California Legislature Passes Bill Eliminating Write-in Space from General Election Ballot for Congress and Partisan State Office

On January 30, the California Assembly unanimously passed AB 1413, which eliminates write-in space on general election ballots for Congress and partisan state office. The bill is now on Governor Jerry Brown’s desk. Assuming this bill is signed into law, California and Louisiana will be the only states that have ever had write-in space on general election ballots that no longer do have such space.

Most California legislators were, and are, under the impression that they were forced to pass this bill. These legislators erroneously believe that Proposition 14 (passed by the voters in June 2010, and part of the California Constitution) says that write-ins should not be allowed. Actually, Proposition 14 not only says nothing about write-ins, it puts language in the Constitution which strongly implies that write-ins must be permitted.

The California Constitution says, “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.”

The only possible argument that the California Constitution could tolerate the elimination of write-in space would be an argument that the June and November elections are the same election, but that is a weak argument. Federal law tells the states to hold congressional elections in November of even-numbered years, so the November event “is” the “election”; the election is not in June. Another reason the June and November events are not the “same” election is that the electorate is comprised of different individuals. Many voters are on the rolls in November in a particular district who were not on the rolls in June…voters who attained the age of 18, voters who moved into the district between June and November, voters who became naturalized between June and November, and individuals who hadn’t bothered to register in time for the June primary but who were registered for the November election.


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California Legislature Passes Bill Eliminating Write-in Space from General Election Ballot for Congress and Partisan State Office — No Comments

  1. Pingback: California Legislature Passes Bill Eliminating Write-in Space from General Election Ballot for Congress and Partisan State Office | ThirdPartyPolitics.us

  2. 14th Amdt, Sec. 2 is still part of the nearly dead U.S.A. Const.

    P.R. and nonpartisan App.V.

    NO more MORON robot party hack primaries — even top 2 primaries.

  3. “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.”

    This is not in the text of the Constitution. It is the preamble to Proposition 14, which represent the People’s intent in passing Proposition 14.

    You must interpret the above in the context of the rest of the preamble, since this sentence follows the one you quoted:

    “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.”

    Paragraph (b) says that any voter may vote for any candidate in the Open Primary; and paragraph (c) says that to prevent a voter from voting for any candidate based on the voter’s party affiliation is a denial of his right to vote.

    Paragraph (b) says that the top two vote-getters in the primary qualify to be candidates in the general election. Implicit in this is that those who don’t finish in the Top 2 do not qualify for the general election; along with any other persons who were not candidates.

    Under California law, a person must actually file for an office in order to be a candidate. If someone writes the name of a person who is not a candidate on their ballot, they are not voting for a candidate. SB 6 amended the section of the Elections Code that deals with write-in candidacy. The intent was to make it impossible for persons who had not advanced to Top 2 general election ballot from becoming a candidate, but did so in a clumsy way – saying that markings that indicate support for such a “candidate” would be treated in the same manner as markings that indicate support for a person who was not a candidate.

    AB 1413 amends Elections Code 8606 to say that no person may be a write-in candidate in a general election for a voter-nominated office. Since there can be no write-in candidates in a general election for a voter-nominated office, it is quite logical to not have a space that might induce voters to mark there ballot in a way that could not be counted – or might require election officials to spend countless time trying to determine if a voter had voted for a candidate in an irregular manner.

  4. #3, California courts, both federal and state, use the preambles of California constitutional amendments passed by the voters to help them interpret those amendments. So, functionally, the preamble is part of the constitution.

  5. Under the terms of Article I, Section 4, could Congress require States to conduct their congressional elections using a Top 2 Open Primary, with the primary held in June?

    Could Congress require States to conduct partisan primaries? If Congress can at any time make such regulations prescribing the manner of holding elections, why can’t the individual States? The fact that Congress has chosen a single date for the final choice of representatives and senators, does not preclude states from conducting earlier activities.

    If the June “event” is not part of the election of representatives, why did a unanimous Supreme Court rule in Tashjian that qualification of voters for representative and senators shall be at least as broad as that for the most numerous branch of the legislature?

    Was Smith v Allwright wrongly decided?

  6. #4 The courts will use the preamble to determine the intent of the voters in ratifying an amendment, so as to understand what the voters were trying to accomplish.

    No court is going to look at the sentence you quoted, and ignore the immediately following sentence that I quoted. That is, the voters of California enacted Proposition 14 for the purpose of ensuring that any voter may vote for any candidate in the process of electing the legislature, statewide officials, and congress, and they did so by implementing a process by which only 2 candidates advance to the general election.

