Presentation: Lawsuit challenging Top Two Law

Presentation: Lawsuit challenging California's Top Two Law
Sponsors: Green Party of Contra Costa County, Green Party of Los Angeles County
Presenters: Richard Winger (Ballot Access News), Gautum Dutta (Attorney), Tim Laidman (Green Party of Contra Costa County), Mike Feinstein (Green Party of Los Angeles County)

Background: This agenda item is to hear a presentation on potential litigation to challenge California's Top Two law.

In 2017, the California State Legislature passed SB 568, moving California's primary elections to March https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=20.... California the held its 2020 primary in March 2020. Once this occured, according to Richard Winger of Ballot Access News (https://ballot-access.org/), the time became ripe for a legal challenge to Califoria's Top Two law based upon this earlier Ninth Circuit opinion:

https://ballot-access.org/2017/06/06/california-assembly-elections-commi...

     "Moving the primary for Congress and partisan state office to March will have profound consequences for the top-two system. The Ninth Circuit, in a Washington state case, already ruled that forcing minor parties to run only in August instead of November is only a “slight” burden, because, the Ninth Circuit said, August is near the peak of voter interest. The Ninth Circuit said it would be a far different matter if minor party candidates for Congress and partisan state office were confined to running in March, which is far from November."

So far the Green Party of Contra Costa and the Green Party of Los Angeles County have decided to initiate a legal challenge to California's Top Two law based upon this Ninth Circuit opinion, and have consulted with attorney Gautum Dutta (https://beelawfirm.com/our-team/) about taking the case. Dutta has previously represented the GPCA in earlier challenges to the Top Two law (https://ballot-access.org/2011/01/17/gautam-dutta-article-on-flaws-in-ca... • https://www.huffpost.com/entry/californias-humptydumpty-_b_809302).

Both Winger and Dutta presented on this topic to the GPCA's May 2011 General Assembly in Berkeley (https://www.youtube.com/watch?v=lQrl6Wh8bG0).

One complicating issue is that in Califoria's 2020 legislative session, the legislative passed SB 970, which moves the California primary in non-presidential years back to June (http://www.leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id... • https://californiaglobe.com/section-2/gov-newsom-signs-bill-that-pushes-...) setting up a system with primaries in presidential years in March and primaries in non-presidential years in June.

This item will discuss the merits of such a legal challenge and the costs involved, and the GPCA's potential involvement as part of the challenge.

Scenarios if such a legal challenge were successful

What are the possible scenarios? Based upon the Ninth Circuit ruling, such a lawsuit would directly challenge a March California primary (having an effect for 2024) and could also challenge and a June California primary (having an effect for 2022).  If the lawsuit is filed and the courts render a decision in 2021, one question is whether it is appealed to SCOTUS in 2021, and if they decide to take it or not. And if they do take it, whether they would expedite hearing it in time to take a direction before 2022.

Dutta says that if such any such challenge is successful, the court would not suggest a remedy.  Rather it would tell the state of California to figure it out.

One of the interesting and complicating factors in arriving at a remedy is that California voters approved Top Two elections in June 2010 via Proposition 14 (https://vigarchive.sos.ca.gov/2010/primary/propositions/14/).  So unless the court rules that Top Two itself is unconstitutional - which would not be the primary focus of the potential lawsuit - the California legislature can’t just eliminate it on its own, it would have to return to the voters with an alternative.

What about holding September Top Two primaries in California? Washington State holds Top Two primaries in September and those has not been overturned; in fact it is the footnote to the Washington State case that Richard Winger has cited about September primaries being OK, but March primaries not, that would be the basis for this court challenge. 

So that about 2022? Since the 2022 California primary has already been moved back to June, the state of California might argue that Top Two elections in California were already on the ballot for June primaries before, and they weren’t challenged back before, so they should remain. Nevertheless a Green Party legal challenge could challenge a June 2022 primary as well, and seek an injunction against it,. Evidence about how Top Two elections hurts smaller parties by keeping them off the November ballot could be cite information about the negative effects of both June and March primaries on California’s smaller ballot status parties during the Top Two era.

