Rubin v. Bowen: Third-Party Challenge to Unconstitutional Prop 14

April 10, 2012

Yesterday, KPFA Radio’s The Morning Mix spoke with representatives from California’s third-parties about their legal challenge to Proposition 14, Rubin v. Bowen, which created the new statewide ‘Top Two’ electoral system.  Under this system, the rigged de facto two-party system has now been virtually codified in California.  Given the obscene amounts of corporate funding expended by the pro-1% Democrat and Republican parties, third-party voters are, essentially, disenfranchised under this clearly unconstitutional legislation.

“After two months of delays,” writes RestoreVoterChoice.org, “a lawsuit challenging the constitutionality of California’s new ‘Top Two’ election scheme will be heard in Alameda County Superior Court on Tuesday, 10 April [2012].

“The plaintiffs encourage supporters in the [S.F.] Bay Area to attend this important court hearing.

“The hearing is scheduled for 9:00am on April 10 in Department 16 of the court, located at 1221 Oak Street in Oakland, before Judge Lawrence John Appel. If there are last minute changes in the schedule, they will be posted here.”

Messina

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THE MORNING MIX — “Today, we are talking to California’s third-parties about their challenge to Proposition 14.  This is the proposition that created the new statewide ‘Top Two’ electoral system.  People as different on the political spectrum as Ralph Nader and Meg Whitman oppose this system.  And we’ll be telling you why. 

"We’re also going to tackle something most of us don’t think about until we, literally, have no choice—end of life issues.  Long-time hospice nurse Elaine McGee will be in and taking your calls. 

"And, last week, the Center for Biological Diversity challenged the Obama Administration to save the oceans before it’s too late.  We’ll talk to wildlife biologist and attorney Emily Jeffers about why the Center believes this crisis demands immediate attention and the international strategy that could lead us back from the brink. 

"But we begin with the third-party challenge to California’s ‘Top Two’ law.

Adrienne Lauby (c. 9:07):  “Now, our [2012 California] Primary Election will be held on June 5^th, less than two months from now.  And this year’s election will be very different than in the previous years.  Owing to Proposition 14, a ballot measure that was passed two years ago, California is scheduled to deploy a new system where all candidates for a given office will appear on one ballot.  However, representatives from several third-parties are going to court to challenge the law.”

Anthony Fest:  “Under the new system, instead of a separate primary ballot for each party, all candidates for state and congressional office will be listed on the same ballot and every voter can choose from among all those candidates.  The top two finishers in the June election, regardless of their party affiliation will then appear on the November General Election ballot, essentially, making November a run-off election.  This is due to Prop 14, the measure that passed in June of 2010.  It’s informally called the ‘Top Two’ law.

“The Green, Peace and Freedom, and Libertarian parties say the measure is unconstitutional.  Last November, they filed a suit to block it and there will be a hearing on the case tomorrow morning in Alameda County Superior Court, 1221 Oak Street in Oakland.  Joining us this morning to discuss the ‘Top Two’ law and the challenges to it are representatives of the three parties that filed suit. 

“Marsha Feinland is with the Peace and Freedom Party.  She’s run for the U.S. Senate, representing Peace and Freedom and plans to do so again.  Welcome, Marsha.”

Marsha Feinland (c. 10:32):  “Good morning.”

Anthony Fest:  “Mike Rubin is with the Green Party.  And, along with Marsha, he’s also an individual plaintiff in the lawsuit.  Thanks for joining us, Mike.”

Michael Rubin:  “Thank you for having me.”

Anthony Fest:  “And with us on the phone is Richard Winger.  Richard is with the Libertarian Party.  He’s also the editor of the website Ballot Access News.  Good to have you with us, Richard.”

Richard Winger:  “Thank you very much.”

Anthony Fest:  “Now, let’s begin with Marsha.  Tell us, in nutshell, why you’re challenging this measure and what legal grounds.”

Marsha Feinland (c. 10:56):  “Well, this measure is very anti-democratic.  And we feel it doesn’t give voters a real choice.  Now, the open primary ‘Top Two’ initiative was put forward as being something that gives voters more choices.  But, actually, in November when most people vote, they’ll have very little choice because only the top-two vote getters in the primary will be able to make the ballot.  And those top two vote-getters might not be even from two different parties; they might be very, very similar.

“It’s also possible that neither of the top two vote-getters get anywhere close to a majority.  So, it’s not even both of them put together.  For instance, in the coming [California] Senate race there are 24 candidates.  So, it’s very possible for each of the top two to get a very low percentage, although that’s very doubtful, since Dianne Feinstein is one of them.  But if we’re going to have a challenge to the powers that be, we’ve got to be able to make real choices.  And we can’t do that with this election.”

