Are Top Two Backers Seeking to Crush Dissent in California?

by Rob Richie, Drew Spencer // Published September 15, 2012

Update and Corrections September 20: The interveners in the Field v. Bowen case asked for an emergency hearing to kick out the plaintiffs' motion for reconsideration of the ruling on paying interveners' legal fees, but on September 17, the court determined that the reconsideration hearing may proceed in October. Ballot Access News reports that "the courtroom was filled to its capacity (45 chairs) with members and supporters of the Green, Libertarian, and Peace & Freedom Parties."

(Image From California Forward)

We also revised our post below. The California Independent Voters Network is not an intervener; rather, it is the California Independent Voters Project, a legally separate group. We also clarified other points in the original post. We want to emphasize that we believe the best way forward is to end this litigation and have reformers on both sides of this debate come together to seek improve the Top Two system, with changes such as: holding the two rounds of voting as close together as possible; having a "Top Four" system (and only have a first round election if more than four candidates file for office); using instant runoff voting in the final round; allowing write-in votes; and allowing party associations to indicate which candidates have their endorsement.

In 2010, two remarkable allies of electoral reform and independent politics - Richard Winger, a long-time editor of Ballot Access News, and Steven Chessin, president of the all-volunteer group Californians for Electoral Reform - joined four other plaintiffs in challenging components of California's new "Two Two" election system. They brought the case as individuals, but represented the views of many advocates of the rights of minor parties who believe that two key aspects of the Top Two law (how it handled write-in votes and association rights) were unconstitutional. Their lawsuit, Field v. Bowen, ultimately lost in court, but contributed to improvements in the law that better ensure that voters and candidates can adequately assert their electoral rights.

That's why it was a shock - not only to us, but to Top Two backers like UC-Irvine law professor Richard Hasen (who called the ruling "absolutely outrageous" and "nonsense") and columnist Thomas Elias - when Judge Curtis Karnow hit Winger, Chessin and their fellow plaintiffs with a bill for their opponents' attorney fees to the tune of $243,279.

The state of California cannot seek fees under California law, but two of the interveners in the case (meaning parties that the plaintiffs did not sue) sought fees: the California Independent Voters Project, and Californians to Defend the Open Primary. The third intervener, former Lieutenant Governor and current congressional candidate Abel Maldonado, did not request fees, but the judge ordered the plaintiffs to pay them anyway.

These interveners are pursuing fees despite no lack of resources. One of the board members of Californians to Defend the Open Primary is Charles Munger, Jr., who is one of California's biggest political donors and in 2010 gave more than $12 million to the successful ballot measure establishing a more independent redistricting process in California -- a donation far more than our organization FairVote's entire budget over our 20 year history.

The two interveners are closely enmeshed with the politically well-connected law firm Nielsen, Merksamer. Nielsen, Merksamer's senior partner Vigo "Chip" Nielsen sits on the board of Californians to Defend the Open Primary and, according to the groups' most recent publicly available Form 990 reports, maintains the books for both groups. Both organizations pay substantial amounts of money to Nielsen, Merksamer. The Form 990 reports reveal that Californians to Defend the Open Primary doled out $379,637 to Nielsen, Merksamer in 2011, and $699,102 in 2010. The California Independent Voters Project paid $141,610 to Nielson, Merksamer in 2010.

Despite such connections and funds, the interveners are seeking nearly a quarter-million dollars from plaintiffs like the selfless Winger who earned all of $6,000 in 2011 as the nation's unquestioned expert on issues relating to ballot access, with a monthly newsletter and website that has a steady stream of timely information about elections and election reform. Winger's outspoken opposition to Top Two makes the interveners' drive for fees look more like an effort to crush dissent than simply defend their proposals.

Here's more of the back story. Californians adopted the Top Two system by initiative in June 2010. Top Two ends partisan primaries and replaces them with a two-step election process: a "preliminary" election in June open to all candidates followed by a general election between only the two candidates who received the most votes in the first round, irrespective of party labels and what percentage of the vote they received in the first round.

