California’s minor political parties appeal ‘top-two’ electoral system to U.S. Supreme Court


In January of this year, the Court of Appeal of the State of California (1st District, Division 1) upheld California’s “top-two” primary electoral system in the case of Rubin v. Padilla (.pdf):

StopTop2We affirm the trial court’s dismissal of the action. Given the structure of California’s “top-two” electoral system, minor-party candidates have no right to appear on the general election ballot merely because they have made a showing of significant public support. The role played by the general election under the former partisan system is fulfilled by the primary election in the top-two system, and there is no material barrier to minor-party participation in the primary election. Further, the failure of minor-party candidates to appear on the general election ballot does not substantially burden their members’ rights of political association and expression, and California’s interest in expanding participation in the electoral process is adequate to justify any burden that may occur. Lastly, because California’s electoral system treats all political parties identically, plaintiffs’ claim that they are denied equal protection of the laws is groundless.

This is a sweeping dismissal of minor political party rights and limiting the choices of voters in a general election.

The case was appealed to the California Supreme Court, which declined review. California Supreme Court Refuses to Hear Minor Party Lawsuit Against the Top-Two System:

On April 29, the California Supreme Court refused to hear Rubin v Padilla, the case filed by three of California’s minor parties that charges the top-two system injures voting rights in the general election.

This case is now being appealed to the U.S. Supreme Court. California Minor Parties Ask U.S. Supreme Court to Hear Case Against Top-Two System:

On July 28, the Peace & Freedom Party, the Libertarian Party of California, and the Green Party of Alameda County will ask the U.S. Supreme Court to hear Rubin v Padilla, the case that argues that the U.S. Constitution does not permit states to exclude minor party candidates from the general election ballot. The text of the cert petition is 18 pages. The entire document seems lengthy because it includes the court decisions from the California state courts, which upheld the top-two system. Also the cert petition contains an appendix of data on California elections since top-two sent into effect in 2011.

We’ll have to wait and see if Cert is granted in this case. The Court already has two major election law challenges on its docket for next term, and will likely be adding several more with redistricting cases and Voting Rights Act cases currently in the pipeline.

California’s voter participation has declined since the “top-two” primary was instituted, as I have previously provided the research in earlier posts. In addition, Comparing 2014 to 2010 General Elections, California Had the Largest Decline in Voter Turnout of Any State:

Political Science Professor Michael McDonald has a webpage that posts turnout data for each state. McDonald determines the number of ballots cast in each state, and divides that by the voting-eligible population. “Voting-eligible population” means not only the number of registered voters, but the number of people who could register if they chose to. The webpage shows turnout for all recent congressional and presidential elections. To see the 2014 data, see here. To see the 2010 data, see here.

When one compares 2014 to 2010, one sees that California easily had the sharpest drop in turnout of any state. The 2010 California turnout was 45.8%, and the 2014 California turnout was 30.0%. Comparing those percentages shows that the 2014 percentage was only 67.2% of the 2010 percentage. No other state had a ratio lower than .7. For the nation as a whole, the 2014 turnout was 88% of the 2010 turnout.

One likely reason that California’s turnout in 2014 slipped so badly relative to 2010 is that in November 2010, voters were given a choice of six parties for the statewide offices, whereas in November 2014 California was the only state in which it was impossible for anyone to vote in any statewide race unless that voter voted for a Republican or a Democrat. In November 2010, over 10% of the voters had voted for a minor party candidate for Lieutenant Governor or Insurance Commissioner.

Limiting voters’ choices in the general election naturally decreases voter participation. One would think this is obvious to even a casual election observer.

In addition to the misguided effort here in Arizona to put another “top-two” primary system on the ballot in 2016 after voters overwhelmingly rejected the idea previously, a similar organization is pursuing a “top-two” primary system in the train wreck of American electoral systems, the state of Florida. What could possibly go wrong? Florida Top-Two Supporters Rewrite Their Initiative and Will Again Begin to Collect Signatures:

A Florida group that supports top-two says it has rewritten its proposed initiative, and will start to collect signatures soon. The revised measure holds the actual election for state and county office in August, and only if no one gets 50% will there be a runoff in November. However, because federal law requires states to hold congressional elections in November in all districts, for Congress the measure won’t let anyone be elected in August, and the election between the top-two will be in November even if someone running for Congress does get 50% or more in August.

This is a totally effed up proposition. Who are these people, and more importantly, who are the money people behind them? And what is their real motivation and objective?


  1. It will help moderate establishment candidates that the other party will vote for. The corporate interests are worried about left democrats winning california. Do good government types say they want it here for the same reason the chamber republicans think tea baggers are bad for business and eventually when hispanic democrats take over here in arizona to curb radical hispanic democrats.

    • I honestly don’t think centrists or establishment party members are any more interested in the Top Two “jungle” style primary system than third parties and leftists are. In fact the Democratic Party was against it. I think the people supporting this are big money people who know that in this kind of primary where voters have no or low information money will allow the loudest voices to succeed. it also allows anyone with money to run sham candidates that can siphon votes from legitimate candidates. Most importantly it disenfranchises voters of any party that is not represented in the general election.

  2. They’re a collection of CEOs, developers, corporate lobbyists, and wealthy dilettantes*. They’re convinced that all our problems are caused by unwashed yokels being politically active so they want rich people to have even more power over elections than they already have.

    *Seriously, one of the main backers of the California top two initiative was the guy who made Attack of the Killer Tomatoes.

    • Thought so. People interested in true representative government would prefer some form of ranked selection or proportional representation.

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