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Libertarians and Greens seek to intervene in top two open primary lawsuit

by Damon Eris, published

Two candidates and two voters from the Green and Libertarian parties are seeking to intervene on the side of the plaintiffs in Chamness v. Bowen, one of three lawsuits pending against California's top two open primary system. In their motion to intervene, filed with the Ninth Circuit Court of Appeals earlier this month, the Greens and Libertarians argue that unless the top two primary system is struck down, they will be deprived of their rights to participate in the June primary election (of their respective parties), as well as the November general election.

Those intervening are: David Steinman, a Green Party candidate for the US House in Congressional District 33, Charles Richardson, a Libertarian Party candidate for the US House in Congressional District 17, Randi Clausen, a Green Party voter who lives in Congressional District 33, and Andrew Arnold, a Libertarian Party voter who lives in Congressional District 17. Steinman and Richardson are petitioning that the court restore their rights to run in a party primary and appear on the November 2012 general election ballot if they prove victorious in that primary election. Clausen and Arnold are petitioning the court to restore their rights to vote in their respective party primaries and cast their ballots for their parties' nominees in the 2012 general election.

The lawsuit does not challenge Proposition 14 as such, which was passed by voters in June 2010 establishing the top-two beginning in 2011, but rather aspects of SB6, the bill that implemented the new open primary system. Under current law, candidates who are affiliated with minor parties which are not officially qualified must state on the ballot that they have “No Party Preference” and are prohibited from identifying themselves as “Independent.”

If the motion is granted, Steinman and Richardson will be the first candidates seeking public office in the 2012 primary to join the suit. Their intervention would also likely expedite any court ruling on the case. March 29, 2012 is the deadline for Secretary of State Debra Bowen to send out a list of certified candidates to election officials across the state in order to comply with a federal law requiring absentee ballots to be sent to military and overseas voters no later than 45 days before the June primary election.

Currently, the plaintiffs' opening brief in the case is due on January 31. The Secretary of State's office must then answer by March 1, and the plaintiffs must reply by March 15, leaving only two weeks between the reply brief and the candidate certification deadline.  If the legal challenge is successful, California's former primary system may be restored, as the plaintiffs are petitioning the court to declare Proposition 14 inoperative and unenforceable since its implementing law would be ruled unconstitutional.

It should be noted that the California Independent Voter Project (CAIVP) is intervening in the suit on the side of Secretary of State Debra Bowen.

Two other lawsuits against California's top two open primary system are currently pending in the courts. Field v. Bowen challenges the prohibition of write-in candidates at the general election and the ban on counting general election write-in votes. And just last month, 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 joint lawsuit alleging that California’s top-two open primary system is unconstitutional. That 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.