Home General Two Candidates and Four Voters File Lawsuit Against Certain Aspects of California Top-Two System
formats

Two Candidates and Four Voters File Lawsuit Against Certain Aspects of California Top-Two System

Published on July 28, 2010, by in General.

On July 28, two congressional candidates (in the 2012 election)  and four voters filed a lawsuit in Superior Court in San Francisco, arguing that two aspects of the California top-two system are unconstitutional, as applied to them.  The case is Field v Bowen, cgc10-502018.  Here is the complaint.  Here is the brief.

The California Constitution was amended in 2002 to provide that all valid votes must be counted.  Nevertheless, the implementing language for California’s Proposition 14 says that write-in votes in November, for Congress and state office, may never be counted.  Proposition 14 and its implementing law, SB 6, did not repeal the law that says write-in space must be printed on the ballot in November for those offices.  Nor did  Prop. 14 and SB 6 repeal the law that provides that write-in candidates in November may file a declaration of write-in candidacy.

The voter plaintiffs say it is very likely, given the limited number of candidates on the ballot in future general elections in California (only two candidates per office), that they will want to cast a write-in vote in November, and they want their write-ins counted.

Although the U.S. Supreme Court said in Burdick v Takushi in 1992 that states may abolish write-in space on ballots, it has also ruled that the U.S. Constitution protects the right of voters to have their votes counted.

The two candidate-plaintiffs are Rodney Martin, who is a registered member of the Reform Party, and Jeff Mackler, who is a registered member of Socialist Action Party.  They wish to run for Congress in 2012, and they want their party to be printed on the primary ballot next to their names.  But Prop. 14 and SB 6 provide that only candidates who are registered members of qualified parties may have their party “preference” on the ballot.  Martin and Mackler have no choice but to have “no party preference” printed on the ballot next to their names.  Disclosure:  one of the voter plaintiffs is Richard Winger.

24 Responses

  1. WhitfieldGeorge

    Good for you, Richard!

  2. Mark Seidenberg

    May be Chelene Nightingale should join this lawsuit. Her loyalty is to the Constitution Party and not to
    the American Independent Party. She only got 24,000
    votes in the AIP primary. That is only near 6 % of the
    AIP registration and the AIP registration is only 2.34 %
    of the total registration of electors in California.

    In fact the AIP Convention and State Central Committee
    does not have any one running under the party label for
    Governor, Lt.Governor, Secretary of State, or Insurance
    Commissioner. This happened at the Convention and State
    Central Committee of the AIP in South Sacramento in June, 2010.

    Sincerely, Mark Seidenberg
    Vice Chairman,
    American Independent Party

  3. Mark Seidenberg

    Richard Winger,

    Why are you suing Bowen in San Francisco and not Sacramento?

    Sincerely, Mark Seidenberg
    Vice Chairman,
    American Independent Party.

    Also why is the Acting State Printer not in the lawsuit?

  4. Mark Seidenberg

    Richard Winger,

    A lot of electors in this state do not trust the ballot
    readers. So in the write-in space the print the person
    they are voting for. In almost all counties in this state the practice is counted as an over vote or an
    under vote (if they leave the printed part of the ballot
    blank).

    Sincerely, Mark Seidenberg,
    Vice Chairman,
    American Independent Party

  5. gary odom

    Mark,

    Well,however many votes Chelene Nightingale won, they were a hell of lot more than her opponent, your buddy
    and ostensible state chairman, “Bravelad” Robinson, received, in the only 2010 AIP primary race that received any attention from the voters. So what else really matters?

    Loyalty to the American Independent Party?? Excuse me?!? You’ve got to be kidding! Mr. Seidenberg,(notice how I manage to spell your name correctly, a courtesy you don’t seem to comprehend or be willing to return) how would you like to PUBLICLY debate and discuss the history of the American Independent Party, from 1967 (it was first organized in June of 1967 in Los Angeles) to the present, with ME, in order that those people hearing the debate might then be in a position to decide just who is actually loyal to the history, people, principles, traditions, candidates, officers and platform of the American Independent Party and who are the interlopers and the frauds? I will put my AIP credentials, my loyalty to the American Independent Party and my knowledge of the people and history of this party up against yours any day of the week.

