On March 10, at 9 a.m., a California Superior Court in Sacramento will hear arguments in Fuller v Bowen, 34-2010-80000452. This is the case on whether the California Constitution’s provision, requiring candidates for the legislature to have lived in the district at least one year before the election, is still valid under the U.S. Constitution. The case was filed by a Republican candidate for State Senate, to prevent the Secretary of State from certifying one of her opponents for the June 2010 primary ballot, on the grounds that the opponent moved into the district in December 2009, less than a year before the 2010 election. The candidate who filed the case is Heidi Fuller; the opponent is Assemblymember Tom Berryhill.
Another California election law case will be heard on March 12, Friday, at 1:30 pm, also in Sacramento Superior Court. That case is Clark v Bowen, 34-2010-80000460, over how Proposition 14, the “top-two open primary” measure, should be described on the June 2010 ballot. Here is the plaintiff’s brief.
The first case is really about whether the legislature may delegate the authority of each body to be the judge of the elections and qualifications of its members to the executive branch (or worse whether a member of the executive branch may usurp that authority or be ordered to so by the courts).
Prior to adoption of the Australian ballot, there was simply no way for the election officials to intervene prior to the ballots being counted. Simply because the government now prints the ballot should not shift the judgment of qualifications from the legislature to the executive branch. And the California Supreme Court has already ruled that the authority of legislature extends to cases arising out of primary elections (one case was a few years after Smith v. Allwright and the California court determined that the relationship between primary and general elections for the legislature was analogous to that between the primary and general elections for Congress).
Fuller now wants the courts to intervene on the basis of the role of the Secretary of State in overseeing publication of the Voter’s Pamphlet.
Bowen is not the proper defendant. She may welcome the authority to assert control over the legislature. Fuller is acting based on something she heard on the radio about a potential candidate. Even if the legislature could delegate its authority to judge the qualifications of its members, it has not provided any sort of regulatory scheme by which to do so. It is more than a little far-fetched to say that the SOS’s responsibility to ensure the truthfulness and accuracy of the voter’s pamphlet is the mechanism by which the legislature delegated its authority.
There is a distinction to be made between residency controversies where the facts are in dispute, and should be resolved by the legislature; and residency disputes that are not disputed. Assemblyman Berryhill admits he didn’t live in the district until December 30, 2009. There is nothing for the legislature to resolve and determine. The facts are not in dispute. Therefore, the Secretary of State, who took an oath to support the State Constitution, is the proper defendant and this is not something that the legislature needs to be involved with.
The union boss wants the following ballot title:
Italicized words are removed. Bold text is added.
“ELECTIONS. PRIMARIES. GREATER PARTICIPATION IN ELECTIONS. ReformsChangesthe primary election process for congressional, statewide, and legislative races. Allows all voters to choose any candidate regardless of the candidate’s or voter’s political party preference. Candidates not required to disclose their political party preference.Eliminates write-in candidates on general election ballot. OnlyEnsures that, the two candidates receiving the greatest number of votes will appear on the general election ballot regardless of political party preference.”
I’m not sure why Clark objects to the use of definite articles. Substitution of “changes” for “reforms” is not neutral and may be misleading since it suggests that President Obama supports Proposition 14.
His first concern appears to be that the title draws a conclusion about greater participation, rather than stating facts. So perhaps the following can be added:
“Decreases signature requirements for independent candidates for statewide office from approximately 175,000 to 65; from several 1000 for congressional and legislative offices to 40.”
This is neutral language since those who advocate for the current corrupt system may argue that it protects the public from hearing unconventional or independent views or those that are not subject to control by big labor.
It would violate the First Amendment right of candidates to require that they have their political party preference appear on the ballot. The State requires that if the candidate does designate a political party preference, that it be consistent with the candidate’s voter registration. This is consistent with how the State handles a candidate’s designation. The factual distinction between voter-nominated primaries and non-partisan primaries is that in a voter-nominated primary, a candidate may have his party preference appear on the ballot for voter-nominated offices. A candidate who has a party preference may run for either type of office, and political parties are free to support and endorse candidates for either type office.
So perhaps: Candidates may have their political party preference appear on ballot.
An alternative of Does not impose unconstitutional requirement of disclosure of political party preference would probably not be considered neutral and might lead a voter to conclude that disclosure is not permitted.
Write-in candidates have never appeared on a general election ballot. It is false or misleading to suggest that they have been eliminated.
Use of “Only two” is not neutral and is an unnecessary qualification of the fact that the top two candidates qualify. The expression “I only have two hands” suggests a disability or other incapacity. While “I have two hands” is simply a fact. Perhaps “ensures” could be replaced with “provides”.
Current laws for non-partisan elections also provide for two candidates appearing on the general election ballot. One would not characterize that system as “only two”, rather than “top 2”.
Prop. 14 does not decrease the ballot access hurdles for an independent candidate to get on the November ballot. Existing law requires a 1% petition for statewide independents, and 3% petitions for district independents, but Prop. 14 would require voter support of approximately 25% to 30% (because the typical 2nd place finisher polls 25% to 30% in blanket and top-two primaries from around the U.S.). An increase from 1% to 25% is not easing the requirements; it is making them drastically more difficult.
#2 The California Constitution provides:
Article IV Section 5 (a) “Each house shall judge the qualifications and elections of its Members and, by rollcall vote entered in the journal, two thirds of the membership concurring, may expel a Member.”
