The new California non-partisan primary system, which was approved by voters in 2010, has been continually challenged in the courtroom. These challenges have been filed by third party activists who would like to see their candidates on the general election ballot.
Most of these arguments are centered around the belief that political parties have a superior constitutional right to be on the general election ballot over the right of voters and candidates to participate equally in the electoral process without joining a party.
The drafters of Proposition 14 purposefully chose to copy the model of the top-two primary system adopted in Washington state in 2004. Tweet the news: Tweet
Their system has faced constitutional challenges all the way up to the United States Supreme Court, and the challenges were denied each time; challenges brought and funded by the Republican Party. (Washington State Grange v. Washington State Republican Party (Washington I) and (State Republican Party v. Washington State Grange (Washington II)).
Despite this fact, two lawsuits were filed in 2010 against Proposition 14 alleging two re-hashed constitutional claims: (1) Candidates must have the right to label their party affiliation as “independent” and (2) candidates must be able to conduct a write-in campaign in November, despite losing in the primary election.
These lawsuits, each lasting more than two years, ended with rulings in favor of the proponents of the non-partisan open primary. In one of the cases, the judge even awarded the defendants $243,000 in legal fees, a very rare ruling, usually awarded only when the judge considers a lawsuit to be highly frivolous.
Most media coverage of this award depicted one of the plaintiffs, Mr. Richard Winger, as an activist with limited resources being bullied by billionaire Charles Munger, Jr. for having "the temerity to mount a court challenge" against a proposition he supported.
Lesser known is the fact that Mr. Munger’s legal team was willing to discuss dropping the monetary award if Mr. Winger and the anti-Proposition 14 group agreed to cease the time-wasting and resource consuming legal challenges.
Yet, despite this attempt, the appeals continue and new causes of action continue to be filed. So, who is funding all these far-fetched lawsuits?
Winger and company have yet to identify who is funding their legal campaign against Proposition 14. But, Winger has most recently received the support of Andrew Byrnes, partner in the large international law firm Covington & Burling and co-chair of the finance committee of the state Democratic Party. The firm has taken over legal representation pro-bono.
On the side of Proposition 14 defendants is Charles Munger, best known for supporting traditionally Republican causes. For example, he supported California’s Proposition 32 in 2012, which would have eliminated union payroll deductions to fund political campaigns and restricted corporate contributions to candidates.
Interestingly, other Proposition 14 proponents, including Independent Voter Project (IVP) co-founders Steve Peace and Dan Howle -- who actually authored Proposition 14 -- strongly opposed Proposition 32, despite their allegiance with Charles Munger on the non-partisan primary. The mutual goal was “to reduce extreme partisanship.”
What should be taken from this is that political righteousness is not so easily divided along monetary lines or by a single position. Munger, IVP, Peace, Howle, and even Winger and third party “ballot access” advocates, can have honest disagreements over policy -- agreeing on some and disagreeing on other.
Problems arise, however, when one party refuses to participate in an honest debate. Share the news: Tweet
A third lawsuit, brought by candidates from minor parties, including the Green Party, Libertarian Party, and the Peace And Justice Party, is not likely to be successful either. The main claim is that small parties "have constitutional rights to have small party candidates on the general election ballot."
The court proceedings, available on the plaintiffs' own website, show that a judge already denied the plaintiffs' injunction once and rejected the plaintiffs' complaint twice for failure to state facts sufficient to constitute a cause of action.
Further, this contention was already rejected by the Ninth Circuit Court of Appeals in Washington (see above), which held that under a non-partisan top two system, "minor party were given equal access to a statewide primary." Therefore, their first and fourteenth amendment rights are not infringed.
The plaintiffs have yet to come with a alternative legal basis to contest the open primary.
Despite these two previous failures, the plaintiffs filed another amended complaint. The latest, which reiterates the assertion that minor parties have a constitutional right to be on the general election ballot, now tries to establish the far-fetch theory that proponents of the open primary "were motivated by an invidious purpose when they enacted the election reform."
The plaintiffs allege that the proponents of Proposition 14 had the hidden agenda of excluding minor parties from the political process that was accomplished by using code words such as "pragmatic" and "practical politician" in support of the measure.
The hearing on this latest amended complaint is set for June 30. You can read the most recent motion filed on behalf of the proponents of Proposition 14 below: