Ninth Circuit Hears Arguments Over Ballot Labels in California

On February 13, the Ninth Circuit heard arguments in Chamness v Maldonado, 11-56303, over California’s law on partisan labels on the ballot in congressional elections and elections for partisan state office. California law puts party labels on the ballot if the candidate is registered in a qualified party, but all other candidates must have “no party preference” on the ballot. This is true for independent candidates, and also for candidates who are registered members of unqualified parties. The lower court had upheld this law.

The panel seemed unpersuaded that the U.S. Constitution requires states to permit all candidates to list their party of registration on the ballot, but they also seemed to feel that the mandatory label “no party preference” is not fair to candidates who hold themselves out as independent candidates. They also had some sympathy for members of unqualified parties who are not accurately described by that label. Judge Paul Watford suggested that requiring candidates to have “no party preference” is a form of forced speech, and such candidates should at least have the option to have no ballot label whatsoever. He also suggested that the label “Not affiliated with a qualified party” would be more accurate.

Judge Marsha Berzon was interested in the fact that California law recognizes “political bodies”. A “political body” is a group that has elected state officers, has filed the names of these officers with the state, and has notified the Secretary of State that it is trying to qualify. This point is important because it shows that unqualified parties in California do exist and do have a structure.

The attorney for the California Secretary of State said that it is easy to qualify a new party in California, a statement that is not true. Except for Americans Elect, no new party has qualified in California since 1995. California requires more registrations to get a newly-qualifying party on the ballot than any other state even requires signatures on a petition. Currently, California requires 103,008 registered members, or 1,030,080 valid signatures, whereas no other state requires more than 89,340 valid signatures. Furthermore, the deadline for qualifying a new party in California was held unconstitutional last year. No legislator so far has been willing to introduce a bill to replace the old law.

Here is a link to the audio for the hearing, which lasts about 45 minutes. Thanks to Mike Feinstein for the link.


Ninth Circuit Hears Arguments Over Ballot Labels in California — No Comments

  1. Gautam Dutta attempted to change the argument that he had made at the lower court level or in other cases. It should be remembered that it was Abel Maldonado’s lawyers who raised the possibility that Debra Bowen was misinterpreting SB 6, with regard to a candidate’s party preference.

    A “political body” is a temporary status, indicating that a political party is attempting to qualify for the next primary (since that was the only way to make party nominations, for offices other than president). As soon as the 154-day report to determine which parties are qualified goes out, the list of political bodies is expunged, and political parties must re-register.

    In 2010 at the time the SOS issued CC/ROV Memorandum 10086, only three parties had re-registered. There is simply no reason to interpret that memorandum as only applying to voters registered with the Federalist, Reform, and We Like Women parties.

    A voter’s party affiliation (or preference) is personal. At this instant, there is no way to determine whether the Democratic or Coffee parties will hold a primary (to elect county committees in June 2014). Either or both parties may not be qualified at that time. The Democratic Party might be abandoned, or choose not to hold party elections (in 2012, the Americans Elect party chose not to participate in either the presidential preference primary or party election, while the Libertarian Party eschewed the party elections, and had already chosen its presidential nominee). The Coffee Party might not qualify, or perhaps might not even attempt to qualify.

    All we know is that Debra Bowen and Michael Chamness have at this time expressed their intent on their voter registration to vote in their respective party’s primary. They may change their intent – the State of California may not change it for them.

    There is no reason to suppose that voters when they approved Proposition 14 intended to change the meaning of their party affiliation to have some meaning other than a personal expression of belief or intent. Proposition 14 said that existing party affiliations would be converted to a party preference. SB 6 said that DTS registrations would be converted to NPP, while all party affiliations would be converted to party preferences. There were no structural changes to the scheme of voter registration and party qualification made by SB 6. “party affiliation” (intent to affiliate with a party at the next primary) and “party preference” are two names for the same thing, and are not dependent on the party being qualified. Quite to the contrary, party qualification is derivative and dependent upon party preferences.

