Dan Lowenstein can speak for himself, of course, but
in his first post on the "Voter choice open primary
act", he didn't say he thinks it is constitutional. 
He said, "I do not think we should rely on the courts
this time.  We should try to defeat it at the polls".

Of course minor party members have no automatic right
to appear on any state's general election ballot.  The
U.S. Supreme Court has ruled that states may put
severe restrictions on their ability to get on the
general election ballot.  But the Court has also said
that states can't make it impossible.  In Storer v
Brown and Mandel v Bradley, the Court said that a
restriction should be judged on how often it is used. 
And Williams v Rhodes says that even minor parties
without enough strength to win elections must still be
given a chance to be on the general election ballot.

In Munro v Socialist Workers Party, the Court upheld a
requirement that minor party members in the blanket
primary poll 1%.  The Court noted in footnote 11 that,
since the restriction had been imposed, 36 out of 40
such minor party candidates had successfully qualified
for the general election ballot.  That is a far cry
from the California proposal, where in 398 actual
primary outcomes in California when this type of
primary was used, no minor party member ever placed
first or second (except in 12 instances when only one
member of a major party was running, so obviously in
those cases the minor party couldn't fail to come in
2nd).

And, stepping aside from discussions of
constitutionality, and looking at good policy, how can
anyone support a measure that would eliminate all
minor party members from general election ballots?  It
is a truism, but a true truism, that minor parties
introduce new ideas and then give everyone a chance to
find out how much appeal they have.  Confining minor
party members to doing all their campaigning in the
months of January & February of an election year (when
most voters are most interested in the intra-party
struggles for the Democratic and Republican Parties),
and keeping them out of the general election campaign
season, is heavy-handededly repressive.  At least
Washington state's system involved a primary in
mid-September, very dissimilar from California's early
March primary.

--- Rick Hasen <Rick.Hasen@lls.edu> wrote:

I have been working for some time as a consultant to
the committee sponsoringthe Voter Choice Open Primary
(VCOP).  I won't comment extensively here,except to
say that I agree with Dan that the VCOP is
constitutional, andthat Tashjian and Jones are not an
impediment to VCOP's constitutionality. I also want to
point Richard Winger to the Munro case, where, in the
contextof Washington's blanket party primary (thus
different from the VCOP),the Supreme Court said that
so long as minor parties receive reasonable accessto
the primary ballot, it was no constitutional
infringement if they didnot have an automatic right to
appear on the general election ballot (thethreshold in
Munro was 1% of all votes cast in the blanket primary;
the VCOPelevates the top two vote getters---which
could include candidates registeredwith major parties,
minor parties, or no parties---to the general
electionballot).
Rick


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