On March 15, this 26-page reply brief was filed in Chamness v Bowen, 11-56449. The Ninth Circuit now has all three briefs in the case, and will eventually set a date for oral argument. Chamness v Bowen challenges two particular characteristics of California’s top-two law (Proposition 14): the ban on the ballot label “independent”, and the original law’s restriction on counting write-in votes.
This reply brief, filed by opponents of Proposition 14, points out that when backers of Proposition 14 intended to place the idea on the ballot as an initiative in 2009, their draft did permit use of the ballot label “independent.” But the version passed by the California legislature changed the draft to make it impossible for any candidate to use “independent” on the ballot. Yet the proponents of Proposition 14 say they want to help independent candidates.
FREE ADVERTISING of party hack labels on the top 2 ballots.
TOO difficult for MORON judges to detect ???
Michael Chamness does not claim that he has no party affiliation. So why would he seek to deceive the electorate by running as an “independent”? Alternatively, if he is independent of any party, did he commit an act of perjury when he changed his voter registration to Coffee Party, and did his lawyer Gautam Dutta encourage him to do so?
If Michael Chamness was harmed, it was due to Debra Bowen’s misinterpretation of the clear language of SB 6. Party affiliation in California has never been limited to qualified parties. At minimum it was limited to parties that were qualified, were at one time qualified, which are seeking qualification, or might at some totally indefinite future time seek to become qualified.
Before Proposition 14, the party label did not necessarily indicate the party affiliation of the candidate, but rather the party affiliation of those making the nomination. In 2008, Abel Maldonado who was affiliated with the Republican Party, sought the senate nomination from both the Republican and Democratic parties.
An independent nomination was not a nomination of an “independent” but rather a nomination made independently of any party. The candidates in Libertarian Party v Eu were affiliated with the Libertarian Party, but the California Supreme Court, ruled that a body of electors had nominated them independently of any party. The petition signers might well have been affiliated with qualified parties.
So before Proposition 14, the ballot label indicated the party affiliation of those persons making the nomination, either by voting in a party primary, or signing an petition outside of, or independently of the primary-nominating process, rather than the party affiliation of the candidate.
Proposition 14 eliminated “nomination” in the sense that it was used before. Partisan offices other than President, were designated as voter-nominated offices, in which primary voters, regardless of their party affiliation, would nominate the two candidates who received the most votes to appear on the general election ballot, without regard to the party preference of the candidate.
The ballot label now indicates the party preference of the candidate. Proposition 14 explicitly provided that existing party affiliations of registered voters would be converted to party preferences. SB 6 provided for the conversion (Elections Code 2151(d)) making an explicit distinction between Declined To State voters, and voters affiliated with a political party, regardless whether the party was qualified or not.
Assuming that Dean Logan was competent, Michael Chamness’s voter registration expressing an intent to affiliate with the Coffee Party at the next primary, was converted to a party preference for the Coffee Party.
Prior to Proposition 14, California law did make distinctions on the basis of a candidate’s party affiliation. For example, while Abel Maldonado was able to seek the Democratic nomination for senate in 2008, he had to do so as a write-in candidate. Candidates who had recently disaffiliated with a political party could not seek an independent nomination by petition. That is, California law did make distinctions on not only the party affiliation, but on the length of time of the party affiliation. California had regard for the party affiliation of both candidates and voters.
The clear purpose of Proposition 14 was so that all candidates and all voters, regardless of their party preference could participate in the primary for voter-nominated offices. SB 6 should be interpreted as fulfilling the purpose of Proposition 14.
Debra Bowen’s interpretation of Elections Code 8002.5 violates the intent of Proposition 14, by making a distinction between, or having regard, for whether a candidate is affiliated with a “qualified party” or not. There is no reason for her to misinterpret the straightforward language of 8002.5, that states that a candidate’s party preference is the same as upon their affidavit of voter registration.
Proposition 14 extinguished the participation rights of qualified parties in voter-nominated primaries, beyond having endorsements appear on sample ballots, and having certain rights related to appointment of poll workers.
Debra Bowen’s interpretation violates the clear language of SB 6, and the California Constitution as amended by Proposition 14.
The voters voted on the final version of Prop 14 — regardless of ALL prior machinations.
Gee – can ANY change in the LAW be made regarding elections by the sovereign People ???
II. Unlike California, Washington does not have party registration of voters. Therefore candidates self-designate their party preference.
In California, voters express their party preference on the affidavit of voter registration, and then if they become a candidate for office, that party preference becomes their party preference as a candidate. Voter Michael Chamness claimed to prefer the Coffee Party on his affidavit of voter registration. Why is he trying to deceive the electorate?
Louisiana which also has a form of a Top-2 election bans write-in votes in both the primary and runoff. Washington bans sore-losers from the primary from running as write-in candidates in the general election. California’s ban on write-in candidacies is consistent with Burdick v Takashi.