    While a State might adopt reasonable regulations regarding which parties a voter might register with, they don’t have to. California does require voters to sign their affidavit of voter registration indicating that the content is truthful and correct, but doesn’t bother counting registrations unless requested to do so. It has depended on a system of disclosure rather than more overt regulation.

    California might decide that a political party must exhibit some organized structure, that it has a non-confusing name, that it have rules, that it has responsible financial reporting, and that the party registrants have ultimate control over their party, and that they have biennial conventions.

    These are not that dissimilar to their regulation over corporations. California does not care what products or services a corporation produces, or whether it is profitable. It does reasonably require that its name not be confusing, that it has officers and board of directors that represent the corporation, that control over the corporation rests with the shareholders, and there are annual shareholder meetings.

    Just as California could not require a capitalization equal to Apple before a corporation could be recognized, it may not require 1,000,000 million signatures merely to permit recognition of a political party as a political party that a voter/candidate might prefer.

    But while California might reasonably adopt such regulations, they have not. They have chosen the alternative permitting unregulated write-ins on affidavit of voter registration.

    What Judge Berzon pointed out was that the current qualification standard was to establish nomination rights for the party. It would be equivalent to California requiring a contractor to demonstrate significant economic resources before they bid on a major construction project. But the State is no longer running nominating primaries for the parties, so there is no need to demonstrate that 100,000 voters have indicated their intent to vote in them (except for the presidential preference primary). The modicum of support standards simply are not applicable to recognizing a political party as such.

    It is clear that a voter’s party affiliation or party preference is simply what they write on their affidavit of voter registration. California’s whole scheme of party qualification is incomprehensible and unworkable if a voter were restricted to disclosing a preference for a qualified party.

    Elections Code Section 4 says “Unless the provision or the context otherwise requires, these general provisions, rules of construction, and definitions shall govern the construction of this code.”

    In the context of voter registration and disclosure of their party preference, the definition of “party” found in Election Code 338 does not make sense and is thus non-applicable. “party preference” is not the same as “preference for a Section 338 party”.

    Election Code 300.5 makes clear that when a voter becomes a candidate for a voter-nominated office, it is the “party preference” that they disclosed on their affidavit of voter registration that governs what their “party preference” is as a candidate. When SB 6 gave qualified political parties the authority to have endorsements appear in the sample ballot (Elections Code 13302), it explicitly stated that it was “qualified” political parties that had that authority, and deliberately avoided a dependance on the definition in Elections Code 338.

    Gautam Dutta and Debra Bowen would have you believe that Elections Code 338 somehow grants “participation rights” to qualified parties in all primaries. That is simply not true. With respect to non-partisan primaries, qualified parties are no different than non-qualified parties. Both types of parties may support candidates, candidates affiliated with either type may run for office.

    With respect to party committee elections, only qualified political parties may have state-supported elections, and voting is restricted to party registrants. With respect to presidential preference primaries, only qualified political parties may have them, and they may restrict participation to party members (which is the default under Elections Code 13102(c)).

    It can not be said that a political party is “participating” in a voter-nominated primary simply because a candidate prefers them. That would be like claiming that a cow is participating when a child points out the window of a car and says he likes cows. It doesn’t mean that cow likes the child, or has even taken notice, no matter how thoughtful the cow looks as he chews his cud. The whole purpose of Proposition 14 was to extirpate participation rights of political parties for voter-nominated office.

    SB 6 permitted both candidates who had a party preference and those who had none to have that omitted from the ballot. That is consistent with the practice with regard to office/occupation/profession designation, which is optional. The denial of that option is not only forced speech, but is contrary Article 2, Section 5(b) of the California Constitution, which says a candidate may have his party preference on the ballot. If a candidate has the option to have that information on the ballot, then clearly they have the option to not have it appear on the ballot.

