California's minor parties -- Green, Libertarian and Peace & Freedom -- have brought their third lawsuit, Rubin v Bowen, seeking to overturn Proposition 14, the referendum by which the non-partisan "top-two" primary system was adopted in June, 2010. The core issue being raised is federal in nature, that their constitutional right to have a ballot line in the general election has been infringed.
The legal issues raised in Bowen were rejected by the U.S. Court of Appeals for the Ninth Circuit in litigation challenging the State of Washington's top-two system, which is probably why this new case was filed in state, rather than federal court. A lawyer would call the move to state court "forum shopping." When you have a weak case, you look for a friendly judge in a friendly location and hope he or she will ignore existing precedent and give you "a second bite at the apple," so to speak.
Legally speaking, there is no right for a party, major or minor, to have a place on the general election ballot. In fact, cities in California and across the country have had non-partisan municipal elections (where candidates, not parties, are on the ballot) for a century. All the constitution requires is that candidates have an equal chance to access the ballot, and that the rules not unduly burden a particular candidate. Top-two meets that test. All candidates play by the same rules. And California's ballot access rules are liberal. A candidate can obtain a line on the ballot in the first round by paying a filing fee or collecting a specified number of signatures of registered voters. (For State Assembly, for example, a candidate can pay a filing fee of $952 or collect 1,500 signatures.)
At a time when Americans are deeply disturbed by partisanship in Washington and state legislatures, the minor parties are, to put it frankly, acting just like the major parties in that they seem to be putting their narrow interests ahead of enhancing democracy and bringing new players and new coalitions into the political market place. Their California lawsuit, if successful, would return the state to the closed primary system in which each party was guaranteed a line on the ballot in November. But the State's 3.5 million independent voters would be denied the right to first-round voting. Is that what third parties should be fighting for?
For decades, the minor parties spoke out forcefully against "two-party tyranny" and the unwillingness of the major parties to lead the way to radical reform, whether it was the abolition of slavery, women's suffrage, the needs of poor and working people, or the abolition of the Federal Reserve. And they played an important role in demanding action on these fronts. Reform came when one or the other of the major parties made the issue theirs or, in the case of slavery, a new anti-slavery major party -- the Republican Party -- emerged. The failure of the Whig Party to take up the cause of abolitionism in the decades before the Civil War resulted in its demise.
Now, when the issue being raised is the controlling role of parties altogether, the minor parties remain trapped in the party paradigm. Under the party paradigm, politics can only be done through parties, and elections are more about allocating power among the parties than electing the best public servants.
In the current situation, where the issue of the day is one of process, Americans understandably see minor parties as smaller versions of the major parties. They are declaring their independence from parties of all kinds. Forty percent of the electorate now self-identify as independent. In the past twenty years, the percentage of Americans who register to vote without party affiliation has gone from 18.3 to 24.4 percent. Minor party registration during the same period has gone from 1 to 2.2 percent.
Are the minor parties open to blocking with independent voters to create new challenges to the two-party tyranny? I, for one, hope so. But that would mean challenging not just two-party politics, but party politics altogether.
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