On February 2, Michael Chamness filed his opening brief in Chamness v Bowen in the 9th circuit. This is the case that challenges two particular aspects of California’s system that are not present in Washington state’s top-two system: (1) some candidates may choose a party label and others may not; (2) write-in space is printed on ballots but write-ins can’t be counted, in November elections for Congress and state office.
The legislature recently enacted a bill, AB 1413, to eliminate write-in space form the ballot, but that bill has not yet been signed.
Under California election law prior to the Top 2 Open Primary reform, the party designation did not indicate the affiliation of the candidate, but rather which party(-ies) had nominated the candidate. It was quite possible, though difficult, for a candidate to be nominated by multiple parties.
In Footnote 28, Gautam Dutta misconstrues Libertarian Party v Eu. The decision says it was not inaccurate to characterize David Bergland as an independent candidate, because his nomination was made by a group of voters acting independently of any qualified party. The signers of his petition may have been affiliated with the Republican or Democratic or other qualified parties. Moreover, David Bergland was affiliated with the Libertarian Party, and actively sought to appear under that label (he actually did appear on the ballot as a Libertarian Party under a lower court injunction; the Supreme Court decided the case after the election).
What is curious is that a straightforward reading of Proposition 14 and SB 6 would mean that Michael Chamness could appears on the ballot as preferring the Coffee Party. So while Bergland was affiliated with the Libertarian Party and was resisting the attempt by the State of California to label him an “Independent”, Chamness is affiliated with the Coffee Party, and appears to be attempting to hide that under the label of “Independent”, which if his affidavit of voter registration is truthful and correct, is not accurate.
Here Mr. Chamness believes that he has a right to use the name of part of the name of the “American Independent Party”, even though he claims registration
in the “Coffee Party” (sic.).
Election Code section 5001 (a) states in part that “The
designated name shall not be so similar to the name of an existing party so as to mislead the voters…”
In Imperial County, persons that used the HAVA form of
Registration and wrote the word INDEPENDENT in the space
for party, are counted as a party preference of American
Independent Party. This has been the practice of that
election official for many years.
I have talked with Secretary of State Debra Bowen directly on the practice of the County Election Official
of Imperial County on the use of “Independent” as part
of the name of the “American Independent Party” related
to the count of 154 days prior to a Primary Election.
She informed me that the practice in place in Imperial
County was correct.
Therefore,what Mr. Chamness wants to do is use part of the name of “American Independent” party, viz., use “Independent” to mislead the voters so he can give
the impression he has a party preference of the “American Independent Party”.
Voters should not be mislead by Mr. Chmness wants.
Sincerely, Mark Seidenberg, Chairman, American Independent Party of California
#2, there are now two ballot-qualified parties in California with “American” or “Americans” in their names. But you never seem to complain that it is illegitimate for two parties to have that word in their names.
Richard Winger
My party is American Independent. The other is Americans Elect. I do not know why the SOS believes
that Americans Elect is not that close to American
Independent.
That is a question for SOS Bowen not me. She is the
the person that made the view the Americans and American
are not that close to be OK.
Howver, SOS Bowen told me that the practice in Imperial
County in 2007 was the correct practice. It follows that if persons that state only Independent Party on
a HAVA form, they mean American Independent, than the
use on a ballot as Independent they also mean American
Independent. So Mr. Chamness wantts to confuse electors
to think he is American Independent and that is wrong.
Sincerely, Mark Seidenberg, Chairman, American Independent Party of California.
Chamness has no interest in confusing voters that he is AIP. It’s AIP that wants to, and has been successful at, convincing voters that it is independent.
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When will the LAST CA court or SCOTUS put the poor suffering anti-top 2 folks OUT of their misery ???
Write-ins — 14th Amdt, Sec. 2 is still in the nearly dead U.S.A. Const.
Such section was worked on from Dec. 1865 to June 1866 — after some Elephant math genius noted that one MORON result of the 13th Amdt would be to increase the percentage of U.S.A. Reps and E.C. votes in the ex-slave State regimes — i.e. repeal of the EVIL 3/5 stuff in Art. I, Sec. 2.
See the results of the 1872 election after the 1870 Census (how many 1861-1865 DEAD men NOT showing up in such Census — i.e. see the male/female sex ratios in many of the southern State counties ???)
Paulie
You are dead wrong. The American Independent Party does
not want to confuse any one. It Chamness that wants to call himself an (American) Independent Party elector.
This will confuss the voters. Judge White got in correct, viz., Independent is part of the name of the
name of the American Independent Party.