    I don’t think the Peace initiative can be considered the draft for the party preference aspect of the Open Primary. It would have eliminated voter party registration. It also introduced the terms ‘major party’ and ‘minor party’, but did not define their meaning. California does not make a legal distinction between qualified parties with more registrants and those with less registrants, so there is no reason to expect that the intent was to relegate the Libertarian, Green, and Peace&Freedom parties to minor party status. It could have been intended that a new party could have ‘minor party’ status.

  2. Jim Riley writes in comment #1 that “California does not make a legal distinction between qualified parties with more registrants and those with less registrants, so there is no reason to expect that the intent was to relegate the Libertarian, Green, and Peace & Freedom parties to minor party status”.

    Prior to the passage of Prop 14 and its concommitant putting into effect of SB 6, the California Elections Code provided a different standard for signatures in lieu for candidates of small parties (those with registration less than 5% of the total, by the former EC 8106(a)(6)) than for other candidates.

    Doing away with that provision made it effectively impossible for candidates of small parties even to run, unless they paid a substantial filing fee just for the opportunity to be on the ballot in a low turnout June election. For candidates from larger parties, it’s both easier to get the signatures (because even with the nominally non-partisan petition, many voters ask what party a candidate is from and will refuse to sign for a candidate from a party other than their own) and less necessary (because the larger parties have party money and fundraisers, and the greater likelihood of the candidate’s winning office makes self-interested donors more likely to give). Thus identical rules for ballot qualification for candidates of small parties and large parties are inherently biased in favor of the large parties. As Anatole France wrote, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”.

    This alone would make Prop 14 and its implementation biased against smaller parties, whether or not that was the intention of its sponsors and whether or not that was the intention of those who passed it (both in the legislature and at the polls).

  3. #2 Steve Peace had prepared an initiative petition that would have implemented a Top 2 Open Primary. It has been claimed that it was the model for the legislation that ultimately became SB 6.

    But with regard to the party preference of voters and candidates in a Top 2 Open Primary, it can not be considered as the model. Why? Because it would have done away with party registration. If there is no party registration, there is no basis for determining if a candidate prefers a party based on his voter registration. And of course there would be no way to determine if a voter signing an in lieu of petition was registered with the party.

    So we can’t base an interpretation of SB 6 on a similar proposal. We have to go with what SB 6 actually said.

    And it said that a candidate’s party preference for a voter-nominated office is what they disclosed on their affidavit of voter registration.

    Michael Chamness disclosed on his affidavit of voter registration that he preferred the Coffee Party (this is not quite accurate, since he changed his affiliation before January 1, 2011. He stated his intent to affiliate with the Coffee Party at the next primary in 2012. Dean Logan converted this to a party preference for the Coffee Party on January 1, 2011; but should have treated it as party preference for the special senate election.)

    When Chamness filed his declaration of candidacy for the senate, he should have stated that his preference was for the Coffee Party. Unfortunately, he got bad legal advice and a bad lawyer.

  4. #3, in #2 I wasn’t addressing the overall argument of #1 about interpretation of SB 6 and Prop 14 and how they differed from the Peace initiative that never made it to the ballot.

    I was just stating that the quoted sentence was incorrect, that prior to Prop 14, SB 6 (effectively) and its cleanup legislation (literally), there WAS a legal distinction between smaller parties and larger parties in California election law. However, Prop 14 and its implementation legislation did away with that distinction, in a way that hurt smaller parties.

    Whether or not Peace’s initiative’s treatment of “major” and “minor” parties explicitly favored “major” parties, if it did away with the reasonable signature in lieu requirements for smaller parties and forced them to use the unreasonable signature in lieu provisions that previously applied only to candidates of the larger parties, it too was biased against smaller parties. (Note that “smaller parties” in the California Elections Code was all ballot-qualified parties except the Democrats and Republicans, not just the three named in #1.)

  5. The above posts are just dealing with side issues. The
    case main issue is that Mr. Chamness used the Coffee
    Party to advertise an old coffee house in San Francisco.
    viz., “Chamness Coffee”. The main issue is Chamness
    was trying to confuse California Electors by using part
    of the name of American Independent Party, viz., “Independent”, without being registered as American Independent.

