CA: Top Two Lawsuit Reveals Glaring Ignorance of the Law in the Mainstream Press

A new lawsuit is challenging the constitutionality of the top two open primary system in California.  From today's column at CAIVN:
On November 21st, the Libertarian Party of California, the Peace and Freedom Party of California, and the Green Party of Alameda County joined a handful of voters and third party candidates for elected office to file a lawsuit alleging that California’s top-two open primary system is unconstitutional.  The suit argues that the top-two primary system disenfranchises minor parties as well as their voters and candidates for elected office by precluding them from participation in California’s general elections. . . .

Implicit in the suit is the presupposition that since the Democratic and Republican parties and their candidates for office are better funded and more widely known than their minor party competitors, the top two system is likely to result in the exclusion of third party candidates from the general election ballot.  The complaint  thus argues that the top-two open primary system is unconstitutional because it precludes third party voters from casting a ballot for their candidates of choice at the general election, prevents third party candidates from communicating their message to general election voters via the ballot, and denies third parties in general the ability to reach general election voters.

“Because Prop. 14 effectively denies voters their fundamental right of choice by precluding small party candidates from the general election ballot, the Act violates the rights of voters under the First and Fourteenth Amendments of the U.S. Constitution and should be overturned,” reads the complaint.
It continues: “By limiting access to the general election ballot, Prop. 14 effectively bars small political parties, their candidates and their members from effective political association, precisely at the moment when the highest number of voters are engaged in the electoral process.”

The issue of ballot access at the general election is especially important for third parties in California.  One of the primary means by which third parties obtain the official recognition of the state is by receiving a certain percentage of votes (at least 2%) in California’s gubernatorial elections.  Needless to say, if a party’s candidate is precluded from appearing on the general election ballot because he or she was not among the top two vote-getters in the primary, that party cannot qualify for future ballots via the gubernatorial vote.

The Secretary of State has thirty days to respond to the suit at which point the plaintiffs will ask the court for a preliminary injunction preventing the implementation of the system in next year’s elections.
See Ballot Access News for a copy of the complaint.  There are now three lawsuits against the top two system pending in California.  The other two take issue with smaller aspects of the law that instituted the new system, specifically, the ban on write-in candidates at the general election, the ban on the counting of write-in votes at the general election, and the prohibition against identifying oneself as an Independent or as a member of a political party not officially recognized by the state on the ballot.

Covering these lawsuits for IVN has been an eye-opening experience.  Having read through significant portions of California's Elections Code, as well as the complaints and court rulings against top two, the ignorance of even the most basic aspects of the new system among journalists and editors at California's mainstream and corporate news outlets is immediately apparent in their coverage of the legal challenges to the system.  Take, for example, a San Francisco Chronicle report on the most recent lawsuit from November 23rd.  The article frames the challenge against the law as if it is part of some grand third party strategy to prevent top-two from being utilized in next year's presidential elections.  Excerpt:
California Secretary of State Debra Bowen was served with the lawsuit Tuesday and has 30 days to respond. The plaintiffs will then ask the court to issue a preliminary injunction in hopes of preventing the new system from being used during next year's presidential contest.  [Emphasis added.]
Given the cult of the executive and the corporate media's mind numbing focus on the tactics and strategy of the presidential race to the exclusion of basically everything else, it is only to be expected that reporters and editors would place the challenge against the law in the context of the presidential contest.  Indeed, from the beginning of the article, the reporter frames her narrative in precisely these terms.  She begins:
Voters representing the Green, Libertarian, and Peace and Freedom parties sued Tuesday over the state's new open primary system, saying change will deny voters the right to support third-party candidates in general elections.

Under Proposition 14, approved by voters in 2010, all statewide and presidential candidates will run in a single primary that is open to all registered voters regardless of their political party. The top two vote-getters will then move on to the general election.  [Emphasis added.]
The problem though is that Proposition 14 specifically excludes the presidential race from the top two primary system!  This is one of the most basic facts about the law, as is amply documented at both Wikipedia and Ballotpedia, where we read: "Elections for presidential candidates, and for members of political party committees and party central steering committees do not fall under the "top two" system."  Moreover, the reporter's claim that top two applies to "all statewide" candidates is true at face value, but false by omission.  All candidates for all congressional and state elective offices, ex. state legislature and US House – which are not "statewide" –, will be elected under the top two system. 

This is, of course, but one example.  Many more could be supplied.  Such ignorance of the most basic facts about the new system among those tasked with covering it demonstrates, yet again, the degeneracy of the mainstream news media and political press.


Solomon Kleinsmith said...

True enough. I'm sure you're as shocked as I am... or rather not at all.

I do hope this insane Top Two part of Prop 14 does get overturned... don't really care how. I don't know if it's unconstitutional, but I do know is patently WRONG, and will indeed slow down the fight against the two major parties in states that have it in effect.

Solomon Kleinsmith
Rise of the Center

d.eris said...

This lawsuit could end up being very important. People who have been calling for top two in other states will be watching it very closely. People who oppose top two have to start offering up alternatives in their debates with supporters, because the current system is intolerable. Maybe a good alternative would be something like a traditional open primary with an instant runoff or approval voting system in the general election.

Norma J F Harrison said...

In particular, if at least there has been a fully informed, instead of a deeply lied-to electorate over this issue, the results could have more clearly demonstrated opposition to it...not necessarily voting sufficiently against it to keep it from happening. But it's likely there'd have been some concern that having two extremely expensively financed candidates from the same party be candidates for an office could have been found offensive to more people had they known the likelihood.

TiradeFaction said...

And that's why I stopped watching/reading "mainstream" (corporate) news a long long time ago...

Norma is right. As a Californian myself, I've observed most of our electorate had no idea what the hell Prop 14 was, and didn't seem to understand the problems with it even when I (oftentimes very slowly) explained them. If only we could have gotten the message out that you'd potentially only have the choice between two Democrats or Two Republicans...

Anyway, I hope it's overturned as well, and more open democratic alternative (since the previous status quo was terrible as well) is chosen.