Some Supporters of Top-Two Open Primary Take Punitive Action to Crush Opponents with Crippling Legal Fees

On August 1, San Francisco Superior Court Judge Curtis Karnow ruled that the six plaintiffs in Field v Bowen must pay attorneys fees to the groups that intervened in the lawsuit in support of the top-two system. The amount is $243,279. The six plaintiffs include Rodney Martin, chair of the Reform Party of California; Jeff Mackler, leader of the San Francisco Bay Area branch of Socialist Action; Steve Chessin, president of Californians for Electoral Reform; and Richard Winger.

Field v Bowen attacked two particularly oppressive aspects of the California top-two open primary law: (1) the original law said write-ins in November for Congress or state office could never be counted, but the state continued to let candidates file as declared write-in candidates and continued to print write-in space on the ballot; (2) the law said that only candidates who are registered members of qualified parties could have their party mentioned on the ballot next to the names of that candidate. Nor can such candidates even have the word “independent” on the ballot; they can only have “no party preference”, which for many is an untrue statement. Earlier this month, a Washington state court ruled that it is unconstitutional to print “no party preference” for a Socialist Alternative candidate for the legislature, and ordered the Secretary of State to print the candidate’s party name on the ballot next to her name.

But the California state courts upheld the write-in and label provisions of the California law last year, and Field v Bowen is no longer an active case, except for the matter of attorneys fees.

California state courts judges are justifiably unhappy that the state budget crisis has meant reduced funding for the court system, which has created many severe problems with administration of the courts. Unfortunately, many, if not most, of the California state court judges believe that the top-two open primary will result in a legislature that will have fewer opponents of tax increases. Therefore, these judges appear to be biased in favor of the top-two system. This is best illustrated by Judge Karnow’s shocking and punitive decision that we six plaintiffs must pay $243,279 to the law firm Nielson, Merksamer, which represents the groups and individuals who intervened in the case.

The plaintiffs asked for reconsideration. In response, Nielsen Merksamer has argued that we had no right to ask for reconsideration, and a hasty acceleration of the matter, only set on Friday afternoon, September 14, has pushed a hearing forward to Monday, September 17, at 11 a.m. at the San Francisco Civil Superior Court at the northwest corner of McAllister and POLK Streets. Here is a FairVote story about the matter. UPDATE: the original post erroneously said the court is at McAllister and Larkin.


  1. F$%# top two and its fascist proponents.

  2. George Whitfield · · Reply

    The top two system is clearly a step toward totolitarianism. This is a shocking development. I hope it can be appealed to the Supreme Court.

  3. natural born citizen party · · Reply

    appears to be yet another election law case for the felony disbarment project

  4. How soon before a P.R./ App.V petition in CA to END the EVIL mess ??? — due to the rigged gerrymander systems.

    What percentage of the CA population are tax LOOTERS — getting more from taxes than they pay in taxes ???

    — govt officers/employees (including the judges), contractors, welfare, etc.

  5. […] but represented the views of many advocates of the rights of minor parties who believed that two key aspects of the Top Two law (how it handled write-in votes and association rights) were unconstitutional. […]

  6. Total bullshit.

  7. Larry Allred · · Reply

    This is about the most unjust thing I’ve ever read about. Unless this is reversed quick it’s more clear than ever a movement of voters is required as the legal system has been entirely co-opted by the major party establishment.

  8. Be Rational · · Reply

    Dear Richard Winger,

    Thank you for all you do for liberty and free elections. Sorry to hear about this unfair development. I hope you prevail against the system.

    All the best.

    Good luck.

  9. Mark Seidenberg · · Reply

    Richard Winger and others Plaintiffs.

    I believed that San Francisco was the wrong forum. It should of been Sacramento County for venue. I do not
    favor the Top Two, Yet the use of the INDEPENDENT label
    would confuse electors, because they would think they
    are voting for someone associating with the American
    Independent Party of California.

    Please post the order on fees and the names of Parties
    that are to get the fees. I do not believe the award
    is for the attornys. Did not these lawyers get paid
    by the clients. My suggestion is to ask the other
    side for a lesser amount, if you want to settle it.

    Sincerely, Mark Seidenberg, Vice Chairman, American
    Independent Party of California

  10. This judgment has just made fighting “Top Two” in the courts even more difficult. Now we not only have to make our cases against “Top Two”, but we have to do so in ways that protect us as much as possible from monetary retribution if we lose.

  11. el pee (on) R,D · · Reply

    Warren Severin is correct.

  12. el pee (on) R,D · · Reply

    Ogle is definitely a tool.

  13. […] the two-party monopoly and get fined a quarter of a million dollars. This entry was posted in Uncategorized and tagged Democracy, Left-Libertarian, Thank You Please […]

  14. A “notice of unauthorized ex parte letter to the court filed by plaintiff” was issue on Friday, September 14. The text of the notice is not, however, in the documents section. (In fact, the most recent document posted is the August 1 order.) Does anybody know what (real or alleged) ex parte communication this is about?

  15. For some further insight into one of Richard’s points, see this KQED Perspective.

  16. Richard Winger · · Reply

    #14, it’s the letter from an attorney from Nielsen Merksamer saying the request for reconsideration is wholly improper and should be thrown out.

  17. Norm Olsen · · Reply

    Proof that long before the political system corrupted itself, the legal profession corrupted itself. While there are many decnt lawyers, they take no action in response to clear proof that the justice system is not about justice; unless you’re a lawyer.

  18. I think an improvement over the Top2 system would be the following:

    – Allow the winning party’s candidate for any office to advance automatically to the runoff
    – All other candidates will face each other off and the winner of this “pre-runoff” will qualify for the runoff

  19. The remedy is P.R. and nonpartisan App.V.

    Ballot access ONLY by nominating petitions.

    P.R. — used in most of the free world civilized nations — i.e. NOT in the Stone Age U.S.A. States and U.S.A. regime.

    Nonpartisan App.V. — to get some sort of nonpartisan enforcement of the laws in the executive and judicial branches.

    This AIN’T atomic physics.

  20. I never heard of INTERVENORS being entitled to legal expenses. That would mean that any lawyers could climb onto the bandwagon of a side expected to win, and clean up. I wish I could do the same to get clients for my business!

  21. As of 8:18am on September 17, the calendar still shows a hearing on October 3 in front of Judge Kahn, but nothing today in front of Judge Karnow. Is public notice required of all court hearings? Some court hearings but not others? Any court hearings at all? (These are not rhetorical questions – I honestly don’t know the answers.)

  22. […] Richard Winger: Some Supporters of Top-Two Open Primary Take Punitive Action to Crush Opponents with Crippling Legal… […]

  23. Catholic Trotskyist · · Reply

    I’m a Top Two supporter, but this is really bad and unjust.

  24. It’s been awhile since I heard news from SF that made me regret moving away.

  25. The irony is that those who champion the Kafkaesque charade of “advanced democracy” have the chutzpah to assert that it is substantively different and morally superior to what exists in the PRC and other “politically backward” nations.

    The reality of course is that any political system with a single legal authority and no alternative to that single legal authority, can never be substantively different from any other political system with a single legal authority and no alternative to that single legal authority.

    All monopolistic governments are essentially the same.

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