Lower California Court Tentatively Rules that Write-in Space is Not to be Printed on November Ballots for Congress and State Office

On September 13, a Superior Court Judge in San Francisco issued a tentative ruling in Field v Bowen, cgc-10-502018.  It reads as follows:  “Plaintiffs’ motion for Preliminary Injunction is denied.  Plaintiffs have standing to file their claims and bring this motion.  Storer v Brown.  However, plaintiffs fail to show a likelihood of success on the merits.  It is constitutional to ban write-in voting under U.S. and California Supreme Court precedent.  See Burdick v Takushi and Edelstein v City and County of San Francisco.  When Election Code sections 8141.5 and 8606 are read together, it is apparent that the Legislature intended to ban write-ins in the general election (See also comments of the Secretary of State and the Assembly bill analysis).  Insufficient evidence and case law support the argument that the party preference ban violates the Equal Protection Clause or the Elections Clause.  The state may require candidates not affiliated with qualified parties to use the ‘independent’ label.  See Libertarian Party v Eu, 1980.  Several federal circuit courts have also held that a state is not constitutionally obligated to permit candidates to list their preferred party label on the ballot.  See Schrader v Blackwell, McLaughlin v N.C. Board of Elections, Rubin v City of Santa Monica.  Plaintiffs showing of imminent harm is not sufficient.”

Superior Courts in California commonly issue tentative rulings the day before the hearing.  That gives the side that is likely to lose the case a chance to argue why the tentative opinion is incorrect.  It is rare for judges to revise their tentative opinions.

California Election Code section 8141.5, added by SB 6 (the implementing language for Proposition 14), says, “Only the two candidates for a voter-nominated office who receive the highest and second-highest numbers of votes cast at the primary shall appear on the ballot.”  Most people would read that sentence to refer only to names that are printed on the ballots (by the agency that prints the ballots), not names written in on the ballot by a voter.  Section 8606 says, “A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.”  Most readers would detect a difference between a law saying that write-in space should be omitted from printed ballots, and that law.  The California election code continues to say that write-in space should be printed on all ballots.  Section 15340, which was not amended by SB 6, says, “Each voter is entitled to write the name of any candidate for any public office on the ballot of any election.”  Section 8600, which was also not amended by SB 6, explains how any person can file to be a declared write-in candidate in any election.  Section 13212, which was also not amended by SB 6, says, “Under the designation of each office shall be printed as many blank spaces, defined by light lines at least 3/8ths of an inch apart but no more than one-half an inch apart, as there are candidates to be nominated or elected to the office.”

Concerning labels, none of the precedents mentioned in the tentative ruling relate to top-two systems.  Instead, they all refer to systems in which parties have nominees.  In the past, a few court cases have been filed by unqualified parties, who don’t have the strength to qualify as parties, but which are able to use the easier independent candidate procedures.  About half the states permit candidates who use the independent petition method to choose a partisan label, which is printed on the ballot.  The other half of the states don’t permit free choice of a label, but confine the candidate to the ballot label “independent.”  Courts have always refused to interpret the U.S. Constitution to require that candidates who use the independent petition method be permitted to choose any ballot label.  However, the rationale for that is that, in those states, the party label on the November ballot tells the voter that the candidate was nominated by a party with enough voter support to qualify as a party.  The logic does not relate to top-two systems, because in top-two systems, parties don’t nominate candidates, and the party label on the ballot is not meant to convey that the candidate is associated with that party, or that the party approves of that candidate.  The only meaning of “party preference” labels on the ballot in top-two systems is to give the voter an idea of that candidate’s ideas.  Therefore, there is no logic to say that some candidates should have a “party preference” whereas others should not.  The attorney for the plaintiffs, who include 2012 congressional candidates for the Reform Party and Socialist Action Party, will have a chance at the September 14 hearing to explain this.


Comments

Lower California Court Tentatively Rules that Write-in Space is Not to be Printed on November Ballots for Congress and State Office — 15 Comments

  1. We must always look at whole systems rationally:

    The so-called “Top-Two” system is designed to create a one-party state. It will operate in the same manner as any single party state. Every person will have to choose to either be a member of that single party and run in the single party primary or not be able to run or support any candidate for any office at all,except the two single-party nominees chosen in a single party primary.

