California's new primary system faces court challenge

The first lawsuit challenging California's recently passed Proposition 14 was filed Thursday.

The ballot initiative, which was spearheaded by Gov. Arnold Schwarzenegger (R), passed with 54 percent of the vote in June to create a "top-two" primary system.

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Under the new law, known formally as Senate Bill 6, the two candidates with the highest vote totals in a primary — regardless of their party affiliation — will advance to the November election.

Before Prop 14 passed, only the top candidates in each party's primary advanced to the fall campaign.

Six voters filed the suit in Superior Court in San Francisco County demanding that Prop 14 be struck down on the grounds that it is unenforceable and violates the U.S. and California constitutions.

As the lawsuit goes forward, an "unholy alliance" of Republican, Democratic and third parties is also contemplating legal action.

Schwarzenegger issued a statement Thursday decrying the "Sacramento special interests" that were trying to overturn the law. "I will fight these special interests at every turn to protect these reforms that will break through Sacramento's dysfunction," he said.

The issue is that beginning in 2012, a single ballot, open to all registered voters, will list all the candidates running for each state elected office, although not the presidency. Voters would be free to choose a Democrat for Congress and a Republican for governor.

The implications of the law haven't been thought through, according to Christina Tobin, founder of the Free and Equal Elections Foundation, a nonpartisan advocacy group that supports the lawsuit.

"We want the Legislature to be forced to hold open hearings on top-two, which they should have done in the first place instead of putting it on the ballot as part of a 3 a.m. secret backroom budget deal," Tobin said. "This lawsuit is purely tactical, very smart and well-implemented. I'm certain it will be effective."

California voters passed a measure similar to Prop 14 in 1996, but it was overturned by the U.S. Supreme Court.

The new law prohibits minor-party candidates from listing their chosen party on the ballot, according to plaintiffs Jeff Mackler, a House candidate with the Socialist Action Party, and Reform Party Chairman Rodney Martin, who is also running for Congress in 2012.

The other four voters are suing on the grounds that Prop 14 prevents them from casting a write-in vote and having it counted in the election.

"At a minimum, these two flaws we are attacking will be struck down and have to be fixed," said Richard Winger, one of the plaintiffs.

Though this lawsuit is the first legal challenge to Prop. 14, the major parties in California have been quietly gearing up to challenge the new law.

Patrick Dorinson, a former official with the California Republican Party, predicted "an unholy alliance" between the parties.

"I'm guessing that lawyers from all these parties are having friendly conference calls to figure out strategies from a legal perspective," said Dorinson, now a Sacramento-based strategist.

John Burton, chairman of the California Democratic Party, confirmed that discussions about taking legal action were ongoing, as did a spokesman for the state GOP.

"This issue is ripe for legal challenge. There are discussions under way right now about working in conjunction with the other ballot-qualified parties," said Mark Standriff, a spokesman for the California GOP.

California's Prop 14 is based on the "top-two" model found in Washington state. The upcoming August 2010 primary and November general elections will be Washington's second time using the system.

After the top-two ballot initiative passed in 2004, the Washington Republican, Democratic and Libertarian parties sued in federal court, but the U.S. Supreme Court upheld the law in March 2008. The same case, however, will be reopened at a U.S. district court in Washington in November 2010.

"There are four different ways that the case can be counted unconstitutional. The 2008 decision was just one of them," said Winger.

Meanwhile, in California, the lawsuit filed Thursday was the first against Prop 14 but likely won't be the last.

"This is the first of many steps to come that Free and Equal Elections will take to stop top-two," said Tobin.

A hearing for the lawsuit is expected later this summer.

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