Although many of our close reform allies oppose all forms of Top Two, FairVote applauds Top Two supporters' recognition that many issues of political dysfunction can be traced to unfair election systems. But our August 2010 analysis shows that California's version of Top Two is flawed, although in ways that we believe can be addressed without going back to the state's previous rules.

Our analysis of the first election with Top Two in June 2012 confirmed the legitimacy of our concerns. California had its lowest presidential year primary turnout in history, with an unrepresentative balance of participation, a near decimation of third party presence on the November ballot and several disturbing outcomes that included a congressional race where two Republicans advanced in a majority-minority, Democratic-learning district because of low turnout among racial minorities and several Democratic candidates splitting the Democratic vote. Our report has suggestions for changes that would have likely avoided these flaws, including having the two rounds of voting held as closely as possible and building ranked choice voting into the process to allow more than two candidates in the final round of voting.

Some concerns in our 2010 report were among the motivations for the Field plaintiffs to go to court. As one example, the original law implementing Top Two included a ballot line for write-ins in the final election in November, but stated that any actual write-in votes would not be counted. The plaintiffs argued that aspect of the law conflicted with constitutional principles. Although the California Court of Appeals rejected their arguments, California legislature ultimately amended the law, effectively (if still incompletely) remedying that problem.

Nevertheless, the Field interveners asked for legal fees against the plaintiffs, arguing that its intervention was necessary to supplement the government's defense -- and Judge Karnow agreed.

There's a special irony for FairVote in the role of Nielsen Merksamer as the firm representing the interveners. Nielsen, Merksamer represented the plaintiffs in the meritless - and ultimately unsuccessful - Dudum v. Arntz lawsuit to block the instant runoff voting form of ranked choice voting in San Francisco. Among those defending RCV in the Dudum case was the New America Foundation, which filed an amicus brief written by Gautam Dutta; Dutta is same civil rights lawyer who represents the plaintiffs in Field. The Dudum lawsuit lost in district court and in a unanimous ruling of the Ninth Circuit.

Unlike Field, the lawsuit did not lead to any policy changes, although the case was flimsy and costly to San Francisco taxpayers, Nielsen, Merksamer's plaintiffs weren't responsible for any fees in this case. But once the Field case was back in district court on remand, the interveners represented by the firm in this case asked that the court force Winger, Chessin and the other plaintiffs to pay more than $200,000 in fees - even though Winger and the other plaintiffs did not pursue attorney fees against them.

What makes the judge's ruling in their favor so troubling is that in the United States, each party in a legal case is generally expected to pay their own legal costs. To do otherwise is to punish one side in litigation for asserting or defending their rights and interests in court. There are exceptions, to be sure. For example, plaintiffs who bring frivolous or bad faith lawsuits might have to pay the legal fees of their opponents. Similarly, a defendant who is being sued for violating important public rights or an important public policy might have to pay the fees for the individual who sues attempting to stop them.

But that was clearly not the case here. The plaintiffs brought a non-frivolous lawsuit in good faith to protect the rights of voters as they saw them. The interveners decided to join the case to ensure their position was well-represented, which certainly was their right. But ordering the plaintiffs to pay those interveners effectively is punishing them for asserting their rights and the rights of California voters.

The court order has spurred a quick response. The plaintiffs promptly filed a motion to reconsider - asking the court to reverse its prior decision - and four separate parties have filed amicus curiae, or "friend of the court," briefs in their support. In FairVote's brief, we note the devastating effect on public interest groups that this award of fees could have and detail the order's patent unfairness.

Americans have many options for how to conduct our elections - some good and some bad. The Top Two system is a credible reform idea that, properly constructed, could uphold majority rule without undercutting First Amendment rights of association and limiting voter choice in November elections. But no one should be punished for opposing it or seeking to improve it, it, whether before a legislative body, the public, or our legal system.

As more jurisdictions consider Top Two - better forms of it, we hope - and other reform ideas, we must take a vigorous look at each proposal and be ready to determine whether any of it may violate our constitutional commitments. Seeking to punish reform advocates or reform opponents when raising legitimate concerns sets a dangerous precedent. We hope the interveners stand down from their position and instead consider ways to improve their proposal. Regardless, we hope that the court reverses its initial ruling.