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Rubin v. Padilla

California Court of Appeals, First District, First Division

January 29, 2015

MICHAEL RUBIN et al., Plaintiffs and Appellants,
ALEX PADILLA, as Secretary of State, etc., Defendant and Respondent; INDEPENDENT VOTER PROJECT et al., Interveners and Respondents.

Alameda County Superior Court No. RG11605301, Hon. Lawrence John Appel

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Siegel & Yee, Dan Siegel and Michael Siegel for Plaintiffs and Appellants.

Business, Energy, and Election Law and Gautam Dutta for Green Party of California as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Douglas J. Woods, Assistant Attorney General, Mark R. Beckington and Peter H. Chang, Deputy Attorneys General, for Defendant and Respondent.

Nielsen, Merksamer Parrinello Gross & Leoni, James R. Parrinello, Marguerite Mary Leoni and Christopher E. Skinnell for Interveners and Respondents.

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Margulies, J.

Three small political parties and several party members and candidates sought to invalidate California’s electoral system for statewide and legislative offices, contending the system, which consists of an open nonpartisan election followed by a runoff between the top-two candidates, deprives them of equal protection and associational and voting rights secured by the state and federal Constitutions. According to plaintiffs, because “minor” party candidates are typically eliminated in the primary election, they are denied the constitutional right to participate in the general election upon a showing of substantial public support. Plaintiffs also contend their associational rights are violated by the effective limitation of their participation to the primary election, when voter participation is typically less than half that of the general election. In addition, plaintiffs claim the electoral system denies them equal protection because they are no longer able to regularly participate in the general election, as they were under the prior electoral system. Finally, plaintiffs contend the trial court erred in granting a demurrer to their complaint, without permitting them a hearing on the evidentiary support for their claims.

We affirm the trial court’s dismissal of the action. 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. Lastly, because California’s electoral system treats all political parties identically, plaintiffs’ claim that they are denied equal protection of the laws is groundless.


In November 2011, plaintiffs filed an action against the Secretary of State (the Secretary) challenging the constitutionality of California’s “top-two” system for electing statewide and legislative officeholders, enacted by the passage of Proposition 14 in 2010. The top-two system consists of an open nonpartisan primary followed by a general election runoff between the primary’s top-two vote-getters. Plaintiffs consist of three “minor” political parties, the Green Party of Alameda County, the Libertarian Party of California, and the Peace and Freedom Party of California, several minor-party

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members, and four potential minor-party candidates for offices subject to the challenged electoral process.[1]

The operative pleading, plaintiffs’ second amended complaint (complaint), alleges two causes of action under the state and federal Constitutions, contending the top-two system denies plaintiffs access to the ballot because it precludes minor-party candidates from participating in the general election, even when they have demonstrated “substantial support” in the primary election, and denies equal protection because it was designed by the drafters of Proposition 14 to accomplish just such exclusion. The trial court permitted several persons and entities to intervene to defend the top-two system, including Abel Maldonado, a former state Senator who was involved in the passage of Proposition 14.[2]

In support of their constitutional claims, plaintiffs allege that in 2012, the most recent election year prior to the filing of the complaint, nine minor-party candidates in California received 5 percent or more of the primary vote in races governed by the top-two system. Many other minor-party candidates received over 2 percent of the vote. The primary’s leading minor-party vote-getter, from the Green Party, received 18.6 percent of the vote for a seat in the United States Congress. Yet none of these candidates appeared on the general election ballot, since they failed to place in the top-two positions. Out of more than 150 races governed by the top-two system in the 2012 election, only three minor-party candidates advanced to the general election. Accordingly, the minor parties were represented by no general election candidate for 98 percent of statewide and legislative offices.

According to the complaint, this placed a substantial limitation on the ability of minor-party candidates to participate in the electoral process because “the California general election ballot is the moment of peak participation by voters, media, and the candidates themselves.” Less than half the number of voters statewide participated in the 2012 primary election than in the general election-5.3 million voters in the primary compared to 13.2 million in the general election. This effect was accentuated by the scheduling

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of the primary in June, five months before the general election. After the passage of five months between the primary and general elections, the complaint alleged, “whatever messages the [minor] parties were able to disseminate during their primary election participation had likely dissipated.”

The complaint also alleges that, prior to implementing the current process, California’s election laws guaranteed that one candidate from each qualified political party could appear on the general election ballot. In contrast, the current process permits only two candidates on the general election ballot, typically excluding most of the minor-party candidates. According to the complaint, the intent of the drafters of Proposition 14 was to bring about this exclusion, favoring “ ‘moderate’ candidates from the two major parties while excluding those who represent minor party perspectives.” The ballot argument in favor of the passage of Proposition 14, included in a mailing to voters, stated, “ ‘Proposition 14 will help elect more practical office-holders who are more open to compromise.’ ” Then-state Senator Maldonado was allegedly quoted as stating the purpose of the process was to promote “ ‘pragmatic’ political perspectives.” “Pragmatic” and “practical” were, plaintiffs alleged, “code words demonstrating their intent to eliminate varying political perspectives from the statewide general election.”

The trial court rejected plaintiff’s claims, sustaining a demurrer to the complaint without leave to amend. Stated briefly, the trial court reasoned that the electoral system imposes no restriction on the access of minor-party candidates to the nonpartisan primary ballot and found no right to participate in the subsequent general election ballot, absent a top-two finish. Plaintiffs contend the trial court erred both procedurally, in failing to give them an opportunity to develop the factual basis for their claims, and substantively, in rejecting their constitutional arguments.


A. Legal Background

1. California’s Top-Two System

The top-two system was inserted into the California Constitution by Proposition 14, which was placed on the ballot by the Legislature in 2009 and passed by voters the following year. (Cal. Const., art. 2, § 5; Sen. Const. Amend. No. 4, Stats. 2009 (2009–2010 Reg. Sess.) res. ch. 2; see generally Field v. Bowen (2011) 199 Cal.App.4th 346, 351 [131 Cal.Rptr.3d 721] (Field).) Under the system, statewide executive offices and state and federal legislative offices are designated ...

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