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The Cost of Taking on California "Reformers"

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    Charles Munger Jr.

    Prop 14, the initiative to put in place California's new top-two primary system, was backed by business interests and rich folks, such as Charles Munger Jr.

    This year, as it is being used for the first time in a California election cycle, it has so far been a bust -- except for adding considerably to the nastiness and expense of campaigns.

    A small group of less-than-wealthy citizens -- many of them longtime supporters of minor political parties -- has gone to the courts to challenge Prop 14, on multiple grounds.

    Among their objections are that the top-two primary limits the rights of people who would choose to vote for minor political parties (since they no longer appear on the general election ballot) and also excludes write-ins.

    In other words, people at the margins of the debate have less of a voice. A study of the new system by the Public Policy Institute of California provided some confirmation, by explaining that under the new system, fewer minor party candidates had run.

    That's not the only problem with top two.

    The measure eliminated party primaries and thus weakened parties, which remain the best known force for citizen engagement and can be, if strong at the local level, a bulwark against the power of wealthy individuals, unions and corporate interests.

    It also says something that, despite promises that top two would create more debate and engagement and participation by voters, the first election in which it was used -- this June's -- saw the lowest turnout of any presidential primary in the history of California.

    But the citizens lost their challenge in court, with judges finding that the top-two primary law was valid and constitutional. But unfortunately for these citizen-challengers, that's not the end of the story.

    The citizens sued the state, but the wealthy backers of the top-two primary system intervened in the case. Once the ruling went against the plaintiffs, the top-two backers sought to get the citizens to pay their attorneys' fees, and this week a San Francisco judge agreed, ordering the six citizens to pay $243,279.50. I'm told that for some of these defendants, paying one-sixth of that amount would be a huge financial hit.

    The judge's order, which is likely to be appealed, says that the backers of the initiative are owed the fees because they lost and because they didn't achieve anything in the public interest.

    For this non-lawyer, that's a hard argument to understand, given the real, ongoing questions about whether top two is in the public interest (I just participated in a debate on the subject Thursday in front of the Sacramento Press Club).

    But one consequence of the judge's decision is the message it sends to those who might challenge California's community of wealthy reformers and good government groups: if you get in our way, we'll make you pay.

    Lead Prop Zero blogger Joe Mathews is California editor at Zocalo Public Square, a fellow at Arizona State University’s Center for Social Cohesion, and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (University of California, 2010).

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