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Top two open primary overcomes latest legal challenge

by Christopher A. Guzman, published

With Congressional District 36 candidate Michael Chamness being denied an injunction to suspend electoral rules in the upcoming special election, he was dealt yet another blow when the Ninth Circuit Court of Appeals denied him a writ of mandamus in a case meant to challenge California's new top two open primary measure.

At the same time, as the Manhattan Beach Patch reported, the Ninth Circuit Court did urge the lower court to rule quickly on the request from Chamness. This comes as the higher court was considering blocking the top two open primary law that prevented Mr. Chamness from running with his desired political label. On April 1, the legal team of Mr. Chamness filed an emergency appeal with the Ninth District Court in San Francisco. 

     "Unless he secures immediate, injunctive relief by tomorrow (April 1, 2011), Appellant Michael Chamness' fundamental right to run for office will be irreparably harmed...Unless this Court intercedes, Coffee Party candidate Michael Chamness, whose name will appear on the ballot in the election, will be unlawfully banned from using the ballot label of "Independent," and will instead be forced to use the ballot label of "No Party Preference". In stark contrast, major party candidates in that election-including Secretary of State Debra Bowen, who is defending the election law at issue- will be allowed to list their party's name on the ballot" the plaintiff's attorney wrote in the March 31 emergency filing.

The emergency filing named the Defendants: California Secretary of State Debra Bowen, Los Angeles County Regristrar-Recorder Dean Logan, and former legislator and staunch open primary supporter Abel Maldonado.

Per Mr. Chamness' legal defense summary of the case, it was basically stated that the Ninth Circuit Court of Appeals was reluctant to stop the machinery of the election without having the case fully briefed. Therefore, the request for an expedited hearing and injunction pending appeal were denied by this court. They also recognized the reality that Mr. Chamness will in all likelihood have to classify himself under the "No Party Preference" label for the May 17, 2011 special congressional election in the state of California against Secretary of State Bowen. With this being the case, regular proceedings to challenge the top two open primary will begin with papers being filed no later than April 27, 2011.

An interesting factor to take into account when following this case comes from Ballot Access News, whose point will in all likelihood come up when the case is reviewed later this month:

     "No precedent supports the idea that "independent" can be banned for candidates who seek that label. The 6th circuit, and the Supreme Courts of Massachusetts and Minnesota, have all ruled in the past that 'independent' cannot be banned from the ballot."

In Mr. Chamness' pursuit of an injunction in District Court, before being considered by the Ninth Circuit, Judge Wright ruled that there wasn't sufficient evidence that the candidate was injured by the state of California not allowing his Coffee Party preference (or "independent") to be next to his name on the ballot. Also included in Judge Wright's assessment of the case is the fact that Mr. Chamness did not establish a likelihood of success on the merits of the case.  

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