California State Senator Abel Maldonado has established an organization to campaign for the “top-two open primary” measure that will be on the ballot in June 8, 2010. It is “Reform for Change”. Here is its web page.
Brandon Gesicki is listed as the organization’s Executive Director, and also the contact for media inquiries.
Gesicki was Senator Maldonado’s campaign manager when the Senator was re-elected in 2008. He is also the Political Director of the Monterey County Republican Party, and a member of the Monterey County Republican Central Committee. He has also been an employee in Senator Maldonado’s legislative office.
The web page says, “The two candidates who receive the most votes in the primary election will then compete in the General Election. All voters will have the opportunity to vote for any candidate they choose, which is not an option in the current system.” This is the opposite of the truth. The measure says that write-in votes will never be counted in the general election for Congress and state office. The write-in ban in Senator Maldonado’s bill, SB 6, is in section 8606, and says, “A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.”
Under existing law, an independent voter is free to ask for a Republican or a Democratic primary ballot in any Congressional or state office primary. Also, if a Republican candidate files as a write-in candidate in the Democratic primary, then registered Democrats can vote for that Republican candidate and their write-ins will be counted. For instance, Maldonado himself filed as a write-in in the 2008 Democratic primary, and he received 533 write-ins from registered Democrats. Another write-in candidate in the 2008 Democratic primary for the same State Senate seat, Dennis Morris, received 2,096 write-ins, overwhelmingly defeating Maldonado for the Democratic nomination. However, Morris didn’t receive the Democratic nomination either, because neither he nor Maldonado met the statutory requirement of polling a number of write-ins equal to 1% of the vote for that office in the last general election.
EVIL CUTE name of the website — to disguise more New Age EVIL.
The write in prohibition is a blatant violation of 14th Amdt, Sec. 2 — in the nearly dead gerrymander U.S.A. Constitution.
How many write-ins in 1868-1890 BEFORE official ballots came along ???
Again — the top 2 stuff does ZERO about the gerrymander math — half the votes in half the gerrymander districts = about 25 percent indirect minority rule
— except possibly have even worse minority rule – if the top 2 are in the same party hack party.
P.R. and nonpartisan A.V. = REAL reform for change — not the bogus fix machinations — top 2, IRV, NPV, etc. etc. by the FIX MORONS.
Just to save time and effort, why don’t you tell us who you think is NOT a moron??? Other than yourself, of course.
“A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.”
What exactly does it mean that “A person (…) shall not be counted.”, where the (…) is qualifying person? If a California voter were to write Richard Winger’s name on the ballot, it would mean that Richard Winger is “not counted”? Would the Secretary of State then issue a proclamation that Richard Winger does not count?
Compare to Section 8605 which reads:
“No person whose name has been written in upon a ballot for an office at the direct primary may have his or her name placed upon the ballot as a candidate for that office for the ensuing general election unless one of the following is applicable:
(a) At that direct primary he or she received for that office votes equal in number to 1 percent of all votes cast for the office at the last preceding general election at which the office was filled…”
Note SB 6 modified 8605 so that it does apply to Voter-Nominated Offices, but this question is with respect to the sentence structure. In the case of 8605, what happens to certain persons is that their name is not placed on the general election ballot unless a certain number of people write their name on the ballot. It is clearly lawful to cast a write-in vote and have it counted for a candidate who had properly filed a statement of write-in candidacy. What 8605 dictates is how the total number of such votes is to be interpreted.
Has California sought pre-clearance under the VRA for the Election Code Changes under SB 6?
Is a court likely to uphold a restriction on the right to vote if it is nonsensical? Can a nonsensical regulation ever be rational?
Jim Riley’s analysis of the Maldonado measure is far, far superior to the analysis of anyone in California who is working for the Maldonado measure. The supporters of the Maldonado in California appear to pay no attention to what is actually in the measure. Consequently, their output in support of the measure is simple-minded and misleading, when it isn’t downright untrue.
By an odd coincidence, I had (just today, for the first time) also been thinking about the fact that California election law changes need pre-clearance under the Voting Rights Act. Maybe if the Maldonado measure passes, the Justice Department won’t approve it. When Mississippi passed a similar measure many years ago, the Justice Department wouldn’t approve it. Steve Rankin knows all the details; maybe he will describe this better than I just have.
Don’t forget, too, that Washington state’s “top two” is facing a trial in US district court in October 2010. That uncertainty will be hanging over California voters when they go to the polls in June.
The Department of Justice (DOJ) recently rejected a voter-passed “top two” for Kinston, North Carolina. If DOJ wouldn’t approve the “top two” for one municipality, what are the chances it would approve it for all of the state and congressional elections in our most populous state?
The “top two” is popularly called the “open primary” in Mississippi and Louisiana.
