Capitol Alert

July 30, 2014

Lawsuit challenges write-in rules under California’s top-two system

An independent write-in candidate who ran in the primary to succeed retiring Rep. Henry Waxman, D-Los Angeles, filed a federal lawsuit Wednesday challenging California’s ban on write-in contenders in the general election.

Capitol Alert

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An independent write-in candidate who ran in the primary to succeed retiring Rep. Henry Waxman, D-Los Angeles, filed a federal lawsuit Wednesday challenging California’s ban on write-in contenders in the general election.

Theo Milonopoulos, a 27-year-old political activist and doctoral student on leave from Columbia University, alleges that the write-in rules established by the state’s new top-two primary system violate his First and 14th Amendment rights. The 21-page lawsuit was filed in U.S. District Court in Los Angeles.

Milonopoulos, a former congressional page to Waxman, said that by prohibiting him from appearing as a write-in candidate in November, Secretary of State Debra Bowen and Dean Logan, the Los Angeles County registrar-recorder, are disenfranchising voters who support him from “casting meaningful ballots.”

Milonopoulos further asserts that state and county election officials are infringing on his right “to petition the government for a redress of grievances.”

“I am tired of waiting for my rights,” he said by phone from the courthouse. “I want to go to the floor of the House of Representatives and fight for them.”

A Bowen spokeswoman said in response to the lawsuit that she does not have the authority to write or waive election laws.

“The secretary of state and local elections officials must follow California’s laws as they are written,” Nicole Winger said.

The suit represents the latest challenge to the top-two system approved by voters as Proposition 14 in June 2010. Under the measure, the top-two candidates regardless of party advance to the general election.

Democrats and Republicans have been critical of the measure in part because it effectively ends a guarantee that the parties will appear on the fall ballot. They believe it creates a more expensive system that ultimately is less democratic.

Representatives for minor parties say that preventing write-in candidates in general elections silences their voices and forces them to choose between the least of two less appealing candidates.

Meanwhile, the top-two system has been credited with enhancing competition and moderating the political landscape in California. Proponents also believe it enhances the chances of victory for independent candidates by allowing them to run in primaries.

Former Democratic Sen. Steve Peace, one of the architects of Proposition 14, said he doesn’t see a problem with allowing write-in candidates in both the primary and general elections. He said the authors of the measure barred general election write-ins to prevent major political parties from doing an end-around the system and funding a write-in campaign when none of their candidates advances to the general.

“There is a good argument on both sides of this issue,” Peace said. “It is perfectly appropriate for the courts to do a balancing test and make a judgment of whether write-ins should be allowed in the general or not.”

In the lawsuit, Milonopoulos states he decided to run for the coastal Los Angeles seat in April, about two months after the deadline to appear on the ballot. He filed the requisite number of signatures to qualify as a write-in in the June primary and until researching the matter believed he would be able to do the same in November if he didn’t advance. The fall race pits Democratic Sen. Ted Lieu against Republican prosecutor Elan Carr.

In the lawsuit, Milonopoulos contends that federal courts have consistently held that states cannot impose additional qualifications for people to serve in a federal office “beyond those outlined in the U.S. Constitution.”

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