On September 19, the California Court of Appeals issued a 30-page opinion in Field v Bowen, A129946. It upholds the discriminatory law that allows members of qualified parties to list their party on the ballot, but does not allow members of unqualified parties to list their party on the ballot.
As to the law that says write-in space should be printed on the ballot, but that write-ins cannot be counted in November for Congress and state office, the Court said, “Including a line for write-in votes on a ballot when those votes will not be counted raises constitutional questions.” So, the Court, in an amazing display of judicial activism, “solved” the problem by ordering, “No lines or spaces for write-in votes for voter-nominated offices can be placed on general election ballots.”
Just to be clear, the Court was confronted with conflicting election laws. Section 8606 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.” But, section 15340 says, “Each voter is entitled to write the name of any candidate for any public office, including that of President and Vice President of the United States, on the ballot of any election.” And section 13207(a), “form of ballot” says, “There shall be printed on the ballot…the names of candidates with sufficient blank spaces to allow the voters to write in names not printed on the ballot.”
So, faced with two laws that said write-ins should be allowed, and one law that says they may not be counted, the Court arbitrarily told the Secretary of State to ignore the latter two laws. The Court did not say that sections 15340 and 13207 are unconstitutional; it merely dictated that these two laws should not be followed.
As to the party label issue, the Court simply said that in 1980, the California Supreme Court had upheld the old policy of only printing party labels on the ballot for candidates who had been nominated in the primary of a qualified political party. The Court did not grapple with the point that under California’s top-two system, parties no longer nominate candidates for Congress and state office, and the rationale for treating candidates for these offices differently no longer exists. And as to the prohibition of the word “independent” on the ballot for Congress and state office, the decision says the label “no party preference” is just as good as the word “independent”. But the Court did not explain any state interest in banning the word “independent”, and of course California law still allows the ballot label “independent” for presidential candidates who qualify for the November ballot by petition.
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Con Law 00001
Const prevails over mere laws.
Latest constitutional law applies.
How many centuries before the top 2 stuff ENDS in CA ???
2012 top 2 stuff in CA can NOT come quick enough.
How many of the now standard vague adjectives and adverbs were in the opinion – reasonable, compelling, etc. ???
One of these centuries perhaps a ballot access lawyer will get some brains about —
1. Separate is NOT equal [equal as in 14th Amdt, Sec. 1]. Brown v. Bd of Ed 1954
2. Each election is NEW and has ZERO to do with ANY prior election — except the number of actual voters in the election area involved.
Where is the CA const amdt petition to abolish the MORON primaries (of all types) and have —
1. Equal nominating petitions for all candidates to get general election ballots with or without a robot party hack label.
2. P.R.
3. App.V.
???
Mercy on the poor suffering voters in CA — with their EVIL powermad robot party hack MONSTERS in control of their lives, liberty and property.
The court focused on EC 13105, and not on EC 8205.5, and did not recognize the interplay between Proposition 14 and SB 6.
SB 6 was intended to implement Proposition 14, and therefore any ambiguity in language of the statute should be interpreted in favor of the People’s intent in amending their Constitution.
It is the express intent of Proposition 14 to comply with the US Supreme Court decision regarding the Washington Top 2 Open Primary. That decision determined that the party preference was an individual expression of the candidate, and did not represent an endorsement by political parties. The issue on remand is whether voters would be so confused by candidate’s making a personal political expression, that they would think it was an official party endorsement.
If candidates were limited to expressing opinions about “qualified parties” it would lead voters to believe that they were endorsed by qualified parties. Therefore such an interpretation of SB 6 in contrary to the legislative intent of the People in passing proposition 14.
It was the express intent of Proposition 14 that existing voter registrations that expressed a party affiliation be converted to party preferences. SB 6 added EC 2151(d) to govern conversion of voter registrations, and should therefore be the interpretation of a voter’s party preference.
Before Proposition 14, a voter was expressing future intent and aspiration on their voter registration, that they aspired for the named party to be qualified, and they intended to vote in the party’s primary. Such aspiration is not dependent on whether a party is “qualified”. Until quite recently voter registration forms did not list qualified political parties.
And this meaning is still operative. It can be presumed that your co-plaintiffs intend to vote in the presidential preference primary for the Reform and Social Action parties and in their respective parties party office elections next June, and they aspire that the two parties qualify.
It is legally unknowable whether either of these two parties will be qualified in the future. It is legally unknowable whether the Democratic Party will be abandoned (EC 5202) before next June. John Burton presumably aspires that the party continue to be qualified, and that he intends to vote in the primary, but his party affiliation status is indistinguishable from that of Jeff Mackler or Rodney Martin.