Five times between 1966 and 1979, the Mississippi legislature passed the “open primary” for our state elections. Two of these measures were vetoed by governors.
In 1971, a three-judge federal panel blocked implementation of the “open primary.” I forget the details, but the court really had no other choice (as I recall, DOJ had let the deadline pass without giving a definitive answer). Evers v. State Board of Election Commissioners
The measures enacted in 1976 and 1979 were rejected by DOJ. The main reason was Mississippi’s history of black independent candidates, and I know Charles Evers, for one, lobbied hard against the “open primary.”
Meanwhile, Louisiana, which did not have a similar history of black independent candidates, won approval from DOJ for its “open primary” in 1975. Another factor was that Gov. Edwin Edwards used his considerable charm in lobbying the DOJ.
Click here to read more about the “open primary” issue in Mississippi and Louisiana. See especially the part under “History.”
Actually, the five different “open primary” measures enacted by the Mississippi legislature were for our state and local elections.
I reviewed the 1971 ruling of the three-judge federal panel. The Department of Justice (DOJ) had failed to exercise its power to determine whether the “open primary” violated the Voting Rights Act, and the court did not have the authority to make that determination.
The full text of the DOJ’s letter is included in the ruling, and one statement caught my eye. It says that “… the acts in question eliminate party primaries… and provide for a two-step general election in which all candidates participate with the two highest participating in a runoff election.”
The three judges also say that “… we would, to a man, concur with Mr. Justice Black’s views that Section 5 of the Voting Rights Act… is clearly unconstitutional.” This, of course, is the section under which certain jurisdictions are required to seek pre-clearance for changes in election laws or procedures. Evers v. State Board of Election Commissioners 327 F.Supp. 640
I couldn’t find anything on when California must seek preclearance. I did find a press-release from the SOS prior to the 2003 gubernatorial recall election regarding two propositions that were also on the ballot – but this may simply have been to questions as to whether a recall election counts as a statewide election for purposes of referendums (IIUC, initiatives simply go on the next statewide election available, whether it is the presidential primary, primary, or general election, and it might be questioned whether voters could propose an initiative, and then trigger an immediate election via the recall process).
Otherwise, preclearance submissions from the State of California appear to be concentrated at the end of even numbered years, so perhaps they are for legislation that becomes effective on January 1. Most of the other California activity is from local matters in the 4 covered counties (Kings, Merced, Monterey, and Yuba). There has been some State of California submissions this year related to redistricting, which are presumably related to procedures for implementing the redistricting commission.
FWIW, Senator Maldonado is the son of immigrant parents from Mexico who represents most of Monterey County, one of the 4 covered counties in California.
Do (did) California political parties seek preclearance for their decisions to open/close their primaries to did DTS voters?
If the SOS were proactive, I’d think she would review election bills and laws as they went through the legislative process particularly with respect to implementation, regardless or what she thought of Top 2 as a matter of policy.
#8: “Do (did) California political parties seek preclearance for their decisions to open/close their primaries to [independent] voters?”
That would not be necessary, since the US Supreme Court gave political parties the power to make that decision. Tashjian v. Connecticut Republican Party (1986)
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#5 Only 4 counties in California are covered by Section 5. Local elections in those counties are already conducted using a system where all voters regardless of their political affiliation are permitted to vote for any candidate, and have done so for almost a century.
I think the DOJ might be more concerned about the political parties in California opening and closing their primaries to DTS voters apparently without seeking pre-clearance.
#9 Tashjian overturned Smith v. Allwright?
#12: County and municipal elections in all of California have been nonpartisan for nearly 100 years. But if voters pass the “top two open primary” for all of California’s state and congressional elections, and the state has to seek approval under Section 5, it’s still possible that it would be rejected.
Mississippi has some nonpartisan elections, but the Dept. of Justice twice rejected the “open primary” for our state and local elections.
This is the first mention I’ve seen of a party needing approval under Section 5 of the Voting Rights Act to invite or block independents from voting in its primary. Do you know of any instances where that’s been necessary?
Louisiana restored party primaries for Congress in 2008. The Republicans excluded independents from their congressional primaries, while the Democrats invited independents into theirs. I don’t recall either party having to get approval under Section 5.
Louisiana passed a law saying that each party could decide whether independents are eligible to vote in its congressional primaries. Because of the Tashjian ruling, such a law is not necessary, but, again, I don’t recall the state having to get this law approved under Section 5.
#13: Smith v. Allwright was a Texas case in which the US Supreme Court struck down the “white primary.”
The party hack Supremes subverted the 14th Amdt, Sec. 2 and the 15th Amdt in the 1960s — being *politically correct* at the time.
Each State happens to be a sovereign NATION-State — see the last paragraph of the DOI – States plural.