If such an injunction were to prevail and the legislature would not be able to implement a June 2022 primary, what do they do, since they would need a new vote of the people to abandon Top Two and return to partisan primaries, in which case they could preserve the June primary?   

For 2022 only, it seems like a constitutionally safe route would be to have a September 2022 Top Two primary, like Washington State, with a plan for how to do something else in 2024. One option for 2024, if the state wants to keep Top Two, is to have a stand alone March presidential primary in 2024, and keep the September Top Two primary going forward.

A second option, is to put some kind of change from the existing Top Two elections on the November 2022 ballot, to be used in 2024, that would allow the state to keep a consolidated March primary for state and Congressional offices with the presidential primary.  That of course is where it gets really interesting, in terms of what option would go forward at that time.

One possibility is that they put forward a state constitutional amendment to adopt a Top Four primary with a March date — and a complicating factor there is whether it would be straight Top Four plurality or Top Four with ranked-choice voting (RCV).

If it were Top Four plurality, it would be pretty easy to return to the courts and seek an injunction, arguing  based on the empirical results from Top Two, that minor party candidates would still be unlikely to advance to November in races in which multiple Democrats and Republicans both competed. As was the case in the 2018 Governors race, for an open seat it it highly likely that there will be multiple Democrats and Republicans competing in the primary election seeking to advance to the general.

Less tested would be a Top Four RCV primary.

https://www.fairvote.org/why_top_four

https://www.fairvote.org/top_four_with_ranked_choice_voting

https://d3n8a8pro7vhmx.cloudfront.net/fairvote/pages/3063/attachments/original/1449959778/1_Rob_Richie_Top_Four_Primary_Ranked_Choice_Voting_for_US_House_Reform.pdf

Top Four primaries might allow a minor party candidate to make it to the general, but still not likely, because the bottom threshold to advance would still be 21%.  

So a legal question there would be whether if the voters were to approve this in November 2022, whether that would initiate another series of legal challenges or could it be enjoined once approved by the voters? And then where would the state of CA be?  

Or to challenge a Top Four RCV primary, would it have to be in place in 2024 to see if there was real damage to minor party representation or not, given the untested nature of such a system?

Further complicating a Top Four RCV option, is that currently votes are counted on a county-by-county level by county registrar of voters, even though some state legislative districts cross county boundaries.  This is fine under the current plurality system, because votes cast in one county are just added to votes cast in another county. 

But under Top Four RCV, there would have to be transfers from lower to higher candidates —  and who is a lower candidate would only be concluded by compiling votes from all counties involved in a legislative district.  While this is less prevalent with the larger counties, in northern California there are multiple legislative districts that spread over multiple smaller counties.  So that would involve not only installing RCV capacity in every county across the state, but would involved round-by-round coordination between counties on counting the transfers.  While not undoable, this would be a level of complication unheard of in the state.  Or alternatively it might involve sending all of the state legislative and Congressional ballots to a single place for all of the transfers to be counted - and the vote integrity questions in all of these scenarios are not insignificant. 

Another option is  if the state of California lost in court in 2021, whether it would convene an electoral reform task force in order to make a recommendation of what to place on the November 2022 ballot.  That scenario would probably be the best opportunity for proportional representation.  But even so, the state of CA would have just concluded a lengthly process of drawing new legislative districts based upon the 2020 US Census. Any change from those districts would run up against the fact that the redistricting process itself is governed by initiatives (Prop 11 in 2008 and Prop 20 in 2010). Could new PR districts be drawn without another vote of the people? So would a recommendation on the November 2022 ballot to change from single-seat districts by winner-take-all to multi-seat districts with PR, that also involved different districts, violate the single-subject rule for state ballot measures?  Another interesting question.