The California state flag flies alongside the U.S. flag.
SAN FRANCISCO — A federal judge has once again rejected an effort from lesser-known political parties to overturn California’s so-called “jungle primary” system.
The issue has been litigated almost constantly since California voters adopted Proposition 14 in 2010, amending the state Constitution to create nonpartisan primaries for voter-nominated offices.
Before that change took effect, parties had the role of nominating only one candidate for each office on a general election ballot. But under Prop 14, the state switched to an open primary system in which any voter can vote for any candidate — regardless of party affiliation, declared or otherwise— with the top two vote-getters advancing to the general.
Three parties filed a state court lawsuit in November 2011: the Green Party of Alameda County, the Libertarian Part of California and the Peace and Freedom Party of California. Joining as plaintiffs were several candidates and other party members, collectively alleging the new system violates First and 14th Amendment protections, in the way it effectively precludes minor party candidates from reaching general election ballots.
The California Superior Court dismissed that complaint with prejudice in September 2013, finding the system gives all parties equal opportunity and ruling the complaint didn’t adequately allege invidious discriminatory intent. A California Fourth District Appellate Court panel affirmed that ruling in February 2015, the state Supreme Court denied a review petition that April and six months later the U.S. Supreme Court declined to consider the matter.
In an opinion filed April 13, U.S. District Judge Maxine Chesney said the current lawsuit comes from both the Libertarian and Peace and Freedom parties as well as the state Green and American Solidarity parties and six party members who previously ran for office. Secretary of State Shirley Weber moved to dismiss that complaint, as did two groups filing as intervenors: Californians to Defend the Open Primary and Independent Voter Project.
Chesney first considered the legal question of whether the new complaint was sufficiently distinct from the 2011 lawsuit such that it shouldn’t be dismissed as redundant of a well-settled matter. With two parties returning, as well as the established relationship between the statewide Green Party and a single county’s chapter, Chesney said the chief difference is the six individual plaintiffs who weren’t part of the original lawsuit.
However, she explained, those candidates “share a community of interest with their political parties, as well as with other members and candidates of their parties, who asserted their interests in the (2011 lawsuit) and adequately represented those interests.”
The next threshold matter is whether the new lawsuit relies on substantially different legal theories as the original. Chesney said the new complaint essentially incorporates five separate claims: general election ballot access denial, preclusion of write-in candidates, conducting a primary during March of presidential election years, unequal ballot access when compared to Democrats and Republicans and, a claim brought only on behalf of the Solidarity Party, a challenge to the practice of listing candidates as having no party preference if they submit a party that state election officials have deemed unqualified.
Chesney said the first claim was settled in the original action and cannot be revived based on data “reflecting the inability of minor party candidates to reach the general election ballot” over the last decade. She said concerns about write-in candidates, while not pleaded in the first lawsuit, is still barred as it rests on the same underlying concerns and could’ve been raised as far back as 2011.
Challenging the timing of the primary isn’t precluded, Chesney said, as that schedule wasn’t implemented until several years after the first lawsuit was ultimately dismissed. But the 14th Amendment equal protection claim can’t survive, “although plaintiffs endeavor to distinguish” it from the initial attempt.
“They have dropped their allegation that the asserted discrimination was ‘invidious,’ ” Chesney wrote, adding that “such distinction is unavailing, as both claims share the same wrong and the same injury discussed above. Indeed, the equal protection claims are nearly identical.”
Ultimately that means only the Solidarity Party could bring claims that echo the initial lawsuit, while all the plaintiffs were allowed to challenge the March primaries. Chesney rejected the intervenors’ argument that the Solidarity Party lacked standing, finding an allegation of the inability to advance to a general election can survive a motion to dismiss.
She also wouldn’t accept the contention that the source of the injury isn’t the primary rules but voters, explaining the ability to sue based on causation theories, and further said the Solidarity Party rightly argued the old system enabled nonqualified party candidates to access the general election ballot via independent nomination petition. Chesney then explained the complaint alleged the party itself suffered injuries relating to its name not appearing on ballots with specific candidates.
Turning to the actual merits of the surviving claims, Chesney said the U.S. Ninth Circuit Court of Appeals in its 2012 opinion, Washington State Republican Party v. Washington State Grange, “evaluated the constitutionality of Washington’s top-two primary system” found to be very similar to California’s and classified any burden that system placed on Libertarians as not more significant than the state’s interests in adopting a particular primary process.
“While the Ninth Circuit acknowledged Washington’s top-two system ‘makes it more difficult for minor-party candidates to qualify for the general election ballot than regulations permitting a minor-party candidate to qualify for a general election ballot by filing a required number of petition signatures,’ ” Chesney wrote, “it found such ‘additional burden… is an inherent feature of any top two primary system, and (that) the Supreme Court has expressly approved of top-two primary systems.’ ”
Chesney rejected that claim without allowing room to amend, as she did with the complaint about write-in votes. She noted California allows write-in votes during primaries and doing so during the general “would effectively negate the purpose of having a top-two primary.”
Regarding March primaries in presidential election years, Chesney said the “plaintiffs do not identify therein any burden imposed on them on account of such schedule” in that the same rules apply to every party regardless of stature. She did allow for the possibility the plaintiffs could amend their complaint to allege such a burden, but said the Equal Protection claim gets no such treatment as “courts have been made aware of and considered such asserted differences and have found, where state election laws like those at issue here apply equally to all political parties, such laws are constitutional.”
Finally, the Solidarity Party can amend its complaint to strengthen allegations regarding party preference designations on ballots.