    Sincerely, Mark Seidenberg
    Vice Chairman, American Independent Party of California

  6. I’ll address the in lieu of signature requirements in a separate note. It is not an issue that Michael Chamness has raised, nor was it at all applicable to his situation.

    #4, The quoted sentence was in a paragraph where I was discussing the Peace initiative. In the hearing before the 9th Circuit, Gautam Dutta had mentioned it as part of his arguments. While that initiative may have been the model for the Top 2 Open Primary, it can not be seen as having any relevance to how party preference was implemented in SB 6.

    In the original case, two of plaintiffs claimed that they wanted to be the candidates of the Reform Party and some other party. The intervenors in their brief noted that it was a reasonable interpretation of SB 6 that they could run for office as preferring the Reform Party. During the hearing, Dutta started arguing that they should have been able to run as Independents.

    During the hearing before the 9th Circuit he attempted to switch to arguing that Chamness should have been permitted to run preferring the Coffee Party. It may have been because Judge Berzon said that she had not only read the opinion in ‘Libertarian Party v Eu’, but had read it carefully.

    We don’t know if the Peace initiative had gone forward and been approved by the voters, whether Chamness would have been able to run as preferring the Coffee Party, or as in “Independent”, because we don’t know what the definition of a minor party would have been, nor the conditions for filing as in independent.

  7. Back to the in lieu of requirements.

    #4 A candidate for a voter-nominated office is not running as a candidate of any party; nor is he seeking the nomination of a political party. Under the old partisan primary system, there was some merit to a candidate seeking nomination of a party to gather signatures of persons affiliated with the party to place him on the primary ballot.

    But for a voter-nominated office, just like a nonpartisan office, all candidates are seeking election from the entire electorate, and it reasonable to expect them to be able to gain signatures or financial support from the entire electorate. Just because someone has political viewpoints that are so unpopular that no one will support the candidate is not a reason to make it easier for a candidate to qualify.

    If the in lieu of signature requirement for a candidate for Los Angeles County supervisor are reasonable, then they are reasonable for a candidate for legislative office (scaled for the different size of the electorate).

    If they are not reasonable for a candidate for Los Angeles County supervisor, then they should be changed.

    I think a quite reasonable argument can be made that it should be at least as easy to qualify by collecting signatures, as it by collecting cans along the road. With a signature worth only $0.25 for Los Angeles County supervisor, it is dubious whether that test can be made.

    I don’t really understand the point of tying filing fees to the salary of an office. This leads to absurd situations where it costs just as much to run for state assembly as state senate, but the senate candidate has to gather more signatures. It also is absurd to have a fixed value per signature for county supervisor, but a fixed signature count for legislator.

    So as county salaries are increased, the number of signatures increases; but when legislative salaries increases, the value of each signature increases. The value of an assembly signature is now about 2-1/2 times the value of a county-office signature.

    So I would base filing fees on the registered voters. Let’s say one mill per voter.

    That would make the filing fee for statewide office about $18,246; Congress from $203 to $466 ($345 average); Senate ($272 to $604, average $456); Assembly ($130 to $310, average $228); Los Angeles County Supervisor ($785 to $1040, average $952).

    Then value an in lieu of signature at 10 minutes of minimum wage work ($8.00/60*10)=$1.33. This would mean statewide, 13,684; Congress (173 to 350, average 259); Senate (204 to 453, average 342); Assembly (98 to 233, average 171); Los Angeles County Supervisor (589 to 780, average 714).

    For Congress, this would make the filing fee about 1/5 of what it is now, and in lieu signatures about 1/12); For senator 1/2 of the fee, about 1/8 the signatures; For assembly 1/2 of the fee, about 1/8 the signatures; Los Angeles County Supervisor, about 1/2 the fee, 1/10 of the signature.

    For US Senator, the fee would be about 5 times as high, and the signature requirement about 30% more, but it is not unreasonable given the size of the state.

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