A First Amendment

Challenge to California
Primaries
Zien Halwani

Proposition 14

In 2011, California
passed Prop 14.

This proposition
created a system
whereby only the top
two candidates in an
open primary
election would be on
the ballot in the states
general elections.

Polarized Politics

Proponents argued that in

a Proposition 14-system
candidates who are
eventually elected would
hold views favored by a
majority of voters not just
those who sway primary
elections.

Candidates would not have

to shift their politics to
appeal to a small group of
primary voters.

Peachy Politics

In 2012, the Democratic

Party achieved a supermajority in both houses of
the state legislature.

Many general elections

now feature two
Democrats or two
Republicans running
against each other. And,
we rarely see minority
party candidates running
in a general election.

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26-14

The First Amendment

Bars Congress from making any law that limits

freedom of speech.

Fourteenth Amendment, through the due process

clause, places same restriction on state
legislatures.

Expansion of First Amendment

The right not to speak, like the right to remain silent

during the Pledge of Allegiance. (Flag Salute cases)

The right to engage in expressive conduct, like burn the

American flag (Texas v. Johnson)

The right to hear speech; like the price of drugs at a

pharmacy (Virginia State Pharmacy Board v. Citizens
Virginia Citizens Consumer Council)

The right spend money, like donate to various political

campaigns with little restriction. (Citizens United v. FEC)

Political Association Rights

The First Amendment has

also been expanded to
protect political association
rights.

William v. Rhodes
There the Supreme Court struck

down an Ohio elections law that

required minority parties to obtain
signatures from qualified voters
numbering 15 percent of the
ballots cast in the preceding
gubernatorial election.
Democrats and Republicans were
only required to obtain signatures
numbering 10 percent.

Anderson v. Celebrezze

In Anderson, the Court reversed the

Sixth Circuit, ruling that an Ohio early
filing deadline for independent
presidential candidates placed an
unconstitutional burden on their
political association rights.

Direct Regulation of
speech

A burden that falls unequally on new or small

political parties or on independent candidates
impinges, by its very nature, on associational choices
protected by the First Amendment. It discriminates
against those candidates and of particular
importance against those voters whose political
preferences lie outside the existing political parties.
If minority parties are small because of the ideas they choose

to express, an election law that burdens their political

participation rights on the basis of their size also burdens
their free speech rights on the basis of the ideas they choose
to express.

Anderson Test

When an election law is challenged by a

minority party as an abridgment of free
speech a Court must (1) consider the
character and magnitude of the asserted
injury to the rights protected by the First
and Fourteenth Amendments and (2)
identify and evaluate the precise
interests put forward by the State as
justifications for the burden imposed by
the rule.

System Change

Proposition 14 replaced Californias

first-past-the-post (FPTP)
nonpresidential elections with a toptwo open primary system.

First-past-the-post
What Proposition 14 did

First Distinction

In a classic FPTP
election, primaries
are closed partisan
elections: Voters
registered with
individual parties vote
for candidates
running to be their
respective partys
general election
candidate.

Second Distinction

In a classic FPTP election,

candidates, who win their
partys partisan primary,
advance to the general
election where any voter
may support them. In
Californias top-two
open primary system,
only the top two
candidates in the
nonpartisan primary
advance to the general
election.

Rubin v. Padilla: The Case

Cal.
Super.

Cal.
App. 1
Dist.

DENIED

DENIED

The Supreme Court denied certiorari

to petitioners in Padilla on October
13, 2015, leaving a California Court
of Appeals decision to uphold the
constitutionality of this system
untouched. (The Supreme Court of
California denied discretionary
review).

Cal. App. Decision

First, it held that petitioners had no constitutional right to

participation in a California general election. It explained
that the only right petitioners had is a right to equal
participation in state elections and that right was satisfied
in the nonpartisan open primary.

Second, it applied Anderson and held that the top-two

primary system only modestly burdened minority parties.

Third, it held that Proposition 14 was not a denial of equal

protection under Romer v. Evans 517 U.S. 620 (1996)
(holding that withdrawal of a right from a protected
minority group is a violation of the equal protection clause
even if the right is not held by majority).

Practitioners Suggestions

Aim to craft legislation that mimics the top-two

primary system in California in order to avoid the
Anderson test altogether.

This type of legislation is possible if these lawyers

avoid the direct regulation of minority party and
independent candidates.
Californias top-two primary system indirectly affected

minority parties by creating a prerequisite to participate in

the general election, namely being one of the top two
candidates in a primary election. In that case, minority
party candidates have access to general elections that is
identical to the majority parties.

And this is..

Shraf at my apartment