Anthony Fest (c. 12:08):  “So, whether or not it’s good policy, on what grounds do you say it’s unconstitutional?”

Marsha Feinland:  “It’s unconstitutional because the parties do not get to pick their candidates.  And it’s not just the parties; it’s the voters in the parties that don’t get to pick their candidates.  In fact, we’re forced into a position in which the parties pick their candidates.  The parties are able to make endorsements in the primary instead of leaving it up to the voters.  There are supposed to be primaries in which the voters in the parties pick their candidates; those candidates go to the election.  That’s not what’s happening.”

Anthony Fest:  “Okay, let’s turn now to Mike Rubin with the Green Party.  Now, Prop 14 passed two years ago with just under 54% statewide, not an overwhelming mandate, but a majority.  And it also won a majority in all but three of the state’s 58 counties.  So, why contest the decision of the voters?  And do you think the court might be reluctant to set aside something, which the voters passed?”

Michael Rubin (c. 13:07):  “Well, it’s possible that the courts might be reluctant.  But I will tell you that the people, Proposition 14 passed because people are disgusted with the legislature, particularly the [California] State legislature.  And, unfortunately, the remedy that was proposed by Proposition 14 for the problems of the state legislature are not responsive to the actual problems in the [two-party monopolised] state legislature, which is that the state legislature is responsive to the 1% and not the 99%.

“So, Proposition 14 was presented as a false solution to the two-partisan gridlock and all that kind of stuff.  But the reality is that it’s going to do nothing about the problems in the legislature.”

Anthony Fest:  “Let’s turn now to Richard Winger.  As a Libertarian, Richard, do you concur with Marsha’s and Mike’s points or is your reasoning somewhat different?”

Richard Winger (c. 14:00):  “It’s the same.  And you asked about constitutionality.  The U.S. Supreme Court said in 1986 in a case called Munro vs. Socialist Workers Party, that was from Washington State, that there is no Constitutional distinction between a petition method to show a modicum of support worthy of getting a candidate on the November ballot versus a prior vote test.  Now, the U.S. Supreme Court had already said that petition requirements for a candidate to get on the General Election ballot cannot exceed 5%.  Applying the logic of that decision, this system is unconstitutional because it requires a candidate who wants to get on the [California] Election Ballot itself, which is November, a showing of approximately 30%.  Typically, if you look back at primaries in California and many states where all the voters could choose from all the candidates, the second-place person typically gets 30%.  That’s what you need to be in the top two, on the average.  So, that’s the basis for the claim. 

“It’s about voting rights.  The Supreme Court has said every voter has a right to vote for the candidate he or she desires.”

Anthony Fest (c. 15:32):  “So, you’ll be citing that case when you make your arguments before the Superior Court down the road.”

Richard Winger:  “Yes.  And I gotta say when this topic was introduced just now the introducer mentioned the [California] November Election as a run-off.  That is not accurate.  It sounds pedantic, but it’s important.  Since the 19^th century, Congress has told the states to have their Congressional and Presidential elections in November.  And, if they want to insure that the winner got 50%, they have to hold a run-off after that.  There’s two states that do that:  Georgia and Louisiana, they have it in December.

“So, by federal law, whatever California does in June is not the election because that would be illegal.”

Anthony Fest (c. 16:22):  “Now, as well as being active in the Libertarian Party you're also Editor of Ballot Access News.  So, tell us, as someone who follows voting laws around the U.S., are their counterparts to Prop 14 in effect elsewhere in the U.S.?  And what’s the outcome then from those?”

Richard Winger:  “That’s a very good question.  Louisiana has used the system for 35 years.  And Washington State has used it for four years.

“There was just a study that came out in the California Journal of Politics and Policy called ‘The Top Two Primary: What Can California Learn From Washington?’  And the author was the witness for the State of Washington, in fact, in court in a Washington state case.  He was on the state side.  But he was a political scientist.  He wrote a fair report.  The abstract says:  ‘The partisan structure of Washington’s legislature appears unaltered by the new primary system.’ 

“In other words, the whole reason this thing was sold to us is that, supposedly, it would make the [California] legislature behave better.  And this study says after four years it hasn’t worked.  It says:  ‘The aggregate of all this did not add up to a legislature that looked different or functioned differently from the legislature elected under a partisan primary.’  He’s not the only political scientist that said that.  Boris Shor and Seth Masket looked at partisanship and polarisation in state legislatures and they agreed California had the most polarised legislature, but—and the study goes back 15 years—they said Washington State had the second-most polarised legislature.  And, during most of those 15 years, Washington had, either, a ‘Top Two’ primary, or a blanket primary.”

