California Political Blog Believes Mayor of Ontario, California, Injured his Chances by Opting to be “No Party Preference” on Ballot

Scott Lay runs a well-read blog about California politics news called AroundtheCapitol. On June 6 he expressed the opinion that Ontario, California Mayor Paul Leon injured his chances in next month’s special legislative election, by changing his registration from Republican to Independent. Under California’s law governing ballot labels for independent candidates, he must now have the label “no party preference” on the ballot. A lawsuit is currently pending in the 9th circuit, Chamness v Bowen, that challenges the law that requires independent candidates to have that unattractive label on the ballot.


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California Political Blog Believes Mayor of Ontario, California, Injured his Chances by Opting to be “No Party Preference” on Ballot — No Comments

  1. California’s law on top-two party labels is entirely different from Washington state’s law. Washington lets the candidate choose any label as long as it is 15 characters or less, and is not obscene. But California says all candidates who aren’t members of ballot-qualified parties can only have “no party preference.” This is probably one reason the various California independent candidates for Congress and legislature in 2012 all failed to win. Some of them were county supervisors, or mayors, or past legislators, but they all lost. By contrast, in 2012, 25 minor party or independent candidates for federal and state office in states that don’t use top-two were elected.

  2. Michael Chamness had completed a new voter registration affidavit indicating his party preference as the Coffee Party. Previously he had been affiliated with the Green Party, having been elected in 2010 to the Los Angeles County central committee, and previously was the Colorado state chair. It is disingenuous to claim that he was seeking to be recognized as an “independent”.

    Listen to the audio transcript where Justice Berzon emphasized that she had read the opinion in Libertarian Party v Eu carefully implying that Gautam Dutta had not.

    Chamness would have had a stronger case if Dutta had argued that Debra Bowen was misreading the clear language of SB 6. But that would not have suited Dutta’s goals which is to be a wrecker.

    California election law simply makes no sense if a voter is not able to state a preference for a non-qualified party (before Proposition 14, stated an intent to affiliate with a non-qualified party). California law specifically requires election officials to tabulate the number of voters affiliated with (having a preference for) non-qualified parties.

    The Secretary of State’s office prior to the 2010 June primary at which Proposition 14 was approved sent out an advisory to county election officials to emphasize the distinction between voters who Declined To State (DTS) and voters who had expressed an intent to affiliate with a non-qualified party. Training materials for election clerks also make the distinction.

    “party preference” for a voter is what they indicate on their affidavit of voter registration, then sign to certify that it is truthful and correct.

    SB 6 said that the party preference of a candidate for a voter-nominated office is what was on their affidavit of voter registration. There is simply no reason to invent some other definition of “party preference” when there is a clear and consistent meaning.

  3. Jim Riley wasn’t in the courtroom when Chamness v Bowen was argued. I was in the audience. Jim Riley has listened to the oral transcript but he didn’t see the expressions on the faces of the three judges; I did. Judge Berzon, from my perspective, was thinking things through, and after a few minutes she came to the conclusion that Libertarian Party of California v Eu, the 1980 California Supreme Court opinion, doesn’t control this situation. That was a very good sign for Gautam Dutta, who is an excellent and honorable attorney who has worked very hard to bring about justice in this matter of discriminatory ballot labels.

  4. Independent candidates have been reasonably successful in Louisiana. You are using trickery here because Louisiana elects its legislature every fourth year in an odd year.

    Success for independent and minor party candidates is more likely to occur in small districts outside large urban areas, where personal campaigning may be effective.

    California has the largest legislative districts in the country with huge sprawling metropolitan areas with many districts.

  5. Nevertheless, before California had top-two, minor party and independent candidates for the legislature were elected in 1944, 1986, 1990, 1992, 1994, and 1999. A minor party member of Congress was elected from San Francisco in 1936. Minor parties elected dozens of candidates in 1914, and some in 1912 and 1916. A minor party gubernatorial nominee was elected in 1914.

  6. Gautam Dutta’s claim on behalf of Michael Chamness is based on a misreading or a misrepresentation of Libertarian Party v Eu, along with a misrepresentation of Elections Code 325.

    Gautam Dutta made the following claim on behalf of Michael Chamness:

    39. SB 6-amended Elections Code Section 325 requires that all candidates and voters “of independent [i.e., minor-party]fn 18 status” be listed on the ballot as having “No Party Preference”. fn19 That is, SB 6 explicitly bans minor-party candidates from stating on the ballot that they are “Independent” – which the qualified-party election system had previously allowed them to do.”

    Elections Code 325 did not require anything. Elections Code 325 defined the term “independent status” to mean that a voter had either indicated No Party Preference (EC 2151) on their affidavit of voter registration, or that they had made no indication of party preference on their affidavit, and it is presumed they had No Party Preference (EC 2154).

    Michael Chamness did not indicate on his affidavit of voter registration that he had No Party Preference, nor did he indicate that he Declined To State an intent to affiliate with a party at the next primary, nor did he leave the party space blank. He indicated an intent to affiliate with the Coffee Party at the next primary. After January 1, 2011, this was converted to a party preference for the Coffee Party.

    The remainder of the Elections Code did not use the term “independent status”. That is, Elections Code 325 defined a term that was not used elsewhere. It has since been removed.

