4

What the top two hath wrought upon California

My story today includes experts’ opinions on the effects that California’s top-two primary system had on Tuesday’s results; over at FlashReport.org, former state GOP Chairman Tom Del Beccaro makes an impassioned case against the system.

In furtherance of the debate, here’s a list of all House, state Senate and Assembly races I found in which candidates of the same party are advancing to November’s general election, leaving voters without an alternate party choice; I did not list races in which the incumbent stands unopposed.

SAME-PARTY HOUSE RACES: 5 Democratic*, 2 Republican

CA4 – Rep. Tom McClintock, R-Granite Bay, vs. Art Moore (R)
(A nonpartisan candidate was eliminated; there were no Democrats.)

CA17 – Rep. Mike. Honda, D-San Jose, vs. Ro Khanna (D)
(Two Republican candidates were eliminated.)

CA19 – Rep. Zoe Lofgren, D-San Jose, vs. Robert Murray (D)
(These were the only two primary candidates; Murray ran as a Republican in 2012.)

CA25 – Tony Strickland (R) vs. Steve Knight (R)
(Two Democrats, two Republicans, a Libertarian and a nonpartisan were eliminated.)

CA34 – Rep. Xavier Becerra, D-Los Angeles, vs. Adrienne Edwards (D)
(A Peace & Freedom Party candidate was eliminated; there were no Republicans.)

CA35 – Norma Torres (D) vs. Christina Gagnier (D)
(Two other Democratic candidates were eliminated; there were no Republicans.)

CA40 – Rep. Lucille Roybal-Allard, D-Commerce, vs. David Sanchez (D)
(These were the only two primary candidates.)

* It’s still too close to call whether state Senate Majority Leader Ellen Corbett, D-Hayward, or Alameda County GOP vice chairman Hugh Bussell of Livermore will advance to face Rep. Eric Swalwell, D-Dublin, in the 15th District.

SAME-PARTY STATE SENATE RACES: 5 Democratic, 1 Republican

SD6 – Roger Dickinson (D) vs. Richard Pan (D)
(Two Republican candidates were eliminated.)

SD24 – State Sen. Kevin DeLeon, D-Los Angeles, vs. Peter Choi (D)
(One Republican candidate was eliminated.)

SD26 – Ben Allen (D) vs. Sandra Fluke (D)
(Five other Democrats and one nonpartisan were eliminated; there were no Republicans.)

SD28 – Jeff Stone (R) vs. ?????
(Too close to call, but those now in second and third place are both Republicans; another Republican and two Democrats were eliminated.)

SD30 – State Sen. Holly Mitchell, D-Los Angeles, vs. Isidro Armenta (D)
(These were the only two primary candidates.)

SD40 – State Sen. Ben Hueso, D-Chula Vista, vs. Rafael Estrada (D)
(These were the only two primary candidates.)

SAME-PARTY ASSEMBLY RACES: 8 Democratic, 3 Republican

AD7 – Kevin McCarty (D) vs. Steve Cohn (D)
(One Democrat and two Republicans were eliminated.)

AD9 – Jim Cooper (D) vs. Darrell Fong (D)
(One Democrat and two Republicans were eliminated.)

AD15 – Elizabeth Echols (D) vs. Tony Thurmond (D)
(Three Democrats, one Republican, one Peace & Freedom and one nonpartisan were eliminated.)

AD17 – Chris Campos (D) vs. David Chiu (D)
(One Republican was eliminated.)

AD26 – Rudy Mendoza (R) vs. Devon Mathis (R)
(Three Democrats and two Republicans were eliminated.)

AD39 – Assemblyman Raul Bocanegra, D-Arleta, vs. Patty Lopez (D)
(One Democrat was eliminated; there were no Republicans.)

AD47 – Assemblywoman Cheryl Brown, D-San Bernardino, vs. Gil Navarro (D)
(These were the only two primary candidates.)

AD53 – Miguel Santiago (D) vs. Sandra Mendoza (D)
(Two Democrats were eliminated; there were no Republicans.)

AD64 – Mike Gipson (D) vs. Prophet Walker (D)
(Two Democrats were eliminated, there were no Republicans.)

AD71 – Assemblyman Brian Jones, R-Santee, vs. Tony Teora (R)
(These were the only two primary candidates.)

AD74 – Keith Curry (R) vs. Matthew Harper (R)
(Two Democrats and a Republican were eliminated.)

14

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.