California Lawsuit vs. "Open Primary"

Gautam Dutta is the lawyer who has filed the lawsuit against California's newly-enacted, Louisiana-style "top two open primary" system. Dutta has written an article on the suit in the Huff-Puffington Post.

The two features of the "top two" that the suit seeks to eliminate are (1) the prohibition against counting write-in votes in the second round in November, and (2) only permitting candidates from ballot-qualified parties to have the names of their parties next to their names on the ballot.

As to the second feature: Dart v. Brown was a federal court ruling on that topic. Henry Dart was a Libertarian candidate for the New Orleans city council who wanted to have his party listed next to his name on the "open primary" ballot; the Libertarians were not then a ballot-qualified party in Louisiana. Dart lost the lawsuit.

However, Richard Winger, publisher of Ballot Access News and one of the plaintiffs in the California case, says: "Dart v. Brown was decided before Cook v. Gralike, a 2001 unanimous US Supreme Court decision that said discriminatory ballot labels violate the US Constitution. That case was from Missouri, and struck down a law that some candidates should have a politically damaging label next to their names on the ballot, whereas others wouldn’t."

A state Superior Court in San Francisco will hear oral arguments on September 14 in Field v. Bowen, cgc10-502018. Here is the brief.

There will be a trial next November in U. S. district court concerning Washington state's similar "top two" election system. Depending on the outcome of that trial, additional litigation may be brought against California's "top two open primary" in 2011.

California voters approved the "top two open primary" for state and congressional elections in June 2010. If this system is allowed to be implemented, the first regular elections to which it will apply will be the 2012 elections.

Thanks to Ballot Access News for the links.