African-American California Voter Files Lawsuit Against Top-Two, Charges Top-Two as Applied Violates Voting Rights Act

On June 26, an African-American voter, Elise Brown, of Victorville, California, filed a federal lawsuit, charging that top-two, as applied, violates the Voting Rights Act and also violates the First and Fourteenth Amendments. The claim is based on voting rights. Brown charges that her November 2012 ballot, in the 8th U.S. House district, leaves her with only two Republicans, both of whom she alleges are hostile to her interests. The complaint charges that because there is no write-in space, and because she cannot in good conscience vote for either candidate who is listed on the ballot, the top-two system deprives her of a vote in November.

The case is Brown v Bowen, central district, Riverside, cv12-05547. Here is the complaint, which says that Brown is a member of the San Bernardino County Democratic Central Committee, and an officer of the Adelanto-Victorville Democratic Club. The two candidates who placed first and second in the 8th district are Assemblyman Paul Cook, a conservative Republican, and Greg Imus, another conservative Republican. The 8th district covers the bulk of the more rural parts of San Bernardino County, plus other counties on the eastern slope of the Sierra Nevada Mountains.

This is the first lawsuit against California’s top-two open primary that is filed by anyone associated with either the Democratic Party or the Republican Party. The other three lawsuits that have been filed against California’s Proposition 14 have all been filed by independent candidates or minor political parties and their members.


  1. The link above doesn’t actually go to the complaint itself, but to a news story. So I’ve read the complaint yet. But the way the case is framed by the Courthouse News reporter worries me. The Voting Rights act doesn’t guarantee that there will always be candidates on the ballot you are willing to vote for. What it does try to guarantee is that changes in election law will not make it less likely that members of minority groups are able to elect representatives of their choice. The 8th Congressional District is a good example of why Top Two is very vulnerable to such a voting right challenge. Let’s hope the attorney in this case knows how to argue such a challenge in his brief. Based only on the Courthouse News report, that’s less than clear.

  2. Whoops. The second sentence above is supposed to read, “So I have not read the complaint yet.” I’ll try to find the case in Pacer.

  3. The case number is 2:2012-cv-05547. I have posted the complaint here. The opening brief is here.

  4. Demo Rep · · Reply

    Nov. 1868 – Prez Grant barely wins in many northern States – some with large numbers of black ex-Union Army and Navy folks in the Civil War.

    Jan-Feb 1869 – Elephants PANIC in the lame duck gerrymander Congress – new Congress coming on 4 Mar 1869.

    See the obvious language connection between 14th Amdt, Sec. 2 and 15th Amdt, Sec. 1.

    Too many brain dead judges and lawyers since 1870 to count.

    15th Amdt, Sec. 1 is ONLY about being an ELECTOR (in NEGATIVE language) — has ZERO to do with what is on the ballots — regardless of ALL of the MORON SCOTUS cases since the 1965 VRA.

    MAJOR MORONS in D.C. in SCOTUS since 1861 or earlier.

  5. Richard Winger · · Reply

    Thanks, Bob Richard. I have fixed the link. Even before I fixed it, that article had a link to the complaint at the very bottom of the news story.

  6. Jim Riley · · Reply

    #1 The 10 Republican candidates in CD 8 collectively had 75% of the vote. It has the highest AIP registration in California (4.5%)

    The top Democrat would not have qualified in a Top 3 election.

    Under the old partisan primary system, the Representative would have been chosen by Republicans in the primary. The general election would have been irrelevant.

  7. Larry Allred · · Reply

    Very little is more worthy of a federal case than this situation. At its heart it’s about what political minorities have or don’t have insofar as their political representation is concerned.

    What isn’t widley understood at-large is that the representation of political minorites IS representation. Without any guarantees that minorities can get it or at least be competitive among other minorities to get representation, no person has it.
    Yes, we’re all political minorities, understood or not. Without minority representation, nominal representatives merely represent uniquely powerful interests by default.

    Not that the system that preceeded the top-two system was stellar in its tendency to produce auctual representatives but the top-two system rates as abysmal in its capacity to produce winners that are preoccupied with safeguarding the intrests of those with less currentcy. Pandering to widespread misconceptions becomes even easier/necessary and the nexus with incumbency is closer.

    Given the near zero justice on any matter of minority political representation, any judicial rationale that brings down or hampers the continuation of the top-two scheme is de facto justice despite wanting in any legal way or nuance.

    Everyone is Elise Brown.

  8. Richard Winger · · Reply

    #6, people want to vote for someone whose ideas they agree with, regardless of who is going to win the election or not. That seems intuitive to me, but for some reason that idea seems absent from your thinking.

