A Superior Court Judge in Alameda County, California, will hear Rubin v Bowen on Monday, October 29, at 9 a.m, in Oakland, 1221 Oak Street, Dept. 16. This is the lawsuit filed by the California Peace & Freedom Party, the California Libertarian Party, and the Green Party of Alameda County. This is the only lawsuit ever filed against any top-two system in which the chief issue is the voting rights of voters who wish to vote for minor party candidates in the election itself.
While it is true the Washington state Libertarian Party raised that issue in the federal case from Washington state, the voting rights issue was completely omitted from the oral argument in the 9th circuit. The only attorney who argued against the Washington state top-two case law in the 9th circuit devoted all his time (in the oral argument) to the freedom of association issue. The 9th circuit decision made little mention of the voting rights issue except to assert falsely that the U.S. Supreme Court had already disposed of that issue in 2000. The 9th circuit is obviously wrong about that, because Justice Scalia wrote the 2000 decision, and yet he dissented in the 2008 decision. What Scalia approved of in his decision in 2000 is obviously not the existing Washington state system.
The California lawsuit Field v Bowen did not concern the issue of a limited range of choices on the November ballot.
No tentative opinion in Rubin v Bowen has been issued yet.
Anybody still looking in the various constitutions regarding language that says that —
X percent of the voters in a FACTION have a constitutional RIGHT to have the FACTION’s candidate on the ballots with the FACTION name ???
GOOD LUCK in finding ANY such language.
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P.R. and nonpartisan App.V.
Abolish ALL primaries – plurality, top 2, whatever.
Equal nominating petitions.
ONE election.
The plaintiffs make the erroneous claim that Top 2 makes it harder for a political party to remain qualified. In fact, it makes it much easier for political parties to participate in elections.
The Secretary of State misinterpreted SB 6, and then managed to get the legislature to change the law to support her misinterpretation.
The new law violates both the US Constitution, California Constitution, and the specific Top 2 provisions in the California Constitution.
Before Proposition 14, voters would register their intent to affiliate with their party at the subsequent primary election. They could also Decline To State what their intentions were. A voter who registered as a Democrat in January was simply saying that they intended to vote in the Democratic primary in June. They were not saying that they were going to support the Democratic candidates in November or even vote for them. Such a restriction would be unconstitutional and impracticable to enforce.
If sufficient numbers of voters registered their intent to participate in a party’s primary, then a party primary would be held. Parties could also maintain their privilege to hold primaries based on past support for their nominees, but they first had to qualify based on registrations. If a party missed the election-support level, they had to requalify based on registrations, as the Peace & Freedom Party did.
Just because there was not a Constitution Party primary, did not mean that voters could not be registered with the Constitution Party. If a Constitution Party member ran for partisan office, he would have to qualify by petition. In Libertarian Party vs. Eu, the California Supreme Court ruled that it was constitutional for California to require candidates who qualified via petition to have “Independent” next to their name. This indicated that the persons who signed the petition had made the nomination independent of the partisan primary process, not that the candidate had “independent” beliefs.
It was quite possible for a candidate registered with one party, to be nominated by another party. For example, in 2008, Abel Maldonado, a registered Republican, sought the nomination of both the Republican and Democratic parties for the senate.
California maintains records of miscellaneous other party registrations. It regularly reports the aggregate number of such registrations. But if a party seeks to be qualified for a primary, it merely tells the Secretary of State and the county voter registrars go through the voter registrations and count those who had expressed the intent to affiliate with the party. 21 parties attempted to qualify for the June 2012 primary, and the number of voters affiliated with each was counted, ranging from over 20 thousand Reform Party registrants, to 2 parties that had zero voters.
A qualified party could permit voters that were not affiliated with a party holding its own primary to request a ballot for their primary. About 95% of such voters have No Party Preference (formerly Declined To State), so these voters are sometime mistakenly referred to as No Party Preference voters, or Declined To State voters, or “independent” voters. This is an error. The two groups of voters – Declined To State voters and voters affiliated with
parties that are not qualified to have a primary – are treated the same way for that sole purpose, conditional eligibility to vote in a partisan primary.
Prior to the 2010 June primary at which Proposition 14 was approved, the Secretary of State sent CC/ROV Memorandum 10086 to county election officials emphasizing that voters who were registered with non-qualified parties could request a ballot for a party qualified to hold a primary that had granted permission for participation. The Secretary of State, the defendant in this current case, thus acknowledged that voters could be affiliated with a non-qualified party, even when they voted in the primary of a qualified party.
Before Proposition 14, a voter’s party registration was what they indicated on their affidavit of voter registration, a document which voters are required to sign to indicate is truthful and correct, subject to prosecution for perjury. It is preposterous to tell someone who has completed a form indicating their intent to affiliate with the Constitution Party, that they could be prosecuted for perjury if that was not truthful, and then at some later date tell them they were not affiliated with any party.
