To know what’s coming in any legal challenge to Prop. 14, here is a short legal history of this issue.
California voters first passed a blanket primary provision, Prop. 198, in the 1990s. Under that measure, anyone could vote for any candidate of any party in round 1, and the top candidate of each party advanced to the general election. The parties hated the measure, but did not spend any money against it, instead adopting a litigation strategy. See Hasen, Parties Take the Initiative (and Vice Versa) (Columbia Law Review 2000). That strategy paid off, when the Supreme Court in California Democratic Party v. Jones held that the blanket primary violated the First Amendment associational rights of political parties because it was still a party primary (there were general election candidates labeled as “Republican,” “Libertarian,” etc.). The Court suggested that a “nonpartisan” primary would be constitutional, because it would not infringe on the rights of political parties.
I was critical of Jones, believing that the people should have the right through the initiative process to structure their primary process as they saw fit. I worked on the legal team to help with the drafting and defense of Prop. 62 in the 2004 California election. Prop. 62 proposed a top two primary, where a candidate could list her party preference, unless the party objected to the use of its preferences on the ballot for all candidate in that election. That system was not tested in court, as Prop. 62 went down to defeat, after the California legislature put a competing measure on the ballot (Prop. 60.).
Since that time, Washington State, after Jones rendered its older system unconstitutional, adopted a top two primary measure like Prop. 62, but without giving the parties the option to opt out. In Washington State Grange v. Washington Republican Party, the Supreme Court rejected a facial challenge to the Washington system. The parties claimed that the Washington top two was a still a partisan primary (a point the Court rejected) or in any event voters would be confused into thinking it was a party primary, because candidates could still list their party preferences on the ballot. (These party preferences would presumably provide some voter cue for voters deciding how to vote in some races). The Supreme Court held that any attempt to claim voter confusion would have to be made in an “as applied” challenge, showing actual proof of voter confusion, and sent the case to the lower court. Along the way, the Supreme Court explained the steps Washington had taken and could take to minimize voter confusion. That case is currently before a federal district court in Washington state.
Meanwhile, Prop. 14 was written for California, modeled on the Washington State plan. A challenge arguing voter confusion would get litigated, but I think it is likely to fail, assuming that California takes reasonable steps to make sure voters understand this is not a party primary.
The other challenge that I expect to be brought is one brought by minor parties and independent candidates, who claim a constitutional violation because these candidates are unlikely to make it to the general election ballot, and the California system does not provide for write-in votes. The Washington state federal district court rejected the minor party challenge already in the “as applied” challenge, though that issue will eventually get before the 9th Circuit. Because “top two” is not a party primary, I am very skeptical of an argument that minor parties’ rights are infringed by their inability to get to the ballot. (Those looking for a contrary view should read Richard Winger’s excellent Ballot Access News and website.) I also think an argument for a constitutional right to cast a write-in vote has been rejected by the Supreme Court in Burdick v. Takushi.
As a matter of policy, I would like to see Prop. 14 amended so that write-in votes would be acceptable. This would be especially good in cases where one of the candidates faces a scandal in the period before the election, and voters want another choice in the election. I would strongly support such efforts at modification, but I do not believe the measure is unconstitutional for the lack of that choice.
So though one never knows what the courts would do, I believe that federal constitutional challenges to Prop. 14 are likely to fail. (If you are interested in the likely effects of Prop. 14 on California politics (effects that I believe have been exaggerated in the press), you should take a look at the excellent Voting on the Political Fault Line (Cain and Gerber, eds.), which examined the CA elections under Prop. 198 before the Court struck it down in Jones.)