C.A. Upholds Constitutionality of ‘Top Two’ Primary Amendment

Tuesday, September 20, 2011

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C.A. Upholds Constitutionality of ‘Top Two’ Primary Amendment

By KENNETH OFGANG, Staff Writer

The First District Court of Appeal yesterday rejected a challenge to Proposition 14, which replaced the state’s closed partisan primary election with an open primary in which the top two votegetters, regardless of party, will qualify for the general election.

A group of voters and aspiring candidates had argued that the measure, approved in June of last year, and its implementing legislation violate their state and federal constitutional rights to freedom of speech, the equal protection provision of the California Constitution, and Art. I, Sec. 4 of the U.S. Constitution, which sets forth requirements for congressional elections.

In particular, the plaintiffs objected to a provision that requires candidates to list themselves as preferring a political party, or as having “No Party Preference”—or to be listed without any statement about party preference at all—and to a ban on the counting of write-in votes in general elections.

Prospective Candidates

One of the plaintiffs was a prospective congressional candidate who wants to be listed on the ballot as a “Socialist Action” candidate, and another as a “Reform” candidate.

Neither of those is a qualified political party; there has never been a Socialist Action Party on the California ballot, although the Socialist Party was qualified in the early 20th Century, and the Reform Party, which was organized around Ross Perot’s third-party presidential ambitions, failed to receive enough support to maintain official status after Perot left politics.

Former Lt. Gov. Abel Maldonado, the driving force behind Proposition 14, intervened in the litigation, arguing that the term “political party,” as used in the legislation, refers to any political party, not only those that have qualified for the ballot. The Court of Appeal yesterday rejected that interpretation, but said the requirement that candidates list themselves as preferring a qualified party or having no preference does not render the law unconstitutional.

There are currently six qualified parties in the state—Democratic, Republican, American Independent, Libertarian, Green, and Peace and Freedom.

Justice Peter Siggins, writing for the Court of Appeal’s Div. Three, said the case is controlled by Libertarian Party of California v. Eu (1980) 28 Cal.3d 535. That case held that two Libertarian Party members who had petitioned onto the statewide general election ballot had to be listed as “Independent,” rather than “Libertarian,” candidates because the Libertarian Party was not qualified for the ballot at that time.

‘Political Stability’

The rights of a candidate, Siggins explained, are measured against the state’s interest in “ballot integrity and political stability.” Absent a substantial burden on constitutional rights, the balance tips in favor of the state if a restriction on the candidate’s rights is supported by important interests, the justice said.

The U.S. Supreme Court, he noted, has specifically held that a state may place restrictions on minority party ballot access if it determines that a two-party system creates a more stable political process.

He cited Timmons v. Twin Cities Area New Party (1997) 520 U.S. 351, which upheld a Minnesota law prohbiting multiple parties from nominating the same candidate.

The case is Field v. Bowen (Maldonado), A129946.