    In Lubin v Panish, the US Supreme Court said, “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.”

    I enjoy voting because it enables me to communicate to the world what I believe about what policy ought to be. I imagine I am a typical person in that regard.

  9. Demo Rep · · Reply

    Stone Age ANTI-Democracy gerrymander systems in the U.S.A. regime and ALL State regimes.

    P.R. and nonpartisan App.V — regardless of ALL folks stuck in the Stone Age.

  10. Jim Riley · · Reply

    #7 The lawsuit is not about political minorities. The Democratic Party is not a political minority in California. Elise Brown simply wants to empower members of the political hack class in other areas of California to choose representatives, using a pretense of racial discrimination.

  11. Jim Riley · · Reply

    #8 What office was Don Paul Lubin running for? What was the electoral system that was used (and is still used) for that office? If he qualified for placement on the June ballot, what requirements would he need to advance to the November ballot?

    How is that electoral system demonstrably different than that used for Top 2 elections?

  12. Richard Winger · · Reply

    #11, Lubin was running for the non-partisan post of Board of Supervisors of Los Angeles County. The election is in June. If no one gets 50%, there is a run-off in November. That is not the same as California’s top-two election for congress and state partisan office, because in California’s elections for congress and state partisan office, the election is in November; the June event is not an election for those offices because no one is elected in June. The June event is just a screening device to determine which two candidates are allowed to be in the election itself.

  13. Jim Riley · · Reply

    #12 If Lubin “[came] near to reflecting [a voter’s] policy preference on contemporary issues” would that voter have a realistic hope to find Lubin on a November ballot for county supervisor?

    Would the US Supreme Court’s expectations be dashed? Or would they be satisfied that if Lubin gathered 7,152 signatures in January and February he had an equal opportunity with other candidates to be elected. That is, his fate would not be decided by overly onerous fees or petition requirements, but by his ability to attract voters in a series of elections.

  14. Richard Winger · · Reply

    #13, an election has an importance and a dignity. If someone can be elected, people who are planning to hold a candidate debate will schedule the debate in advance of the election itself. I have never heard of a debate sponsor saying, “We intend to hold debates, but we are not going to hold them before the election, but in case there is a run-off, then we will hold a debate.”

    If the voters know that the election itself is imminent, and that may be the last chance for them to participate, they are more likely to vote in the election itself, even if there is some expectation that probably there will be a run-off.

    When Lubin ran in June, he was running in the election itself. Most of the time in California two-round non-partisan elections, there is no run-off. I don’t know if the County Supervisor race Lubin wanted to run in went to a runoff. In any event he wasn’t on the ballot because he didn’t win in the US Supreme Court until long after the election.

    A run-off is an extension of an election, held only when the election itself fails to elect anyone.

    Jim, if you continue this thread, please comment on my point. We can’t get anywhere until you acknowledge my point about what an election is, versus an event that doesn’t elect anyone but just determines which two people can run in the election.

  15. Jim Riley · · Reply

    #14 An election is a process, not an event. The US Supreme Court has repeatedly affirmed this view.

    Smith v Allwright “The right of a citizen of the United States to vote for the nomination of candidates for the United States Senate and House of Representatives in a primary which is an integral part of the elective process is a right secured by the Federal Constitution, and this right of the citizen may not be abridged by the State on account of his race or color.”

    Burdick v Takushi determined that when candidates had reasonable access to the elective process the right to vote was not denied to those voters who might have preferred to vote for someone else at some stage in the elective process.

    Tashjian v Republican Party found that the qualifications clause does apply to the primary elections for Congress. Just because Justice Thurgood Marshall did not apply it any sort of logical nor clear fashion, does not overturn the fundamental principle (see Justice Stevens dissent, and opinion of Nebraska Attorney General)

    Foster v Love did not find fault with the manner which Louisiana elected representatives, but rather that to process was usually consummated prior to the time set by Congress.

    Do you have any doubt that Congress could mandate the use of the Top 2 Open Primary for Congress under its manner authority under Article I, Section 4?

    If Congress may mandate a particular manner of electing Representatives or Senators, any State may mandate details so long as they are not contrary to restrictions placed by Congress (eg election of Representatives by district; consummation at the time set by Congress, etc.) and any applicable constitutional provisions.

    Top 2 does not violate the 1st, 14th, 15th, 19th, 24th, nor 26th Amendments. Your best argument might be the 26th, but that argument is as applicable to early partisan primaries, as it is to Open Primaries.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: