Richard Winger Featured In Article About California’s “Top-Two” Lawsuit Appeal

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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 , 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.

Finish the article here

IPR has posted several articles about the Top-Two law in California. Here are two of them:

Ballot Access News-CA Minor Parties File Appeal

Top-Two Proposition 14 Passes in CA

10 thoughts on “Richard Winger Featured In Article About California’s “Top-Two” Lawsuit Appeal

  1. From Der Sidelines

    The issue with top-two never was about independents voting in primaries; that’s the bait-and-switch argument.

    The real issue is denial of all party choices in the general election and the resultant denial of future ballot access.

    There shouldn’t be party primaries at all anyway. Party candidates should be determined only at fully-privately-funded party conventions.

  2. Jed Ziggler

    I agree, FDS. However, an alternate solution that would satisfy those who say they want nonpartisan primaries where independents get a say would be a blanket primary, where all party candidates and independent candidates are listed, and the top candidate from each party and the top independent candidate advance to the general election. Individuals would choose from all potential candidates, not just the ones from their party, however parties would still have their say in the process because they would get to decide who is able to use their party label in the primary, all others would be listed as independents. Candidates would only need to inform the Secretary of State (or equivalent) of their intention to run, there would be no further ballot access requirements. This is not the ideal system, which is what you propose, but it would be real, sensible reform.

    The IVN crowd doesn’t advocate that, because they do not truly want independents to vote in the primaries, they do not want nonpartisan elections, and they do not want meaningful reform. They want a system that shuts independents & alternative parties out of the process and moves us further toward one-party rule.

    I’m for REAL election reform, not Top-Two frauds.

  3. Andy Craig

    ” the top candidate from each party and the top independent candidate advance to the general election.”

    That would indeed be better, but still has the problem that you’re lumping together independent candidates and only letting one advance, even though they’re not part of the same party (that’s the whole point) and their voters don’t necessarily have anything in common with voters for another independent candidate. Many minor parties that don’t have party status in their state, and so they also use the “independent” mechanism to put their candidates on the ballot (with or without the freedom to self-describe, depending on the state). In such a state you could have a situation where, for example, Gary Johnson (L), Jill Stein (G), and Rocky Anderson (J) all have to run against each other in the primary, with only one advancing to the general election. Assuming this would apply to Presidential elections, if not the same example applies to a Gov or Senate race where multiple minor (and/or new) parties are forced to use the independent mechanism.

    Open/closed primaries are ironically being attacked from both directions in the courts. Closed primaries are being challenged in NJ, because it’s a state-funded election where certain voters are categorically excluded. Open primaries are being attacked in other states, notably Montana I believe at the moment but it’s happened elsewhere as well, by state major-party organizations (particularly the GOP) who challenge the open primary as violating their party’s right to nominate a candidate of their choice.

    I think both arguments are correct and deserve to prevail, but taken together and if adopted by the same jurisdiction, it would have the effect of making *no* primary elections constitutional. Which would be fine by me, but probably isn’t what either Montana GOP or ACLU-NJ are aiming for.

  4. Jed Ziggler

    Under the system I envision, the Libertarian Party, Green Party, and Justice Party would be qualified parties just by existing. It would be the Mississippi system of “you exist, therefore you have ballot access”. Party candidates would not need to run as independents.

  5. Andy Craig

    Fair enough. I don’t think that’s something that could be passed in most states, though, which have a fairly entrenched history of requiring some kind of minimum vote test in a specified election(s), in part because recognition as a political party typically comes with a lot more than just the ability of candidates to have that ballot label. Some states have boards that are explicitly partisan, others have partisan voter registration, still others mandate certain things about party governance (a party committee with reps from each C.D., for example), or provide for a particular role to recognized parties in the selection of presidential electors.

    Glancing at the Mississippi page on ballotpedia though, I do find their system pretty exceptional, which isn’t something I would have guessed. The one problem I have is that independents have to petition and can’t pay a filing fee, whereas party candidates just have to pay a (fairly small) filing fee. But that doesn’t really have anything to do with the quasi-blanket primary you’re describing, which I think could better be described as a fully-open primary or something like that. You’re still conducting separate primaries for each party, with voting open to all regardless of party, you’re just not requiring that voters only vote in one party for all offices, instead letting them vote across party lines for each office on the ballot. I wouldn’t call it a “blanket (or ‘jungle’) primary” unless party affiliation plays no role in who advances, like in Louisiana.

  6. Andy Craig

    I’m just nitpicking a little bit, though. If your proposal came up in any state I would certainly support it, particularly if we’re talking about California or some other state with a truly horrible current ballot access policy.

  7. Richard Winger

    Shawn Griffiths, who wrote that article, is not a good journalist. He has resisted every attempt for me to communicate with him. He is listed in Texas, so I phoned him once, over a year ago. I just got voice mail. Then former State Senator Steve Peace phoned me and berated me for trying to phone Shawn. I said, “He’s listed; generally if people are listed they expect to get phone calls.” He said Shawn didn’t realize he was listed and he doesn’t like to communicate with people like me. Later I sent Shawn copies of Ballot Access News, but he never acknowledged them. So, on the one hand he doesn’t want to communicate with me, but on the other hand he writes an article which purports to say what I think. He has me all wrong. He thinks I am a “partisan”. He thinks I am worried about freedom of association. If only he would talk to me, he would learn I am about voting rights and I am not a partisan person. I don’t know his e-mail address or I would try to communicate with him via e-mail.

  8. Andy Craig

    I suggest you put a brief summary noting that on B.A.N., if it’s not outside your editorial policy. It’s a blatant breach of journalistic ethics, might be good to have your side of the story out there if Mr. Griffiths is not interested in hearing it.

  9. Jill Pyeatt

    I posted this article mainly to expose IVN for their support for top-two. I can’t imagine why or how a news source about third parties can do that. I hope IPR readers can regularly check into this site and correct the commenters, who really generally don’t seem to be supporters of third parties. Richard, your work and reputation far exceeds any work and reputation for this very perplexing news source. Once in a great while they publish something I consider worthwhile, but much of the time I think the people who run this site are really Democrats and/or Republicans trying to make sure the little guys can’t get anywhere.

  10. Jed Ziggler

    I agree, Jill. I do use them as a source because they have posted articles by independent & opposition party candidates, such as Evan Falchuk, T.J. O’Hara, and Bruce Skarin. However, their pro-top-two propaganda is counterproductive.

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