Cal Watchdog is sponsored by the Journalism Center of the Pacific Research Institute, to inform readers about California state government. The February 22 issue has this story about California’s Proposition 14, the top-two election law measure.
This is the first news story (as opposed to an op-ed) that mentions that Proposition 14 makes it more difficult for ballot-qualified parties to remain on the ballot. It does that by, in practical terms, eliminating the 2% vote test by which minor parties now remain ballot-qualified. The measure does not actually repeal the 2% vote test, but the 2% vote test is rendered meaningless by Proposition 14, because parties would no longer have nominees in mid-term years. The last California ballot measure to impose a top-two system, Proposition 62 in 2004, did not have that flaw. Proposition 62 lowered the registration test to one-third of 1% of the last gubernatorial vote, to avoid eliminating any ballot-qualified parties. The people who wrote Proposition 14 were free to repeat that language from Proposition 62, but they chose not to do it, for reasons they have never explained.
“The last California ballot measure to impose a top-two system, Proposition 62 in 2004, did not have that flaw. Proposition 62 lowered the registration test to one-third of 1% of the last gubernatorial vote, to avoid eliminating any ballot-qualified parties. The people who wrote Proposition 14 were free to repeat that language from Proposition 62, but they chose not to do it, for reasons they have never explained.”
Proposition 62 had an explicit requirement that candidates whose voter registration was for a non-qualified party would have been coerced to say they either had no party preference, or have a blank space next to their name. This is the likely explanation why Proposition 62 lowered the party qualification requirements.
The people who wrote SB 6 were free to repeat the language from Proposition 62 restricting candidates to expressing a preference for ballot-qualified parties. It must be presumed that the omission of that discriminatory language was deliberate.
There are several sound reasons to not restrict candidates to expressing a party preference to ballot-qualified parties:
(1) There are numerous court rulings against requiring candidates to make declarations on the ballot, such as they will work to pass certain legislation. Requiring a candidate who has a party preference which was expressed on his voter registration, but requiring him to say that he has “No Party Preference” (including a sworn statement to that effect on his declaration of candidacy) is no different than requiring a candidate to have “I (don’t) favor term limits.” next to their name.
(2) It increases the chance of a court overturning the Top 2 Open Primary. A court may find it disingenuous that California would say on one hand that the primary is not for the purposes of nomination; and on the other hand restrict participation to members of “nomination-qualified” parties.
(3) The constitutional amendment proposed by Prop 14 states that candidates may participate regardless of their party preference. That is, the State of California may make no distinction on the basis of party preference, even if the candidate prefers a relatively small party.
The legislative purpose of Prop 14 states “Nothing in this act shall restrict the right of individuals to join or organize into political parties or in any way restrict the right of private association of political parties.” The right to organize is that of individuals. It doesn’t matter how many or how few join or organize the party. Prop 62 did restrict that right. Prop 14 (and SB 6 does not).
So even if SB 6 did incorporate the language of Prop 62, it would violate the California constitution as amended by Prop 14. The authors of SB 6 were wise to not to include the discriminatory language from Prop 62.
(4) Voters are free to affiliate with non-qualified parties, and declare that on their registration. Under current law, voters are actually declaring their intent to affiliate with the party at the next primary. The primary might not actually occur, and the voter might not actually vote, so the party affiliation on the voter registration is aspirational. If someone said they intended to affiliate with the SalmonYoga party at the next primary, they are not permitted to vote in another party’s primary, even if the party permits Declined To State voters to participate. The DTS voter simply had not stated an intent, the SalmonYoga voter had declared a contrary intent.
California’s scheme of party qualification is based on voters being able to affiliate with non-qualified parties. Its registration reports are required to distinguish between DTS registrants, qualified-party registrants, attempting-to-qualify-party registrants and miscellaneous other registrants, including those who are affiliated with previously qualified parties such as the Natural Law Party.
Parties qualify when enough voters register with a non-qualified parties. It is quite legal to register with a party even before the Secretary of State is notified of an attempt to qualify the party. There is precisely one person who is permitted to change a voter’s party registration – the voter.
If enough voters declare their intent to vote in a party’s primary, then the State of California conducts a primary for that party, and then places the nominee of that party on the general election ballot.
Even if California did not have this registration scheme there quite possibly is a free expression right under the 1st Amendment or even more extensive protections of the California constitution for a voter to affiliate with a non-qualified party.
