On Thursday, January 15, oral arguments were made before the California State Appeals Court in San Francisco in the case

Rubin v. Bowen. Third parties continue to challenge the nonpartisan, top-two open primary in the state, claiming that the system violates the association rights of political parties and disenfranchises third-party voters in the general election.

Richard Winger, who runs the site Ballot-Access.org, wrote a post on the oral arguments, implying that third parties were poorly represented from the start. He focused on the first question, which dealt with the voting rights of independent voters before Proposition 14, the top-two measure authored by the Independent Voter Project and approved by voters in 2010.

The judge asked whether or not any voters were barred from participating in the primaries before Prop. 14, amending the question to ask specifically about independent voters. According to Winger, the attorney representing the third parties didn’t know that independent voters could actually participate, and said that they were not permitted to vote in major party primaries.

“[B]etween 2001 and the beginning of the top-two system in 2011, independent voters were permitted to vote in all Democratic and Republican primaries for congress and partisan state office,” Winger writes.

Independent voters could participate under the old rules -- if the parties allowed them to. The parties were in charge of the rules. Under the new California system, the voters are in charge of this decision.

If independent voters did participate in the semi-closed primary system, their choices were confined to the candidates on a single party's ballot. The purpose of

partisan primary elections (closed, semi-closed, open) is to nominate candidates for political parties — an explicitly private purpose.

Under the top-two primary, all candidates and voters, regardless of party affiliation, participate on a single ballot, giving voters the ability to vote for any candidate they want in each race. The top two vote-getters move on to the general election, regardless of how much of the vote the candidates get.

Independent and independent-minded voters are not confined to the candidates of a single party and every voter has equal access to the two integral stages of the public election process. The purpose of the top-two primary is to narrow the field of candidates down for the general election — a public purpose.

Mr. Winger believes that the question suggests the inquiring judge already believes top-two benefits voters.

“Clearly this judge believed that Proposition 14 enhanced voting rights for independents in the primary, and nothing was said in the hearing to illustrate the truth,” he comments.

The truth is that enhancing the voting rights of independent voters was an intended consequence of Top-Two, but it is not the sole purpose nor even the main purpose behind the election reform. If elections are going to be funded by taxpayers, then their purpose should be to elect candidates for the public, not for private organizations like political parties.

Nonpartisan election reform, like Top-Two, is designed to enhance the fundamental purpose of elections, which is to give every voter, regardless of political affiliation, equal say in who represents them in all levels of government and in all integral stages of the election process. The consequence of this is that all voters, not just independent voters, are given greater power at the polls.

“California requires all candidates for Congress and partisan state office to file in March,” Winger says. “But the attorney for the intervenors told the judges that even March petition deadlines for general election ballot access are constitutional, and he cited the only published decision that upholds a March petition deadline for independent candidates or minor parties, Lawrence v Blackwell, a 6th circuit case from Ohio. No attorney told the court that Lawrence v Blackwell is an outlier, and petition deadlines as early as March have been struck down in Alaska, Arizona, Arkansas, Idaho, Kansas, Maine, Maryland, Massachusetts, Missouri, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, and Tennessee.”

Yet, the petition deadline is not for the general election ballot, but for the primary ballot, which includes all candidates (regardless of party affiliation) who are running for Congress and partisan state offices.

Primary elections in California occur in early June, as Winger points out in his post, so it makes sense that the petition deadline for primary ballot access would be a couple months before the election. Many states with partisan primaries require a similar amount of time for third-party and independent candidates to file for candidacy on the November ballot.

Mr. Winger’s entire argument against Top-Two is founded on the notion that third-party rights trump the rights of individuals — that a third party’s supposed right to be on the general election ballot is greater than the right every voter is guaranteed by the U.S. Constitution to equal and meaningful access to the election process. This is a right that should not be conditioned on the requirement to associate with a private organization in any manner.

The three-judge panel will consider the oral arguments made by the plaintiffs and the defendants in the case. The court has 90 days to issue its opinion — but a decision could come down earlier than that.

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