The top two open primary system is facing a legal challenge from an Independent activist affiliated with the Coffee Party movement. 

On February 17th, former State Senate candidate Michael Chamness filed a lawsuit in federal court seeking an injunction against the implementation of the top two open primary in the upcoming special election to replace Congresswoman Jane Harman in California’s 36th Congressional District.  Harman announced her retirement from the office on Monday, triggering a special election to fill the seat.  

A non-profit consultant and Coffee Party activist, Chamness was a candidate in the special primary election for State Senate District 28 last month, one of the first elections to be held under the top-two system in California.  Because Chamness is not affiliated with a ballot-qualified party, the legal scaffolding for the top two open primary system – namely SB 6 – prohibited him from stating his party preference on the ballot, nor was he permitted to identify himself as an Independent, as would have been the case under the old primary system.  Instead, he was listed on the ballot as having “No Party Preference.”  

Running in opposition to the top two system, Chamness received less than 1% of the vote.  Democrat Ted Lieu won the contest outright with just under 57% support.  There were six other candidates in the election.  Less than 12% of the nearly 500,000 registered voters in the district bothered to cast a ballot.  

As he intends to run in the primary race for CD 36, the lawsuit seeks a preliminary injunction blocking the implementation of SB 6 in that election on the grounds that Chamness has already been forced “to lie to voters about his political views” and would be made to do so again if he must state on the ballot that he has “no party preference.”  

     “It’s unconstitutional, undemocratic, and just plain wrong to force any candidate to lie to voters,” said Gautam Dutta, Mr. Chamness’ attorney, in a February 23rd press release.

The suit names California Secretary of State Debra Bowen and Registrar-Recorder/County Clerk of Los Angeles Dean Logan as defendants.  Coincidentally, Chamness and Bowen will also face off in the primary election for CD 36.  Bowen has already officially declared her candidacy for the House seat being vacated by Jane Harman.  As the complaint points out, Bowen will seemingly benefit from what some view as a double standard established in SB 6:  while she will be allowed to state her particular party preference on the ballot, Chamness will be prohibited from doing so. 

According to the suit’s motion, Bowen’s current office has already effectively admitted to the substance of Chamness’s legal challenge.  It states that an email from the Secretary of State’s Legislative Analyst to the Office of the Lieutenant Governor affirms that the “party preference ban” instituted by SB 6 “is not “permissible” because it deprives minor-party candidates of the ballot label of “Independent”.”  The first hearing in the suit is scheduled to be held on March 21st.  The special primary election will likely take place in June. 

Chamness is likely to use the race for CD 36 to continue his campaign to reform Proposition 14.  As he wrote in an op-ed for the Daily Breeze prior to the special election for state senate in February:

     “SB 6 forces minor-party candidates to lie to voters and does them a grave disservice. And that needs to change.”