A  Democrat-turned-Tea Party activist is seeking to intervene in a lawsuit  against California’s top-two style open primary in opposition to the  disenfranchisement of write-in voters.

It  is highly unlikely that many voters knew there was a third candidate  seeking their support in the special election for the open congressional  seat in CD 36 held earlier this month.  Indeed, the very existence of a  possible third candidate in the race would seem to have been  impossible, as this was the first special general election for the US  House held under California’s top-two open primary.

There  were only two candidates named on the ballot, Democrat Janice Hahn and  Republican Craig Huey, but Los Angeles resident Julius Galacki sought  the office as a write-in candidate in protest of the new primary system.   The fact that he did so provides him with standing to intervene in an  ongoing lawsuit (Chamness v. Bowen) against the top two system.  A  motion to intervene was recently filed by Galacki’s attorney Gautam Dutta  in the US District Court for the Central District of California.  The  suit does not challenge the top two system as such, but rather a number  of apparent inconsistencies in the election code that resulted from the  implementation of the system’s legal scaffolding, i.e. Senate Bill 6 sponsored by Abel Maldonado.

Before  launching his last minute write-in bid for the US House, Galacki  unenrolled from the Democratic Party and changed his registration to the  Tea Party in order to challenge SB6’s ban on write-in candidates and  its prohibition against counting write-in votes cast in general  elections.

“The  Top Two Primary illegally disenfranchises voters and disqualifies  candidates from running for office.  Simply put, the Top Two Primary  must be put on hold until the Legislature has fixed its troubling  flaws,” said Gautam Dutta, Mr. Galacki’s attorney, in a press release.

Galacki’s  claim hinges on a tension between two sections of California’s election  code that arose following the implementation of SB6 and the top two  system.  Section 15340 guarantees the right to cast a vote for any write-in candidate in any election.  It states:

“Each  voter is entitled to write the name of any candidate for any public  office, including that of President and Vice President of the United  States, on the ballot of any election.”

However, section 8606, added to the code by SB6, prohibits the counting of such votes in a general election.  It reads:

“A  person whose name has been written on the ballot as a write-in  candidate at the general election for a voter-nominated office shall not  be counted.”

Having  voted for himself as a write-in candidate in the special general  election, Galacki seeks to challenge top-two both as a registered voter  who was prohibited from running for the office as a write-in candidate  and as a voter who cast a write-in ballot that was not counted.

Galacki  appears determined in his effort.  He plans to run as a Tea Party  candidate in the June 5, 2012 primary election for the CD 36 House seat,  which should also allow him to challenge other aspects of SB6, such as the  so-called “party preference ban” which forces all primary election  candidates to identify themselves as a member of a party officially  recognized by the state, or to identify themselves as having “no party  preference” on the ballot.  As a Tea Party candidate, Galacki will be  affiliated with a group not officially recognized by the state, and  hence he will have to state that he has “no party preference” even  though it is not true.

“It’s a lie to say I have ‘No Party Preference’.  Of course, I have a preference!” said Galacki.  “This  law creates an inferior, second-class status for anyone from a small  party . . . It’s not just the Democrats and Republicans who have a right  to label themselves as they see fit, but any American who qualifies to  run for political office,” he continued.

Oral arguments in the case have been re-scheduled for August 22nd.