By Richard Winger
This article was first published on September 6, 2013 at Ballot Access News. Reproduced by permission of the author.
On September 5, Alameda County Superior Court Judge Lawrence J. Appel upheld California’s top-two primary system, which has been in effect starting in 2011, and which is also known as Proposition 14. The case is Rubin v Bowen, RG11-605301. The case had been filed by the Green, Libertarian, and Peace & Freedom Parties. The decision can be read on the Court’s web page, but at this time no link is available. Update: the decision is now posted here.
The decision relies entirely on dicta in the U.S. Supreme Court decision Munro v Socialist Workers Party, issued in 1986. In that case, Washington state had a blanket primary, and said no one could be on the November ballot unless he or she polled at least 1% in the blanket primary. The holding in that 1986 case was that the 1% vote test is constitutional because the Court had already upheld petitions as high as 5%, and the Court felt that “the differences between the two mechanisms” (the petition method and the primary vote test) are not significant.
The Munro decision also pointed out that the vast majority of minor party and independent candidates in Washington state met the 1% primary vote test and therefore appeared on the November ballot. Footnote eleven says 40 such candidates (out of a total of 45 candidates) had met the 1% primary vote test since the system had started in 1977.
Unfortunately, the Munro decision also said that the harm done to parties and candidates and voters is “slight” when the candidate appears on the primary ballot but not the general election ballot. This part of the decision, which is at the very end, is dicta, because Washington state didn’t have a system in 1986 that kept all minor party and independent candidates off the general election ballot. This part of the decision didn’t determine the outcome and was just a gratuitous comment. But Judge Appel used this dicta to determine the outcome of the California case, and did not mention the actual holding of the case, which is that primary vote tests and petitions are equivalent. If Judge Appel had focused on that, he would he found that Proposition 14 may be unconstitutional, because the U.S. Supreme Court has limited petitions to 5%, and therefore logically it follows that prior vote tests also can’t exceed 5%. In practice, under a top-two system, a candidate may poll as much as 32% of the primary vote and still not qualify for the November ballot. If the case had not been dismissed, there would have been a trial in that same case in March 2014.
Another difference between the 1986 Munro case from Washington state and the current California law is that there were only four weeks between the Washington special U.S. Senate primary and the special general election. By contrast, in California, the time difference between the primary and the general election is five months. So whereas the Washington state plaintiffs were only excluded from a 4-week general election campaign, the California minor parties are excluded from campaigning in the five months before the general election, a difference five times greater than in Washington state. Judge Appel had discussed this time difference in his tentative ruling in this case back in June 2013, but he said nothing about it in the final decision. Thanks to Dave Kadlecek for this news. It is likely the minor parties will appeal to the State Court of Appeals.
Richard Winger is editor and publisher of Ballot Access News and a widely quoted authority on Ballot Access.