[EL] hoping to stimulate some list discussion of yesterday's US Supreme Court action

[Richard Winger]

Rick Hasen said he wasn't surprised yesterday when the US Supreme Court refused to hear the Washington state case against top-two.  I am hoping for some discussion on this list.

In a single sentence, what top-two systems do is guarantee that no one will be able to be on the November ballot, for Congress and state/local partisan office, unless that person is famous and/or well-funded.

Under normal systems, generally, it is possible for candidates without big funding or fame to still be onthe November ballot.  Therefore, top-two systems reduce the amount of speech in general election campaign season.  This is a massive shrinkage of the free speech provision of the First Amendment.

No court even gave a fair hearing to the ballot access argument against top two.  In 2005, a US District Court struck down the Washington top-two law on freedom of association grounds, and said it would not discuss the ballot access argument because there was no need.  The 9th circuit said the same thing in 2006.  In 2008, the US Supreme Court said top-two might or might not violate freedom of association, and invited more litigation.  Also the US Supreme Court said in its 2008 decision, in footnote 11, that it was not deciding the ballot access issue.

But, in early 2012, the 9th circuit rejected the ballot access argument on the grounds that the US Supreme Court had already settled that, which was flatly, unambiguously, not true.  And now the US Supreme Court won't hear the case again.  There is still no court that has even acknowledged the evidence that if there are two major party members running in a particular race, the minor party candidate never places first or second.  Never.  That is based on 37 years of experience in Louisiana, 4 years of experience in Washington, and half a year in California.

The effect is to wipe out Williams v Rhodes.  States, and opponents of minor parties, have found a new way to keep minor party members out of the general election season, something that supposedly states can't do because of Williams v Rhodes.

Richard Winger

415-922-9779

PO Box 470296, San Francisco Ca 94147
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