Judge poised to nix attack on ‘top-two’ primary

California can proceed with its new “top-two” primary system, an East Bay judge tentatively ruled today, sustaining the state’s objection to a lawsuit filed by a group of minor parties and their voters.

In his tentative ruling, Alameda County Superior Court Judge Larry Appel said the arguments made in the lawsuit filed last fall are the same ones that failed to convince the 9th U.S. Circuit Court of Appeal and the U.S. Supreme Court that Washington’s version of the law should be overturned.

A hearing on the tentative ruling is scheduled for 9 a.m. Tuesday in Oakland.

The lawsuit, filed in November on behalf of the Green Party of Alameda County, the Libertarian Party of California, the Peace and Freedom Party of California and eight minor-party voters, argues Prop. 14 “effectively denies voters their fundamental right of choice by precluding small party candidates from the general election ballot,” thus violating the First and 14th amendments.

The general election is “the moment when the highest number of voters are engaged in the electoral process,” the suit says, and so the new law severely burdens voters’, candidates’ and parties’ rights without any compelling or even significant state interest.

But Appel wrote Monday that unless the plaintiffs can amend their complaint in the next few weeks to present new arguments, the system will stand.

Appel said the first part of the lawsuit seems to be a “facial challenge” to Prop. 14 – challenging the general framework – rather than an “as applied” challenge that questions some manner in which the new law is being implemented in a discriminatory or unreasonable way.

But the 9th Circuit earlier this year “considered and rejected the same broad challenge” that the plaintiffs are making in this case, the judge wrote. “Among other things, the Court held that ‘because [the law] gives major- and minor-party candidates equal access to the primary and general election ballots, it does not give the “established parties a decided advantage over any new parties struggling for existence.”’”

Arguing that participation in the general election isn’t equivalent to participation in the primary election; that general-election ballot access is essential for minor parties seeking to qualify in future elections; and that California doesn’t have sufficient regulatory interests to impose this new system “are legal assertions that are inconsistent” with the 9th Circuit’s ruling in the Washington case, Appel wrote.

And Appel wrote that the U.S. Supreme Court in 2008 held that a statute like Washington’s – and now, like Prop. 14 – that allows an open primary in which candidates identify themselves on the ballot by a self-designated party preference doesn’t unconstitutionally interfere with a political party’s rights of association or speech.

Michael Siegel, the plaintiffs’ attorney, said Monday he’s disappointed that Appel deferred to a 9th Circuit ruling that the plaintiffs have argued was in error. “Big picture, this is something that needs to get sorted out at a higher level, either at the California Supreme Court or the U.S. Supreme Court,” Siegel said.

Siegel acknowledged that even if he were to convince Appel at tomorrow’s hearing to completely reverse this tentative ruling, “nothing could be done in terms of the June election, but something could be done for November” – that is, if the court struck down the top-two system, it could let minor parties hold conventions this summer or fall to nominate candidates for addition to the general-election ballot.

But given Appel’s tentative ruling, Siegel said, “practically speaking, what’s really at stake now is 2014.”

UPDATE @ 4:06 P.M. TUESDAY: Appel heard arguments on his tentative ruling this morning and took the case under submission; he’ll probably file a permanent order – most likely along the lines of his tentative ruling – in the next few days. The next hearing in the case has been scheduled for July 10.

Josh Richman

Josh Richman covers state and national politics for the Bay Area News Group. A New York City native, he earned a bachelor’s degree in journalism from the University of Missouri and reported for the Express-Times of Easton, Pa. for five years before coming to the Oakland Tribune and ANG Newspapers in 1997. He is a frequent guest on KQED Channel 9’s “This Week in Northern California;” a proud father; an Eagle Scout; a somewhat skilled player of low-stakes poker; a rather good cook; a firm believer in the use of semicolons; and an unabashed political junkie who will never, EVER seek elected office.

  • RR, Senile Columnist

    The minor party cranks have an argument, but who cares?

  • John W.

    I’m still looking for the part in the constitution where it mentions political parties, minor or major.

  • Elwood

    @ #2 John W.

    I think it’s in with the part about religion and guns.

  • John W.

    @ #3 Elwood,

    Thank goodness I live in a country where I have the right to bare arms.

  • steve weir

    #A2. I’m doing this from memory (always risky).

    I believe that SB 6 (Top Two Primary) puts political central committees into the Constitution.

    Will confirm, modify, or retract on Tuesday.

  • For Liberty

    Prop. 14 could result in a train wreck!! We’ll see how it will play out. The minor parties have a strong and valid complaint, as they will not have any representation in the general election. I believe the intent of this proposition was sold to CA voters to even the playing field, when I believe it could do the opposite.

  • JohnW

    @6 For Liberty

    As you say, we’ll see how it plays out.

    Hopefully, with the combination of redistricting, the open primary and the “top two,” we will get (a) greater voter participation in the primaries; (b) general election candidates who aren’t beholden to the extreme base of their respective parties and (c) more general election races that are truly competitive, rather than being just a formality to anoint the winner of the primary of whichever party dominates a district.

    As for the minor parties, the current system serves mainly to set them up as potential spoilers (Ross Perot in 1992 and Ralph Nader in 2000) rather than as potential election winners. Arguably, the new system increases chances that the final two might include one major and one minor party candidate. Minor party candidates need to figure out how to game the system to make that happen. If a minor party or independent candidate does make the final two, chances of actually getting elected increase, since they will then be in a one-on-one race.

  • Elwood

    Top two has worked out well in Oakland.

    It gave them the wonderful Mayor Jean Quan, the target of not one but two recall drives.

  • Josh Richman

    #8 No, Elwood, it was Oakland’s ranked-choice voting system in which Quan won, not a top-two. (In fact, the city previously had used top-two because the mayor’s office is nonpartisan.)

  • JohnW

    @ 8 Elwood

    Oakland and SF have instant run-off a/k/a ranked choice, not Top Two. If Oakland had had top two, Perata and one other candidate would have emerged from a primary to face off in the general election. Perata got the most “first choice” votes but still lost. My guess is that Perata would have won in a runoff election.

  • JohnW

    Sorry, Josh. Your post showed up while I was sending mine.

  • Elwood

    Top two, ranked choice, whatever.

    They both suck.

    Jean Quan, etc.

  • Truthclubber

    @8 — into the cooking sherry yourself, eh Hellwoody? Guess all that prison work had its side effects…and now (with @12) you’re sucking Jean Quan? Oh, my — what that sherry does to you!

  • Elwood

    @ #13 toothsucker

    Oh, goodie, it’s time for the Friday night follies again.

    The cooking sherry has destroyed your brain.
    Obviously, you’re surviving without a brain but the next thing it will destroy will be your liver and you can’t survive without a liver.