    Since the preamble also specified that SB 6 was intended to implement the amendment, they will look at Elections Code 8606 to understand that it was the intent of the legislature, no matter how imperfectly it was implemented to not have write-in votes in the general election.

  7. On the other hand, BAN continues to overlook the changes that AB 2413 makes that are contrary to both the text and the intent of Proposition 14 and SB 6.

    On March 9, 2010, just 3 months before Proposition 14 was enacted by the People of California, the SOS office sent CCROV 10086 to county election officials to emphasize that voters registered with non-qualified parties could vote in the Republican and Democratic primaries in June.

    In June 2010, a voter registered with the Coffee Party (a non-qualified party), could request a ballot for the Democratic or Republican party. Had some misinformed election clerk attempted to deny this request because the voter was not a Declined To State voter, a quick call to the county clerk or SOS would have corrected the clerk’s error.

    The voter could then vote for some candidates and then vote For Proposition 14, which would permit the voter to vote for any candidate in future elections.

    The preamble of Proposition 14 says that it is the intent of the People that existing party affiliations be converted to party preferences.

    “Existing voter registrations, which specify a political party affiliation, shall be deemed to have disclosed that party as the voter’s political party preference unless a new affidavit of registration is filed.”

    SB 6 added Elections Code Section 2151(d) that prescribed that voter registrations that had stated a party affiliation would be recast as a disclosure of a party preference for the same party, and that Decline to State registrations would be converted to No Party Preference.

    In other words, voters who had previously been affiliated with the Coffee Party, and other non-qualified parties, had their voter registrations converted to a party preference for their respective parties.

    Some have have argued that Elections Code 338 which defines the meaning of the term “party” within the elections code, modifies the term “party preference” to mean a preference for a qualified party.

    This is an absurd construction. A party becomes qualified on the basis of sufficient numbers of voters expressing a preference for an unqualified party on their voter registration. If a voter could not express a preference for a non-qualified party, then a party could not become qualified, except via the more onerous petition method. A party which was previously qualified, such as the Reform or Peace and Freedom parties could not attempt to regain their qualification. It would deny individual voters their right to associate with like-minded voters, as well as unnecessarily restricting their opportunity for political expression. It has often been said that the purpose of the 1st Amendment is not to protect popular speech, but to protect unpopular speech.

    Happily, there is no evidence that the SOS is using this interpretation. The SOS has just released a report that states that 115,192 Californian voters have disclosed a preference for a non-qualified party, only 22,905 of which were for political bodies attempting to qualify, leaving 92,287 Californians who have disclosed a party preference for non-qualified parties that are not actively seeking qualification.

    Under California law, a political body that fails to qualify at the time of the 135-day report before a primary is considered to have abandoned their effort to qualify. So at present there are no political bodies, though it is quite possible that some of the groups will renew their effort.

    The preamble of Proposition 14 says that when a candidate files for office they shall have a choice to declare their party preference. SB 6, the implementing statute, says that a candidate’s party preference is the same as disclosed on the voter’s affidavit of voter registration.

    If the Secretary of State looks at a voter’s affidavit or voter registration and it says “Party Preference: Coffee Party”, and it is signed to certify that it truthful and correct, subject to perjury charges; on what basis does she believe that voter does not have the same “party preference” as a candidate?

    On what basis does the Secretary of State believe that the legislature had some other intent than the simple literal interpretation that a candidate’s party preference is that which they expressed on their affidavit of voter registration and signed to certify it as being truthful and correct.

    And even if SB 6 had said what the SOS is now trying to pervert it into saying via AB 1413, it would violate the California Constitution as amended by Proposition 14.

    By preventing voters whose party preference is for non-qualified parties from seeing candidates who have a similar preference, it is having regard, or taking into account the party preference of those voters. The clear intent of Proposition 14 is that California may not classify voters on the basis of their party preference.

    The California constitution requires that a candidate “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.” Manner is how the political party preference is presented on the ballot. California may not present in a manner which would lead a voter to believe it indicates nomination. By restricting candidates to only expressing a preference for a qualified party (it one that previously had “nomination rights”, and continues to have “nomination rights” for president) it would be more likely to believe it still indicates nomination.

    And the SOS leads to the unbelievable contradiction that a voter may have a party preference for a non-qualifed party, and yet as a candidate have no party preference.

  8. Ballot Access News » Blog Archive » California Legislature Passes Bill Eliminating Write-in Space from General Election Ballot for Congress and Partisan State Office – just great!

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