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Final Brief Filed in U.S. District Court in Case Challenging Two Details of California Top-Two Law

Published on May 30, 2011, by in General.

On May 30, the plaintiffs in Chamness v Bowen filed this rebuttal brief. Chamness v Bowen is the federal lawsuit that challenges two particular details of California’s top-two primary election system: (1) although California prints write-in space on November ballots for Congress and state office, those write-ins can never be counted, even if a write-in candidate receives the most votes; (2) California lets some party members list their party on the ballot but won’t let others do so.

All briefs are now in, and the hearing will be on June 13 in Los Angeles.

20 Responses

  1. Demo Rep

    Again – can there be a ONE person *party* in CA ???

    If not ONE person, then what is the magic minimum number of persons ???

    IF yes, then how many seconds before the robot party hacks in the CA regime put a constit. amdt on the next statewide ballots ???

  2. Richard Winger

    Party labels in California congressional and state office elections don’t mean any particular group has approved of that candidate. The party labels are just the candidate’s way of expressing his or her feelings about politics.

    In slightly over half the states, a candidate who gets on the ballot for partisan office at the general election is free to choose any label that doesn’t mimic the name of a qualified party and is not too long. Michigan’s neighbors, Indiana, Wisconsin, Illinois, and Minnesota, permit this freedom to choose any label, whether it is a one-person party or not.

  3. Demo Rep

    # 2 Nice to know.

    Is it possible to answer the #1 questions ???

    All the world wants to know — since top 2 stuff is now in NE, LA, WA and CA — and may go to other States, sooner or later — with or without party labels.

  4. […] Top Two Case Fully Briefed, Set for June 13 Hearing Posted on May 31, 2011 by Gautam Dutta From Ballot Access News: […]

  5. Mark Seidenberg

    Richard Winger

    Every voter in Imperial County that wrote on a HAVA forms “Independent” for the party preference was contact by the office of the registar in 2007 with the
    following question. “By using Independent as a party,
    did you mean the “American Independent Party?” The answer was always yes.

    At a legilative hearing in Los Angeles in February, 2008, I ask Debra Bowen, if the practice to assign “Independewnt” to the American Independent Party
    was the proper proceedure to follow in every other county in California as it was done by Imperial County.
    Debra Bowen reply was in the affirmative.

    Using the term of Independent other that for the name
    American Independent Party would mislead the California
    Electorate.

    Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party

  6. I think there should be two boxes. One would be the candidates choice. The other would be the parties, that would indicate their endorsed candidate.

  7. Demo Rep

    regarding *independent* —

    How many party labels at the same time had *socialist* in them ???

  8. Andy

    I have personally registered several thousand people to vote in California. I’ve done this while gathering signatures on petitions and I don’t push anyone into registering under any particular party banner. I have never encountered one person who registered under the American Independent Party banner on purpose, as in with the knowledge that it is an actual political party and that they know what the views of that party are. When I informed the people registering who checked that box that it is an actual political party, they either requested another form so they could check the Decline To State A Political Party box or they said, something like, “Who cares?” or “The heck with it, I’m too busy.” and they just left it under the American Independent Party label.

    Just a few days ago I registered 10 people to vote in California. One of them checked the American Independent Party box and when I asked this person about it they had no clue that it was a party or had any knowledge about the party. This person also did not feel like filling out another registration form so they just left it like that.

    Like I’ve said above, I’ve registered thousands of people to vote in California, and I’ve registered many people who checked the Republican Party box, the Democratic Party box, the Libertarian Party box, the Green Party box, and the Decline To State A Political Party box, and all of these people had at least some idea about what the label which they were registering under was. I have never registered one person in the state of California who knew what the American Independent Party was. I don’t think that the few people that I’ve registered who checked the Peace & Freedom Party box knew what it was either.

    Acting like the American Independent Party has a huge support base in California due to their number of voter registrations is just flat out not true.

  9. #7, this used to be true in NY. In our beginning, many selected The Independence Party when they wanted No Party, which is Blank in NY. But since 1994, with a lot of work on the ground, we now have over 425,000 members and most know who we are. We do a lot of phone banking, email campaigns, street fairs, fundraising events, petition drives, and hold reguler Politics for the People Classes with guest political figures. As an elected official of the party, I have over 3,000 members in my Assembly District, 73AD, Eastside of Manhattan.

  10. Jim Riley

    Michael Chamness, Daniel Fredrick, and Rich Wilson were not plaintiffs in the case before the San Francisco superior court, and none of the plaintiffs in that case (Mona Fields, Richard Winger, Stephen Chessin, Jennifer Wozniak, Jeff Mackler, and Rodney Martin) are plaintiffs in the federal district court case.

    Gautam Dutta had not yet concocted the erroneous, deceptive, and political cynical terms “major” and “minor” parties. Jeff Mackler and Rodney Martin arguably sought to run as candidates of real parties. It is possible that Rodney Martin was affiliated with the Reform Party when it was a qualified party in California. It is conceivable that Michael Chamness committed an act of perjury when he changed his affiliation from Green Party to “Coffee Party” if he did not intend to participate in the 2012 Coffee Party primary.

    If one reads the transcript of the hearing in San Francisco, it is quite obvious that it was not clear that Mackler and Martin were seeking to run as “Independent” rather than “Social Action” and “Reform” until midway through the hearing, due to the incompetence and fevered pleadings of their lawyer. Can a intervening party be expected to anticipate all the misdirection that a lawyer will make in cases involving different plaintiffs?

    And at the time of the Superior Court Case, SB 6 had not been implemented. Were the intervenors expected under a facial challenge to anticipate how the Secretary of State might (mis)interpret and apply the law?

    The intervenors certainly did raise the issue that the Secretary of State might be misinterpreting the statute after the case was appealed. Dutta is now arguing that an issue of major constitutional importance should be decided because he is the more clever lawyer.

    Dutta is now making an as-applied challenge, and that what matters is how the Secretary of State has interpreted the law. But if the Secretary of State is misinterpreting the law, it is not the law that is at fault.

    If the Secretary of State is misinterpreting the law, then the legislature could enact an identical law and correct the problem. But if the law doesn’t need to be “corrected”, then what is the point of having the law made inoperative until it is “corrected” through no action.

    Dutta has misinterpreted Elections Code Section 325 to mean that voters or candidates who have “independent status” must have “No Party Preference”.

    Section 325 Actually States:

    325. “Independent status” means a voter’s indication of “No Party Preference” as provided in Section 2151 and Section 2154.

    Section 325 is part of Division 0.5 Chapter 4 of the Elections Code which is Definitions. That is, Section 325 is defining the term independent status where it is used elsewhere in the Elections Code. Just because “independent status” is not actually used anywhere else in the Elections Code does not make it an invalid definition or subject to spurious interpretation by devious lawyers.

    Sections 2151 and 2154 document the form and interpretation of the voter registration affidavit, that is completed by a voter when he applies to register, or to update his registration status (name, address, party affiliation, etc). An “indication” is marks, words, etc. made on the voter registration form by the voter (ie. “voter’s indication”). A voter may indicate that he wishes to affiliate with one of the qualified parties, or has “No Party Preference” by marking a check box. A voter may also write in the name of a party, whether qualified or not. If a voter makes no indication or marks, it is presumed that he has No Party Preference, similar to if the voter does not indicate his middle name on the form it is presumed that he had no middle name.

    Dutta has claimed that Chamness is “affiliated” with the Coffee Party. What he probably is trying to say is that Chamness indicated an affiliation with the Coffee Party on his affidavit of voter registration.

    But if we were to use the Dutta misinterpretation of Section 325, then voter Chamness, because of his “independent status”, was required to indicate “No Party Preference” on the registration form. Do we have any evidence whatsoever that Dean Logan or any other registrar is treating an indication of “Coffee” or “Reform” or “SalmonYoga” on a voter registration in a manner identical to “No Party Preference”.

    So why doesn’t Dutta add this claim? The “Voter Affiliation With Minor Party Ban”? Because he knows that it simply is not happening.

    So that means that Dutta is not arguing that Section 325 means that voter Chamness has No Party Preference. And Section 325 clearly applies to voters. But Dutta argues that because a candidate must be a registered voter, that when Chamness became a candidate he had retroactive topsy-turvy double-cross candidate-voter No Party Preference, but that in his role as voter he still has plain old Coffee Party affiliation.

    If he were to accept Dutta’s interpretation of the voter registration form, we would have to believe that the State of California was implementing some form of literacy test or that a mere voter could not possibly understand the voter registration form without a lawyer, but not just any lawyer, but one as clever and devious as Gautam Dutta.

    But there is simply no reason to use Section 325 since it says nothing about candidates, and besides Dutta’s interpretation is a gross misrepresentation.

    There is no evidence that Dean Logan regards Voter Chamness as having any party affiliation or preference than that with the Coffee Party. None.

    So how do we get from party preference for Voter Chamness to the party preference of Candidate Chamness. We need look no further than Sections 300.5 and 8002.5.

    Section 300.5 states:

    300.5. “Affiliated with a political party” as used in reference to a voter or to a candidate for a voter-nominated office means the party preference that the voter or candidate has disclosed on his or her affidavit of registration.

    Dutta has claimed that Voter Chamness is affiliated with the Coffee Party. Therefore Michael Chamness must have disclosed a preference for the Coffee Party on his affidavit of voter registration.

