Calif. Court: Top-Two Primary Protects Individual Voters AND Third-Party Rights

Calif. Court: Top-Two Primary Protects Individual Voters AND Third-Party Rights

Created: 30 January, 2015
Last update: 15 October, 2022
On Thursday, January 29, the California Court of Appeal in San Francisco affirmed a lower court's dismissal of the case,

Rubin v. Padilla (formally Rubin v. Bowen). Third parties in the state are challenging the constitutionality of the nonpartisan, top-two primary, claiming it places a severe burden on associational and voting rights guaranteed by the state and federal Constitutions.

The three-judge panel maintained the trial court's ruling that such a burden does not exist. The ruling comes only two weeks after oral arguments were made — well ahead of the 90-day deadline.

Third parties argue that their rights and the rights of their voters are violated because third-party candidates are not guaranteed a spot on the general election ballot. Because third-party support in California is minimal, these candidates are typically eliminated in the primary stage, where all candidates and voters, regardless of party affiliation, participate on a single ballot and the top two vote-getters advance to the general election.

Plaintiffs further argue that not guaranteeing a spot for third parties on the general election ballot violates their right to equal protection. Yet the U.S. Constitution does not protect the right of any organization to be on the ballot — major or minor. The Constitution does, however, protect the right all eligible voters have to equal access to the public election process.

The defenders of California's top-two primary, which includes the Independent Voter Project (a publisher of this news website), argue that nonpartisan election reform enhances the fundamental principle of equal protection under the law because it treats all voters and candidates exactly the same, unlike most partisan-based systems.

The top-two primary, they argue, actually changes the purpose of the primary from a private purpose (to elect party nominees), to a public one (to narrow the field of candidates, regardless of the voter or candidate's party).

In the court’s opinion, the Honorable Lawrence John Appel writes:

“We find no support for plaintiffs’ claim of a constitutional right to have their candidates appear on the general election ballot upon the showing of a modicum of support, as the term “general election” is used in California’s top-two system. The minor parties unquestionably have a right to fair and equal participation in the process by which officeholders are selected, but this right is satisfied by participation in an open nonpartisan primary election in which every candidate has an equal opportunity, regardless of party affiliation, to advance to the general election.”

"Detractors of a top-two primary system argue that the new system essentially disenfranchises the minority party in a given state or district, because it deprives some voters the opportunity to vote for the party of their choice in November,” David Wasserman, U.S. House editor for the nonpartisan Cook Political Report, observes in an article published on FiveThirtyEight. “But in most of today’s lopsided states and districts, the minority party is no longer viable or relevant. A top-two system can instead empower a minority party by making its voters the critical swing bloc in a general election.”

For the first time in California, the election rules for all candidates, parties, and voters are the same. The nonpartisan system, supporters argue, forces representatives to broaden their appeal to voters outside their party’s base to not only advance to the general election, but win in November.

The plaintiffs in Rubin v. Padilla have 40 days to seek review in the California Supreme Court if they wish to appeal the ruling even higher.

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About the Author

Shawn M Griffiths

Shawn is the Election Reform Editor for He studied history and philosophy at the University of North Texas, and joined the IVN team in 2012. He has several years of experience covering the broad scope of political and election reform efforts across the country, and has an extensive knowledge of the movement at large. A native Texan, he now lives in San Diego, California.