Challenge to California Top-Two Election System in Federal Court filed

Two election attorneys challenged the top-two system in Federal Court in Oakland, California on Thursday, November 21, 2024. David L. Shoen of Montgomery, Alabama, and Seyeun D. Choi of Foster City, California filed a complaint asking that California’s “Top-Two” election system be struck down as unconstitutional.

(The 12-page complaint in its entirety may be read here.)

The lawsuit is filed in the names of three California political parties – the Peace & Freedom Party, Green Party, and Libertarian Party – and six recent candidates for office, two from each participating party. 

“Top-Two” is the result of Proposition 14 in the 2010 midterm elections. (As 2008 Green Party Presidential candidate Ralph Nader wrote,”Big Business interests shamelessly dealt our already depleted democracy a devastating blow by misleading California voters into approving Proposition 14.”) Beginning with the 2012 election, the candidates of parties other than Democrats and Republicans have been almost entirely excluded from the November general election ballot for all offices other than U.S. President, although they had regularly appeared on the November ballot prior to 2011.

“The effect of Top-Two has been to limit voters’ choices in the November election,” states Kevin Akin, California State Chair of the Peace and Freedom Party.  “There have been no positive effects for voters.

 “Despite the positive rhetoric about ‘more choices’ heard at the time the constitutional change was on the ballot, none of the promises of the proponents have come true.  The real effect has been to eliminate smaller parties from the November ballot.

“While the abbreviated name of the case is ‘Peace and Freedom Party v. Weber,’ in fact this effort is fully supported by all three parties, and by candidates of these and other smaller parties.” 

Akin also commented, “It must be emphasized that voters in the Democratic Party and the Republican Party are also denied choices, particularly in districts that end up with two Democrats or two Republicans on the November ballot, as has become common. This bad law has taken away voters’ choices, and we believe it is unconstitutional.”

The Background (courtesy Ballot Access News)
In its almost fourteen years of existence, the California top-two system has essentially barred all minor party members from appearing on the general election ballot, limiting them to those races in which only one of the two major parties ran a candidate.

There is only one exception to that statement: In 2024, an American Independent Party candidate for State Assembly qualified for the general election ballot, even though there had been candidates from both major parties in the race.

No federal court has ever upheld the California top-two system. The Ninth Circuit did uphold the Washington top-two system in 2012, but the decision read in part that it was not a severe burden on the Washington minor parties to be kept off the general election ballot, because those candidates were on the late August primary ballot.

The Ninth Circuit felt the late August primary was close enough in time to the general election to give the minor parties an opportunity to participate in the election. The Ninth Circuit said it would be an entirely different case if the primary election were held in March.

But in California, in presidential election years, the primary is in early March; in midterm election years, in June. Additionally, California is the only state in which it is impossible to appear on the general election ballot in years of the presidential election for Congress unless the candidate files in the year prior to the election (barring running as a write-in in the primary).

The California top-two system was upheld in the State Court of Appeals in 2015, in Rubin v. Padilla, but that decision was marred by three factual errors. It said that the state interest in the top-two system was to enable independent voters to vote in partisan primaries.

But the Court did not know that even before top-two came into existence, independent voters were free to vote in all congressional/state office primaries of the major parties. That was true for the period 2002-2010. Additionally, the State Court of Appeals said it would be appropriate to consider the primary the general election and the general election the runoff.

But the Court did not seem to know that the U.S. Supreme Court had said in Foster v. Love in 1997 that it is illegal for states to hold congressional elections at a time earlier than November of even-numbered years. The very first sentence of the Rubin v Padilla decision refers to the general election as a “runoff”, which implies the Court of Appeals thought of the primary as the election itself.

Finally the State Court of Appeals said the U.S. Supreme Court had already upheld the top-two system: In the 2000 case California Democratic Party v Jones, the Supreme Court ruled that whereas the blanket primary was unconstitutional, a state would be free to hold nonpartisan elections with all candidates in the primary and only two in the general election.

Justice Scalia wrote the California Democratic Party v Jones decision in 2000. But Scalia meant a system with no party labels on the ballot. This is obvious because when the U.S. Supreme Court considered the Washington state top-two, footnote eleven noted that the Court was not deciding whether the ballot access restriction of a top-two system is constitutional. Instead all it did was consider whether top-two violates the freedom of association.

The Supreme Court therefore did not decide whether top-two voting violates freedom of expression, instead remanding the case back to the lower courts to decide that. Scalia dissented in the 2008 Washington state case, saying it was obvious that top-two violates freedom of expression and therefore there was no need for a remand.