V. Had the senate election been held under the pre-proposition 14 rules, Michael Chamness would not have been permitted to even seek nomination by independent petition.
The draft initiative refers to “major or minor party preference”. Since California law does not have the notion of “major” and “minor” parties, there must be further language defining what a major and minor party is. What was that distinction?
#5, under the old rules, Michael Chamness would have been on the primary ballot, and the run-off ballot, if he had submitted 500 signatures. No matter how few votes he received in the first round, he would have been on the run-off ballot as well. Special elections under the old rules were blanket primaries, and independent candidates were guaranteed a spot in the run-off.
I see Mr. Chamness as a person that just wants to confuse the voters. He wants voters to think he has
a preference for the AMERICAN INDEPENDENT PARTY OF CALIFORNIA, when he is in the Coffee Party. I saw the
same thing with James David King in 2008, who was using
the name AMERIAN INDEPENDENT PARTY, so he could confuse
the electorate.
In fact Mr. King who claimed to be chairman of the AMERIAN INDEPENDENT PARTY filed a lawsuit against SOS
Debra Bowen with AMERICAN INDEPENDENT PARTY OF CALIFORNA CHAIRMAN EDWARD NOONAN as a real party in interest.
Just because in the past this state let persons confuse
voters, should be a reason that the confusion should continue.
It has long been the practice in Imperial County that if
a person uses the name Independent Party on their voter
registration HAVA form they mean they are registering in the American Independent Party. Again Mr. Chamness
and Mr. King just wants to confuse the California Electorate.
Sincerely, Mark Seidenberg, Chairman, American Independent Party of California.
The intervenor brief has a number of errors.
Ballots before Proposition 14 did not designate the party affiliation of the candidate; they designated the party (or independent body of voters) that had nominated the candidate.
The California Constitution as amended by Proposition 14 requires that the State of California may make no distinctions on the basis of party preference of the voter or a candidate. In SB 6, the implementing legislation, the legislature made a distinction between Declined To State voters, and voters who had affiliated with a party. It made no distinction based on whether the party was qualified.
Before Proposition 14, a voter, like Michael Chamness, who on his voter registration expressed their intend to participate in the next Coffee Party primary was no different than Debra Bowen, who on her voter registration had expressed her intent in the next Democratic Party primary.
Both were aspirational. If the Coffee Party had qualified for the 2012 primary, Michael Chamness would be eligible to vote in their primary. If voter registration for the Democratic Party had dropped precipitously such that the party was considered abandoned, Debra Bowen would be eligible to vote in the American Independent presidential primary.
Michael Chamness was not declining to affiliate with a qualified party; he was making an affirmative statement that it was his intent to vote in the Coffee Party primary, and implicitly that his registration would help the party qualify.
Debra Bowen would expect that her continued affiliation with the Demcoratic Party would help it maintain its qualified status.
While California does maintain distinctions between qualified parties and non-qualified parties, these only peripherally relate to elections for voter-nominated offices.
Proposition 14 itself said that presidential elections and elections for party offices were not subject to the new law. While Elections Code 2151 and 2152 make it easier to express a preference for a qualified party, they don’t prevent a voter from registering with a non-qualified party, and in fact other than the onerous petition route, the only way for a non-qualified party to become qualified is for voters to register with the non-qualified party.
“As the courts have recognized, it is appropriate for the State to establish minimum qualifications for the parties to receive benefits, such as those listed above.”
The right of a candidate to have his party preference appear on the ballot is the candidate’s personal expression; and does not indicate whether the party supports the election of the candidate. Michael Chamness and Debra Bowen both qualified for the ballot by collecting 40 signatures and paying the filing fee. We don’t know and we don’t care the party affiliation of those who signed their petitions.
And the California Constitution as amended by Proposition 14 states that the State of California may not make distinction among candidates for voter-nominated office on the basis of their party preference. The fact that the State of California may make, and does make a distinction with regard to other elections is simply irrelevant to those for voter-nominated offices.
While California might make regulations to ensure that the political parties that candidates prefer are indeed “political parties” such as having officers and rules and procedures and non-confusing names, California has chosen a less restrictive regime, where a candidate first discloses his party preference on his voter registration, and then may have that appear on the ballot if he runs for office. California also publishes a 10-year history of a candidate’s party affiliation, so voters might know whether a voter has recently changed their party preference.
Michael Chamness was not the Coffee Party’s candidate. Debra Bowen was not the Democratic Party’s candidate. Jenness v Fortson is not applicable.
It is not true that under California law, that “party preference” refers to a preference for a qualified party. California’s entire scheme of party qualification and voter registration is incomprehensible and unworkable unless voters may register their affiliation with a non-qualified party.