    That folks is a one party state. It is the communist electoral system. Its supporters are forcing us into a communist electoral system. Sure, it seems that they encourage factions within the single party, and they will get to compete within the single party to place all of two choices on the election ballot. But, that is actually fewer than in many other communist countries throughout history.

    “Top-two” is an evil communist electoral system. Its sponsors are conspiring for total state control over elections and choices through this system. Say goodbye to the already limited democratic elections in CA.

    We must reveal its evil intent and repeal the “Top-Two” communist electoral system.

  2. The 6th California Super-state Parliament Circuit #11
    Updated on 8/25/2010
    8/6/2010 through 8/5/2014
    http://www.usparliament.org/ss11.htm

    Five Elected Executives
    Prime Minister Lily Montgomery [Information Not Available]
    Secretary Gail Lightfoot [Libertarian]
    Prime Minister Lynnette Shaw [Democratic]
    Secretary Jim Doyle [Republican]
    Prime Minister Virgil Hales [Green-Pot-Christ]

    Two Elected Full Ministers
    Attorney General Minister Jack Harrison [Peace and Freedom]
    Communications Minister Alex Plewniak [Libertarian]

    One Elected Deputy Minister
    Deputy Attorney General Kennith Weissman [Libertarian]

    One Hundred Elected Members of Super-state Parliament (MSPs)

    Libertarian Party – 30 MSPs
    Starchild, Mary J. Ruwart, Gail Lightfoot, Pamela J. Brown, Cory Nott, Lawrence Samuels, Kristi Stone, Marian Smithson, Sandi Web, Dale Ogden, Donna Tello, Richard Winger, Ned Roscoe, Vince Carlton [Libertarian at Large], Richard Vinable, Steve Kubby, Mark Hinkle, Alex Plewniak, Dwight Bailey, Tony Monroe, Dave LeBlanc, Richard Rider, Richard S. Bronstein, Michael Metti, Byron Stephens, Richard Newell, Andrew “Andy” Favor, Timothy J. Hannon, Angela Keaton and Kevin Takenaga

    Pot Party – 20 MSPs
    Bouhlod Khembisai, Mark Rodrigues, Ezekial Mitchel, Robert S., Jim Cruise, James May, Adam Meed, Phil Zek, Chuck John, Adam Morgan, Josh Nickson, Junior Stevenson [Pothead], Evan Santos, Rory Hicks [Liberal-Pot], Kyle Kirby, Jason Maya, Brad Orand, Jesse Waterman, Brent Nevile and Alex Haser [Pothead]

    Parties With One Seat – 11 MSPs
    Christina Adams [Environmentalist], Vanessa Moreley [Defender of the Republic], Cherish Prieditis [Anarchist], John Bergamini [Food Not Bombs], Allen McKinney [Open], Sterling [Hemp], Joel Castle [Intelligence], Eddy Lepp [Nonpartisan], Marci Pinkard [Decline to State], Darryl Perry [Boston Tea] and Jim Doyle [Republican]

    Peace and Freedom Party – 12 MSPs
    Jack Harrison, Debra L. Reiger, Jan Tucker, Stewart Alexander, Karen Martinez, Dina Josephine Padilla, CT Weber, Marylou Cabral, Janice Jordan, Carlos Alverez, Mohammed Arif and Robert J. Evans Independents – 5 MSPs
    Christina Tobin, Lucia Goin, Jerry Leon Carroll, Amory and Neil Brian Goldberg

    Information Not Available – 4 MSPs
    Bob Watkins, Ani Defranco, Carlos Santana and Mark Williams

    Marijuana Party – 4 MSPs
    David Payne, James Barbee [Free Marijuana], Thressia Keys and Edward Zuniga

    Free Parliamentary – 4 MSPs
    Laura Booth, Daniel Penisten [Free Parliament], Adrian Hickman and James Ogle

    American Independent Party – 3 MSPs
    Diane Bealle Templin, Markham Robinson and Don Lake

    Green Party – 3 MSPs
    Virgil Hales [Green-Pot-Christ], Kevin Clark [Green Libertarian] and Ross Frankel

    Constitution Party – 2 MSPs
    Chelene Nightingale and Joseph Sobran

    Free and Equal Party – 2 MSPs
    Wayne Christopher and Babette Hogan

    Total – 100 MSPs
    President Christina Tobin [Independent] and Vice President James Ogle [Free Parliamentary]
    First vote count 8/6/2010

  3. The 2010 “Normandy Beach” Time Line

    Everyone, if you’ll look at the item posted by me above, you’ll see the “USS California”. Linked to her are the twelve mini-states, two of which have 100 elected names; ss-11-1 and ss11-6, with plenty of consecutively ranked names as back-ups.

