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.

Under California's top-two open primary system, all candidates for a given office, regardless of party, run on the same primary ballot.  All eligible voters, regardless of party, may cast a ballot at the primary.  Only the top two vote getters from the primary – again, regardless of party – then proceed to the general election.  The system came into force on January 1st, 2011, after California voters passed Proposition 14 in June 2010.

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.

At this stage, mainstream and corporate media coverage of challenges to the top two system seem to be misinformed.  For instance, In its report on the lawsuit from November 23rd, The San Francisco Chronicle wrote that the plaintiffs in the suit are seeking the preliminary injunction "in hopes of preventing the new system from being used during next year's presidential contest."  In fact, there is no mention of presidential elections anywhere in the lawsuit's complaint, and the top-two open primary system does not even apply to presidential elections.

This is the first lawsuit filed against 'top two' to argue that the system is patently unconstitutional.  Two pending lawsuits, namely, Chamness v. Bowen and Fields v. Bowen take issue with two smaller aspects of the law implementing the top two system: the banning of write-in candidates and the counting of write-in votes at the general election, and the prohibition against stating one's political affiliation on the ballot if a candidate identifies him or herself as an Independent or is a member of a political party not officially recognized by the state.