On August 7, an amicus curiae brief was filed in Rubin v Bowen, in the California State Court of Appeals. Rubin v Bowen is the case in which the Peace & Freedom Party, the Libertarian Party of California, and the Green Party of Alameda County argue that Proposition 14, the top-two primary law, violates the rights of voters in the general election who wish to vote for minor party candidates.
The amicus is filed by the California Green Party and can be read here.
The brief cites the number of successful Green Party candidates, all of whom were elected under systems where voters may vote for any candidate, and, at most, two candidates advance from the primary to the general election.
The crucial factor that Justice Scalia identified in Jones was that the non-partisan primary did not serve to make party nominations, and that the electorate was not segregated by party affiliation.
Justice Stevens in his dissent said that Scalia was suggesting the Louisiana system; while Thomas in the Washington case that the court had not anticipated partisan labels on the ballot. So who knows, perhaps not even Scalia himself, knows what he was thinking.
Proposition 14 did not restrict candidates to expressing a preference for a state-recognized party. The Secretary of State mis(mal)interpreted the clear language in SB 6. If the current law were challenged on 1st Amendment grounds, it would lose. But the party bosses don’t want that. They want to maintain their special status.
In Nebraska’s Top 2 system, a winner is not determined in the primary. A Green Party candidate was elected to the Minneapolis city council under a Top 2 system with partisan labels, in which his opponent received a majority of the vote in the primary. A Top 2 primary that reduces the number of candidates to two is not as uncommon as opponents seek to portray it.
Washington does not permit sore losers to run as write-in candidates in the general election. The California Supreme Court ruled in Edelstein that it was OK to ban write-ins in the second stage of an election, based not on anything in San Francisco law, but merely because the election pamphlet before the referendum which approved the runoff said it would ensure majority support for the winner.
Leland Yee is still a California state senator. Yee, like all the Democratic California state senators now facing criminal charges, were elected under the old segregated partisan primary system. It is really quite unlikely that a write-in candidate could win a statewide election for SOS.
Dan Hamburg, county supervisor and Green Party member, had to pay full fare or collect a large number of in lieu of signatures. In 2010, when Roy Allmond sought the Republican nomination for Secretary of State, he couldn’t afford the filing fee, and was unable to secure the number of in lieu of signatures required of ordinary candidates, and had to run as a write-in candidate. In 2014, he dug down deep and paid the filing fee. He received more than twice as many votes as the Green Party candidate. The Green Party is seeking special privileges for their candidates.
The author of the Green Party brief was in essence told by a federal appeals court judge that he was misinterpreting Libertarian Party v Eu in earlier litigation attempting to derail the Top 2 reform.