A voter who expressed his intent to affiliate with the Natural Law Party and who has not subsequently changed his registration, died, or moved from the State has not changed his expressed intention. That voter still intends to affiliate with the Natural Law Party. It is totally irrelevant whether “party leaders” have abandoned political activity through the party. That voter affiliated with a qualified party. It is a tortured interpretation that such a voter “previously declined to state a party affiliation”. They deliberately affiliated with the Natural Law Party and have not changed that affiliation.
Under terms of 2151(d) then such voters who had expressed their “intent to affiliate with” the Natural Law Party, or Democratic, Social Action, or Reform parties had that recast as party preference for their respective parties.
And the meaning of party affiliation as an “intent to affiliate” still is valid for presidential preference primaries. If the registration of Martin and Mackler were changed to “no party preference” then it would clearly interfere with their aspiration to participate in the Reform and Social Action presidential preference primaries. But it was the express intent of Proposition 14 that presidential elections continue to conducted in the same manner.
Elections Code 2151(d) which was added by SB 6, requires language to be printed on voter registration forms that a voter may vote for any candidate “regardless of the disclosed party reference of the registrant or the candidate seeking that office or the refusal of the registrant or candidate to disclose a party preference.”
Does Debra Bowen believe that a voter who writes on a voter registration form that they prefer the Coffee Party is refusing to disclose a party preference?
Isn’t the correct interpretation of these instruction that a voter may vote for any candidate not withstanding their preference for the Democratic Party or Coffee Party or any other party. Debra Bowen had the right to vote for Michael Chamness and Michael Chamness had the right to vote for Debra Bowen, and because it was a secret ballot, we don’t know whether or not they did.
It was the express intent of Proposition 14 that nothing in [Proposition 14] “shall restrict the right of individuals to join or organize into political parties.”
Denial of the ability to express a party preference for a non-qualified party is a restriction on the right of the voter to join into political parties. Therefore, SB 6 should be interpreted as not placing such a restriction on voters.
Debra Bowen and Dean Logan and Kamala Harris and Gautam Dutta have the relationship between a voter’s party preference and party being qualified backwards.
A party is qualified because sufficient individuals have expressed that party preference. Qualification is dependent on preference. They would instead have you believe that a voter who states on their voter registration affidavit that their party preference is the Coffee Party, sign it to certify that it truthful and correct, subject to perjury charges, is “refusing to disclose a political party preference”.
If the voter wished to not disclose a party preference they could simply check “[X] No Party Preference” which EC 2151(b)(2) requires to be printed on registration forms.
In addition, EC 2154(d) specifies that if a voter does not indicate a party preference that they have chosen “No Party Preference”.
The registration form has an active way to express No Party Preference; it has a default interpretation if no party preference is indicated. Do Bowen, Logan, Harris, and Dutta really believe if a voter skips over the “No Party Preference” box and writes in “Coffee Party” that they have “No Party Preference”, or that if they write “Coffee Party” it is the same as if they wrote nothing?
“Party Preference” is not dependent on the meaning of “Party” as the rule of interpretation in EC 400. Party Preference is of indefinite duration and exists outside the time period of a single primary election. Whether a party is qualified depends on the number of voters with that party preferences.
EC 400 is not a grant of some undefined set of “participation rights” in all primaries. It is simply a statement of how the word “party” should be interpreted unless the context requires another construction. As we have seen, the term “party preference” does not derive from the term (qualified) “party”, but rather party qualification is dependent on party preferences of voters.
Moreover, parties can not be said to “participate” in primaries for voter-nominated offices in any meaningful sense of the word. The whole purpose of Proposition 14 was to extinguish participation rights of political parties for these offices. Before Proposition 14, the California Constitution said that parties that “participated” in the primary for partisan offices had the right to have their nominee on the general election ballot.
It is quite clear that when this language was approved in 2004 (Proposition 60) that to “participate” in the primary meant to hold a primary segregated by party affiliation of the voters and candidates to choose the nominee of the party.
But under Proposition 14 parties no longer have nominees, and there are no longer primaries segregated by party affiliation of the voters and candidates to choose the nominee.
But Bowen and Dutta would have us believe that because a party was “qualified” to hold a presidential preference primary and have their presidential candidate on the ballot, that they were qualified to “participate” in primaries for voter-nominated offices.
But how were they “qualified” to “participate”? Were voters who preferred non-qualified parties not qualified to vote? Were candidates who preferred non-qualified parties not qualified to run? Of course not. Party preference was not a qualification for participation in a voter-nominated primary.
