On February 11, the Board of the ACLU of Northern California resolved to oppose Proposition 14, the “top-two open primary” that is on the ballot in June 2010. The ACLU had also opposed a similar measure in California in 2004, Prop. 62, and Prop. 62 was far kinder to minor parties than 2010’s version.
Prop. 62 in 2004 cut the number of registrants needed for a party to attain, or keep, party status to one-third of 1% of the last gubernatorial vote. Also, Prop. 62 permitted write-ins in November, even for candidates who had run in the primary and not placed first or second.
By contrast, Prop. 14 in June 2010 leaves the registration requirement at 1%, and does not permit write-ins to be counted in November for Congress or state office. Because Prop. 14 abolishes the 2% vote test for a party to remain on, all parties would need to keep their registration above 1%.
So after everything is settled and this proposition succeeds, this will leave us with the Democratic Party, the Republican Party, and the American Independent Party (2.26%) in California. Gone will be the Libertarians (0.36%), Greens (0.66%), and the Peace and Freedom Party (0.26%). Is this correct?
John, that’s what we think — except that I don’t think Prop. 14 has to succeed. I think we can beat it.
Small parties generally get a vote for one or more statewide candidates that is substantially larger than their registration, so 2% of the total vote for a candidate test is an easier test to meet than the 1% registered with your party. Prop. 14 makes the 2% test go away. Under the 1% test, after the 2006 election both the Libertarians and Peace and Freedom would have been kicked off the ballot. Both stayed on because they had candidates who got over 2%.
In addition, I think that Prop. 14 would decrease the number of voters who register as members of any political party, because doing so would no longer give you access to partisan primaries. That would soon put the Greens in trouble as well.
Finally, the percentages you give are percentages of all registered voters. The 1% you need to stay on the ballot is 1% of total turnout in the gubernatorial years (2006, 2010, etc.). In 2006 that number was 88,991.
Meaningless details. This is pure FASCISM. Every democratic nation on the planet earth has all political parties on a general election ballot.
I do not like to overuse the word “fascism.” However, that is definitely the direction that “top-two primaries” takes the country in (by effectively eliminating minor party candidates from general elections).
Proposition 62 explicitly permitted candidates to only express a preference for a ballot-qualified party. In turn, it reduced the percentage of voters who had to register with a party to maintain its “ballot qualification”.
In retrospect, it is fortunate that Prop 62 failed. It would be difficult to defend a claim that the name of the party did not indicate that the candidate was a nominee of the party, when you retain the qualification for nomination as being the same for expressing a “preference”.
In addition, Rob McKenna and Sam Reed are much abler proponents for Top 2 than Jerry Brown and Debra Bowen would have been.
The ACLU apparently believes that SB 6 does not permit a candidate to have the party preference disclosed on their voter registration appear on the ballot. The question for the ACLU, Richard Winger, Steve Peace, and the county election officials, is what changes would be necessary to SB 6 to allow any candidate regardless of their party preference expressed on their voter registration to have that preference appear on the ballot?
SB 6 leaves in place the right of a voter to cast a write-in vote and for a candidate to run as a write-in candidate. It maintains the requirement that all ballots for all offices for all elections have a space for marking write-in candidates. It does not change the procedure by which a write-in candidate makes a statement of write-in candidacy in order that write-in votes for that candidate be counted.
It makes it easier for a write-in candidate in a primary to qualify for the general election by removing the 1% requirement.
So why does Richard Winger believe that there can not be a write-in candidate in the general election for a Top 2 office? Quote the actual language of SB 6 that would support such a conclusion.
P.R. and nonpartisan A.V.
NO primaries are needed.
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Are top 2 NONPARTISAN primaries somehow *fascist* ???
For any MORONS on this list —
Majority Rule = Democracy
minority rule = monarchy (by 1) or oligarchy (2 or more but less than a majority)
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Direct or Indirect — for legislation especially.
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Constitutional or non-constitutional regimes (U.K. regime).
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Limited or UN-limited (U.K. regime again — i.e. NO *rights* are safe in the U.K.).
The anti-write-in language of SB 6 is “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.” This was written by former State Senator Steve Peace, who told me his intent is to ban write-in candidacies in November because they have a potential to “make mischief.”
# 5, 7 14th Amdt, Sec. 2 is still part of the nearly dead U.S.A. Constitution.
How many write-in votes before 1868 — when handwriting was a whole lot better than now ???
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Does the ENTIRE election law of a State have to be put into the State’s constitution to prevent the EVIL party hacks from subverting it ??? — i.e. lots of Steve Peace mischief type New Age machinations by the EVIL party hacks doing their EVIL worse to stay in power by all possible ways and means.
What does it mean for a “person” to “not be counted”?
In an election, candidates may be (not) elected and vote may be (not) counted. Who has the foggiest idea what it means for a “person [to] not be counted”
California election law specifically protects the right of a voter to cast a write-in vote; as well for a person to run as a write-in candidate. California election law requires that there be a space for write-in candidates. It has a specific procedure that a candidate who wishes write-in votes for him to be tabulated, must comply with.
If we assume that the gobbledygook section means that a “vote for a person whose name 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.”, then we have a contradiction.
Voters may cast a write-in vote; candidates may run as write-in candidate; the state shall provide ballots with a space for write-in votes; candidates may fully comply with the law so that write-in votes will be counted; the secretary of state is required to distribute the names of the declared write-in candidates but the votes can’t be counted???