    An unvarnished, unedited, live public conversation ought to expose who is telling the truth and who is full of crap about all of this, right???

    We can start anywhere…how about with the question of just what Bill Shearer meant to be considered a “national convention” when he caused that clause to be placed into the section of the CA election code which you recently and disingenuously used to try to cancel the July 2010 AIP County Central Committee organizational meetings (particulary the one in LA County) that were originally scheduled for July 13.

    You remember July 13, don’t you? Funny how you were supposed to be in a “national convention” on that date, but found time to drive all the way to Norwalk just to stalk people that evening.

    Gary

    This really isn’t the place for this, I know, so I do apologize to those hoping to actually read about the subject topic on this thread and I want thank Richard and the others and wish them all the best luck in this and future lawsuits relating to Prop.14.

  6. Dave Gillespie

    All best wishes for a positive outcome of this suit, Richard.

  7. Mark Seidenberg

    Gary,

    The California Election Code section 7681 states that
    “Notwithstanding the provisions of Section 7680, a committee in a county having a population in excess of
    4,000,000 shall meet at its county seat in a centrally
    located public auditorium suffient to accomodate its
    members.”

    Do you agree with me that Los Angeles County has “a
    population in excess of 4,000,000?

    Did you know that the City of Los Angeles is the County
    Seat for Los Angeles County?

    Did you know that the City of Norwalk is not the County
    Seat for Los Angeles County?

    Therefore the cabal of about 6 people that showed up at
    the room in Norwalk on July 14, 2010, was not the organizational meeting of the American Independent Party
    of Los Angeles County. The real organizational meeting
    is planned next month in the City of Los Angeles.

    I have no idea why Ted and Elliott can not find a auditorium in the City of Los Angeles to conduct a
    valid meeting. Therefore the cabal of July 14, 2010
    was void.

    Sincerely, Mark Seidenberg,
    Vice Chairman,
    American Independent Party

  8. Jim Riley

    The case doesn’t seem to searchable under any form of the case number that I tried. If someone is searching by party name, it is Mona Field v Debra Bowen.

    Have any of the plaintiffs sought to have the legislature fix the write-in provisions? Wouldn’t that be simpler than litigating?

    Paragraph 36 is not an accurate quote from SB 6, since it left off the last sentence of the section. Given your attorney, this was probably not unintentional.

    Paragraph 38 is not an accurate interpretation of Elections Code 8606. 8606 does not explicitly ban votes for write-in candidates. It purports to prevent candidates from being counted. If it bans votes for them from being counted, it is implicit. Based on other sections around it, it was probably the intent of the legislature to say something about what happens to the candidate after the write-in votes were counted. Elections Code 8606 is gobbledygook, it has nothing to do with the intent of Proposition 14, and should simply be severed.

    The complaint ignores that SB 6 added Elections Code 300.5, which defines affiliation for a candidate as being based on the party preference expressed on his voter registration. The complaint ignores Elections Code Section 4 that specifies that the definitions are to be ignored if the context requires another interpretation.

    Under Proposition 14, political parties are not “qualified” to participate in the primary for a voter-nominated office other than in being permitted to have a sample ballot distributed to voters affiliated with the party. So the definition in Section 338 is of limited utility in the context of an election for voter-nominated office.

    California has an elaborate scheme by which voters may express an intent to participate in the primary of a non-qualified party at some future primary. It would be impossible for a non-qualified party to become qualified, unless voters could register with a qualified party (the provision for party qualification by petition is so ridiculous it can be disregarded). Further it recognizes that voters may register with a party prior to any official notification to the SOS of the party’s attempt to qualified. The SOS regularly tabulates voters who are registered with (1) each qualified party; (2) each party attempting to become qualified; (3) the aggregate of voters registered with other parties; and (4) those who have Declined To State an affiliation.