The People of California were so jealous of the separation of powers, that they provided that only the Senate could judge the qualification of senators, and only the Assembly could judge the qualification of assemblymen. While the governor does have a role in the legislative process, he has absolutely no role in the determination of which persons are qualified or not qualified to serve in the legislature.
When Debra Bowen swore her oath to uphold the Constitution, I very much doubt that she crossed her fingers, and muttered under her breath “except Article IV Section 5(a)”. The language is mandatory on the legislature. Even if they wanted to delegate the authority to judge the qualification of members, the People have forbidden them from doing so.
It is essential to a republican form of government that the legislature be elected by the People, and it be totally independent of the executive branches. Having an executive official intervene would interfere with that independence.
It is absolutely not an accident that constitutions provide for a different procedure for determining the qualification of legislators than is used for other offices.
In previous cases that the California Supreme Court has heard with respect to durational recidency qualifications for the legislature they ruled that neither the Secretary of State nor the courts have jurisdiction. The last time it happened, they ordered the lower court to dismiss the case, and admonished the lower court for even considering the matter.
The only role for the Secretary of State with is to administer procedural qualifications, such as timeliness of filing, sufficiency of signatures, and whether the check bounced or not.
#4 Courts have regularly ruled that the election process should be considered in its entirety, and not isolated into separate pieces.
Requiring 175,000 signatures for an independent (DTS) candidate for insurance commissioner is absolutely indefensible when the requirement for any candidate for superintendent of public instruction, including those who have declined to state an affiliation, is 65.
Regarding comment #6, courts have not always ruled that the election process should be considered in its entirety. When John B. Anderson sued Ohio over its March petition deadline for independent candidates, he won that case, even though the number of signatures, 5,000, was only one-tenth of 1% of the number of potential signers. The US Supreme Court considered the early deadline all by itself and didn’t factor in the lower number of signatures.
Regarding comment #5, you seem to be arguing that everyone who applies to be on a ballot as a candidate for the legislature should automatically be put on the ballot, whether the person is a minor, or a resident of another state or even another nation. If that is not what you think, then how to you make a distinction between some state constitutional qualifications and others?
#7 Ohio had a system where presidential candidates qualified directly for the general election ballot. It is not comparable at all to the system proposed in California.
California has used a system for close to a century where all candidates for county and city office ran in the primary, and at most 2 qualified for the general election. Filing deadlines are identical for all candidates. This same system is also used for the statewide superintendent of public instruction (How long has been the case?). Are you seriously suggesting there are constitutional questions about this system?
Now California is proposing to use the same (or quite similar) system for other elections. The only significant differences are: (1) candidates may have their political party preference placed on the ballot; and (2) the general election is held even if one candidate receives 50% of the vote).
In both types of elections (a) voter-nominated; and (b) non-partisan: (1) candidates who have a partisan affiliation may run for office; (2) political parties are free to support and endorse.
#7 A declaration of candidacy must be sworn and notarized, and it includes the county of residence.
I don’t think a minor can execute a sworn statement, can he? And obviously a resident of another state or country can not indicate their county of residence.
The declaration requires that the would-be candidate swear that they are qualified for the office.
California has a scheme for contesting the results of an election, including a claim that an elected candidate is not eligible for the office. It also provides:
16200. This chapter shall not apply to elections for the office of state Senator or Member of the Assembly of the California Legislature.
What is the harm if Tom Berryhill is elected and then is found by the Assembly to be not-qualified for the office? There is simply a vacancy.
But what if he were peremptorily removed from the ballot by some official who has absolutely no legal authority to make a judgment as to the qualification of a legislator-elect? Then the Assembly will be prevented from exercising its judgment.
Regarding comment #8, the non-partisan election system is not like Prop. 14. In California 2-cycle non-partisan elections, the first election IS an election. An “election” is an event at which someone can be elected. The first round is an election, and most of the time someone is elected in the first round.
But under Prop. 14, the first event is not an election. No one can be elected in June, under Prop. 14. Even if someone gets 100% of the vote, he or she is not elected and must run in the second round. Under Prop. 14, the June event is nothing but a ballot access barrier. Its only function is to eliminate candidates and campaigns from the summer and fall campaign. It is a device to muffle the free circulation of political ideas.
#9 See Elections Code 318 and 8140 and 8141. A candidate can be elected at a non-partisan primary election (and at a partisan special primary election as well).
Please go take a look at one of the writs for a special election on the SOS web site. The Governor sets the date for the special election, and then the election officials work backwards from there to set the time for the special primary and filing deadlines. If a candidate receives a majority in a special primary election, he is elected, and the special election that the governor called is never held.
The function of a voter-nominated primary is to determine two candidates who will be placed on the general election ballot. The two candidates who receive the most votes regardless of their political party preference will be placed on the general election ballot.
Remember the claim of the Union Boss is that the ballot title is non-neutral or misleading. Your description is hardly neutral.
It’s irrelevant that candidates can now be elected in the first round in California special partisan elections, and in some non-partisan elections. Proposition 14 does not permit any elections to be decided in June.
#11 The point is that California already has elections where all candidates enter the primary and where all voters may participate, and sometimes two candidates advance to the general election; and sometimes one candidate is elected directly.
The barrier to entering this system is quite low. That the barrier to advancing to the second stage is high, is as unremarkable as the fact that it is relatively hard to be elected. Only one person per office is elected. Proposition 14 reduces barriers for candidates and it reduces barriers for voters.