[GPSCC-chat] Fwd: [gpca-forum] Very bad court ruling on Prop 14

[Drew]

-------- Original Message --------
Sent: Mon Sep 09 16:39:06 PDT 2013
To: GPCA member general discussion <gpca-forum at cagreens.org>
Subject: [gpca-forum] Very bad court ruling on Prop 14

http://www.ballot-access.org/california-superior-court-upholds-californias-top-two-system/#comments

California Superior Court Upholds California’s Top-Two System
Published on September 6, 2013,	 by Richard Winger in Uncategorized.
On September 5, Alameda County Superior Court Judge Lawrence J. Appel  
upheld California’s top-two primary system, which has been in effect  
starting in 2011, and which is also known as Proposition 14. The case  
is Rubin v Bowen, RG11-605301. The case had been filed by the Green,  
Libertarian, and Peace & Freedom Parties. Here is the decision. Thanks  
to Bob Richard for the link.

The decision relies entirely on dicta in the U.S. Supreme Court  
decision Munro v Socialist Workers Party, issued in 1986. In that  
case, Washington state had a blanket primary, and said no one could be  
on the November ballot unless he or she polled at least 1% in the  
blanket primary. The holding in that 1986 case was that the 1% vote  
test is constitutional because the Court had already upheld petitions  
as high as 5%, and the Court felt that “the differences between the  
two mechanisms” (the petition method and the primary vote test) are  
not significant.

The Munro decision also pointed out that the vast majority of minor  
party and independent candidates in Washington state met the 1%  
primary vote test and therefore appeared on the November ballot.  
Footnote eleven says 40 such candidates (out of a total of 45  
candidates) had met the 1% primary vote test since the system had  
started in 1977.

Unfortunately, the Munro decision also said that the harm done to  
parties and candidates and voters is “slight” when the candidate  
appears on the primary ballot but not the general election ballot.  
This part of the decision, which is at the very end, is dicta, because  
Washington state didn’t have a system in 1986 that kept all minor  
party and independent candidates off the general election ballot. This  
part of the decision didn’t determine the outcome and was just a  
gratuitous comment. But Judge Appel used this dicta to determine the  
outcome of the California case, and did not mention the actual holding  
of the case, which is that primary vote tests and petitions are  
equivalent. If Judge Appel had focused on that, he would he found that  
Proposition 14 may be unconstitutional, because the U.S. Supreme Court  
has limited petitions to 5%, and therefore logically it follows that  
prior vote tests also can’t exceed 5%. In practice, under a top-two  
system, a candidate may poll as much as 32% of the primary vote and  
still not qualify for the November ballot. If the case had not been  
dismissed, there would have been a trial in that same case in March  
2014.

Another difference between the 1986 Munro case from Washington state  
and the current California law is that there were only four weeks  
between the Washington special U.S. Senate primary and the special  
general election. By contrast, in California, the time difference  
between the primary and the general election is five months. So  
whereas the Washington state plaintiffs were only excluded from a 4- 
week general election campaign, the California minor parties are  
excluded from campaigning in the five months before the general  
election, a difference five times greater than in Washington state.  
Judge Appel had discussed this time difference in his tentative ruling  
in this case back in June 2013, but he said nothing about it in the  
final decision. Thanks to Dave Kadlecek for this news. It is likely  
the minor parties will appeal to the State Court of Appeals.


_______________________________________________
gpca-forum mailing list
gpca-forum at cagreens.org
http://lists.cagreens.org/mailman/listinfo/gpca-forum

-- 
Sent from my Android device with K-9 Mail. Please excuse my brevity.