Third parties slam California’s top-two ‘jungle’ primary as unconstitutional

SAN FRANCISCO (CN) — Three minor political parties in California have filed a federal lawsuit against Secretary of State Shirley Weber, claiming the state’s “top-two” primary system is unconstitutional because it denies third-party candidates a fair shot at elected office.

California’s top-two or “jungle” primary applies to most state and federal offices except for presidential contests. Under this system all candidates regardless political party run in the same primary election. Voters can choose any candidate, with the two candidates with the most votes moving on to the general election ballot, even if they are from the same party. Write-in votes are not permitted,

In their 13-page complaint filed in the Northern District of California, the Peace and Freedom Party, Libertarian Party of California and Green Party of California, as well as third-party candidates for relevant political offices in California and voters claim the system creates an “unconstitutionally insurmountable barrier” to general election ballot access for minor parties and independent candidates and violates the First and 14th Amendments.

“In almost every contest for elective office covered by the top-two primary system, in which at least two major party (Republican or Democratic Party) candidates appeared in the primary, no minor party or independent candidate has been allowed access to the general election ballot,” the plaintiffs say in the lawsuit.

Prior to the implementation of the system in 2010, parties would nominate a candidate for elective office and the nominee of a qualified political party would be placed on the general election ballot. 

“As a direct result of the adoption of the top-two primary, there is no feasible opportunity for any political candidate who does not represent the Democratic or Republican Party to obtain access to the general election ballot in California where there is more than one candidate representing the Democratic or Republican Party in the Top-Two primary,” the plaintiffs say in the lawsuit.

The plaintiffs claim that in addition to affecting political parties and candidates, the system disenfranchises voters who wish to vote for minor candidates or third-party candidates, effectively barring Californians from voting for any candidate who is not a member of the Democratic or Republican parties.

“By effectively denying access to the general election ballot for any political candidate other than a Democrat or Republican, California law unlawfully limits the ability of third-parties to attract members and grow and to obtain elective office in California. It also makes it much harder for a small political party to retain ballot-qualified status, a requirement to be able to list party preference on the ballot,” the plaintiffs say in the complaint.

High-profile attorney David Schoen of Schoen Law Firm, which has offices in Alabama and New York but takes cases from all over the country, represents the plaintiffs. In an emailed statement, he called the case “vitally important.”

“We now have a significant time period to gauge the impact of the top-two primary and it has proven to be an insurmountable barrier for minor parties in just about every race for elective office that is covered by it. Only the two major parties get their candidates on the general election ballot simply because of their greater resources,” Schoen wrote.

Schoen notably represented President-elect Donald Trump during his second impeachment trial in 2021, and also represented former Trump chief strategist Steve Bannon in 2022 after Bannon was indicted for criminal contempt of Congress by refusing to testify before the Jan. 6 committee. Schoen also represented Roger Stone during his trial related to charges made during the Mueller investigation, and Jeffrey Epstein before his suicide.

“Given the tremendous barrier to general ballot access and the impact on voters and candidates, the law should be subject to strict scrutiny constitutional analysis and there simply is no compelling state interest in limiting ballot access or voter choice to two candidates and only two candidates,” Schoen said.

Weber’s office declined to comment, citing pending litigation.