Elections Code Section 338 has been cited as the reason for denying a candidate registered with a non-qualified party the right to have his party preference appear on the ballot. But that ignores Elections Code Section 4 which governs the overall interpretation of the Elections Code. In the context of voter registration, “political party” means what the voter indicates on their affidavit of voter registration. Otherwise, the procedures by which a non-qualified party becomes a qualified party does not make sense. Neither would the accounting of registered voters – the Secretary of State reports that as of September 7, 2012, that 7,478,915 voters had indicated a party preference for the Democratic Party and 19 for the California Pirate Party. Those voters either checked a box or wrote in the name of their party preference. And if a voter could not register with a non-qualified party, then CC/ROV Memorandum 10086 would not make sense.
Proposition 14 did not define “political party preference”. Instead it provided that it was defined in the implementing statute, SB 6; that existing voter party affiliations would be converted to party preferences; and the act conforms to the SCOTUS ruling in the Washington Top 2 case.
In that case, Washington Attorney General Rob McKenna successfully argued in the facial claim, that “party preference” was a personal political expression of the candidate – and did not indicate endorsement or nomination by the party that was preferred. The issue on remand for the as-applied challenge was whether voters would be confused in to thinking “Prefers Democratic Party” meant “nominated by Democratic Party’. The federal district court determined that voters would not be confused, a decision affirmed by the 9th Circuit. The SCOTUS declined to accept an appeal of those decisions.
If “party preference” in California were to mean preference for a qualified political party, it would increase the chance that a voter might believe that it indicated nomination, since only parties that formerly had nominating rights could be preferred (or the absurdity of a new party qualifying for non-existent nominating rights in order to be preferred). It would also mean that the State of California was restricting personal political expression.
SB 6 added Elections Code Section 2151(d) which defined the process by which existing party affiliations were to be converted to political party preferences. It divided voter registrations into two classes (1) affiliated with a political party; and (2) Declined To State. There is no distinction between qualified and non-qualified parties. Declined To State voters were converted to No Party Preference voters. Voters who were affiliated with the Democratic Party were converted to Prefers Democratic Party, those affiliated with the Constitution Party were converted to Prefers Constitution Party, and so on, without regard to whether the party was qualified or not, or even whether it was actively seeking to become qualified. There are probably around 10,000 voters who prefer the Natural Law Party.
SB 6 also added Elections Code 300.5
300.5. “Affiliated with a political party” as used in reference to a voter or to a candidate for a voter-nominated office means the party preference that the voter or candidate has disclosed on his or
her affidavit of registration.
Being more specific and newer, this Section supersedes Section 338 in reference to voter-nominated offices. There is no issue that Section 338 still applies to presidential elections and party officer elections. A voter who had expressed his preference for a non-qualified party, such as the Constitution Party on his voter registration, and then became a candidate for a voter-nominated office would be considered to be affiliated with the Constitution Party, and implicitly have a preference for the Constitution Party as a candidate.
The Secretary of State is attempting to interpretation of “voter political party preference” as “voter preference for a Section 338 political party”. But the statutes explicitly define “voter political party preference” as “what the voter designated on their affidavit of voter registration and signed to indicate was truthful and correct”.
SB 6 limited candidates for voter-nominated office to either having the party preference from their voter registration appear on the ballot, or having nothing (The State of California may not compel speech. It is analogous to designation of office/profession/occupation. A candidate may leave it blank. If a candidate does specify an occupation he must actually performed work recently. A political party preference is personal political expression, so it is essentially impossible for the State to determine accuracy. They can demand consistency with the voter registration (and California also presents a 10-year party affiliation history of candidates).
Debra Bowen misinterpreted this provision.
Some have suggested that “modicum of support” decisions such as Storer apply. But States are not required to have a high qualifying standard for candidates. Just because the SCOTUS says something is constitutional does not mean that it is a requirement or a good idea. California had found that modest petition requirements for non-partisan offices such as superintendent of public instruction or county supervisor are sufficient and now has applied them to all other offices except the presidency.
Since a candidate’s political party preference is a matter of personal political expression, the Secretary of State’s misinterpretation is in effect requiring candidates to only express more popular views. Moreover, it is requiring some candidates to falsely claim to have no party preference.
This is clearly contrary to the 1st Amendment. The purpose of the 1st Amendment is to protect unpopular speech. It is contrary to the intent of the voters in approving Proposition 14, which was that political party preference of voters be the same as their existing party affiliation, and that the party preference of candidates be identical to their party preference as a voter.
It also violates the amendment to the California Constitution made by Proposition which says that a voter may vote for any candidate without regard to the political party preference of the voter or the candidate. While a voter may put an X next to a candidate’s name, he may be less willing to do so if he is denied information about the political beliefs of the candidate.