In CC/ROV Memorandum 10086 made by the Secretary of State on March 9, 2010, just prior to the June 2010 primary at which voters approved Proposition 14, clarified the distinction:
“A question has arisen as to whether this means people who are registered with an unqualified political party can, for the June 8, 2010, Statewide Direct Primary election, request a Democratic Party or Republican Party ballot so they can participate in one of those two parties’ primary elections for partisan office.
The answer is yes – voters who decline to state a political party affiliation (DTS voters) and those who are affiliated with an unqualified political party can request a Democratic or a Republican party ballot (excluding central committee races) for the June 8, 2010, Statewide Direct Primary election.”
It is true that even some election officials confused the distinction, but that does not mean the distinction is not relevant. Under California law, “party preference” does not mean a “preference for a party as defined by Elections Code Section 338.” Context and consistent usage of party affiliation and party preference throughout the election code requires this distinction be made.
The use of “political body” is to simplify the language construction with regard to non-qualified political parties that are seeking to become qualified. Voters who affiliated with the Reform and Natural Law parties prior to their becoming non-qualified retained their party affiliation; which has now been recast as a party preference.
The Secretary of State specifically instructs county election officials to tabulate voters who prefer a political party that is actively seeking recognition as qualified party (ie political bodies) with voters who prefer a political party that is not qualified and is not (currently) seeking recognition as a qualified political party (eg Natural Law Party); and such voters are distinct from No Party Preference voters.
SB 6 added Elections Code 2151(d) that specified that Declined To State voters be converted to No Party Preference voters; and that all other party affiliations, whether for a qualified party or not, should be converted to a party preference.
Before 2011, California reserved “Decline To State” as meaning a voter who had not stated their intention to affiliate with a political party at the next primary. After 2011, “No Party Preference” is reserved for those who have no party preference (and have not expressed their intention to affiliate with a political party at the next presidential primary).
“It is therefore perfectly correct to to say that he has no ‘party’ preference.”
When Michael Chamness changed his party registration, he deliberately did not check the “Declined To State” check box, and instead wrote-in “Coffee Party” as the party which he intended to affiliate with at the 2012 presidential primary. Had he made the change after January 1, 2011; he would deliberately not check the “No Party Preference” check box, and instead write-in “Coffee Party” as his party preference.
It is perfectly absurd to claim that someone who deliberately chose not to mark the box indicating “No Party Preference” has expressed that they have “No ‘party’ preference”.
Portions of California are subjected to preclearance under Section 5 of the Voting Rights Act because California had a literacy test. Expecting a voter to understand the distinction between No Party Preference and No “Party” Preference, is indistinguishable from a literacy test.
#6 At the time of the senate special primary Michael Chamness would not have been disaffiliated with the Green Party for a long enough time to secure an independent nomination.
It is true that by the time of the congressional special primary that enough time had elapsed so that he could have sought an independent nomination.
Special elections under the old rules were a violation of California Democratic Party v Jones and absurd in determining who advanced to the runoff.
The State brief also has errors.
In CC/ROV Memorandum 10086 which was issued on March 9, 2010, just prior to the June 2010 primary at which Proposition 14 was approved, emphasized that voters who had affiliated with non-qualified parties were eligible to vote in the Republican and Democratic primaries, as a class of voters distinct from Decline To State voters.
Proposition 14 stated 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 unless a new affidavit of registration is filed.”
SB 6 implemented this provision in Elections Code 2151(d), which specified that party affiliations be converted to party preferences, and that Declined To State registrations be converted to No Party Preference registrations.
At the time Proposition 14 was approved by the voters, the Secretary of State recognized that state law made a distinction between voters who were affiliated with a non-qualified party, and voters who were not affiliated with any party.
California law did not say that voters could only affiliate with qualified parties. The distinction it made was in how such voters were treated. For example, voters affiliated with a non-qualified party could only vote in a partisan primary if the party permitted them to request the ballot. Voters affiliated with a non-qualified party, could only be nominated by a qualified party if they ran as write-in candidate in the primary. They could seek to qualify for the general election ballot by filing an petition independent of the partisan primaries. It would have been quite legal for every single one of the signatures to be by voters affiliated with a qualified party.
Proposition 14 was specifically intended to eliminate all distinction based on the party preference of the voter. With regard to voter-nominated offices, California may not discriminate on the basis of which political party a voter prefers.
Proposition 14 did not define the party preference of a candidate, but the implementing legislation, SB 6 did. In Elections Code 8002.5 it specified that the party preference of a candidate is the same as disclosed on the voter’s affidavit of voter registration (translation: what the voter wrote on their application and signed to certify that it was truthful and correct).
How many factual and Legal LIES in the various briefs being filed by the EVIL liar lawyers ???
How soon before SCOTUS has a final-final-final opinion and puts the anti-top 2 folks out of their misery ???
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