So Bowen and Dutta appeared to have invented the concept of a party being preferred as a “participation right” accorded only to qualified parties. I’m sure that John Burton sent out a memo to the state executive committee that the Democratic Party had participated in the recent congressional special election by being preferred by Janice Hahn and Debra Bowen.
And even if this construction of being the object of a preference could be construed from the statute, it is contrary to the Constitution because it is having regard for the party preference of the candidates, and is doing so in a discriminatory fashion.
Therefore qualified parties do not have an exclusive right to be preferred in voter-nominated primaries.
Elections Code 300.5 states that the party affiliation of a voter or candidate for a voter-nominated office is the party preference disclosed on his voter registration form.
Since “party preference” is defined in the sections of the Elections Code that define registration and party qualification, it is improper to interpret this as “(qualified) party preference”.
Qualification is dependent on party preferences; party preference is not dependent on a party being qualified. EC 300.5 is simply to ensure that the party preference of a candidate is consistent with their most recent expression of party preference as a voter. This is similar to the standard for the professional or occupational designation. If you claim to be a Lawyer, you have to actually be a lawyer; if as a candidate you want to have the ballot state that you “Prefers SalmonYoga Party”, then you must have established that preference as a voter prior to running for office.
Since a voter may have a preference for a non-qualified party, a candidate may have a preference for a non-qualified party; and further if a voter has a preference for a non-qualified party and he runs for office his preference as a candidate is for that same non-qualified party.
EC 13105 is dependent on EC 8002.5 “designated by the candidate pursuant to Section 8002.5”.
EC 8002.5 states that candidate on their declaration of candidacy may indicate the party preference on their most recent voter registration affidavit. Since a voter may state a party preference for a non-qualified party, then if he runs for office he may indicate that same party preference.
If the legislature did not want party preference of candidates tied to party preference of voters they would have said so. If they did not want a candidate who preferred a non-qualified party to have that name appear on the ballot, they could have said so in the bill.
SB 6 does provide for a role for qualified political parties in elections for voter-nominated offices. Elections Code 13302(b) specifies that “qualified political parties” may have endorsements appear on sample ballots. The legislature deliberately added the modifier “qualified” because the right to have endorsements is limited to qualified parties. In other words, the legislature used different interpretations of the word “party” when referring to “party preference” than they did when referring to sample ballot endorsement privileges.
Why do Mackler and Martin want to run as “Socialist Action” and “Reform” party candidates but appear on the ballot as “Independent”? What do their voter registrations say?
Didn’t Audie Boch, Lucy Killea, and Quentin Kopp run as actual independents? Boch and Killea had formerly run as candidates of other parties. I don’t know about Kopp. Had any run for other partisan offices, or only for supervisor and mayor, before he was elected as senator?
Is Dutta trapped as a matter of law and has to keep arguing the same way, even though by now he should realize that he and Bowen have been misconstruing the statute on party preference?
Demorep, there is nothing in the California Constitution about write-ins. This case has nothing to do with a piece of the Constitution overriding a statute.
Prop 14 seems to be a part of the CA Const — see also # 4 above — mere laws enforcing constitutions.
How soon before the gerrymander monsters clean up the CA Election Code — as noted in the court’s opinion ???
How many Einsteins are now needed to decipher Election codes in the various gerrymander regimes ???
How many MORON SCOTUS election law opinions since 1968 (many of them noted in the CA CT APP opinion) ???
END the EVIL.
P.R. and App.V.
NO primaries.
Good luck to any general election write-in candidates — noting Ms. M. in the AK U.S.A. Senate election in 2010.
#4: “If the legislature did not want party preference of candidates tied to party preference of voters they would have said so. If they did not want a candidate who preferred a non-qualified party to have that name appear on the ballot, they could have said so in the bill.”
This attributes more thoroughness and attention to detail on the part of the legislature than the facts seem to warrant.
The lingering party qualification law seems to me like another oversight by the writers of Prop 14, and its implementing legislation. Official recognition of any party seems inconsistent with the intent of Prop 14. (Another oversight is the big space between the primary election of the Top Two, and the general election of one of them by majority vote.)
As remedial legislation, why not have nonpartisan registration and permit candidates a reasonable space after their name on the ballot to state their party affiliation? Wouldn’t that make the process less complicated?
William J. Kelleher, Ph.D.
Internetvoting@gmail.com
Twitter: wjkno1
#7, the new write-in law was not part of Prop. 14. It was only in SB 6, which is an ordinary statute passed by the legislature only, not by the voters.
#8, thank you for that comment.
# 9 Gee – SB 6 was deciphered by the CA CT APP in connection with Prop. 14.
STANDARD stuff for the courts.
