Metropolitan News-Enterprise


Friday, July 5, 2013


Page 1


Panel Rejects Challenges to ‘Top Two’ Election Laws


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Wednesday rejected challenges to Proposition 14, which established the “Top Two” election system used after the 2010 elections, and the measure’s implementing legislation.

Senior U.S. District Judge James G. Carr of the Northern District of Ohio, sitting by designation, said there is no constitutional impediment to requiring candidates to list themselves as preferring a qualified political party, or as having “No Party Preference,” or to be listed without any statement about party preference at all.

The Elections Code has since been amended to eliminate the blank-space option, so that all candidates are listed either by party or as “No Party Preference.”

Proposition 14 replaced the state’s closed partisan primary election with an open primary in which the top two vote-getters, regardless of party, qualify for the general election.

One of the plaintiffs in the consolidated appeals decided Wednesday was Michael Chamness, a former congressional candidate who said he was forced to be listed as “No Party Preference” because election officials refused his request to be listed as “Independent.” This proposed “self-designation,” Carr explained, was rejected because Independent is not the name of a qualified political party.

There are currently seven qualified political parties in California—Democratic, Republican, American Independent, Libertarian, Peace and Freedom, Green, and Americans Elect.

The appellate jurist agreed with U.S. District Judge Otis Wright of the Central District of California, who denied Chamness an injunction that would have allowed him to run with his chosen designation.

Carr said the law does not place a substantial burden on constitutional rights, because there is no significant difference between “Independent” and “No Party Preference.” Because there is not a substantial burden, he explained, strict scrutiny does not apply and the law must be upheld if the restriction on the candidate’s rights is rational, non-discriminatory, and supported by a substantial state interest.

The state does have such an interest, the judge said, in limiting the number and types of designations by which a candidate may be listed.

Citing Timmons v. Twin Cities Area New Party (1997) 520 U.S. 351, which upheld a Minnesota law prohibiting multiple parties from nominating the same candidate, Carr explained:

“If the state were to allow Chamness to use the term ‘Independent,’ various candidates could then seek to place other designations on the ballot in lieu of a party preference. Those self-designations might, for example, indicate specific political ideologies, or the absence thereof, [citing Timmons examples of the ‘No New Taxes’ or ‘Stop Crime Now’ parties]. Or candidates could propose designations containing language or messages inappropriate for ballots, such as those containing profanity or promoting racism or sexism. Limiting the ballot designations to political parties, a prescribed term (“No Party Preference”), or a blank space avoids both the problem of allowing questionable self-designation and the alternative prospect of having to make case-by-case governmental decisions regarding the acceptability of various self-designations.”

Carr rejected as moot a separate challenge to the law, by a voter and a former would-be write-in candidate in a 2011 special election for the state Senate who argued that California law impermissibly allowed voters to cast write-in votes in top-two general elections, but prohibited the counting of those votes.

Assuming that was true at the time suit was filed, it is not true now, because an amendment to the Elections Code expressly bars write-in votes in top-two general elections, although they are permitted in primaries, Carr said.  The U.S. Supreme Court, he noted, has upheld the right of a state to bar write-in votes in general elections.

Judges Paul J. Watford and Marsha S. Berzon joined in the opinion.

The case is Chamness v. Bowen, 11-56303.


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