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The California Supreme Court has denied a request to intervene in the legal challenge against the top-two primary system set to take effect Jan. 1, leaving the case at the appeals court level.

In June, Californians approved a measure to replace party primaries with a system in which candidates of all party affiliations run on one primary ballot, with the top two vote-getters advancing to a run-off election.

A coalition of minor-party candidates and activists has filed a lawsuit challenging Senate Bill 6 of 2009, which outlines election rules under the new system. They asked the state Supreme Court to step in and hear the case after a state appeals court denied its request to fast-track its appeal of a superior court judge's decision to uphold the new rules. The Supreme Court did not take a position on the merits of the case, which argues that the procedure for identifying party preference on the ballot and the provision prohibiting counting write-in votes in the run-off election are unconstitutional.

The case will still be heard by the appellate court, with briefs in support and opposition of the challenge due early next year. Meanwhile, an upcoming special election to fill the vacant 28th Senate District seat will likely be the first election conducted under the new rules.

The office of Secretary of State Debra Bowen has recommended several "clean-up" amendments to SB 6, including tweaking the language for declaring party preference. As of late last month, they had yet to find a lawmaker interested in carrying the bill.

An attorney for the plaintiffs urged the governor and the Legislature to act on the issues identified in the lawsuit.

"There's no reason for us to wait for this to go through the courts when there is a proper legislative fix," attorney Gautam Dutta said.


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