I consulted with Californians for an Open Primary, a group that placed a measure to establish a “top two” primary in California (after the U.S. Supreme Court struck down the Prop. 198, establishing a blanket primary, in California Democratic Party v. Jones). In response to the threat of this measure, designated Prop. 62, the legislature sought to put on the ballot a competing ballot measure that would change the constitution to enshrine the party primary and also contained a provision that allowed the state to sell surplus property.
We filed suit, alleging that the Legislature could not put the two measures together, because the California constitution required that each constitutional amendment submitted to the legislature by the people be subject to a “separate vote.” The court of appeal agreed that the measure, then designated Proposition 60, violated the separate vote requirement, but ordered the measures bifurcated into Prop. 60 and Prop. 60A. We sought emergency relief in the California Supreme Court (at this time, I was in New Zealand, Fred Woocher was in London, and the California Supreme Court justices were not in session), and the Court denied relief.
Now, almost two years later, the California Supreme Court has issued its opinion on the merits in Californians for an Open Primary v. McPherson. The California Supreme Court agreed with us that the measure violated the separate vote requirement (which the court read as coextensive with the single subject rule) and that bifurcation is not an appropriate remedy for a separate vote violation. This is a very sensible ruling, because (1) it means that the courts won’t have to create new law about what the “separate vote” requirement means and (2) bifurcation would mean that the legislature would have no deterrent for violating the rule. By the way, for those interested in the meaning of California’s single subject rule, there is some analysis of the “reasonably germane” test that could prove to be important.
Unfortunately, victory though this is, this ruling does little for the open primary in California. The people of California should have been able to vote on Prop. 62 alone, not with Prop. 60 on the ballot as well, which could have confused voters and certainly caused Prop. 62’s supporters to have to divert attention to other things. In a perfect world, the voters should get another chance to vote on Prop. 62 without the distraction of Prop. 60.