    If one were to apply the definition of Section 338 one gets the nonsensical construction of a “a non-qualified qualified party”.

    It is the express intent of Proposition 14 to recast current voter registrations from a “declaration of an intent to affiliate with Party X at the next primary” to a “disclosure of preference for Party X”. Current voters who have “declined to state their intent to affiliate with a party at the next primary” will be converted to “no party preference disclosed”. SB 6 does in fact provide for this conversion. So under Proposition 14/SB 6 voters will be able to disclose a preference for a non-qualified party, which is a distinct status from not disclosing a party preference.

    Under Elections Code 8002.5 (added by SB 6) a candidate for a voter-nominated office may specify his party preference or lack of party preference. It is required by this section that the candidate’s party preference (or lack of a preference) be the same as he had disclosed on his voter registration. In addition, a candidate may specify that no preference information appear on the ballot.

    These provisions are parallel to the occupation designation provisions. A candidate may choose not to have any designation appear on the ballot. But if he does, the designation must be truthful and accurate.

    So a candidate who chooses to have his party preference appear on the ballot, must specify the same party preference that he disclosed on his voter registration (this is the equivalent to the accuracy provisions for occupation designation).

    A candidate who had disclosed a party preference on his voter registration may not indicate on his declaration of candidacy that he has “No Party Preference”. That would be like a candidate who was employed declaring that he was “Unemployed”. While he may choose not to have his occupation appear on the ballot, he may not have an false statement of a lack of occupation appear.

    Paragraph 44 is False. Under existing law, Elections Code Section 2151 provides that all qualified parties be listed on the voter registration form. It does not prevent a voter from writing in the name of a non-qualified party. Only if a voter does not specify the name of a party (qualified or not) is the voter presumed to have declined to state an intent to affiliate.

    Simply because SB 6 recasts a “Declined To State” voter as “No Party Preference” does not mean that the Secretary of State will omit the capability of specifying a “non-qualified” party from the voter registration form.

    Existing law requires the listing of all qualified parties on the voter registration form, with no provision for an explicit DTS option. Nonetheless, current forms provide an explicit DTS option at the head of the list of qualified parties AND the capability to write in the name of a non-qualified party. There is no reason to presume that the mere recasting of “declaration of intent to affiliate with Party X at the next primary” and “Declined to State and intent to affiliate” as “disclosure of preference for Party X” and “Undisclosed Party Preference” would substantively change the format of the registration form, since the intent is merely to recast the characterization of party affiliation.

    Paragraph 45 is incomplete. A candidate who has disclosed a party preference on his voter registration may have either (1) that party preference appear on the ballot; or (2) nothing (a blank space). A candidate who has not disclosed a party preference on his voter registration may have either (1) “No Party Preference” or (2) nothing (a blank space).

    Paragraph 47 is in error because it is based on Paragraph 44 which is false. Paragraph 48 is in error for the same reason. Paragraph 49 is in error, because the ability to have a party preference on the ballot is dependent only on the candidate having disclosed that status on his voter registration, and there is absolutely no requirement that a voter disclose a preference for a qualified party on his registration.

    Paragraph 51 is correct. Since California also uses “designation” to refer to the occupational, professional, or office designation, your lawyer might wish to refer to this as “party designation”. Requiring that a candidate not change his party preference between the primary and the general election is a reasonable and rational regulation by California.

    Paragraph 52 is false, there is no such requirement.

    Summary Elections Code 8606 is gobbledygook and should be severed. It has nothing to do with the purpose of Proposition 14. If the State wishes to regulate in this area, it should simply provide a sore loser provision for declared write-in candidates in the general election, similar to that in Washington State. It would simply prevent a person who was either a on-ballot candidate or a write-in candidate in the primary, who fails to qualify for the general election from filing a statement of write-in candidacy for the general election.

    If the Plaintiff’s interpretation of Elections Code 338 were correct, then it would be impossible for a voter to declare an intent to affiliate with a (currently) non-qualified party at the next primary. This is simply not the case.

    All the rest of the case with regard to party affiliation flows from this erroneous interpretation.

