The Non-Partisan Top-Two Primary Legal Battle Continues

On March 29, the appelant’s opening brief in the Field v. Bowen case was filed with a California court of appeal. This means the legal saga challenging California’s new non-partisan “top-two” primary continues, despite having a final judgement on the merits of the dispute itself.

The plaintiffs, a group of third party activists, including ballot access advocate and IVN contributor, Richard Winger, have repeatedly challenged the constitutionality of the new California non-partisan primary system. The system was approved by California’s voters in 2010 by a sizable margin.

In January 2012, a judge ended the 18 months long challenge and entered a final judgement on the merits in favor of the non-partisan primary defendants.

In a rare ruling, Judge Curtis Karnow also awarded the defendants $243,279.50 in attorneys fees. It is this award fee that is being challenged in the current appeal.

Most of the media coverage has been sympathetic to the “courageous” activists who have challenged the new system in the face of “big money interests.” The target of this emotional appeal has been Charles Munger, a wealthy proponent of the non-partisan top-two primary, who is traditionally associated with more Republican causes.

He has also funded most of the legal costs associated with defending the new non-partisan system. According to the challengers, the award is unfair because, he can “easily afford to pay [his] lawyers.”

Outside of an appeal to emotion, little public consideration has been given to the content of the decision or the merit of the monetary award.

Among the overlooked facts is that the plaintiffs’ had filed their own motion for attorney fees prior to the award. The motion was for an amount close to $2 million for a group of “penniless activists,” significantly higher than the amount issued by the court to reimburse the “big money defenders.”

The demand for this amount may be further suspect given the judges repeated concerns over the lack of merit and continued addition of far reaching causes of action brought forth by the challengers.

Both parties have claimed the mantel of “protecting democracy.” But, contrary to other reports in the media, the defenders of the non-partisan top-two primary, including Charles Munger, have never expressed their intent to “punish” those with whom they disagree.

In fact, Charles Munger and the intervenors’ legal team made an offer to drop the the monetary award if the opponents of the top-two primary agreed to stop the time-wasting and resource-consuming legal challenges. Instead of accepting the offer, the opponents have chosen to file another appeal against the fees in court.

The current appeal has been filed on behalf of the third party activists on a pro bono basis by Andrew Byrnes, partner at Covington and Burling LLP. He is also the co-chair of the Finance Committee of the Democratic Party of California.