A group of minor parties in California challenged the state's nonpartisan Top Two primary in court and a federal judge handed them another loss, ruling in part that they can’t keep suing over arguments already rejected by other courts.

In an order issued April 13, US District Judge Maxine M. Chesney said most of the plaintiffs’ claims against Top Two – approved by voters under Prop. 14 in 2010 – were already litigated years ago. As such, they can’t be re-litigated.

The full decision in Peace and Freedom Party, et al v. Weber can be found here.

The plaintiffs in the case include the Peace and Freedom Party, Libertarian Party of California, Green Party of California, the American Solidarity Party of California, and several individual candidates affiliated with those parties.

They argue that California’s election laws create an “historically insurmountable barrier” for minor-party candidates trying to reach the November ballot.

Further, they challenged the state’s ban on write-in candidates in the general election. And, they asserted that Top Two violates their right to equal protection under the law, arguing that it unfairly favors the Republican and Democratic Parties.

All of these claims have already been rejected in court. Specifically, in Rubin v. Bowen, which plaintiffs lost all the way up through denied review by the California Supreme Court and the US Supreme Court.

There is also Washington State Republican Party v. Washington State Grange, a case out of the Ninth Circuit Court of Appeals. Chesney leaned heavily into this case in particular.

On the challenge to the California election law banning write-in candidates, the courts have ruled that overturning such a ban would negate the point of the Top Two primary.

“The Ninth Circuit has found any limited burden associated with a top-two primary is outweighed by the State’s interest in reserving general elections for the top two vote getters,” Chesney wrote.

"Prohibiting write-in candidates on the general election ballot essentially does no more than serve to effectuate that result.”

On the equal protection claim, Chesney re-affirmed what other courts have found and that is Top Two treats all candidates and voters the same. Under the system, all voters and candidates, regardless of party, participate on a single ballot. 

It puts everyone on the same playing field.

“[C]ourts have been made aware of and considered such asserted differences and have found, where state election laws like those at issue here apply equally to all political parties, such laws are constitutional,” Chesney stated.

“As the Supreme Court has explained in no uncertain terms, ‘States are not burdened with a constitutional imperative to…‘handicap’ an unpopular candidate to increase the likelihood that the candidate will gain access to the general election ballot.’”

Chesney referenced the SCOTUS case Munro v. Socialist Workers Party (1986).

She noted how “plainly unhappy” the minor parties were with the results of the nonpartisan open primary system. However, dissatisfaction was not enough for her to reopen constitutional claims that were already litigated and lost.

On the merits, Chesney found that California’s Top Two structure survives constitutional scrutiny under existing precedent. The fact that minor parties rarely succeed under that framework does not make the system unconstitutional by itself.

This is a critical point. She essentially said the Constitution does not require the state to make it easier for smaller or less popular parties to qualify for the general election ballot just because the existing rules favor candidates with broader voter support.

Chesney did not dispute the practical reality that in nearly every case the top two candidates are going to be from the Republican and Democratic Parties. However, nonpartisan election models like Top Two or Top Four in Alaska apply the same ballot-access structure to all candidates.

Thus, one cannot say they don’t treat parties and their candidates equally. 

Notably, the Independent Voter Project – which sponsored Prop. 14 in 2010 – has since advocated for expanding the number of candidates that advance to the general election to four. But what the state shouldn’t do is go backwards.

(i.e. California should not return to a closed partisan system that shuts out independent voters and creates an unequal playing field for voters and candidates alike.)

The Case Is Not Entirely Over Just Yet

The latest court ruling wasn’t a complete loss for the plaintiffs. At least, not at the moment. Chesney allowed them to try again on two narrower claims: 

1. California’s decision to hold presidential-year primaries in March, which plaintiffs assert disadvantages minor parties. 
2. The practice of labeling unqualified minor party candidates as “Party Preference: None.” This was specifically brought by the American Solidarity Party of California.

Chesney ruled that the plaintiffs did not lay out their case on either point well enough. They will have an opportunity to amend both claims with a second complaint and have until May 8 to do it.

They cannot add new claims without the court’s permission.