Plaintiffs include a Libertarian from Santa Clara County

Three qualified political parties and six candidates who ran for office this year have filed suit in federal court, challenging the constitutionality of California's "top two" primary system. The complaint was filed yesterday in the US District Court for the Northern District of California.

The complaint alleges that this system, which was put into place by Proposition 14 passed in 2010 and has been used for Congressional, statewide, and state legislative offices since 2012, unlawfully infringes rights guaranteed by the 1st and 14th Amendments to the US Constitution, with respect to these candidates, their parties, and voters in general who may want to vote for them.

Two of the plaintiffs in the case are Libertarians: Gail Lightfoot, who ran this year for US Senate, and Joe Dehn, who ran for the US House in District 17, representing parts of Santa Clara and Alameda counties. The others were two Peace and Freedom candidates for US House, one Green candidate for US House, and one Green candidate for State Assembly.

All of these candidates met the requirements to qualify as candidates this year, including gathering signatures and paying a filing fee, and their names appeared on the primary ballot. But because they were not one of the two highest vote-getters back in March, voters did not have any way to cast a vote for them in November. Under this system, voters are not even permitted to cast a write-in vote during the general election.

According to ballot access expert Richard Winger, no federal court has ever upheld the "top two" system as implemented in California. A "top two" system was upheld by a federal court in another state, but in that state the primary election was held in late August, much closer to the general election. The California primary is held in June, five months before the general election, in years when the Governor is up for election, and in March during Presidential election years, like 2024.

As House candidate Dehn describes the situation: "This past summer and fall there were many vital issues on the minds of voters, ranging from economic woes here at home to wars overseas, as well as the continued erosion of individual liberty on many fronts. These problems were highlighted by the Presidential campaign season, but they are ones that can only be fixed by having Libertarians in Congress. The voters of my district ought to have been able to consider that alternative, and I made the effort to be on the ballot to offer them that choice. But Top Two kept that choice off their ballot for the entire eight months leading up to this year's election."

Since this system has been in effect, no candidate of any of the parties filing this suit has ever been allowed to appear on the general election ballot, in any election for these kinds of offices where there were two candidates who were either a Democrat or Republican, which, according to the complaint, demonstrates that the system creates an "unconstitutionally insurmountable barrier" to ballot access. In addition to violating the rights of the candidates and voters involved, the way that this system treats minor party candidates makes it harder for those parties to attract members, grow, and retain qualified status.

For more information see the full text of the complaint.