If we assume that the gobbledygook section means that a “person whose name name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be elected“, then we have a different contradiction.
Note that this construction is parallel to the preceding section of the Elections Code where a declared write-in candidate in a primary might not be nominated under certain circumstances:
In a partisan primary, if the declared write-in candidate does not have the most votes, or if he has the most votes but it is less than 1% of the vote cast for governor in the district at the last election, the write-in candidate is not nominated.
In a voter-nominated primary, if the declared write-in candidate does not finish in the top 2 (plus ties), then he is not nominated.
But in either case, the votes for the declared write-in candidate are first tabulated (counted) and then an interpretation is made as to the meaning of the counted votes.
So we have the possibility that a write-in candidate had properly declared his write-in candidacy, the secretary of state had distributed his name to the county election officials, that county election officials had included a space for write-in candidates, and more voters had cast write-in votes for that candidate than any other, and the candidate won’t be elected? What rational other than duplicity does the State of California have to enact such a law?
The Top Two Open Primary Act does not say that it will produce a majority for the winner, and it has explicit provisions which may result in three or more candidates being nominated and appearing on the ballot.
Just because California is concerned about “mischief” does not mean that they can enact contradictory and/or unconstitutional laws.
California could have sore loser provisions if it was concerned about “mischief”. For example Washington State does not permit a loser (including declared write-ins) in the primary to file as a declared write-in candidate in the general election.
The California Supreme Court in Edelstein v City and County of San Francisco took away all protection for write-in votes in the second round of elections. The court interpreted two-round elections to be really just one election, and said the statutory language guaranteeing write-ins in all elections doesn’t apply to the second round of such elections.
So, there is no constitutional protection for write-ins, and if the voters pass Prop. 14, bye-bye voter freedom in November.
#10 — 14th Amdt, Sec. 2 is still part of the nearly dead U.S.A. Constitution.
How many write-in votes before and after the 14th Amdt in 1868 ???
The Edelstein court first made the decision that San Francisco was in compliance with Elections Code 15340 and 15341, because it said that the municipal election and the runoff were two stages of a single election. San Francisco did permit write-ins in the municipal election (in the particular election at issue, a write-in candidate had qualified for the mayoral runoff).
But the court apparently ignored Elections Code Section 318, in coming to the conclusion that San Francisco’s runoff was the 2nd stage of a single election. Section 318 clearly defines an election (singular) to in include a primary (singular). Alternatively, the court made a distinction between the case of a primary and a general election, and the case of a general election and a runoff. Certainly making a statement of write-in candidacy available 57 days before the runoff is problematic.
I think that the Edelstein court may simply have wanted to duck the issue whether the 15341 and 15342 applied to a chartered city. In the Canaan case, the Supreme Court had no problem whatsoever deciding that because San Diego was a chartered city that the state statutes did not apply.
The concurring minority in Edelstein clearly distinguished between the circumstances in San Diego where there were 5 months between the June primary and the November general election; and San Francisco where there was only a month. The minority said they were unable to discern whether the majority opinion was overturning Canaan or not. So it is clearly inconclusive whether there is a constitutional right to cast a write-in vote in a November election, where nominations are made in a June primary.
If one makes the interpretation that a primary and a general election are two stages of a single election, then there is no basis in the Elections Code for permitting write-ins in both the primary and general election of either a partisan or a non-partisan election, and the Secretary of State and election officials have simply been making up procedures for permitting write-in votes at both elections.
Do you believe that you have a statutory right to cast a write-in vote in a partisan primary in June (assuming you are qualified to otherwise participate in the primary for that party) AND cast a write-in vote in the general election in November for the same office? Similarly do you believe that you have a statutory right to cast a write-in vote in a non-partisan primary in June (for the Superintendent of Public Instruction) and to also cast a write-in vote in November for the same office, assuming of course that no candidate received a majority in June?
Clearly you do, or you would not be arguing that SB 6 somehow removes that “voter freedom” in November. Presumably you believe that you have that statutory right, based on Sections 15340-15341, 13, 13204, and 13207. Correct?
And Edelstein and Burdick v. Takashi are inconclusive with regard to a constitutional right under the specific situation where there is a 5-month gap between the primary and the general election; where it is required that all ballots have a write-in space; where there is a procedure for making a statement of write-in candidacy that is applicable for all elections; where it is required that write-in votes for declared write-in candidates be tabulated; or supposed prohibition on write-in candidates being elected is gobbledygook.
In a partisan primary, votes cast for declared write-in candidates are tabulated. It is after they are tabulated that it is determined whether or not the declared write-in candidate is nominated. The candidate has a right to campaign for nomination and have his vote tabulated, and the voter has a right to write his name on the ballot and have that the vote tabulated. Just because the candidate might not be nominated, does not extinguish those rights.
It is not constitutional for California to provide that a voter may cast a write-in vote, that a candidate may campaign for write-in votes, that a space be provided on all ballots for write-in votes, that a write-in candidate may fully comply with the filing requirements such that his write-in votes will be tabulated AND then refuse to tabulate the votes.
Alternatively it is not constitutional for California to tabulate the votes, and then refuse to recognize the candidate who receives the most votes as being elected.
And finally, SB 6 is statutory law. Its provisions can be changed regardless whether Prop 14 is approved or not.