Final Brief Filed in California Lawsuit Over Party Preference Labels for Candidates for Congress and State Office

On April 19, Emidio Soltysik filed his 28-page reply brief in Soltysik v Padilla, in the Ninth Circuit. The issue is the California law that says some candidates for Congress and partisan state office may have their party label on the ballot, but others may not.

Soltysik makes good use of the recent Fourth Circuit opinion Marcellus v Virginia State Board of Elections, 849 F.3d 169, which said, “if a law gives some candidates…a party identifier, but not other candidates for the (same office), it would impose a burden on the associational rights of the candidates left unidentified, even though no candidate has an absolute right to be so identified.”

Page 19 of Soltysik’s brief says, “By providing a space on the ballot in which candidates for voter-nominated office can indicate their political party preferences, the State has created a limited public forum and the Court should apply First Amendment forum analysis. Having created a limited forum, the State cannot discriminate on the basis of viewpoint by allowing the expression of some party preferences, but not others.”


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Final Brief Filed in California Lawsuit Over Party Preference Labels for Candidates for Congress and State Office — 3 Comments

  1. When California voters approved Proposition 14 they declared that it was their intent to comply with the SCOTUS ruling in the Washington Grange case. The key finding in that case was that a candidate’s party preference was personal speech. While some justices were skeptical whether voters might be confused and think that a party preference indicated party endorsement, they remanded the case to the federal district court to determine whether under the law as applied, voters would be confused. The district court determined that voters would not be confused, a decision subsequently upheld by the 9th Circuit.

    While California might have an interest in ensuring that a party preference is for a “real party” there are a number of ways that they might do so. They might simply ignore the issue as being merely hypothetical. They could simply require disclosure (Texas does not limit campaign contributions to state candidates, but it does require disclosure). California permits a voter to disclose a party preference on their affidavit of voter registration. California requires that a voter sign the affidavit to indicate that the information is truthful and correct, subject to possible perjury charges. If Alex Padilla or Dean Logan believe that Emidio Soltysik does not prefer the Socialist Party USA, or that he filled out his affidavit with the intent to deceive, they could refer his registration to the AG or LA DA for prosecution. Otherwise, they should accept his expressed preference on face value.

    Or a state might require a party to demonstrate a modest degree of organization. A party would have bylaws, would have a responsible executive, comply with campaign finance laws, particularly reporting of expenditures and contributions, and are responsive to voters registered with the party (perhaps a biennial state convention, or election of officers). They could also require a modest number of registered voters (say 50 or 100).

    Such regulation is analogous to corporate regulation. California does not require corporations have a large cashflow. It does not tell them what products or services to provide. Businesses may be subject to industry-specific regulations. Similarly, California has no interest in telling political parties what their platform should be, or which if any candidates they should support. It does have some interest in regulating their contributions and expenditures. If a voter wants to know about a political party, they can read their bylaws, or look at their website.

    While a small political party might have limited resources for political advocacy, there is no reason for California to say that they can not legally do so.

    While California could adopt a system like Florida they have chosen to rely on disclosure by voters.

    California has always distinguished between party affiliation or preference and party “qualification”. Before Proposition 14, a voter’s party affiliation was literally an expression of their intent to affiliate with the party at the next primary. It was aspirational. Someone who was affiliated with the Democratic Party intended to affiliate with the party IF they had a primary. The party might be abandoned by then through loss of registrations, or perhaps by a party decision such as that of Americans Elect not to hold a primary. Someone who was affiliated with a non-qualified party presumably hoped that they would become qualified, and their affiliate would contribute to that affiliation. A Decline To State voter was someone who literally declined to state their intentions.

    California statutes make no distinction between party preferences for a “qualified” party and that for for any other party. When party affiliations were converted to party preferences, there was no distinction made between the Democratic Party and the Coffee Party. Decline To State voters were converted to No Party Preference voters. California maintains this distinction on their registration reports, where voters who prefer a party that is not “qualified” are listed as Miscellaneous Other Party as distinguished from No Party Preference. That the other parties are not itemized it is of no importance. An expense report that has a section for Miscellaneous Other Expenses, in addition to those for Lodging, Meals, and Transportation, does not mean that those other expenses are not expenses, but simply that they don’t fit the major categories.

    Dean Logan had no problem determining that of the 46,170 other registrations in Los Angeles County, 144 were for the California National Party, or 74 for the Constitution Party.

    Qualification of a party is derivative of voters party preferences. If it weren’t, a new party could not become qualified except by collecting over a million signatures, and a party could never be considered abandoned. When a party becomes qualified, the party preferences of the voters are not modified. When a party becomes non-qualified, the party preferences are not modified.

    Before Proposition 14, “qualified” political parties had the right to a segregated partisan primary which would choose the party’s nominee for the general election ballot. Because California would have to provide up to 13 ballot styles in every precinct, there was considerable expense involved. California had a legitimate interest in requiring a demonstration of a modicum of support before printing so many different ballots, as well as the complexity of election.

    But the fundamental purpose of Proposition 14 was to extirpate these segregated partisan primaries, and replace them with a single primary in which all candidates and voters could freely participate, regardless of the party preference of the candidate or the voters. At best, California could argue that they might be forced to print longer ballots because candidates might be incentivized to run if they could express their actual party preferences. Perhaps California succeeded. Soltysik ultimately did not run for Assembly. Dean Logan and Alex Padilla might regard themselves as wise stewards of tax monies by muzzling candidates on some pretext.

  2. It is interesting that the federal district court denied discovery. Debra Bowen as a candidate in the special election for Congress had a personal interest in implementation of Top 2. The unionized staff at the Secretary of State’s office may have an interest in sabotaging Top 2.

    Why is CADOP intervening? In Field v Bowen, the attorneys from Nielsen Merksamer asserted that the party plaintiffs (Martin and Mackler) should be permitted to run as preferring the Reform and Socialist Action parties. It was their attorney who made the bizarre claim that they should be permitted to run as Independent, thereby hiding their party preferences that they had disclosed on their affidavit of voter registration.

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