See the 1783 U.S.A. – Great Britain Peace Treaty – States plural.
See Art. VII of the Constitution – States plural — NEVER mentioned by the party hack Supremes.
The 15th Amdt happened because Prez Grant barely won in many NORTHERN States in the 1868 election.
The Elephant party hacks panicked quite a bit. See the Jan-Feb 1869 Congressional Globe — a zillion words about trying to have the Elephants stay in power.
A step at a time —
13 End of slavery 1865
14-1 Civil Rights
14-2 MAJOR penalities for NOT having Universal adult male voting 1868 [Sorry females – until 19 Amdt 1920 but 14-2 NOT updated to include females]
15 NO racial voting 1870
Cost – 620,000 dead Americans in 1861-1865
I.E. All of the preclearance stuff about ANY State legislation is a subversion of the Constitution.
The party hacks in the gerrymander Congress do NOT know how to pass a simple law —
Any member of the government of the United States or a State or local government (legislative, executive or judicial) who violates any part of the 13th, 14th or 15th Amendments [or ANY part of the Constitution] shall be guilty of a felony and be [put to death, put in jail for 500 years, have a Trillion dollar fine, have Trillion dollar damages on them in civil cases, etc.]
How many government morons would be needed as examples to cause the Constitution to be obeyed by the party hacks in all governments ???
#14 The DOJ is only going to be interested in the effect of the change in those 4 counties. The State could cite the existing non-partisan elections in those areas as a demonstration of a non-disparate effect. Opponents might be able to show that the existing non-partisan election system does have a disparate effect.
See LULAC v Texas Democratic Party and Morse v Republican Party of Virginia.
The basis of the Supreme Court decision in Smith v Allwright was that Texas had made the Democratic Party primary a part of the overall election system, so it was no longer simply a matter of political association by a private organization, but an election subject to the Constitution, in that case the 15th Amendment.
The Supreme Court in Tashjian affirmed that the primaries were part of the overall election system, and therefore subject to the Constitution. The basis of Justice Stevens’ dissent was that by having different electorates for congressional and legislative elections, there was a violation of Article I, Section 2 and the 17th Amendment, and therefore the political association issues were moot. If Stevens’ viewpoint had prevailed, the Connecticut Republican Party would have had to decide whether to seek to let independents vote in their legislative primary (at least for the larger house) and Congress, and then start again in district court.
In the court’s opinion, authored by Justice Thurgood Marshall, it agreed that the Constitution did apply to primaries, including action by private entities such as political parties. (Marshall was the lawyer for the NAACP in Smith v Allwright). He then writes in circles about whether Article I, Section 2 applies to the situation in Connecticut. Possibly, the court wanted to rule on the more interesting and abstract concept of political association, and not be bothered by mundane procedural aspects of the Constitution, but couldn’t simply ignore Smith v. Allwright.
When the Nebraska Attorney General wrote his interpretation of the application of Tashjian on Nebraska’s system of partisan congressional primaries and non-partisan legislative primaries, he stated that it could not be known how a court would rule, but was basing his interpretation of what Marshall was probably or possibly saying.
When a state political party opens (or closes) its primary to independent voters it is changing the state’s election procedures. Preclearance under the VRA is part of Congress’s enforcement of the 14th and 15th Amendment, and failure to preclear is therefore in violation of the Constitution.
As usual, I’m confused. On the website, in the How Would It Work section it says this:
“The top vote-getters from each political party would then face each other in the November general election, as they do under the current system.”
If “the top vote-getters from EACH political party” is on the November ballot, doesn’t that mean there’ll be a Democrat, a Republican, a Peace and Freedom candidate, a Green, Libertarian, and so on? Just as there already is?
Are the website makers being deliberately misleading or do they not understand a) English grammar, and/or b) their own proposition?
The Maldonado website is horribly inaccurate. It is only the top two vote-getters who can be on in November.
# 17 The ONLY thing that counts is the OFFICIAL LANGUAGE — IF it is approved by the voters — ALL the other EVIL misleading stuff means ZERO — websites, postings, speeches, press releases, etc. etc.
http://www.sos.ca.gov/elections/2010-elections/june-8-2010-ballot-measures.htm
PDF of the top 2 primary OFFICIAL LANGUAGE.
The voters allegedly have enough brain cells to detect ALL the lies about ANY proposal — by the supporters or opponents.
#16: You didn’t cite any examples of political parties seeking permission under Section 5 to open or close their primaries to independents.
Tashjian was an interesting (5-4) ruling, aside from Marshall’s penchant for fancy words. Scalia concurred with Stevens’s dissent, and Scalia also wrote his own separate dissent.
#17: It sounds like the Maldonado website is confusing the “top two open primary” with California’s blanket primary, which the US Supreme Court struck down in 2000.
