FOR RELEASE: FRIDAY, FEBRUARY 20, 2015, OR THEREAFTER
BY THOMAS D. ELIAS
“TOP TWO PRIMARY SYSTEM SURVIVES CHALLENGE”
California’s three-year-old “top two” primary election system has never pleased any political party. Not large ones like the Republicans and Democrats, who don't like members of the other large party helping choose their nominees. And not minor parties like Libertarians and Greens, who resent the fact that top two virtually excludes them from November general election contests.
So the future of this system has been in some doubt from the moment Proposition 14 passed in 2010 and restored an open primary to the state for the first time since the late 1990s. That’s when Democrats and Republicans combined in a legal effort which eliminated a short-lived “blanket primary” system where anyone could vote for any candidate in the primary, but each party was assured of one spot on the November ballot for each race it entered.
The latest challenge to top two, which sees only the two leading vote-getters in each contest making the fall ballot – regardless of party – came from three minor parties with extremely disparate ideologies – the Libertarians, the Greens and Peace and Freedom.
All claimed top two, also known as the “jungle primary” for its unpredictability, is unconstitutional because it almost never lets their members vote in November for their favorite candidates. Never mind that those candidates have unlimited opportunity to sell themselves in the primary.
The minor parties saw their arguments rejected by a trial judge in 2012 and finally got an appellate court hearing in January.
Some observers left that hearing before a three-judge panel in San Francisco feeling the challenge to top two would once again go nowhere. They were right, as the judges took only a few days to back the trial court.
The hearing opened with Judge Sandra Margulies, an appointee of ex-Gov. Gray Davis, asking whether independent voters were barred from voting in partisan primaries before passage of Proposition 14. The correct answer would have been no, as both Democrats and Republicans since 2001 had allowed independents to vote in their contests if they wished.
But lawyers for the minor parties responded by saying the reverse. Presumably, Margulies and her colleagues will have learned the correct answer elsewhere before issuing their ruling, due before April 15.
Opponents of top two also were disappointed that the minor party lawyers did not mention either Jesse Ventura or Audie Bock in their arguments. Ventura, who ran for Minnesota governor as an independent in 1998, pulled just 3 percent of the vote in the primary, but got a 37 percent plurality in that November's runoff, taking office the following January.
Bock, running for an Oakland seat in the state Assembly as a Green candidate in a 1999 special election, polled just 8.5 percent in the primary, but got 51 percent of the runoff vote.
“You can’t just jump from nothing to significant strength overnight,” said Richard Winger, owner of the Ballot Access News newsletter and a longtime opponent of top two. “It takes time, and top two doesn’t allow enough time since you miss months of campaigning between the primary and the general.”
Don Siegel, a lead lawyer for the minor parties in their challenge to the current system, said the historical points are “not really relevant. This case is about whether candidates not in the mainstream can get a hearing in November elections, when four or five times more people vote than in the primary.”
He argued that top two “violates the rights of people who want to vote for a small party candidate in November.”
The issue is whether those small party folks deserve a place on the November ballot if they’re not one of the top two in the primary. When they passed Propostion 14, California voters were saying they don’t.
But Siegel argued that in a 34-year-old case involving 1980 independent presidential candidate John Anderson, the U.S. Supreme Court held that “you have to let voters vote in periods of peak voter interest,” and turnout clearly shows primary election season is not such a time.
But the minor parties lost their appeal, in part because courts of appeal normally respect trial court decisions unless they have compelling reason not to.
But if the minor parties continue to the state and federal Supreme Courts, where judges are not so deferential, no one can be sure of the outcome.
Email Thomas Elias at firstname.lastname@example.org. His book, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government’s Campaign to Squelch It," is now available in a soft cover fourth edition. For more Elias columns, visit www.californiafocus.net