Top-Two Primary System in CA Survives Challenge

     (CN) – California’s “top-two” open primary election system survived several challenges before the 9th Circuit on Wednesday.
     The “top-two” open primary election system allows voters to directly nominate two candidates in a non-partisan primary. The candidates are listed on the ballot with either their “party preference” or the words “no party preference.” The law, which voters approved through Proposition 14, also bans write-in candidates from the primary.
     Michael Chamness, Daniel Frederick, Rich Wilson and Julius Galacki claimed that the law was unconstitutional and unfair to third-party candidates and those who want to vote for them.
     Chamness wanted to run in the state’s 2011 primary as an Independent rather with “no party preference” next to his name. Frederick wanted to run as a write-in candidate, and Wilson wanted to vote for him. Galacki sought unsuccessfully to intervene in the lawsuit, claiming, among other things, that the law against write-ins violated the First and 14th Amendments.
     A Los Angeles federal judge granted the state summary judgment in 2011, and the 9th Circuit affirmed Wednesday.
     A three-judge appellate panel in Pasadena found that the law “represents a reasonable, non-discriminatory restriction that imposes a slight burden on speech and is sufficiently supported by the state’s important regulatory interests.”
     “Additionally, under the California system, multiple candidates may state they prefer the same political party, weakening any argument that the law seeks to guarantee the success of certain political parties,” wrote U.S. District Judge James Carr, sitting on the panel by designation from the Northern District of Ohio. “To the contrary, when multiple candidates state they prefer a single political party, the voters cannot know from the ballot which candidate, if any, the party actually endorses. Allowing multiple candidates to state they prefer a single political party addition, may dilute the party’s support among those candidates. Given these considerations, an otherwise well-supported candidate with ‘No Party Preference’ could, at least theoretically, benefit from the statutory scheme.

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