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Ninth Circuit Oral Argument in California Case on Discriminatory Ballot Labels

Published on February 4, 2013, by in General.

On February 13, the Ninth Circuit will hear Chamness v Maldonado, 11-56303, in Pasadena, California. This is the lawsuit that challenges California’s ban on the ballot label “independent” in elections for Congress and partisan state office. California does not ban “independent” for presidential independent candidates, but the implementing language for the top-two system oddly does ban that word for other office.

The State Supreme Courts of Massachusetts and Minnesota have both ruled in the past that “independent” is such an important term for independent candidates, that states cannot ban it from appearing on the ballot. Nevertheless, the U.S. District Court in 2011 had upheld the law.

The hearing will be at the Courthouse at 125 South Grand Avenue, in a residential part of western Pasadena. The judges will be Marsha Berzon, Paul Watford, and James Carr, a visiting U.S. District Court Judge from Ohio.

7 Responses

  1. Mark Seidenberg

    The issue as I see it is “Independent” is part of the name of the “American Independent Party”. For Mr. Chamness to use the label “Independent” as a political
    party would make voters think he was with the American
    Independent Party, when he is in the Coffee Party.

    That view of Mr. Chamness is wrong. Political parties
    names need to be protected. I plan to be there on 2/13.

  2. #1, you never comment on the fact that “independent” is permitted for presidential independents. And you never comment on the fact that Americans Elect is ballot-qualified in California along with American Independent. That doesn’t seem to bother you.

  3. Jim Riley

    #2 As a result of ‘Libertarian Party v Eu’, “Independent” for partisan office in California indicates a nomination by (petition) by an independent body of electors, rather than that the candidate is “independent”. If Michael Chamness wanted to gather a bazillion signatures to become a nominee for a partisan office he could have done so. He could have gathered signatures from Greens, Democrats, Republicans, Coffeeistas, those with No Party Preference, etc. But he didn’t. He ran for a voter-nominated office.

    Michael Chamness completed an updated affidavit of voter registration that indicated that his party preference was the Coffee Party. Presumably, he signed the affidavit to indicate that the information was truthful and correct. If he was being truthful, then he prefers the Coffee Party. If he was not being truthful, then he potentially has committed an act of perjury.

    Since his preference was for the Coffee Party, when he became a candidate for Congress, which is not a partisan office under California law, he should have indicated on his Declaration of Candidacy that his party preference was for the Coffee Party.

    Only through the incompetence of Debra Bowen, Dean Logan, and Gautam Dutta, was Michael Chamness prevented from having “Prefers Coffee Party” appearing next to his name.

    The voter registrars in Alameda and Los Angeles counties are apparently treating “Independent” on affidavits of voter registration as different than “No Party Preference”. Those in Santa Cruz and Fresno counties may have done so in the past. Those voters may have a better case for having “Prefers Independent Party” appear next to their name.

  4. Mark Seidenberg

    Jim Riley

    This issue came up as a two way conversation between Debra Bowen and I in February. 2008 in Los Angeles.
    I informed Debra Bowen of the practice in Imperial County on “Independent” listings on the HAVA registration forms.

    When persons wrote down “Independent” under party in
    Imperial County on the HAVA forms. The registrar of voters would generate a question to that elector, viz.,
    did the placing of the word “Independent” on the HAVA
    registration form mean you are declaring you want to
    be register as a member of the “American Independent
    Party”. I was informed that every elector replied with
    the statement YES!

    When I asked this question of Secretary of State Debra
    Bowen, her reply was that is the correct proceedure.

    Why do you believe Debra Bowen and Dean Logan are now incompetent? I recall they acted in poor form in February, 2008 over the double bubble issue.

    Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party of California

  5. Jim Riley

    #4 Alameda and Los Angeles counties have had a surge in the reported number of “Other” votes, to around 5%. It is unlikely that registrations in those counties are that anomalous, so the voter-registrars must be doing something different.

    I suspect that they are counting responses such as “Independent” as not being the same as “No Party Preference” or “Decline To State”.

  6. Mark Seidenberg

    Jim Riley,

    I suggest a look at the Los Angeles and Alameda Counties
    HAVA registration.

    Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party of California

  7. Jim Riley

    #4 Had Debra Bowen and Dean Logan simply read the law, then Michael Chamness would have run as “Prefers Coffee Party”, and this case would not still be being litigated 2 years after the election.

    Under California law, a voter may affiliate with a non-qualified party. The procedure explicitly specifies that voters may affiliate with a party prior to the time that the party notifies the Secretary of State that it wishes to have its registration counted for qualification purposes. The party qualification scheme is unworkable except for people like those financing American Elects who qualified a party which almost no one showed up for. Its not really a party if nobody dances.

    Michael Chamness registered his party affiliation with the Coffee Party, apparently severing his affiliation with the Green Party (he was elected to their Los Angeles County central committee in June of 2010). In California, an affidavit of voter registration must be signed to indicate it is truthful and correct.

    California counts registrations for non-qualified parties as distinct from Decline To State/No Party Preference voters. Just because a voter is affiliated with a non-qualified party does not mean that they have no party affiliation. It means that their party had not qualified to have a primary to make a partisan nomination.

    Prior to the June 2010 primary at which Top 2 (Proposition 14) was approved, the Secretary of State sent out a directive to county election officials that voters registered with non-qualified parties could request a Republican or Democratic primary ballot, just as DTS voters could. Since most of the voters who could select one of those ballots was a DTS voter, those who were not were sometimes excluded, and at other times lumped in with the DTS voters. Richard Winger has indicated that in San Francisco poll workers were given voting rolls showing any voter not affiliated with a qualified party as “DTS”. Presumably, this was to avoid confusing poll workers who only work a primary once every two years. Remember it is already confusing, because poll workers may not ask a voter whether they want to vote a Republican or Democratic ballot, at best they can point at a card explaining the option (it is not clear whether they may smile or frown or make eye contact while doing so).

    Proposition 14 said existing voter party affiliations would be converted to party preferences. The actual implementing legislation, said that DTS registrations were to be converted to No Party Preference registrations, and party affiliations were to be converted to party preferences. Michael Chamness was not a DTS registrant, and so was converted to a preference for the Coffee Party.

    The implementing statutes also said that when a registered voter became a candidate for a voter-nominated office (state senator or US representative in Chamness’s case) that their party preference as a candidate would be the same as they had disclosed (i.e. written) on their affidavit of voter registration, which they had signed indicating that it was truthful and correct.

    It is absurd to claim that had Chamness had not disclosed a preference for the Coffee Party. That disclosure had required him to resign his official position with the Green Party. If the Coffee Party seeks to become qualified to have a presidential primary and a presidential nominee in 2016, his preference for the Coffee Party will be counted by Dean Logan.

    The only way that Dean Logan could claim that candidate Chamness did not have a party preference for the Coffee Party was that he had mind-reading powers or special glasses that could discern what Chamness really meant when he wrote “Coffee”.

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