California Candidate Asks State Supreme Court to Overturn Prior Affiliation Requirement for Candidates in Primaries

On December 18, California attorney Roger William Clark, who wants to run for Attorney General of California in 2010 as a Republican, asked the California Supreme Court to overturn the California law that prevents him from getting on any primary ballot in 2010.

Clark was a registered Democrat until May 1, 2009, when he changed to the Republican Party. He can’t get his name on the Republican primary ballot because the law says no one may qualify for a primary ballot in a partisan race if that person was a member of a different party during the year before filing. The filing deadline for California non-presidential primaries is in mid-March. Clark originally filed his lawsuit in Los Angeles County Superior Court in August 2009, but that Court upheld the law on October 28, 2009. That decision is called Clark v Bowen, BC420243. The lower court decision has a few errors; it says Clark wants to run for Secretary of State (which is not correct) and it says the primary is in March 2010 (actually the primary is in June 2010).

Clark depends on the California Constitution. In the past, the California Supreme Court has ruled that the California Constitution gives stronger protection for candidates than the U.S. Constitution does. But in 2002, the California Supreme Court seemed to strip that extra protection away, when it upheld a San Francisco Elections Department policy of not permitting write-in votes in run-off elections. That decision was called Edelstein v City and County of San Francisco, and it overturned a 1985 decision by the California Supreme Court that said the California Constitution protects write-in votes in run-off elections. Edelstein v City and County of San Francisco was a 4-3 decision, and was written by former Justice Janice Rogers Brown, who is no longer on the California Supreme Court. She now sits on the U.S. Court of Appeals, D.C. Circuit.


California Candidate Asks State Supreme Court to Overturn Prior Affiliation Requirement for Candidates in Primaries — 6 Comments

  1. Janice Rogers Brown. Rogers Clark was Revolutionary War, Battle of Vincennes.

    Edelstein was actually a 7-0 decision. The 3 were in a concurring opinion.

    The Canaan decision in 1985 was based on the US Constitution. The California constitution was only mentioned in a footnote. San Diego at the time did not permit any write-in votes in the primary or the general election, and there was 5 months between the primary and the runoff. While Canaan was being considered, San Diego changed its charter to permit write-in’s in primaries.

    After the Canaan decision, the US Supreme Court in Burdick v Takashi upheld a practice in Hawaii that forbids write-in votes entirely.

    Edelstein was about San Francisco’s charter which forbade write-in votes in runoff elections. After reviewing Burdick, the California Supreme Court essentially overturned its Canaan decision.

    In considering whether the California Constitution provided greater free expression rights than the 1st Amendment, the opinion said, “However, plaintiffs have entirely failed to supply us with cogent reasons, and we have discovered none ourselves, to conclude that disallowing write-in voting in runoff elections violates the free speech clause of the California Constitution.”

    The concurring opinion in Edelstein concluded that the ban on write-in voting in San Francisco violated neither the US Constitution nor the California Constitution. It reiterated that the California Constitution could possibly provide greater protection to write-ins, but obviously did not come to the conclusion that it did.

    The distinction that the concurring opinion made was the time interval between the primary and general election in San Diego (5 months) and in San Francisco (a few weeks), and as such the concurring opinion would not overturn Canaan.

    It is an open question as to what, if any, electoral matters, the California Constitution provides greater protection than the US Constitution.

    PS Both the Canaan and Edelstein opinions agreed that the California statutes regarding write-ins did not apply to home rule cities of San Diego and San Francisco. This of course would not be true for statewide elections under the Top 2 Open Primary.

    Since State law explicitly provides voters may cast write-in votes, and candidates may campaign for write-in votes, and requires that ballots have write-in blanks, it is unlikely that a California court would uphold Elections Code 8605 even if it were not gibberish. While the courts would probably uphold a reasonable regulation that write-in candidates must formally declare their candidacy in order to have votes tabulated, it is in no way certain that they would approve a system in which candidates who had fully complied with filing requirements and received the most votes could not be elected.

  2. Chelene Nightingale in her bid for Governor of California has the same problem. She was a Republican untill early this year. Is she a recovering Repubican?

    Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party.

  3. Write in prohibitions are a blatant violation of 14th Amdt, Sec. 2 — regardless of the MORON appointed party hack Supremes.

  4. Richard Winger,

    Could a lawsuit like this take place in the AIP? Next,
    did he also sue the Republican Party in this lawsuit? If
    not why not? Does not the Republican Party have a right
    of free association? Does not the election code with the
    one year restriction of entry as a candidate in the Republican Party go along with the right of free association by the Republican Party? I believe the Republican State Central Committee has it own rules that
    have approved the California Election Code.

    Chelene Nightingale was a Republican in 2009. She has not
    as yet become a elector in the American Independent Party
    for the full year. Maybe she will use the same idea that
    Jim King lawyer came up with in King v. Bowen in 2008 that
    the use of the term of art “year” is not the “365 or 366 day year” or that “two years” is not “730 or 731 days”.
    It was rejected by Sacramento Superior Court Judge Kenny
    and I expect that Mr. Clark will get no where, just as
    attorney Robert Barnes got no where before Judge Kenny in

    Sincerely, Mark Seidenberg, Vice Chaqirman, American Independent Party

  5. So Chelene Nightingale does not qualify to run as AIP? She blogs about belonging to Constitution Party…but advises people to register AIP!!!! I knew something was fishy…ah well better luck next time Ms. Nightingale. and (honesty is the BEST policy.)

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