  9. independent

    I had to take pause with a radio interview I heard With Chelene Nightingale for governor 2010 constitution party?? The host repeatedly asked her why the CP was not on the ballot and she siad because we are the affliate of the AIP. He seemed confused, but pressed on. When the host asked chelene who she would have come on board her governor’s team if she won, she said she would have Bill Lussenheide who she said “was the president of a financial institution!” What? Bill Lussenheide was/is a window washer for about 25 years in Menifee ca, for about the last 6 years he acts as a “Financial Advisor” he has a staff of 2!! His brother-in law. He does not own a financial institution, he merely advises people who they should invest with!! WOW if thats who she will use to advise her in the economics of CA God help us all. No diss to this Lussenheide, but financial advisors are a dime a dozen. This poor woman was clearly grasping at straws. She also said she would only surround herself with “constitionalists” How the heck does she expect to get anything done IF SHE cannot or will not work with legislators of all political backgrounds. Anyway I am wasting my breathe, as she was berated by a woman caller to the station asking her why she is trying to get JERRY BROWN ELECTED. The woman told her “You will siphon votes from the republican candidate and cause Brown to win, the woman warned her “I will be angry if I wake up and brown is the winner.” Nightingale a community organizer, should stick with her Activist role. She panders to the uneducated and hopes her rhetoric will con people. On a side note, The radio host asked her about her education, she said she dropped out of college for a model career. (great candidate :0 )

  10. To readers of this thread – ” independent ” of comment #9 above is really Mark Seidenberg writing under a fake name. This is an extremely common practice for him. The American Independent Party is the California branch of the Constitution Party. It is currently under attack by corrupt political operatives such as Mark Seidenberg. Such attack and their corruption is explained at TheCorruptionOfAlanKeyes.blogspot.com.

    Don J. Grundmann, D.C. Vice-Chairman American Independent Party, California branch of the Constitution Party

  11. ” In fact the AIP Convention and State Central Committee
    does not have any one running under the party label for
    Governor, Lt.Governor, Secretary of State, or Insurance
    Commissioner.”

    Response – This comment by Mark Seidenberg, in #2 above, is because the primary winners for the noted offices all oppose the complete and utter corruption of the current fake ” Chairman ” of the AIP, Mark Robinson. Seidenberg is part of the criminal conspiracy attacking the party. Their corruption is documented at TheCorruptionOfAlanKeyes.blogspot.com.

    Don J. Grundmann, D.C. Vice-Chairman American Independent Party, California branch of the Constitution Party

  12. Mark Seidenberg

    TO: Independent from post #11

    You must not be aware that her campaign manager is a college graduate. He may have his degree from California State University San Bernadino. He is very
    sharp. In fact his collection of good signature for Mrs. Nightingale ran 50%. That means he had just as many good signature as bad signature. He even emandated
    the ballot statement for Mrs. Nightingale so we now know
    that the illegal aliens cost the people of California
    only $12 million dollars a year, viz., less than 34 1/2 cents per person in the State of California every year.

    Sincerely, Mark Seidenberg
    Vice Chairman
    American Independent Party, affiliated with the America’s Independent Party since June 27, 2008.

    NOTE: The American Independent Party has no connection
    with the Constitution Party and Don Grundmann is not on the State Central Committee nor on any of the County Central Committees of the AIP. The last date that Don
    Grundmann was on the AIP State Central Committee was September 2, 2008.
    the AIP. The

  13. Demo Rep

    1. Write-ins — ANY mention of the nearly dead 14th Amdt, Sec. 2 ???

    A plaintiff MUST declare that he/she *absolutely* wants to write-in candidate XYZ in 2012 — otherwise the write-in part of the case is totally speculative [at least until immediately after the 2012 top 2 primary election results].

    2. Party labels — any attorney for the plaintiffs with some brain cells able to detect —
    Separate is NOT equal.
    Brown v. Bd of Ed 1954

    Also – every election is NEW and has ZERO to do with any earlier elections.

