‘Top-Two’ General Elections in CA Upheld

     SAN FRANCISCO (CN) – A voter-approved, “top-two” system of electing statewide and legislative candidates in California’s general elections remains in place, after a state appeals court tossed a challenge by minor political parties who say the system deprives them of their electoral voice.
     Members and candidates from the Libertarian, Green, and Peace and Freedom parties sued the California Secretary of State in 2011 after voters approved Proposition 14. The initiative changed the Golden State’s electoral system to an open, nonpartisan primary election followed by a general election runoff between the top two vote-getters in the primary.
     The minor parties claimed that the change denied them access to the general election ballot since in all likelihood their candidates would never place in the top two in the primaries. They also argued the authors of Prop. 14 wrote the initiative for exactly that purpose, violating their equal protection rights in the process.
     Pointing to the 2012 elections, the minor parties said that their top vote-getter – a Green Party candidate running for a Congressional seat – received nearly 19 percent of the vote in the primary election. But because she didn’t land in the top two – spots held by a Democrat and a Republican, of course – she didn’t make the general election ballot.
     Of more than 150 races governed by the top-two system in the 2012 primaries, only three minor-party candidates advanced to the general election runoff. Before Prop. 14 passed, state election laws guaranteed that one candidate from each political party could appear on the general election ballot, the minor parties argued.
     A trial court tossed the action, finding that Prop. 14 did not restrict the access of minor parties to the primary ballot and that they had no inherent right to be on the general election ballot – absent a finish in the top two.
     On Thursday, a panel for the First Appellate District agreed. Writing for the panel, Judge Sandra Margulies acknowledged that U.S. Supreme Court cases in the last century that established minor-party election rights have featured primary elections that allow voters to select general election candidates, rather than ones that narrow down the list of candidates in a supposedly nonpartisan fashion.
     But that doesn’t mean the nation’s highest court intended to give minor parties an absolute right to appear on general election ballots, the judge added.
     “The principle concern of these earlier ballot access decisions was to ensure minor parties did not suffer undue barriers to placing their candidates on the ballot, relative to their major-party brethren. In the context of the traditional system, however, the court rejected any absolute right of minor-party candidates to appear on the ballot, finding ‘an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot – the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election,'” Margulies wrote, citing the high court’s holding in 1971’s Jenness v. Fortson.
     She added: “We find no support for plaintiffs’ claim of a constitutional right to have their candidates appear on the general election ballot upon the showing of a modicum of support, as the term ‘general election’ is used in California’s top-two system. The minor parties unquestionably have a right to fair and equal participation in the process by which officeholders are selected, but this right is satisfied by participation in an open nonpartisan primary election in which every candidate has an equal opportunity, regardless of party affiliation, to advance to the general election.”
     The appeals court also found that the top-two system doesn’t limit minor parties’ participation in the electoral process, by barring them from the general election and its higher voter turnout.
     “We find any burden placed on plaintiffs’ expressive rights by their alleged relegation to the primary to be modest,” Margulies wrote for the panel. “It is important to recognize that plaintiffs are not excluded from the electoral process altogether. Because minor parties are permitted to promote candidates in the primary election on the same terms as any other party, plaintiffs are fully able to communicate their message through the electoral process at that time.”
     She continued: “Further, even at the time of the general election, plaintiffs are in no way excluded from many expressive activities associated with the electoral process. Even without a candidate on the ballot in November, plaintiffs may organize their members, communicate their message through advertising and events, support or oppose candidates who are on the ballot, and engage in any other appropriate political activity. The lack of a candidate in no way prevents plaintiffs from participating in the various election-related political activities at the time of the general election. It merely prevents them from using a candidacy as the vehicle for such activities.”
     The minor parties have 40 days to ask the California Supreme Court to review the case.

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