Sincerely, Mark Seidenberg, Chairman, American Independent Party.
California does not classify parties as “major” and “minor”. Moreover common understanding of “major party” would not include such parties as the Green, Libertarian, American Independent, and Peace and Freedom parties.
If Gautam Dutta were in the least bit honest, he would admit that he was going to use terminology that is not used in California election law, nor in common usage.
Elections Code Section 338 does not define a party as being a qualified party. It defines usage of the term “party” in the Elections Code.
“338. “Party” means a political party or organization that has qualified for participation in any primary election.”
The legislature chose the use of “means” to indicate that is how the term “party” is to be interpreted.
But the Elections Code also includes the following:
“4. Unless the provision or the context otherwise requires, these general provisions, rules of construction, and definitions shall govern the construction of this code.”
For example, no one (other than perhaps Gautam Dutta) would interpret the words “interested party” in Elections Code 15640(a)(2) as meaning “interested qualified political party” rather than an individual or group that has an interest in a court-ordered recount of an election. That is, the context requires that a meaning other than “interested (qualified) party” be assigned
“party affiliation” or “party preference” does not mean “affiliation with a qualified party” or “preference for a qualified party”. The method by which a party becomes qualified is for sufficient numbers of voters to register as affiliated with an nonqualified party (or since 2011, as preferring an nonqualified party).
If a voter could only have a “party preference” for a qualified party, then new parties could not become qualified (except the more onerous petition route). And even Americans Elect, which used the petition route, could be considered abandoned under Elections Code 5101 if more voters do not express a party preference for it.
The Elections Code does use the term “political body” to described nonqualified parties which are actively seeking to be recognized as a qualified party. But that is simply a matter of simplifying language. The process that is described in the Elections Code is that a political party is organized, voters begin to register their affiliation with that (nonqualified) party, at some indefinite time later they inform the Secretary of State that they are attempting to qualify, and election officials begin to count the number of voters whose party affiliation/preference is with that party.
If a political body does not qualify before a primary election, then it it considered to have abandoned its effort to qualify (for that primary). But the voters’ preferences for those parties are not extinguished, California simply loses track of the count of voters.
A month ago, California had 21 political bodies. Since the deadline for qualifying has passed, there are now zero political bodies. Soon political parties will begin informing the Secretary of State that they are attempting to qualify for the next primary (in 2014), and county election officials will discover that there are a number of voters who had previously expressed a party preference for these “political bodies”. A voter’s party preference does not change ever, unless the voter personally submits a new affidavit of registration.
Elections Code 2187 clearly recognizes that a voter may have a preference for a non-qualified party. It provides that county election officials tabulate the number of voters preferring each qualified party, the aggregate number of voters preferring non-qualified parties, and the number of voters with no party preference.
At the most recent registration report on January 3, 2011, there were 115,192 voters whose preference was for a non-qualified party, more than that of four of the seven qualified parties. Only 22,905 (19.9%) of those preferences were for political parties that were attempting to qualify for the June 2012 primary. This does not mean that the State does not have records of the other party preferences for non-qualified parties, they just haven’t needed to count them.
On March 9, 2010, the Secretary of State issused CCROV 10086 which clarified the distinction between Declined To State voters (who had not expressed an intent to affiliate with any party), and voters who had expressed their intent to affiliate with a non-qualified party. Both classes of voters were permitted to request a partisan ballot from those parties that had opened their primary.
Proposition 14 amended the Constitution, but it did not define “party preference”. This was specified in legislation passed in 2009 (SB 6). Rather than assuming that SB 6 was intended to frustrate Proposition 14, it should be presumed to fulfilling the goals of the constitutional amendment, and filling in the details.
SB 6 added Elections Code Section 2151(d). This simply provides that any current declarations of party affiliation are converted to a party preference for the same party, and that any Decline To State registrations are converted to No Party Preference. Since prior to SB 6/Proposition 14 a party affiliation could be for a qualified or a nonqualified party, after the effective date of Proposition 14 and SB 6 on January 1, a party preference may be for a nonqualified party.
Nothing in the extensive Elections Code dealing with registration and party qualification supports a conclusion that a party preference may not be for a nonqualified party.
The term “party preference” simply means what the voter indicated on their affidavit of voter registration, which they signed to certify was truthful and correct. The voter may indicate their party preference by check marking the box for one of the qualified parties on the registration form; writing in the name of their party preference, nonqualified or qualified; or checking the No Party Preference box.