In US Term Limits v Thornton, the SCOTUS ruled that requiring veteran congressmen to run as write-in candidates was tantamount to adding a qualification. Even though voters could still “vote” for the candidate it was harder to “vote” for them than other candidates. Preventing a candidate who prefers the Constitution Party from having that on the ballot makes it harder for voters, particularly fellow Constitution Party members to vote for him.
Making a distinction based on party preference, or even classes of party preferences is having regard for the party preference. If the voters don’t like a candidate, they won’t vote for him. The State of California has no right interfere in the voters liking or not liking the candidate.
“The 9th circuit decision did not mention the voting rights issue except to assert falsely that the U.S. Supreme Court had already disposed of that issue.”
Here is what the 9th Circuit actually said:
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B. Ballot Access Claims
The Libertarian Party argues that I-872 violates its fundamental right of access to the ballot by making it difficult for a minor-party candidate to qualify for the general election ballot. We review de novo the district court’s dismissal of these claims under Federal Rule of Civil Procedure 12(b)(6). See Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011).
When evaluating the constitutionality of ballot access regulations, we weigh the degree to which the regulations burden the exercise of constitutional rights against the state interests the regulations promote. See Libertarian Party of Wash. v. Munro, 31 F.3d 759, 761 (9th Cir. 1994). If the burden is severe, the challenged procedures must be narrowly tailored to achieve a compelling state interest. See id. If the burden is slight, the procedures will survive review as long as they further a state’s “important regulatory interests.” Nader v. Brewer, 531 F.3d 1028, 1035 (9th Cir. 2008) (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)) (internal quotation marks omitted). In determining whether the burden is severe, “[t]he question is whether ‘reasonably diligent’ minor party candidates can normally gain a place on the ballot, or if instead they only rarely will succeed.” Libertarian Party of Wash., 31 F.3d at 762; accord Nader, 531 F.3d at 1035. Here, the Libertarian Party acknowledges that it has broad access to the I-872 primary. To qualify for the primary ballot, a candidate — whether from a major or minor party — need only (1) file a declaration of candidacy and (2) either pay a filing fee equal to 1 percent of the annual salary for the office or submit a signature petition in lieu of the filing fee. See Wash. Rev. Code §§ 29A.24.031, 29A.24.091. The Libertarian Party argues, however, that its rights are violated because I-872 makes it difficult for a minor-party candidate to progress to the general election ballot. A candidate, whether from a major or minor party, can attain a place in the general election only by finishing in the top two in the primary.
The Libertarian Party relies on cases invalidating early filing deadlines for minor-party and independent candidates seeking access to general election ballots. In Anderson v. Celebrezze, 460 U.S. 780 (1983), the Court struck down a statute requiring an independent candidate for president to file a statement of candidacy and nominating petition in March in order to appear on the November general election ballot. The Court held that the early filing deadline placed an unconstitutional burden on voting and associational rights because it prevented independents from taking advantage of unanticipated political opportunities that might arise later in the election cycle and required independent candidates to gather petition signatures at a time when voters were not attuned to the upcoming campaign. See Anderson, 460 U.S. at 786, 790-92.
[8] By giving minor-party candidates access to the August primary ballot rather than the November general election ballot, I-872 poses, albeit to a lesser extent, some of these same concerns. I-872, however, is distinguishable from the ballot access rules invalidated in Anderson. First, the I-872 primary is in August, not March. Second, unlike the system challenged in Anderson, in which independent candidates were required to file petitions before the major parties selected their nominees, the Libertarian Party participates in a primary at the same time, and on the same terms, as major party candidates. Libertarian Party candidates thus have an opportunity to appeal to voters at a time when election interest is near its peak, and to respond to events in the election cycle just as major party candidates do. In addition, whereas conventional systems guarantee major-party candidates a place on the general election ballot, I-872 gives minor-party candidates the same opportunity as major-party candidates to advance to the general election.
[9] In light of these distinctions, we hold that I-872 does not impose a severe burden on the Libertarian Party’s rights. See Munro v. Socialist Workers Party, 479 U.S. 189, 199 (1986) (“It can hardly be said that Washington’s voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election.”). The Party has not shown that I-872 impermissibly “limit[s] the field of candidates from which voters might choose.” Anderson, 460 U.S. at 786 (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)) (internal quotation marks omitted). In addition, because I-872 gives major- and minor-party candidates equal access to the primary and general election ballots, it does not give the “established parties a decided advantage over any new parties struggling for existence.” Williams v. Rhodes, 393 U.S. 23, 31 (1968).
[10] We recognize the possibility that I-872 makes it more difficult for minor-party candidates to qualify for the general election ballot than regulations permitting a minor-party candidate to qualify for a general election ballot by filing a required number of petition signatures. This additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See Cal. Democratic Party v. Jones, 530 U.S. 567, 585-86 (2000). The district court therefore properly dismissed these claims.
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