    Otherwise – one more case sure to lose due to the same old WRONG legal arguments.

  14. guy fawkes

    Chelene Nightingale for governor has a new campaign manger by the name of James Sugra. a 30 year old web blogger. She must have canned her other manager for lack of results.

  15. Cody Quirk

    You must not be aware that her campaign manager is a college graduate. He may have his degree from California State University San Bernadino. He is very
    sharp. In fact his collection of good signature for Mrs. Nightingale ran 50%. That means he had just as many good signature as bad signature. He even emandated
    the ballot statement for Mrs. Nightingale so we now know
    that the illegal aliens cost the people of California
    only $12 million dollars a year, viz., less than 34 1/2 cents per person in the State of California every year.

    = Yeah, well she’s on the ballot as the AIP candidate and you can’t do a damn thing about it.
    Does us all a favor and stop breaking wind with your posts please!

  16. guy fawkes

    Mr. Quirk why do you insist on trying to squash people’s free speech? Doesn’t Nightingale asvocate free speech when she’s throwing fits at events that tell her she needs to stand at the back or get a permir. She screams “FREE SPEECH VIOLATION!!” We have a right to our opinion. You need some tolerance training dude. peace :)

  17. guy fawkes

    *advocate *permit

  18. Cody Quirk

    Mark, the only censoring going on was the disgusting actions of Ed Noonan at your last State Convention.

    And as you have a right to talk out of your ass, I also have the right to tell you that you’re talking out of your ass.

    Deal with it, dude.

  19. sara stugra

    You always know the losing candidate because their backers get real pissed real easy. Does not bode well for your cause.

  20. Cody Quirk

    You always know how better a candidate is when the arguments against him/her are stupid, desperate, and inaccurate.

  21. Cody Quirk

    Stop posting under false names, Mark.
    Actions like that, and having Don Lake on your state committee, really hurts your cause.

  22. Jim Riley

    According to Elections Code 338 a Party means a political party or organization that has qualified for participation in any primary election.” So under current law how does a voter “declare the name of the political party with which he or she intends to affiliate at the ensuing primary election”, if that party has not qualified?

    What would happen if Richard Winger attempted to execute a new voter registration affidavit declaring his intent to affiliate with the SalmonYoga Party at the ensuing primary election? Is the voter registrar going to reject the affidavit because the SalmonYoga Party is not a “party” according to Section 338? Or are they going to file the affidavit away, and count Richard Winger as a “Other” in tabulations of voters, and when someone files the formal paperwork to have SalmonYoga Party recognized as being qualified, include Richard Winger in the count of affiliated voters?

    So how does the SB 6 recasting of party affiliating to be a “disclosure of political party preference” change this one bit? If on January 1st, 2011, Richard Winger were to disclose that he prefers the SalmonYoga Party, is the voter registrar going to reject his voter registration affidavit?

    No of course not. Proposition 14 and SB 6 made no substantive changes to the voter registration procedure. Elections Code Section 4 supersedes 338, because the context requires a different interpretation of “party” with respect to voter registration.

    Is the Libertarian Party “qualified” to participate in the primary election for Superintendent of Public Instruction? After January 1, 2011 will the Democratic Party be “qualified” to participate in the primary election for Governor? The answer to both these questions is of course NO. The definition of “party” in Elections Code 338 does not apply to non-partisan offices nor voter-nominated offices.

    So a voter may disclose a preference for a party that is not qualified to participate in a party (presidential) primary. Though his participation in presidential primaries may be restricted, there is no restriction whatsoever as to voting in the primary for a voter-nominated office or running as a candidate if he is otherwise qualified (age, residency, etc.). And as a candidate he has no choice but to use the same party that he disclosed on his voter registration.

  23. sara stugra

    ha Nightingale is just like sharon angle, a strange and uneducated person about politics and everything else. I spoke with former supporters of Nightingale and they could not stand the fact that she lied right to their faces. So keep protecting her, the truth hurts.

  24. Cody Quirk

    But she’s the official AIP candidate for Governor, deal with it sara, or should I say- Mark.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>