California has the nation’s second-most restrictive election law, concerning how a write-in candidate may receive the nomination of a political party at the primary. Only Tennessee’s law is more restrictive. The law requires the write-in candidate at the primary to not only receive the most votes, but to poll a number of write-ins equal to 1% of the vote cast for that office at the last general election. Most states have a threshold that is related to the size of the particular political party, but California’s law does not take the size of the party into consideration. As a result, it is virtually impossible for any minor party to nominate anyone by write-ins at its own primary. No minor party has succeeded since 1968.
The Peace & Freedom Party wants to attack this law in court, and felt that an ideal test case would come about, if there were a Peace & Freedom Party result in which a write-in candidate outpolled a candidate for the same office who was listed on the ballot. Then, the paradox would exist that the ballot-listed person could not be nominated (since he or she had been defeated by the write-in candidate), but the winner couldn’t be nominated either (because of the minimum vote law). The test case was centered on the Assembly, 9th district, in Sacramento. The write-in candidate was C. T. Weber, a former state chair of the party and someone who has been active in the party for decades. Unfortunately, the ballot-listed candidate, Gerald Frink, polled more votes in the June 3, 2008 primary, even though both Frink and Weber and other activists made a concerted effort to reach Peace & Freedom primary voters and ask them to write-in Weber. The final results are 76 for Gerald Frink, and 41 for C. T. Weber.
In other Peace & Freedom Party news, the party has still not found a building in which to hold its state convention. The convention will be in Sacramento, August 2-3, and will choose presidential electors. The choice of presidential electors will determine who will be listed as the party’s presidential nominee.
Good luck to the Peace & Freedom Party while they challenge this undemocratic law.
Damn. Everyone associated with ballot access issues wanted the 9th AD gambit to work. Existing law is just too weird. Is there any alternative way (cause of action, standing, etc.) to challenge this in court? Also, has anyone had any experience trying to recruit a state legislator to introduce a bill on this? I can guess that it would be hard, but would it be impossible?
C.T. Weber and various Libertarians have tried to find a California legislator to introduce a bill on this subject. There is always the possibility of a lawsuit based on the California Constitution, which since November 2004 has said, “A political party that participated in a primary election for a partisan office has the right to participate in the general election for that office and shall not be denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party’s candidates.”
No Republican appeared on this year’s primary ballot for State Senate, 15th district (central coast), but a Republican did run a vigorous write-in campaign in that primary. His write-in total still hasn’t been reported. When it is, chances are he will have come close, but failed. Maybe he could be persuaded to sue. There was a lawsuit brought by a Republican candidate for legislature in Sonoma County in 2006, but it failed to win injunctive relief. Sacramento County Superior Court Judge Gail Ohanesian ruled that the legislature, which wrote that amendment to the State Constitution, never intended it to relate to write-in candidates. But that was judicial error. Case law is settled that legislative intent is immaterial when a statue or a constitutional provision is clear an unambigous. So the door is open to try again. Ohanesian didn’t settle the constitutional issue; she merely denied injunctive relief.
What does it take to lose an election these days?
Richard Winger wrote:
In other Peace & Freedom Party news, the party has still not found a building in which to hold its state convention. The convention will be in Sacramento, August 2-3, and will choose presidential electors. The choice of presidential electors will determine who will be listed as the party’s presidential nominee.
Phil Sawyer replies:
Could one not also say that the choice of presidential nominee determines who the presidential electors will be? Is it not the very same thing?
Phil Sawyer replies:
Could one not also say that the choice of presidential nominee determines who the presidential electors will be? Is it not the very same thing?
No, because the way I read it, the electors select the nominee. The nominee will not be chosen until after the electors are selected. Richard, is this correct?
Richard got the parties backwards on the 15th State Senate District in comment #3. There, the only candidate who filed was the incumbent Republican Abel Maldonado (rumors were that Don Perata, as part of some deal, pressured several Democrats who took out papers not to file them). However, both the Republican Maldonado and a Democrat, Dennis Morris, filed to become certified write-in candidates for the Democratic nomination. In San Luis Obispo County, which has around 30% of the district’s Democratic registrants, Morris got 1239 votes to 269 for Maldonado. The other counties in the district (Monterey, Santa Barbara, Santa Clara and Santa Cruz) don’t have the results of their write-in counts on their websites, and may not have counted them yet. If one extrapolates Morris’ results from San Luis Obispo County to the district as a whole, he would 4130 votes, well over the 3,689 he’d need under the Elections Code.
The other districts where certified write-in candidates from the Democratic or Republican parties are running with no candidate from that party on the ballot (in those parties, it is almost certain that if a write-in somehow beat a candidate on the ballot, they’d have more than the Elections Code requirement) are CD 30 (Republican Keith H. Fichtelman in Los Angeles County), AD 4 (Democrat Dennis J. Campanale in Alpine, El Dorado, Placer and Sacramento counties), AD 50 (Republican Gladys O. Miller in Los Angeles County), AD 62 (Republican Johnnie Smith in Los Angeles County) and AD 64 (Democrats Paul Rasso and Daryl Terrell in Riverside County).
Though other reports (such as the post on which this is a comment) indicate that write-in votes have been counted in Los Angeles and in Sacramento counties, there is no information on write-in results in those counties on their Registrars’ websites. The results that are available online are from Placer and Riverside counties.
Campanale needs 1,649 write-in votes for nomination in AD 4 under the Elections Code, and he got 367 in Placer County, which has around 53% of the district’s Democratic registration. Extrapolation would give him around half of the votes needed.
The 64th AD is entirely within Riverside County, so its results don’t require extrapolation from the published data. Rasso got 354 votes and Terrell 11, with 1089 needed.
I don’t know whether any of these situations are likely to result in lawsuits over the conflict between the Elections Code and the State Constitution. All of the seats involved, except for the 15th SD where it probably won’t be necessary, are considered safe seats for the “major party” other than that with the write-in candidates, so I’d guess that (assuming Perata’s deal is off or never was), the 15th SD is the only one where a lawsuit if filed might have resources behind it. However, there is the additional problem for a lawsuit that the Democratic and Republican parties don’t have bylaws (like at least the Libertarian and Peace and Freedom parties do) that state that write-in candidates with less than the Elections Code requirement, but meeting some other, lesser criteria are their nominees. Given that the purpose of the Elections Code requirement probably wasn’t to prevent “third party” candidates from being nominated write-in (that’s just a happy side effect for the “major party” leadership), but to make it difficult for someone from outside of their mainstreams to get their parties’ nominations, a judge might rule that absent something explicitly to the contrary, the Elections Code provisions should be considered as if they were part of the bylaws of the parties who have controlled the legislature when they were enacted and then left in place when other provisions were changed.
Weber supplied 38 alternative spellings of his name. I wonder how many of them the 41 voters used.
Is Frank Mackay the Chairman of this Party too?