Jan 16, 2015
By Shawn M. Griffiths
On Thursday, January 15, oral arguments were made before the California State Appeals Court in San Francisco in the case Rubin v. Bowen. Third parties continue to challenge the nonpartisan, top-two open primary in the state, claiming that the system violates the association rights of political parties and disenfranchises third-party voters in the general election.
Richard Winger, who runs the site Ballot-Access.org , wrote a post on the oral arguments, implying that third parties were poorly represented from the start. He focused on the first question, which dealt with the voting rights of independent voters before Proposition 14, the top-two measure authored by the Independent Voter Project and approved by voters in 2010.
The judge asked whether or not any voters were barred from participating in the primaries before Prop. 14, amending the question to ask specifically about independent voters. According to Winger, the attorney representing the third parties didn’t know that independent voters could actually participate, and said that they were not permitted to vote in major party primaries.
“Independent voters could participate under the old rules — if the parties allowed them to. The parties were in charge of the rules.”
If independent voters did participate in the semi-closed primary system, their choices were confined to the candidates on a single party’s ballot. The purpose of partisan primary elections (closed, semi-closed, open) is to nominate candidates for political parties — an explicitly private purpose.
Under the top-two primary, all candidates and voters, regardless of party affiliation, participate on a single ballot, giving voters the ability to vote for any candidate they want in each race. The top two vote-getters move on to the general election, regardless of how much of the vote the candidates get.
Independent and independent-minded voters are not confined to the candidates of a single party and every voter has equal access to the two integral stages of the public election process. The purpose of the top-two primary is to narrow the field of candidates down for the general election — a public purpose.
Mr. Winger believes that the question suggests the inquiring judge already believes top-two benefits voters.
“Clearly this judge believed that Proposition 14 enhanced voting rights for independents in the primary, and nothing was said in the hearing to illustrate the truth,” he comments.
IPR has posted several articles about the Top-Two law in California. Here are two of them: