On August 23, U.S. District Court Judge Otis Wright ruled that California’s law, allowing some candidates to list a party label, but not allowing others to do so, nor even to use the ballot label “independent”, is constitutional. Here is the 17-page ruling. The legal analysis of the merits of the case is short and begins on page 11.
The opinion says that California has an interest in maintaining the distinction between qualified parties and unqualified parties, and cites various opinions from systems in which parties nominate candidates. This part of the opinion does not acknowledge that California’s law for congressional elections, and state elections, is not a system in which parties nominate candidates. Instead, the only purpose of labels on the ballot is to give the voters an inkling of the candidate’s partisan leanings. The opinion quotes the U.S. Supreme Court opinion Burdick v Takushi which says that nondiscriminatory ballot access laws are constitutional if they pass the reasonable basis test. But, the opinion does not mention that in Norman v Reed, issued the same year as Burdick v Takushi, the U.S. Supreme Court said discriminatory ballot access restrictions are subject to the more rigorous compelling interest test. The California law, letting some candidates use their preferred partisan self-description and not letting others do that, is discriminatory.
As to why the word “independent” should be barred, the decision only says, “The evidence shows that the restriction on the ability to state ‘independent’ on the ballot was institute for a legitimate state reason – namely, the State’s important regulatory and procedural interest in maintaining the distinction between ‘qualified’ and ‘non-qualified’ parties.” This conclusion does not follow; there is no connection between banning the word “independent” and making a distinction between qualified and non-qualified parties.
The opinion also upholds the restriction on counting write-in votes, equating a ban on counting write-ins with a ban on printing write-in space on the ballot. The opinion is not surprising, because Judge Wright had previously ruled in this same case that the challenged laws are constitutional. Notice of an appeal has already been filed. The case is Chamness v Bowen, cv11-01479. Thanks to Rick Hasen for the link.
“’The evidence shows that the restriction on the ability to state ‘independent’ on the ballot was institute for a legitimate state reason – namely, the State’s important regulatory and procedural interest in maintaining the distinction between ‘qualified’ and ‘non-qualified’ parties.’” sounds like a non sequiter argument to me. California’s got prop 14 and now this ruling. Hopefully AE will show them that their discriminatory laws stil won’t stop us third partisans.
Write-in votes — See 14th Amdt, Sec. 2 in the nearly dead U.S.A. Const.
How many write-in votes in U.S.A. history (when handwriting was actually readable) ???
How soon before SCOTUS ends the top 2 cases — 2 more years of legal torture ???
How soon before REAL reforms — i.e. P.R. and App.V. ??? — NO primaries are needed or wanted — save some taxpayer cash for some really needed stuff.
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yes, of course the state’s elected and selected political officials want to emphasis differences in qualified and unqualified parties. To a person they are members of said major, arbitrarily ‘qualified’ parties. Got it?
Does the Secretary of State of California have the authority to interpret statute in a way that conflicts with the California Constitution and the legislative intent of the People of California in amending the Constitution? May the Secretary of State of California make inconsistent interpretations of the law?
When the voters approved Proposition 14 they stated that the legislative intent was that SB 6 implement Proposition 14; and “that existing voter registrations, which specify a political party affiliation, shall be deemed to have disclosed that party as the voter’s political party preference”.
In CC/ROV Memorandum 10086 issued on March 9, 2010, the office of the Secretary of State stated that in addition to Decline To State voters, voters affiliated with non-qualified parties could vote in the Democratic and Republican primaries. That is, the SOS recognized the distinction between DTS and voters who had expressed an intent to affiliate with a party.
A party may organize and voters affiliate with that party prior to any notice to the SOS, and the delay may indefinite. Further, voter affiliations are permanent unless modified by the voter, or the registration is terminated. There are voters affiliated with the Reform Party remain affiliated with the Reform Party during the period when the party request to be counted lapses, and before a new request is initiated.
Elections Code 2151(d) provides for the method in which existing party affiliations are converted to party preference. There is simply no way to interpret that language other than registered voters were divided into two classes:
(1) Voters affiliated with a political party;
(2) Voters Declining To State a party affiliation.
It is of no relevance for the purpose of a voter’s registration whether or not the party is “qualified”.
From January 1, 2011, voters are classifieds as:
(1) Voters with a (disclosed) political party preference;
(2) Voters with No (disclosed) Party Preference.
Elections Code 300.5 (added by SB 6) makes it absolutely clear that that the party affiliation of a candidate is that stated on his voter registration affidavit.
A voter registration affidavit is signed by the voter to certify subject to perjury charges that information is truthful and correct. May the Secretary of State administer a literacy test in the form of a voter registration form?
Judge Wright claimed some state interests that California might have in restricting party preferences to qualified parties. But that presumes that California has chosen those interests. In effect, Judge Wright and SOS Bowen are surmising that California might want to maintain barriers to participation in elections. But they eliminated the bazillion signatures need to run for statewide office and 15,000 or so to run for senate, and 7500 or so for assemblyman. They publish a 10-year registration history for each candidate. They maintain a very specific role for qualified parties in elections for voter-nominated offices – but in doing so the statute specifically limits it to qualified parties. California even adopted the term “disclosure” to emphasize the change from a system of regulation and constraint to one of disclosure and freedom.
If Michael Chamness decides to run for a voter-nominated office next June, in his role as a potential voter in the presidential primary will be considered as being affiliated with the Coffee Party, and able to vote in some parties’ presidential primary per CC/ROV Memorandum 10086, but in his role as candidate he could not be not affiliated with the Coffee Party?
ANY plain English language in the byzantine CA Elections Code ???
How many of the now standard arbitrary/vague adjectives/adverbs in the opinion — parroting the SCOTUS adjectives/adverbs ???
severe, sufficiently important, slight, etc. etc.
Gee – what is that adjective before *protection* (noun) in 14th Amdt, Sec. 1 ???
So what is the situation for Libertarian candidates? I’m guessing it’s this: our above-2% showing in statewide elections at the last gubernatorial election will let Libertarian candidates designate themselves as such in open primaries up until the next gubernatorial election. Then, because we’ll be shut out of the general election, we will lose our ballot qualification unless we can increase our party registration from our current ~0.8% to the requisite 1% (of votes cast for governor).
Is this right?
Also: if a candidate legally changes his name to make “Libertarian” his middle name, that would show up on the ballot, right?
#8, you are right. No California party will lose its qualified status until November 2014 (the day after the 2014 election).
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