    And since Candidate Chamness disclosed a preference for the Coffee Party on his affidavit of voter registration, then Candidate Chamness is affiliated with the Coffee Party.

    Voter Party Affiliation = Voter Party Preference, Candidate Party Affiliation = Voter Party Preference

    Therefore, Voter Parry Affiliation = Candidate Party Affiliation.

    But Dutta is arguing that Candidate Party Preference is not the same as Candidate Party Affiliation. Truly bizarre.

    Election Code 8002.5 says:

    8002.5. (a) A candidate for a voter-nominated office may indicate his or her party preference, or lack of party preference, as disclosed upon the candidate’s most recent [affidavit] of registration, upon his or her declaration of candidacy. If a candidate indicates his or her party preference on his or her declaration of candidacy, it shall appear on the primary and general election ballot in conjunction with his or her name.

    When Michael Chamness made his declaration of candidacy, he had the the option (ie “may”) to indicate his party preference. But that party preference must be that which the candidate disclosed on his most recent affidavit of registration. Little wonder that Dutta is trying to avoid discovery so that we can see what Chamness’s most recent affidavit of registration disclosed.

    If Michael Chamness did actually indicate a preference for the Coffee Party on his affidavit of voter registration, and if Michael Chamness did actually indicate a preference for the Coffee Party on his declaration of candidacy, then Dean Logan and Debra Bowen did not follow 8002.5,

    But we don’t know this to be true, because Chamness’s lawyer, Gautam Dutta, has avoided discovery on these key documents.

    Why is that?

  11. Mark Seidenberg

    To: Jim Riley. I did look up Michael Chamness affidavit at the office
    in Norwalk. The first part of your point is correct.
    The second part is not correct. Re: E.C. section 8002.5.

    However, I lost your point about how you believe Dean and Debra did not follow the law. Robbi Anderson explained that law in his opinion of April 18, 2011.

    Sincerely, Mark Seidenberg

  12. Mark Seidenberg

    The issue is if one is not registered in a qualified political party, then you may not be in a political party if the party (sic. political body) has never been
    a qualified political party.

    Sincerely, mark Seidenberg

  13. Demo Rep

    ANY election law Einsteins in CA to try and decipher the election laws in CA ???

  14. […] Winger also has the final brief. This entry was posted in Uncategorized. Bookmark the permalink. ← “Republicans […]

  15. Jim Riley

    #10

    300.5. “Affiliated with a political party” as used in reference to a voter or to a candidate for a voter-nominated office means the party preference that the voter or candidate has disclosed on his or her affidavit of registration.

    So you are saying that Michael Chamness did file a registration affidavit around the fist of November 2010, indicating that it was his intent to affiliate with the Coffee Party at the next primary. And that under the terms of 2151(d), Dean Logan converted that to a preference for the Coffee Party on January 1, 2011; so it is identical to if Chamness had filed a registration affidavit after January 1, 2011.

    Correct?

    So by 300.5, with respect to a voter-nominated office (eg US Representative for CD-32), Voter Chamness and Candidate Chamness are both affiliated with the Coffee Party, based on Voter Chamness’s disclosure on his affidavit of voter registration.

    8002.5. (a) A candidate for a voter-nominated office may indicate his or her party preference, or lack of party preference, as disclosed upon the candidate’s most recent [affidavit] of registration, upon his or her declaration of candidacy. If a candidate indicates his or her party preference on his or her declaration of candidacy, it shall appear on the primary and general election ballot in conjunction with his or her name.

    Voter Chamness became Candidate Chamness when he filed his Declaration of Candidacy. On his declaration he had the option (ie “may”) indicate the party preference that he had disclosed on his affidavit of voter registration.

    Candidate Chamness may have written any of the following on his Declaration of Candidacy (it is not clear from the lawsuit).

    (a) ” ”
    (b) “Independent”
    (c) “No Party Preference”
    (d) “Coffee” or “Coffee Party”

    If he did (a) then he is electing not to indicate his party preference, and ” ” would have appeared on the ballot.

    If he did (b) or (c), then Chamness filled out his declaration of candidacy in error, and Logan may have been confused and placed “No Party Preference” on the ballot.

    If he did (d), then Logan and Bowen did not follow the clear direction of 8002.5.

    It is absolutely clear that under California law that “party preference” is what the voter indicates when he fills out his affidavit of voter registration. A voter signs it subject to perjury charges, to certify that it is correct. A voter might put down an incorrect birth date, or address, that could be proven to be incorrect, and corrected. You may or may not be able to also prove perjury.

    It would be extremely difficult to prove that a party preference was incorrect – perhaps if it was an obvious typo such as writing the name of the voter. It would probably be impossible to prove perjury.

    Summary: A voter’s party preference is what he says it is on his affidavit of voter registration.