Adrienne Lauby (c. 18:22):  “So, Marsha—this is Adrienne Lauby—when I’m up in the North Bay, which is pretty Democrat[-dominated], what I've seen over and over again is in the general election we've got a Democrat who's gonna win and a Republican who doesn’t have a chance.  So, to me, this sounded pretty good.  You’re gonna have two Democrats who have different points of view; one may be more to the Left than the other.  And I’ll get a chance to maybe put my guy or my gal in.  What’s wrong with this thinking?”

Marsha Feinland:  “Well, you’re making the assumption that the two Democrats might have two different points of view.  In fact, if you’d looked at the primary results in the last Presidential Election, if we had had the ‘Top Two’ primary, we would’ve had Hillary Clinton and Barack Obama.  And we are now finding out that they don’t have two different points of view.  So, therefore, the voters have no choice at all.  I think it’s really important to open the debate and open the process to people who can really pose an alternative. 

“And when Richard said that this Proposition was sold to us I wanna emphasise sold.  The elections are pretty much sold.  They’re not really chosen.  There’s so much advertising; and there’s so much money in the elections.  And what happens with Proposition 14 and this type of primary is that there is even more money required because people need to raise the money, both, for the primary and for the general election. 

“So, the appearance might be sold to you that you have two different candidates.  But, actually, you may end up with two very-the-same candidates.”

Anthony Fest (c. 19:54):  “It’s 8:20am on The KPFA Morning Mix.  We’re talking about Proposition 14, the ‘Top Two’ primary law and the upcoming court challenge to it.  I’m Anthony Fest with Adrienne Lauby.

“Let’s turn to Mike Rubin now, as we begin to wrap up this segment.  By the way, Prop 14 applies to [California] statewide office and the U.S. House and Senate seats.  It does not apply to the presidential race.  But, Mike Rubin from the Green Party, let’s go back and take a look at the history of Prop 14.  It was placed on the ballot, not by the voter petition process, but by a vote of the legislature.  The bill that placed it on the ballot was written by Republican [State] Senator Abel Maldonado.  It passed both houses by a better than two-to-one margin and also had the support of [then-]Governor Arnold Schwarzenegger. 

“For a measure that was promoted as taking power away from the party apparatus, it had wide support from Democrat and Republican politicians.  But what’s the motivation, do you think?  If it was all about excluding third-parties, third-parties haven’t really made much of a dent in state politics anyway, as far as winning office.  So, what’s going on behind this?”

Michael Rubin (c. 21:01):  “Well, I think there’s a couple of things to say.  One is that the fact that the [California] Legislature passed this was a pay-off to Abel Maldonado for his vote on the budget.  It was his price to pass the budget.  They needed a few Republican votes for the budget and his price was Proposition 14.  That’s the first thing to say.

“The second thing is that the purpose of Proposition 14 was not really to harm third-parties.  I don’t know that.  That’s not the primary thing.  The primary thing was, it was sold as a way of getting more quote ‘more moderate’ candidates.  That was the so-called selling point.  And it goes back to this thing about partisanship and gridlock and all that stuff.  And I think that the problem that we have in California is that we have too many ‘moderate’ candidates, not enough ‘moderate’ candidates.”

Anthony Fest (c. 22:01):  “And that should be the decision of the voters not the politicians already in office.”

Michael Rubin:  “Absolutely.”

Anthony Fest:  “Okay,  Marsha Feinland, with the Peace and Freedom Party;  Mike Rubin, with the Green Party; Richard Winger, with the Libertarian Party, thanks for joining us.

“And, Marsha, you have an announcement?” 

Marsha Feinland:  “Yeah.  I think it’s really important for people to go to the court tomorrow morning at 9am at 1221 Oak Street.  But, also, the case has been continued twice.  So, it’s very important to go to the website to make sure that it’s still on schedule.  The website is RestoreVoterChoice.org.”

Anthony Fest:  “Thanks for joining us this morning.”

Michael Rubin:  “Thank you for having us.”

Richard Winger:  “Thank you.”

Marsha Feinland:  “Okay."

AUDIO OF THE SIMPSONS VIDEO CLIP

Homer Simpson:  “America, take a good look at your beloved candidates.  They are nothing but hideous space reptiles!”

Crowd:  “[Gasps] Ahh!!  [Shrieks]”

Two-Party Candidate A:  “It’s true.  We are aliens!  But what are you going to do about it?  It’s a two-party system.  You have to vote for one of us!”

Passive Voters:  “He’s right.  It’s a two-party system.”

Assertive Voter:  “Well, I believe I’ll vote for a third-party candidate.”

Two-Party Candidate B:  “Go ahead.  Throw your vote away!”

Two-Party Candidates A and B:  “Ha-ha-ha, ha-ha!!”

Transcript by Felipe Messina for Media Roots

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