As Richard says, in the “top two open primary,” the top two vote-getters, regardless of party, advance to the November ballot.
CA Top 2 proposal – relevant language
——-
First—This measure shall be known and maybe cited as the “Top Two Candidates Open Primary Act.â€
Second—The People of the State of California hereby find and declare all of the following:
(a) Purpose. The Top Two Candidates Open Primary Act is hereby by the People of California to protect and preserve the right of every Californian to vote for the candidate of his or her choice. This act, along with legislation already enacted by the Legislature to implement this act, are intended to implement an open primary system in California as set forth below.
(b) Top Two Candidate Open Primary. All registered voters otherwise qualified to vote shall be guaranteed the unrestricted right to vote for the candidate of their choice in all state and congressional elections. All
candidates for a given state or congressional office shall be listed on a single primary ballot. The top two candidates, as determined by the voters in an open primary, shall advance to a general election in which the winner shall be the candidate receiving the greatest number of votes cast in an open general election.
***
(d) Open Candidate Disclosure. At the time they file to run for public office, all candidates shall have the choice to declare a party preference. The preference chosen shall accompany the candidate’s name on both the primary and general election ballots. The names of candidates who choose not to declare a party preference shall be accompanied by the designation “No Party Preference†on both the primary and general election ballots. Selection of a party preference by a candidate for state or congressional office shall not constitute or imply endorsement of the candidate by the party designated, and no candidate for that office shall be deemed the official candidate of any party by virtue of his or her selection in the primary.
***
Third—That Section 5 of Article II thereof is amended to read:
SEC. 5. (a) A voter-nomination primary election shall be conducted to select the candidates for congressional and state elective offices in California. All voters may vote at a voter-nominated primary election for any candidate for congressional and state elective office without regard to the political party preference disclosed by the candidate or the voter, provided that the voter is otherwise qualified to vote for candidates for the office in question. The candidates who are the top two vote-getters at a voter-nominated primary election for a congressional or state elective office shall, regardless of party preference, compete in the ensuing general election.
(b) Except as otherwise provided by Section 6, a candidate for a congressional or state elective office may have his or her political party preference, or lack of political party preference, indicated upon the ballot for the office in the manner provided by statute. A political party or party central committee shall not nominate a candidate for any congressional or state elective office at the voter-nominated primary. This subdivision shall not be interpreted to prohibit a political party or party central committee from endorsing, supporting, or opposing any candidate for a congressional or state elective office. A political party or party central committee shall not have the right to have its preferred candidate participate in the general election for a voter-nominated office other than a candidate who is one of the two highest vote-getters at the primary election, as provided in subdivision (a).
***
How many repeats of the top 2 primary language ??? –
(1) First
(2) Second (a)
(3) Second (b)
(4) Third — Art. II, Sec. 5 (a) [THE legal language].
(5) Third — Art. II, Sec. 5 (b)
A mere FIVE times — as if ONE time is not enough.
Make a copy and stick it on a wall or computer near you.
SOOOO – are the party hacks sweating bullets ??? — NOT being able to dictate which extremist party hack gets on the general election ballots.
Which part of the above will be attacked in court by the party hack usual suspects if the proposal is approved ???
#21 Note highlighted text.
(a) Purpose. The Top Two Candidates Open Primary Act is hereby by the People of California to protect and preserve the right of every Californian to vote for the candidate of his or her choice. This act, along with legislation already enacted by the Legislature to implement this act, are intended to implement an open primary system in California as set forth below.
#20 Changing the persons who are qualified to vote in an election is a change in procedure change that would require preclearance.
Just because political parties in covered jurisdictions have failed to do so does not mean that they are not required to do so.
Didn’t the 5th Circuit tell the Mississippi Democratic Party to change their rules and then seek preclearance?
In Tashjian Scalia was willing to address the political association issue, even though he agreed with Stevens about the equivalency of the electorates.
I reviewed Mississippi Democratic Party v. Barbour (2008), and the 5th Circuit notes that the Democrats in 2003 sought preclearance to be able to block Republicans from voting in Democratic primaries. This was allowed by the “challenge” law, but the Dept. of Justice found the party’s submission to be too vague.
Since many New Age folks are unable to detect P.R. and A.V. in their math challenged so-called brains at the moment, at least the top 2 proposal is a mini-step to help WIPE OUT the party hack regimes.
Have perhaps ONE election with top 2 (after defeating the ANTI-Democracy usual suspect party hacks in a zillion court cases) — with the same old minority rule gerrymander math results — then go for P.R. and A.V. — and have top 2 be a footnote in political history.
The citizens of Gardner, KS are currently working to recall two members of their City Council. The recall is tied up in the courts at the moment, but it should go to a vote in March of 2010.