SB 6 also added Elections Code 300.5, which equates the party preference of a candidate, to that which they disclosed on their affidavit of voter registration. If a voter who disclosed a preference for the Coffee Party on their affidavit of voter registration becomes a candidate for a voter-nominated office, then they are the candidate of the Coffee Party.
SB 6 also added Elections Code 8002.5 which specifies how a candidate specifies their party preference on the ballot. A candidate’s party preference is that which they disclosed upon their most recent affidavit of voter registration. If a voter has No Party Preference, then when he becomes a candidate he has No Party Preference.
Whether the candidate’s party preference (or lack thereof) appears on the ballot is a separate option. This is totally consistent with the profession/occupation/office designation on the ballot. A lawyer may have “Lawyer” appear on the ballot next to his name, but he may also have a blank space. This does not imply the candidate is unemployed or retired, but simply that the candidate chose not to make that information available on the ballot.
Voter Michael Chamness preferred the Coffee Party.
Candidate Michael Chamness should have been permitted to have “My party preference is the Coffee Party.” appear on the ballot.
Candidate Michael Chamness had no right to claim he had No Party Preference, and certainly not that he had been placed on the ballot as the result of a nomination by a body of voters, independently of a party nomination.
Secretary of State Debra Bowen and Los Angeles County Registrar erred through their misreading of the straightforward language of Elections Code 8002.5.
If the old partisan system were in place, Michael Chamness would not have been permitted to appear on the February 15, 2011 Senate District 28 special election ballot in any guise. Chamness was formerly registered with the Green Party (he had been elected a member of the Los Angeles County central committee of the party in June 2010, and at one time was the Green Party state chairman in Colorado). Under the old law, a candidate who had recently left a qualified party could not run as an independent candidate.
Moreover, he would have had to collect a great deal many more signatures than he did under the Top 2 Open Primary reform. It is somewhat disingenuous of Chamness to claim that he is interested in independent candidacy, when if he is successful, the lot of the independent candidate would be much worse.
Gautam Dutta misinterprets Elections Code Section 325. It defines the meaning of the the term “independent status” as it appears elsewhere in the Elections Code.
That is, if elsewhere in the the Elections Code a voter was described as having “independent status” it would mean that the voter had indicated No Party Preference on their affidavit of voter registration.
In actuality, “independent status” is used nowhere else in the Elections Code. Elections Code Section 325 is like a piece of lint that has fallen on a page in a law book, and should be brushed aside.
Dutta is interpreting Section 325 like a cartoon character who displays a clenched fist, and asks, “Do you know what this means? This means trouble.”, before kapowing someone who flies into orbit.
Dutta would have the cartoon character display a fist with the words “Independent Status” tattooed on his knuckles, exclaim, “Do you know know what this means? This means you better indicate No Voter Preference on the form”, as the other character meekly changes the card.
Lucy Killea was not a “minor party candidate” (Dutta-speak). Lucy Killea had been elected as a Democratic senator. After she became disgusted with the partisan nature of the legislature, she changed her affiliation to Declined To State, meaning that she had no party affiliation. She then had to get the law changed so she could even run for re-elections. She had to then gather 1000s of signatures of persons who wished to nominate her. Since her nomination was independent of any party, she appeared as an “Independent” on the ballot.
Incidentally, at the time of her disaffiliation from the Democratic party, it was reported that she was quite interested in the Top 2 Open Primary as used for the Nebraska legislature.
David Bergland was affiliated with the Libertarian Party, which at the time was a non-qualified party, and therefore a “minor-party candidate” (Dutta-speak). Bergland did not want to appear on the ballot as an Independent candidate. But the California Supreme Court in Libertarian Party v Eu ruled that because he had been nominated by the 1000s of persons who signed his petition, acting independently of any party.
The key is that for a partisan office, “Independent” describes the 1000s who nominated the candidate, and not the candidate’s party affiliation or lack thereof.
Proposition 14 did away with nominations, whether by a qualified party, or by 1000s of voters acting independently of any party. The party preference is about the candidate’s political beliefs.
If Libertarian Party v Eu, decided in 1980, defined an independent candidate as a “minor party”(Dutta-speak) candidate, how did Lucy Killea who was not affiliated with any party, run as an independent 12 years later?
Proposition 14 did not ban political parties from nominating candidates for the November ballot. It replaced partisan nominations, with nominations made by the electorate as a whole.
Congressional, statewide, and legislative offices are now voter-nominated offices, where the entire electorate nominates the two candidates whose name appears on the general election ballot.
Political parties are still free to endorse and support candidates for all offices, including nonpartisan offices such as the superintendent of public instruction and county supervisor.
