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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.