On January 15, the California State Appeals Court based in San Francisco heard oral arguments in Rubin v Bowen, the case in which minor parties sued to overturn the top-two primary system on the grounds that the system disenfranchises voters in the general election who wish to vote for minor party candidates.

The hearing began badly when the first question asked by any of the three judges was to the attorney for the minor parties. The judge asked whether or not, before Proposition 14, any voters were barred from participating in the primaries. Then she amended her question to ask specifically if independent voters were barred from voting in partisan primaries. The correct answer is “No”, because between 2001 and the beginning of the top-two system in 2011, independent voters were permitted to vote in all Democratic and Republican primaries for congress and partisan state office.

Unfortunately, the attorney for the minor parties did not know this, and he answered the question by saying that before Proposition 14, independent voters were not permitted to vote in Democratic and Republican primaries. The judge then interjected that 20% of the voters were independents, which is true. Clearly this judge believed that Proposition 14 enhanced voting rights for independents in the primary, and nothing was said in the hearing to illustrate the truth.

The minor parties have stressed that ending all minor party campaigns in June, five long months from the general election, curtails their campaigns. The Washington state top-two system has been upheld by the Ninth Circuit, but the Washington state primary is in late August, and the California minor party briefs stressed that there is a significant difference between early June and late August, and that they at least should be given a hearing to present facts about the concrete differences between Washington and California. California requires all candidates for Congress and partisan state office to file in March. But the attorney for the intervenors told the judges that even March petition deadlines for general election ballot access are constitutional, and he cited the only published decision that upholds a March petition deadline for independent candidates or minor parties, Lawrence v Blackwell, a 6th circuit case from Ohio. No attorney told the court that Lawrence v Blackwell is an outlier, and petition deadlines as early as March have been struck down in Alaska, Arizona, Arkansas, Idaho, Kansas, Maine, Maryland, Massachusetts, Missouri, Montana, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, and Tennessee.

The attorney for the state told the panel that the fact that few minor party or independents qualify for the November ballot is immaterial. In 1986, the U.S. Supreme Court upheld Washington state’s old system, a blanket primary in which all candidates ran in the September primary, and candidates who failed to get 1% of the vote could not run in November. This case was Munro v Socialist Workers Party, 479 US 189. The attorney for the state said that in the Munro case, the law was constitutional even though only one minor party candidate had managed to qualify for the November ballot. Actually footnote 11 of the decision says that there were 45 minor party and independent candidates during the years the 1% rule was in effect, and 40 of them passed the 1% vote test.

The judges were told by the attorney for the intervenors that the top-two system is “exactly the same as California non-partisan elections” that require runoffs. This is not true. In California non-partisan elections that require run-offs if no one gets 50%, the first round is an election because candidates can be, and usually are, elected in the first round. By contrast, under California’s top-two system, no one can be elected in June. Thus November is the election itself, not a “run-off.” Unfortunately, one of the judges said that the November election is a “run-off” and no voice was raised to dispute that point.

A decision is expected in the next sixty days.