    The time line for the invasion is measured by how many “soldiers” have “hit the beach”, or in other words…how many California residents actually voted for the 100 member USS California Parliament, the USA Parliament, and all subsidiary mini-states as part of the federal voter registration drive?

    The answer of an exact number of ballots cast total isn’t known (the actual ballots kept as proof are elsewhere), so for brevity I estimate of 5000 voters participated over the past fifteen years.

    So in relation the the actual D-Day, that puts Battle of the Bulge in about 150,000 years in the future, a rough guess derived from the amount of time spent and the n8umbers of people participaqting thus far.

    So this year it isn’t too late to increase the numbers, by organizing 12 debates, around California, one in each of the 12 mini-states. But some sort of voter registration drive must also take place, using the fedreal voter registration and self appointment forms.

    I’m working on one such debate in the 24 counties of the Nor Cal Mini-state now, to be held ASAP.

    I will update its progress here as soon as progress is made.

    I hope you like it, thank you for your interest and thank you BAN for the free speech platform.

    Best,
    Prime Minister James Ogle [Free Parliamentary]
    http://www.usparliament.org/ss11-1.htm

    For a psychological plan, see the Pot Party at;
    http://www.usparliament.org/potparty.htm

  4. Don Lake is NOT a legitimate member of the AIP. Markham Robinson barely is himself.

    What about people like Don Grundmann, Larry Brezeale and Ann Thomas for your CP faction?

  5. Elections Code 8606 does not explicitly ban counting of write-in votes in the general election for voter-nominated offices. The plaintiffs and their lawyer have inferred the word “votes” as the object which shall not be counted. As written, Section 8606 says that certain persons shall not be “counted”.

    Elections Code 8606 borrows the description of a write-in candidate from Elections Code 8605, in which the effect of the votes that are counted is prescribed. In particular, while the write-in votes that Abel Maldonado received in February 2008 for the Democratic nomination to the California Senate were counted, he would not have been nominated and have his name appear on the general election because he failed to receive 1% of the votes cast in the previous general election (he also received fewer votes than another write-in candidate, but that is immaterial for the purpose of this illustration).

    California permits voters to cast a write-in vote in all state and federal elections. It also permits candidates to run as write-in candidates, though it does require them to file a statement of write-in candidacy if they wish the votes to be counted. The write-in space must be printed on the ballot.

    This is different than other States. For example, in Texas, if there are no declared write-in candidate for an office, there is no write-in space on the ballot. The definition of an unopposed candidate includes whether there are any declared write-in candidates. In certain cases, races with an unopposed candidate can be removed from the ballot, or an entire election cancelled if candidates for all offices at that election are unopposed.

    Elections Code 8606 clearly anticipates that there may be formally declared write-in candidates for voter-nominated offices, and that there may be votes cast for them. Otherwise the whole section is superfluous.

    So the injunction that the plaintiffs should be seeking is to prevent the Secretary of State from promulgating regulations that would prevent inclusion of a write-in space on the general election ballot for voter-nominated offices; to not accept statements of write-in candidacy for the the general election of voter-nominated offices; and to not disseminate lists of declared write-in candidates for the general election. They could also seek an injunction that would block the non-counting of write-in votes or the non-election of the candidate who receives the most votes in a general election on due process grounds.

    It is quite possible that the Secretary of State has not done so, so the lawsuit is premature.

    Alternatively, the lawsuit should seek to have Elections Code 8606 severed. Section 65 of SB 6 states that the legislature would have passed SB 6 even if any section, including 8606, is found to be invalid. It is quite unlikely that the plaintiffs sought-after relief of blocking implementation of SB 6 in its entirety will be granted, and so the judge should not issue the TRO.

  6. As usual – ANY ban on write in votes is a blatant violation of 14th Amdt, Sec. 2 (1868) — regardless of all MORON plaintiffs and judges.

    Such Section was NOT repealed / replaced by the U.S.A. Congress MORONS in the 19th Amdt (women vote) and the 26th Amdt (18 year old vote).

    P.R. and App.V. — NO primaries are needed.