For voter-nominated offices, the State will even publish endorsements made by qualified political parties in the sample ballots distributed to voters prior to an election.
Re Footnote 21:
Under the law prior to Proposition 14, voters who were not affiliated with a party participating in the primary could request a partisan ballot of a party that permitted them to do so. They were of course constrained to only voting for the candidates of that party. It was totally unlike the Top 2 Open Primary where any voter regardless of party preference can voter for any candidate.
Under the old system, a qualified political party would first have to say that voters not affiliated with a party participating in the primary could vote in the primary. Most qualified political parties have not allowed voters to participate. Others, such as the Republican and American Independent parties have only opened their primaries for some elections and not others.
CCROV #10086 issued by the SOS before the June 2010 primary clarified that two groups of voters could request a ballot if a party permitted them to.
(1) Voters not affiliated with any party, that is, Decline To State voters.
(2) Voters affiliated with a nonqualified party. For example, if Michael Chamness had been affiliated with the Coffee Party in June 2010, he could have requested a Republican or Democratic primary ballot, but not that of the Green Party.
A voter who wanted to support both Meg Whitman and Barbara Boxer; or Carly Fiorina and Jerry Brown could not do so.
Election clerks could not ask voters whether they wanted to vote a partisan ballot. The voter had to request a ballot. Some counties actually printed cards that explained the process to voters. An election clerk would point at the card. It is unclear whether the clerk could make eye contact, or smile or frown while pointing at the card.
If a voter were a permanent-by-mail voter (around half of California voters are) he would be sent a letter in the mail. This would include a toll-free-number which the voter could call to find out which parties had opened their primary. The voter would then have to send his ballot request back to the county, and then he would be sent the ballot.
Dutta is correct that Proposition 14 did not change the presidential primary. Michael Chamness, affiliated with the Coffee Party, will be able to vote in either the Democratic or American Independent presidential primary in June 2012, but not the Green or Republican primaries.
Re Footnote 30 is in error.
As of February 10, 2010; 21.11% of voters were not affiliated with a qualified party; not the 20.41% claimed by Dutta.
Gautam Dutta either does not understand the voter registration system or his deliberately misrepresenting it.
Dutta could not even transcribe the date of the report correctly.
Re Footnote 31 is in error.
William Kent was first elected to Congress in 1910, after defeating an incumbent in the Republican primary (this was the first direct primary in California).
In 1912, he had initially decided not to run for re-election, and thus did not run in the Republican primary. He instead ran as an independent candidate and was re-elected.
In 1912, the Republican Party in California was dominated by progressives. Hiram Johnson, the governor of California, was the Vice Presidential nominee of the national Progressive (Bull Moose) party.
But in California, presidential electors supporting Theodore Roosevelt and Johnson were Republicans. Presidential electors supporting President William Howard Taft had to run as write-in candidates, after they were unable to qualify a new party.
California law in 1912 did permit independent candidacies, and Kent’s filing is documented in the press as being an independent candidate. The description of his papers (collected at Yale University) for this period stress that their main focus is on his independent candidacies in 1912 and 1914. Interviews with his son, Roger Kent, emphasize his fierce independence.
While there were newspaper ads by Progressive associations supporting Kent’s candidacy, they also supported the election of the Republican’s Roosevelt-Johnson ticket. He was not the nominee of the Progressive party.
A controversy of the 1912 campaign was whether he had reneged on a promise to support the Republican congressional candidate Edward Hart. Other persons who were present at the discussion between Kent and Hart state that, Kent had simply indicated that he was not planning to run; and he thought that Hart, who lived in San Francisco was planning to run in the 4th congressional district in his home city.
(While Kent was elected from the 2nd district in 1910, and the 1st district in 1912, the district was much the same, adding Del Norte, Humboldt, and Mendocino, in place of Sacramento, Yolo, and Napa; while retaining 8 counties, including Marin where Kent lived).
In 1914, when Kent ran for re-election, he ran as an independent. By 1914, California permitted cross-nomination, and he was also nominated by the Progressive and Socialist parties. The complexity of California politics at the time is illustrated by Charles Bell and William Stevens who were elected as Republicans in 1912, but ran as Progressives in 1914. Bell lost, while Stevens was elected. Julius Kahn was elected as Republican in 1912, and reelected in 1914 as a Republican (plus a Progressive cross-nomination).
When William Kent ran for the US Senate in 1920, he was defeated in the Republican primary.
And you can be quite sure that William Kent supported the 1915 version of Proposition 14, that would have made statewide and legislative races nonpartisan.