    Dean Logan and Debra Bowen appear to be interpreting “party preference” as “preference for a (qualified) party”; based on the idea that “party” means “qualified party”. But they are disregarding Section 4. Everywhere “party preference” is used it used without any connection to qualified parties, but rather to what the voter disclosed on their affidavit of voter registration. The term “party preference” is more specific than “party” and its definition prevails.

    This interpretation of SB 6 is consistent with Proposition 14. It was the stated legislative intent of the People in amending Their Constitution that party affiliation on voter registrations be converted to party preference, and that is exactly what 2151(d) does.

    Proposition 14 also says that there shall be no regard or distinctions made on the basis of party preference. If voters whose party preference is for a non-qualified party could not identify a candidate who shared their party preference on the ballot, then California would be making a class distinction and having regard for party preference.

    It was the stated legislative intent of the People in approving Proposition 14 that SB 6 implement and fulfill Proposition 14. Any ambiguity of SB 6 should therefore be resolved in favor of implementing Proposition 14 (and there really is no ambiguity here).

    Debra Bowen and Dean Logan may think that it would be administratively simpler or make more “sense” to do it some other way. But they simply do not have the authority to ignore California statutes or the California Constitution.

    They could of course recommend clarifications be made in the law. California does have an interest in ensuring that the parties that are preferred are actually “parties”.

    They would have a name, including conversions to all languages used for election in California (eg Partido Café), and that names are not confusing, too lengthy, obscene, etc. There might be alternative spellings, as there are for write-in candidates (eg “GOP”, “Democrat”, “P&F”)

    They would have a governing body, and officers who were responsible for representing the party with the SOS and county election officials. They would have rules (precleared with the USDOJ) that ensure that voters registered with the party have ultimate control (republican form of governance). They would have financial reporting.

    They would have a membership (registered voters). But the number of voters would be much much below that used for qualified parties. To be a “party”, one does not have to a popular party. Voters have an absolute right to hold unpopular political views, including a preference for a party that most persons do not have a preference for. If they did, then they could switch to party recognition by petition. After that, anyone who did write some other words on their voter registration could be converted.

    While all the above might be good ideas, the legislature chose a simpler scheme, where voters simply write in the name of the party on their affidavit. This is not necessarily a bad system – it is similar to how elections were conducted for most of the 18th and 19th centuries.

    Who is Robbi Anderson?

  16. Demo Rep

    How about a separate piece of paper with the *party preference* stuff in the registration process — i.e. Form PP 666th edition ???

  17. Mark Seidenberg

    Jim Riley

    Your postings caused me to go down the Dean Logan’s office
    today on the 7th floor Executive Office in Norwalk. I saw
    Dean Logan.

    Dean Logan on June 1, 2011, certified the following information on MICHAEL T. CHAMNESS that his first voter
    registration in Los Angeles County was not dated, but was
    received on June 11, 2007 and recorded on June 14, 2007.
    That that inchoate registration was canceled on March 7,
    2008. The purported voter registration was 91 AB 256236.

    He lived at 116 Thornton, Venice, CA 90291. His date of
    birth was May 4, 1969 and was born in Utah. He used a voter registration card in Tagalog. His party registration
    was listed as Green.

    For Jim Riley, on the current registration and declaration
    of candidacy, Mr. Chamness, gave Coffee Party with a purported claim that he was registered in Los Angeles County as a elector in the Green Party between 2001 to 2010. Yet Logan claims that is no record of Chamness before 2007. The declaration is false, since there was
    no records of registration between 2001 and 2007.

    I have no idea why Secretary of State Debra Bowen kept Chamness on the ballot with the wrong information on his
    party interested for the period Jan., 2001 t0 June, 2007.

    Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party
    Green party elector from 2001 – 2010

  18. Mark Seidenberg

    I am not in the Green Party. The last time is a typing error.

    Sincerely, Mark Seidenberg

  19. Demo Rep

    #17 Perhaps send a copy of the *certified* info to the govt lawyer in the case.

    A *fraud* being done on the court by the plaintiffs ??? — i.e. PERJURY in the complaint ???

  20. Jim Riley

    #16 Michael Chamness was formerly chairman of the Colorado Green Party. He probably moved to LA in 2007.

    There was a legislative hearing on Proposition 14/SB 6 last Spring, in which the SOS discussed problems implementing the 10-year registration history.

    The SOS does not have a statewide voter data based, but is in the process of creating one (it is a HAVA requirement). So instead, the declaration of candidacy has a form for the candidate to indicate their registration history. The SOS office said in the hearing last Spring that they thought there would be 1000s of fact checkers. You may recall that Meg Whitman was not continuously registered, and it might have made an interesting discussion were she to run for a voter-nominated office.

    Who is Robbi Anderson?

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