  7. At the June, 2010 Convention and SCC meeting of the American Independent Party (at Red Man Hall in the South Sacramento Cummunity of Sacramento County) it was voted not to have a candidate on the November, 2010 ballot for Governor, Lt. Governor, Secretary of State,
    and Insurance Commissioner.

    Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party

  8. Regarding the label stuff —

    Separate is NOT equal — even in CA with its sun, floods, earthquakes, etc.

    Brown v. Bd of Ed 1954

    Are the CA plaintiffs thus trying to have the WA top 2 preference stuff — i.e. ANY fictional party label ??? – or merely some sort of *organized* minor party label ???

  9. The Senate Bill Analysis of SB 6 notes that political parties will be able to supply lists of endorsed candidates to county election officials who will in turn be required to publish them.

    SB 6 implements this through the use of the sample ballots distributed to voters (see Elections Code 13300-13302). In an earlier exchange, Richard Winger asserted that political parties do not have sample ballots. But the elections web site for San Francisco Board of Elections shows the sample ballots for each of the 6 qualified parties at the June 2010 primary, plus three ballots for those with no party affiliation, one with non-partisan offices and measures only, and one each that include Democratic and Republican candidates, but not their party officers, for voters registered as DTS or with a non-qualified party who choose to vote in those party officers.

    Section 13300.5 permits election officials to produce a combined sample ballot. Under SB 6, this may be the most practical. Since the intent of a sample ballot is to show a voter all offices and candidates that they may vote for, and they may vote for any candidate regardless of party preference, then a sample ballot for a voter-nominated office must show all candidates, regardless of the party preference of the voter. Currently each party’s sample ballot for the primary includes non-partisan offices and measures as well, since partisan voters may vote for these as well as partisan nominations.

    Under the Top Two reform, the only partisan difference between ballots in the primary will be the inclusion of elections for party officers (county central committee). In many counties and parties these are omitted from the ballot, because there are fewer candidates than the number of positions available. So for most cases, a county could simply print one sample ballot, and if necessary include the party officer elections on all ballots, along with annotation indicating that portion of the ballot is limited to appropriate partisans.

    Party endorsements for voter-nominated offices could be indicated on separate attached lists.

    Better yet would be to move the election of party officers to the partisan presidential preference primary in the spring. In non-presidential years, this could be done with a mail-only ballot in February. Retaining the party officer elections as the only partisan election at the June primary will be a hassle factor for election officials, who will have to prepare separate ballots for each party even though most voters will be ignoring the party contests, and voting in all other contests without regard to their party preference.

    Since the formal role of political parties in the Top 2 primary will be to endorse candidates, it would be better to have party officers chosen prior to the election in which they would make their endorsements – otherwise, you risk a lame duck officer making the endorsement. Officers elected in February or March would also could organize activities such as conventions or primaries where party members could participate in the process of determining which candidates the party will endorse in the summer and fall.

    Elections Code 13302(b), which was added by SB 6, provides that party officials may provide lists of party-endorsed candidates for any election at which candidates for a voter-nominated office will appear on the ballot. This includes both general and primary elections, as well as special primary and special general elections. It is this provision that will in particular provide a form of fusion voting in California.

  10. #9,10 Richard Winger is correct. The election administration for the City and County of San Francisco is styled the Department of Elections. At the following page, one may enter an address and set of party sample ballots for the June 2008 primary will be presented:

    http://gispubweb.sfgov.org/website/pollingplace/

    Appended to the plaintiff’s complaint in Field v Bowen is the Senate Bill Analysis for SB 6. You may wish to verify that Point 10 says that SB 6 provides for county party officials to supply lists of endorsed candidates which the county election officials will publish.

  11. At the June, 2010 Convention and SCC meeting of the American Independent Party (at Red Man Hall in the South Sacramento Cummunity of Sacramento County) it was voted not to have a candidate on the November, 2010 ballot for Governor, Lt. Governor, Secretary of State,
    and Insurance Commissioner.

    = This confirms my suspicions; you guys have been trying to help the California GOP all along.

    BTW you can’t do that anyways; those candidates won their primaries and cannot be taken off the ballot and are entitled to use the AIP label, you still lose on this, Mark.

  12. #12 Yes, the sample ballot is published and distributed with the voter’s handbook (see Elections Code 13307).

    Under terms of Elections Code 13302(b) (as amended by SB 6), county election officials will print the lists of party-endorsed candidates on the sample ballot.

    Under certain circumstances, voters may vote using the sample ballot.

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