Re footnote #31.
It is unquestioned that California permits voters to register with nonqualified political parties. It separately tabulates the aggregate numbers of these voters.
Perhaps it is because Gautam Dutta did not understand this, that he falsely reported the percentage of voters not affiliated with qualified parties in the preceding footnote 30.
Lucy Killea and Quentin Kopp were nominated by a body of electors, independent of any party nomination.
It is quite probable that both would have been elected under a Top 2 Open Primary. Kopp had been narrowly defeated by Dianne Feinstein in the 1979 San Francisco mayoral runoff (San Francisco used a nonpartisan version of a Top 2 election, though if one candidate received a majority they would be elected, without a second election).
(Bonus question for Gautam Dutta – what was the relative increase in turnout between the 1979 general election and the runoff).
Lucy Killea had been elected to the Senate as a Democrat in a special election. She later became disgusted with the partisan politics in Sacramento and changed her registration to Declined To State. She later found that she would not be able to run for re-election. Not only did the old partisan system keep voters and candidates in fenced pens, they tried to prevent escapes. Killea had to get a bill passed that would let someone be elected as an independent a mere year after leaving a party, vs. the old system of more than a year and a half.
Michael Chamness would not have been legally able to run for the Senate under the old system, because of his previous affiliation with the Green Party “major party” (Dutta-Speak).
Write-ins are like duct tape – they don’t actually fix the underlying problem. They cover it up.
In Britain when a candidate dies before an election, the election is cancelled, and then after a suitable interval, a special election is held. Compare this to the situation in California where Senator Jenny Oropeza died before the 2010 election, when she was seeking re-election. You then had a campaign telling people to vote for a dead person. They even had Debra Bowen draft a letter explaining the situation to voters. Debra Bowen was not only the Secretary of State, but Oropeza’s predecessor in Senate District 28.
The letter was selectively distributed, so it was not actually a neutral letter from the chief election officer of the state to all voters, but used in a partisan campaign. After the deceased Oropeza was “elected”, California actually had to wait until she didn’t show up in Sacramento at the beginning of her term, before a special election was called.
Lisa Murkowski and Ron Packard would likely have qualified in a Top 2 Open Primary. And had they finished 3rd, they would have been less likely to mount a general election challenge as a write-in candidate.
The mayoral election in San Diego was in March, 8 months before the runoff in November, at which Donna Frye mounted her write-in campaign. The election in March was coincident with a partisan primary, so that a voter like Coffee Party member Michael Chamness would have been restricted to requesting a Republican or Democratic ballot, and less likely to participate in nonpartisan races.
Re Footnote 48/49
The concern of the county election officials was that so many candidates would file for office, that they would be forced to use more ballot cards, which would increase postage cost for mail-out ballots.
County officials are always willing to highlight extra costs that they might incur, so they can be compensated for the unfunded mandate.
Los Angeles County uses a system which tries to put every candidate in the county of almost 10 million people on one ballot. It can only handle 1024 candidates total.
In 2008, this system could not tell the difference between a vote for Hillary Clinton and Don Grundman who were running for president in different party primaries. A Brennan Institute report on bad ballot design highlighted the Los Angeles presidential primary as a practice to be avoided.
Secretary of State officials believed there was a way to use the Los Angeles equipment with more candidates (such as using different ballots in different parts of the county.
Dean Logan knows that he has a boat anchor system that needs to be replaced (parts of it were developed on IBM mainframes 30 years ago, requiring expensive maintenance for both hardware and software). There is already an effort in place in Los Angeles County to develop a replacement system.
#18, when Lisa Murkowski lost the Republican primary in 2010 in Alaska, the Republican Party let all independent voters vote in the Republican primary. Independent voters in Alaska are 53.5% of all registered voters. If Joe Miller beat Lisa Murkowski in the primary that actually occurred, there is no reason to think Lisa Murkowski would have beat Joe Miller in a top-two primary.
Similarly, there is no reason to think Ron Packard would have beat Johnnie Crean if California had had a top-two primary in 1982. The campaign finance scandals that came out about Crean didn’t come out until after the primary.
In the real world, sometimes there are three very strong candidates for an important office, and it is no use pretending that the election itself is fair if one of the three is squeezed out five months before the actual election. Reality is complicated. Not all elections fall into a pattern with only two candidates with real support. If there are three strong, qualified, capable candidates, it is wrong to forcibly eliminate one from the election itself.
Federal law since 1872 has said the congressional election itself must be held in November. States can have a run-off afterwards if they feel they must.