Laws enforcing Constitution sections – directly or indirectly.
Where is that Model Election Law ??? — with variant parts for —
1. Top 2 primary regimes – now in NE, LA, WA, CA — and hopefully taking over in ALL States – pending P.R. and App.V.
2. Regular robot party hack regimes — with Open / Closed primaries — hopefully soon to be DEAD in the political history graveyard along with divine right of kings and slavery.
#10, many election law terms are very fuzzy and imprecise. Generally speaking, “top two” refers to systems with party labels on the ballot. So Nebraska should not be on your list.
# 11 Where is that Model Election Law — with a zillion words defining each election law word or phrase ???
— so that even the dumbest MORON robot appointed party hack judge can rule quickly in any election law case — i.e. basically put election law lawyers OUT of business – to do something useful — do ambulance chasing, etc.
How many zillion top 2 *pure* nonpartisan election systems are in the U.S.A. ??? — mainly local at the moment — except in NE.
Did Dean Logan in his February 1, 2011 tabulation of voters count Michael Chamness as a “Other” voter, and not as a “No Party Preference” voter, and then a month later tell the Secretary of State that candidate Michael Chamness was, based on his voter registration, a “No Party Preference” candidate?
Prior to an election for a voter-nominated office, the Secretary of State is required to post a 10-year party affiliation history of each candidate on the SOS web site.
So before the June 2012 primary, this would cover the period beginning in June 2002.
If a candidate had been registered with the Peace&Freedom Party in 2002, would their registration history show that they had disclosed No Party Preference at that time, and then switched to the Peace&Freedom Party in 2003?
Or would Debra Bowen determine that the candidate had passively actively retroactively disclosed a preference prior to 2003.
If a candidate had been registered with the Reform Party in 2002, would their registration history show that they had disclosed a party preference at that time, and later passively actively retroactively decided to not disclose (ie hide) that party preference.
#8 It was the intent of Proposition 14 that presidential elections and party officer elections continue as they had in the past. This is explicit in the California Constitution.
It was quite deliberate that the party qualification scheme continue to work for presidential elections, from the way that parties “qualify”, to the partisan segregation of primary voters, to requiring independent candidates to collect bazillions of signatures.
Debra Bowen appears to have introduced the concept of “declined to state an affiliation with a qualified party”, which is a conglomeration of “declined to state an affiliation with any party” and “deliberately stated an affiliation with a non-qualified party, thereby declining to state an affiliation with a qualified party”.
The SOS has to use this complicated construction, even though it is unlikely that an ordinary voter can understand it, or voters could no long register with a non-qualified party, and it would be impossible for a party to qualify without collecting over one million signatures.
There used to be two ways for a party to maintain its qualification, receive a certain amount of votes in elections for State office, or maintain a certain registration level.
The adoption of Proposition 14 means that the elections by which a party maintains its qualification no longer exists. Instead a party must keep its registration above a certain level.
Currently, two parties are below that threshold level, and another party is just above.
After 2014, it is unclear what will happen. It is possible it will be impossible for small parties to re-qualify. Because the Secretary of State has decided that the definition of “party” excludes unqualified parties, it may be impossible for a voter to express a “party preference” for an unqualified party on their registration.
But since it was intended that presidential elections continue to be the same, voters must be permitted to register with unqualified parties.
The current law says that a candidate’s party preference is as they stated on their voter registration affidavit (8002.5). The only way I see to remedy this would be add a sentence that says “This really really means what it says”.
When the SOS recently proposed “remedial” language, they did not touch 8002.5, because that would admit that their current interpretation is in error.
Instead they specified the form of an application and said that is was based on 8002.5, with instructions that contradicted it.
Because of past court decisions, most of Division 7 of the Elections Code is non-enforceable; and Proposition 14 said that political parties were free to select presidential elector candidates however they wanted to.
So why was the recent election cleanup bill trying to amend EC 7100?
Was that something from the SOS? Was it from the legislative drafting staff? Assemblyman Fong? State Chair John Burton?
# 15 Is CA now THE most EVIL insane party hack robot regime with THE most classifications/types of offices and party groups — driving the courts even more nuts than usual ???
P.R. and App.V.
Would someone please clearify something for me. I heard that the reason the court determined that there would be write in lines on the primary ballot but not on the general election ballot was because the primary and general election was one election, not two and that the general was just the runoff part of that election. Therefore, the law requiring write-in lines was fulfilled. That sounds strange to me but then this whole case is strange. Nothing would surprise me.
Per EC section 338, “Party” means a political party or organization that has qualified for participation in any primary election. Does that mean that there are no longer any parties reccognized in California or does the word “any” include the Presidential primary?