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Top-Two open primary faces legal challenge from Democrat-turned-Tea Party activist

by Damon Eris, published

A Democrat-turned-Tea Party activist is seeking to intervene in a lawsuit against California’s top-two style open primary in opposition to the disenfranchisement of write-in voters. 

It is highly unlikely that many voters knew there was a third candidate seeking their support in the special election for the open congressional seat in CD 36 held earlier this month.  Indeed, the very existence of a possible third candidate in the race would seem to have been impossible, as this was the first special general election for the US House held under California’s top-two open primary. 

There were only two candidates named on the ballot, Democrat Janice Hahn and Republican Craig Huey, but Los Angeles resident Julius Galacki sought the office as a write-in candidate in protest of the new primary system.  The fact that he did so provides him with standing to intervene in an ongoing lawsuit (Chamness v. Bowen) against the top two system.  A motion to intervene was recently filed by Galacki’s attorney Gautam Dutta in the US District Court for the Central District of California.  The suit does not challenge the top two system as such, but rather a number of apparent inconsistencies in the election code that resulted from the implementation of the system’s legal scaffolding, i.e. Senate Bill 6 sponsored by Abel Maldonado. 

Before launching his last minute write-in bid for the US House, Galacki unenrolled from the Democratic Party and changed his registration to the Tea Party in order to challenge SB6’s ban on write-in candidates and its prohibition against counting write-in votes cast in general elections. 

     “The Top Two Primary illegally disenfranchises voters and disqualifies candidates from running for office.  Simply put, the Top Two Primary must be put on hold until the Legislature has fixed its troubling flaws,” said Gautam Dutta, Mr. Galacki’s attorney, in a press release

Galacki’s claim hinges on a tension between two sections of California’s election code that arose following the implementation of SB6 and the top two system.  Section 15340 guarantees the right to cast a vote for any write-in candidate in any election.  It states:

     “Each voter is entitled to write the name of any candidate for any public office, including that of President and Vice President of the United States, on the ballot of any election.” 

However, section 8606, added to the code by SB6, prohibits the counting of such votes in a general election.  It reads:

     “A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.” 

Having voted for himself as a write-in candidate in the special general election, Galacki seeks to challenge top-two both as a registered voter who was prohibited from running for the office as a write-in candidate and as a voter who cast a write-in ballot that was not counted. 

Galacki appears determined in his effort.  He plans to run as a Tea Party candidate in the June 5, 2012 primary election for the CD 36 House seat, which should also allow him to challenge other aspects of SB6, such as the so-called “party preference ban” which forces all primary election candidates to identify themselves as a member of a party officially recognized by the state, or to identify themselves as having “no party preference” on the ballot.  As a Tea Party candidate, Galacki will be affiliated with a group not officially recognized by the state, and hence he will have to state that he has “no party preference” even though it is not true. 

     “It’s a lie to say I have ‘No Party Preference’.  Of course, I have a preference!” said Galacki.  “This law creates an inferior, second-class status for anyone from a small party . . . It’s not just the Democrats and Republicans who have a right to label themselves as they see fit, but any American who qualifies to run for political office,” he continued.

Oral arguments in the case have been re-scheduled for August 22nd.