On March 29, this brief was filed in the California Court of Appeals, in Field v Bowen. At this point, the only issue remaining in this case is whether the individuals who sued to overturn two undemocratic aspects of California’s top-two law should be required to pay $243,279 in attorneys fees to the Proposition 14 supporters who intervened in the lawsuit. The linked brief is the opening brief, so it was filed by the opponents of the existing system, asking that the award for attorneys fees be overturned. The intervenors will file a brief in a month. UPDATE: here is the transcript in a parallel case, Chamness v Bowen, from the February 2013 Ninth Circuit hearing. Plaintiffs are asking the California Court of Appeals to take judicial notice of that transcript.
Ballot Access News
Edited By Richard Winger
Why should I get attorney’s fees when I wasn’t part of the original lawsuit. The legal system is all screwed up these days.
Page 4 is in error with regard to who might be permitted to vote in a partisan primary. See CC/ROV Memorandum #10086, March 9, 2010 issued in anticipation of June 2010 primary at which Proposition 14 was approved by the voters.
SB 6 said that the party affiliation of a candidate for a voter-nominated office was that the candidate had expressed on his affidavit of voter registration. See Elections Code Section 300.5.
Further, SB 6 said that a candidate for a voter-nominated office may have the party preference that they had disclosed on their affidavit of voter registration appear on the ballot (or they could have a blank space). See Elections Code 8002.5(a) as added by SB 6.
This is analogous to office/occupation/profession designation on California ballot. An optometrist could choose to have “Optometrist” or ” ” appear next to his name. He would also have to demonstrate that he indeed was an optometrist and made a significant portion of his livelihood from being an optometrist. For ‘party preference’ the basis of it being factual is the voluntary disclosure on an affidavit of voter registration, which a voter must sign to certify that all information is truthful and correct.
#2, there is no error on page four of the brief. The 2010 Secretary of State’s memorandum you mention says that members of unqualified parties can vote in the Democratic and Republican partisan primaries of June 2010. The sentence on page four of the brief makes a one-sentence general description of the old partisan primaries in California (those that existed before 2011), just to make sure the judges are clear how the primary worked in 2010 and earlier years. There was no reason for the brief to get into the tiny detail of how members of unqualified parties were handled in the June 2010 primary. No sentence on page four in the brief is inaccrate; it merely isn’t as detailed as you would apparently like it to be.
#3 The Secretary of State’s misinterpretation of SB 6 is based on her invention of the category of “declined to state an intent to affiliate with a qualified party” which transformed into “did not disclose a party preference for a qualified party.”
Her office knew that there was a difference between “declined to state an intent to affiliate with (any) party” and “stated intent to affiliate with a party that is non-qualified”.
Her office knew that there was possible confusion before the June 2010 primary at which Proposition 14 was approved by the voters, to the extent that it sent a memorandum to the county election officials who would actually administer that election.
And yet when she interpreted SB 6 she conglomerated the two categories.
Debra Bowen’s misadministration of the Top 2 Open Primary is based on her interpretation that what the voter writes on their AFFIDAVIT of voter registration, which they must sign to certify that the information is TRUTHFUL and CORRECT, is not really what the voter meant.
It is not an incidental, inconsequential little detail to be glossed over.
Storer and Libertarian Party v Eu do not protect the Secretary of State’s misinterpretation of SB 6. Those decisions upheld a modicum of support standard before a candidate could be placed on the general election ballot (Libertarian Party v Eu said that “Independent” did not inaccurately describe the nature of the body of electors that constituted the modicum of support for David Bergland’s candidacy.)
The modicum of support to appear on a primary ballot in California is 40 signatures for district office. SB 6 did not change that standard. It simply let ALL candidates appear on the same primary ballot and be voted on by ALL voters.
The Secretary of State’s misinterpretation of SB 6 is like saying that some persons would finally be permitted to enter a bicycle race, but they would not be permitted to pedal.
Party preference is a personal expression of political belief. There is no basis for the State of California restricting expression of political belief on the basis of whether that belief has demonstrated popularity among voters.
If the Secretary of State’s interpretation of SB 6 were correct, then SB 6 would be in violation of the constitutional amendment implemented by Proposition 14. Introducing an invidious classification scheme among different parties is having regard for the party preference of both voters and candidates.
Let’s compare the alternate interpretation based on Elections Code 300.5, 8002.5(a), and 2151(d):
A voter’s party preference is what they stated on their affidavit of voter registration. 2151(d) simply would make no sense without this interpretation.
The party preference of candidate for a voter-nominated office is what they stated on their affidavit of voter registration. 300.5 and 8002.5 simply make no sense without this interpretation.
This interpretation has the advantage of being based on what the law literally says, is consistent with past and current practice of classifying voter party affiliation/preferences and the party qualification scheme which is still used for presidential elections, and doesn’t violate US Constitution protections of free speech and political association.