Will State Appeals Court Correct Its Very Basic Mistake In Top Two Case?

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

I don’t disagree with the conclusion that the California State Court of Appeals reached in a recent challenge by minor parties to our state’s top two election system. Top two is a bad system that undermines democracy and discourages participation, but I think the judges were right to find the system was constitutional.

Still, it’s impossible to respect the court’s decision after reading their argument. That’s because the court based its ruling on an error so fundamental and blatant (and I say that as a journalist who has made more than my share of errors) that calls the reliability of the court into question. And it adds to the horrible record compiled by California elites when it comes to the subject of top two.

What is the mistake? A fundamental factual error that millions of Californians would have spotted if they’d read the decision (because they know it’s wrong from their own recent experience). In the decision, the judges state repeatedly that we independent voters (20 percent of the electorate) weren’t able to vote in primaries under the old, pre-top-two California system.That was news to me, because it’s false. From 2002 to 2012, independents were perfectly able to in party primaries; I personally voted in both Democratic and Republican parties during that period, selecting whichever party ballot had the most interesting races. I also had the choice to take a ballot that would have skipped the party primaries and vote in other contests (but I, for one, never chose that option). The indispensable Richard Winger of Ballot Access News sent along a helpful link to the California Secretary of State’s web site showing this fact (Someone might want to send it along to the Court of Appeals)

Why does this misstatement of fact matter? Because the judges base their decision in large part on their own error. They argue that any cost that the top two might impose on minor parties is outweighed by what they see as the new power of independents to vote for partisan candidates in the first round of elections.

And of course, there is no new power or expansion of rights because independents could vote in the old system. But these judges don’t know that. They wrote, falsely:

“Yet so long as the primary election served to select party nominees, the state was precluded…from granting

Independent voters the right to participate in the narrowing of candidates for the general election. In effect, their choices at the general election could be determined for them by the members of the qualified parties.

“The top-two system, by moving away from a party-based primary election, gives to this substantial bloc of independent voters the right to participate equally in the important first stage of the electoral process. This rational and nondiscriminatory interest alone justifies any modest burden imposed by the top-two system on [the minor parties’] associational interests.”

These judges ought to be embarrassed (though I guess I should be pleased as an independent voter to get a right that I already had) and they ought to correct their error immediately. The proper way would be to withdraw the opinion and rehear the case. But will they? I’m still waiting for Goodwin Liu, one of the seven justices of the California Supreme Court, to withdraw his error-riddled opinion in a case that removed an advisory question from the ballot.

Of course, maybe there is hope. To their credit, these judges, in the same opinion, actually got one thing right that the state government, media and every civic group get wrong—they recognize that the first round in top two is not a primary election. In fact, they note correctly, the first round election that the state erroneously calls a primary election is really a general election.

From the decision: “The role played by the general election under the former partisan system is fulfilled by the primary election in the top-two system.” And it goes on to say that “both elections” – June and November – “are ‘general’ elections, in the sense that the entire electorate votes in both elections and voters can select any of the candidates.”

Hallelujah!

Of course, the fact that it takes an otherwise clueless court to state such a fundamental truth speaks volumes about the high level of confusion in California when it comes to elections and election reform. In this context, a decision built around an easy-to-check falsehood feels like par for the course. It’s hard not to conclude that when it comes to the top two, the fix is in.

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