  The court’s reasoning was flawed.  The Massachusetts court should instead have noted that Massachusetts was unconstitutionally discriminating against new parties, and let the legislature decide how to remedy the problem.