The U.S. Supreme Court yesterday declined to hear a challenge to the constitutionality of the ‘Top Two’ primary system approved by California voters in 2010 as Proposition 14. The justices, without comment, denied certiorari in Rubin v. Padilla, 233 Cal.App.4th 1128. The Green, Libertarian, and Peace and Freedom parties challenged the law in Alameda Superior Court, arguing that because only the top two vote-getters in the primary—regardless of party—advance to the general election, smaller parties are normally denied the right of participation in the final contest. In 2012, for example, only three such candidates appeared on general election ballots out of more than 150 contests. The system, the plaintiffs argued, deprives them of equal protection and associational and voting rights under the Constitution, since their candidates will nearly always finish lower than second, even though they meet the state’s definition of a qualified party and often get at least a few percent of the vote. Supporters of the top-two, or “open,” primary—including former Lt. Gov. Abel Maldonado, who shepherded the measure through the Legislature—dismissed those arguments and intervened in the litigation.
The trial judge and the First District Court of Appeal sided with the state and the intervenors, with Justice Sandra Margulies explaining for the Court of Appeal:
“Given the structure of California’s ‘top-two’ electoral system, minor party candidates have no right to appear on the general election ballot merely because they have made a showing of significant public support. The role played by the general election under the former partisan system is fulfilled by the primary election in the top-two system, and there is no material barrier to minor party participation in the primary election. Further, the failure of minor party candidates to appear on the general election ballot does not substantially burden their members’ rights of political association and expression, and California’s interest in expanding participation in the electoral process is adequate to justify any burden that may occur.”
Margulies acknowledged that the two-two primary, which Washington state has also adopted, is a “qualitative change” in how elections have been conducted in America for many years. But the Supreme Court, she noted, rejected an argument that Washington’s law was unconstitutional on its face, saying the public interests served by the law outweighed the parties’ interests in having greater control over the nominating process.