Prop 14 states that a voter’s party affiliation is not changed, even though it is now recast as a disclosure of a party preference. SB 6 defines a candidate’s party affiliation as that disclosed on his voter registration. A candidate may either have his party preference appear on the ballot, or a blank space. Only if a candidate had not disclosed a party preference on his voter registration, may he have “No Party Preference” appear on the ballot.
A voter registration affidavit is signed to indicate that it is correct and truthful. A voter who disclosed a party preference that is not truthful could be subject to charges of perjury. A declaration of candidacy is sworn and notarized. If a candidate specifies a different party preference, was his voter registration affidavit incorrect or untruthful, or has he provided false information on his declaration of candicacy?
Since Prop 14 and SB 6 in fact make it significantly easier for candidates who prefer smaller parties to participate in the election, there was no reason to change the party qualification thresholds.
Prop 14 and SB 6 do retain several provisions related to party qualification:
(1) The right to hold a presidential preference primary and to have a presidential candidate on the ballot.
(2) The right/requirement to have party officers elected at partisan primaries.
(3) Be subject to reams of Elections Codes sections that are specific to individual parties and most likely not legally enforceable.
(4) Have a sample ballot indicating party endorsement be distributed to voters with the Voters Pamphlet.
Reducing the party qualification threshold could result in more parties qualifying. This is not necessarily bad, but could result in the State of California conducting presidential preference primaries and party officer elections for small groups of voters. Only 5,000 voters voted in the Peace and Freedom primary in June 2008. About 12,500 voters voted in the Peace and Freedom presidential preference primary in February 2008. Is it really feasible to conduct statewide elections for 1/6 as many voters?
Remember individual ballots have to prepared for each party. Los Angeles County did not do so in February 2008, and ended up with thousands of ballots where it could not be determined whether a voter preferred Barack Obama or Don Grundmann to be president, or whether it was a Democratic or American Independent ballot. When a party invites DTS voters to participate in its primary, distribution of mail ballots is a three-step process. About half of California voters are permanent mail voters. About 20% of California voters are registered as DTS. That is 1.5 million notifications to be sent out asking voters which primary they want to vote in, and then be returned by mail before determining which ballot to send out.
These issues only tangentially related to the Top 2 Open Primary elections for state, congressional, and legislative elections, and it is better to address these as separate matters.
Elections for party officers really should not be conducted at elections that are otherwise devoted to non-partisan and voter-nominated offices and propositions. If parties are going to be able to effectively endorse candidates, they need to have their officers and party structures determined in advance of the election. It could well be better to move these elections to odd-numbered years. And there is really no reason that conventions can not be used for these purposes. Perhaps the State of California can simply distribute notification of the time and place where party conventions are being held by each party. This may well be feasible to do for parties with relatively small registration (a few 1000).
With an independent candidate for governor under SB 6 only requiring 100 signatures, it is absurd to maintain the current standard of 175,000 signatures to run as an independent presidential candidate. Nothing in Prop 14 prevents the legislature from changing this statute, nor permitting candidates for non-qualified parties from being able to have their party affiliation appear on the presidential ballot.
There is nothing to prevent the state legislature from tying presidential ballot access to performance in the presidential election.
These are all good changes. It may be better to wait until Prop 14 passes before making further reforms. It is important to note that if Prop 14 is passed in June 2010, the Top 2 Open Primary will not be used for statewide elections on which party qualification is based until 2014. It will have no effect on the 2012 presidential primaries or elections. If the 6 parties maintain their qualification based on the November 2010 elections, they will have that same status through the end of 2014.
“Brevity is the soul of wit.”
The measure that triggered Prop. 14 (“Maldonado’s Revenge”) was written in the dead of night, so what would you expect?
It was a mistake for Prop 62 to restrict candidates from expressing a preference for non-qualified parties. The Washington case was almost lost because it was portrayed as simply a different way to have candidates on the ballot with (R) and (D) beside their name.
Party preference is simply additional information that candidates may express. If a candidate could not have his true party preference accurately on the ballot, it would be equivalent to the State telling a candidate he could have “Haberdasher” next to his name but not “Ophthalmologist” The State has no interest in making such a regulation.
Abel Maldonado was wise to leave out the discriminatory language from Prop 62.
Once party ballot qualification for state and congressional elections is eliminated, California may want to review the use of party qualification for other purposes.
Logically, ballot qualification for the presidential ticket should be based on how the party’s candidates do in the presidential election.
There really is little reason to have the state mandate and fund elections for party officers. If a party wishes to organize, let them pay for their own organization.
And simply let anyone who wants to have a sample ballot distributed to voters pay for it.