    So Michael Chammess did not have “independent status” even if the term “independent status” had been used elsewhere in the Elections Code

    Footnote 18 reads:

    The California Supreme Court defined an “independent” candidate as a nonqualified-party (minor-party) candidate. Libertarian Party v. Eu, 620 P.2d 612, 28 Cal.3d 535, 540 (Cal. 1980) (defining an independent candidate is one who is “independent of qualified political parties”) (emphases added).

    Libertarian Party v. Eu did not define an “independent” candidate as a nonqualified-party (minor-party) candidate. California Elections Code does not use the term “minor party”. Quentin Kopp was not a nonqualified-party candidate. Lucy Killea was not a nonqualified-party candidate. Audie Bock was not a nonqualified-party candidate. David Bergland was the candidate of a non-qualified party. All four of these candidates were listed as “Independent” on the ballot (or would have but for an injunction) because they had been nominated by petition independent of any party.

    Gautam Dutta was either misreading Libertarian Party v Eu or misrepresenting what it said or meant.

    Footnote 19 reads:

    Only registered voters may run for state and federal office. SB 6-amended Elections Code §325 mandates that all voters “of independent status” be listed as having “No Party Preference”. Further, if a candidate’s voter registration card states that he or she has “No Party Preference”, his or her declaration of candidacy must also state that he or she has “No Party Preference.” SB 6-amended Elections Code §8002.5(a). Finally, if a candidate’s declaration of candidacy states that he or she has “No Party Preference”, then “No Party Preference” must be printed beside his or her name on the ballot. SB 6-amended Elections Code §13105(a).

    Elections Code 325 did not mandate that certain voters “be listed”. It defined the term “independent status” in a way that excluded Michael Chamness.

    If it mandated that certain voters be “listed”:

    Who would cause the voters to be “listed”?
    What does it mean to be “listed”?
    Where would the voters be “listed”?
    When would the voters be “listed”?
    Why would the voters be “listed”?

    Michael Chamness’s affidavit of voter registration does not state that he has “No Party Preference”. Michael Chamness stated that he prefers the Coffee Party, and signed it to certify that it is truthful and correct. I very much doubt that Dean Logan took white out and changed “Coffee Party” to “No Party Preference”. And I doubt very much that Dean Logan is tabulating Michael Chamness’s registration as “No Party Preference” rather than “Non-qualified Party Preference”

  7. The Progressive Party was not a minor party in 1914, when Hiram Johnson was re-elected governor. He had been elected governor in 1910 as a Republican, he was the Republican Vice-Presidential candidate in California in 1912, and was elected to the US Senate as Republican in 1918. Hiram Johnson favored Top 2.

    Franck Havenner was cross-nominated by the Democratic and Progressive parties in 1936. He was elected or defeated as a Democrat in 1938, 1940, 1944, 1946, 1948, and 1952.

    Quentin Kopp was indeed elected as an independent in 1986. He had narrowly lost a (top 2) runoff to Diane Feinstein for mayor of San Francisco in 1979, and was well known, and the Republican candidate essentially received no votes. He was the first non-incumbent independent senate candidate to be elected since 1878.

    When he was re-elected in 1990, he was the first independent ever re-elected to the senate. In 1994 he was re-elected a second time.

    There is no reason to believe that he would not have been elected under a Top 2 system.

    Lucy Killea was elected as a Democrat in a special election in 1989. Fed up with the partisanship in Sacramento she quit the Democratic Party. Contemporary reports indicated that she was quite interested in the Top 2 system used in Nebraska. In 1992, after getting the law changed to permit her to do so, she was re-elected as an independent, in an election that the Democratic Party had no candidate.

    Audie Bock was elected in a fluke special election in 1999. One can not credibly argue that California used partisan primaries for special elections prior to the Top 2 Open Primary reform.

    You’ll have to give me some more hints about 1944.

    In 940 senate elections between 1918 and 2010 there were 4 independents elected. In the 20 senate elections in 2012, we would have expected 4/940×20 = 0.08 independents to be be elected.

    Kopp and Killea were elected despite the use of the partisan primary, and in Killea’s case in spite of it.

  8. The Progressive Party was a minor party. After the 1912 election, there were 291 Democrats in the US House, 134 Republicans, and 10 Progressives. Either the Democratic Party or the Republican Party had a majority in each state legislative chamber in all 48 states. Out of the 96 legislative chambers, there was not a single one in which there were more Progressives than either Democrats or Republicans.

  9. Hiram Johnson was elected governor in 1910 as a Republican.

    Hiram Johnson ran for Vice President in 1912 in California as a Republican.

    Hiram Johnson was re-elected as governor in 1914 as a Progressive, outpolling the Democratic and Republican nominees combined.

    Hiram Johnson was elected senator in 1916 as a Republican.

    It is incredible that you would suggest that Hiram Johnson’s election in 1914 was due to the partisan primary system, or that he would not have been elected under a Top 2 system.

    In the 940 senate elections between 1918 and 2010 there were 4 independent senate candidates elected, Quentop Kopp 3 times, and Lucy Killea once.

    I contend that both would have been elected under a Top 2 system. Do you disagree? If so, why?

    4/940 = 0.43%

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