Several Existing California Ballot Access Laws are Vulnerable to Legal Challenge
Some well-meaning electoral reformers support California’s Proposition 14, the top-two measure on the June 8, 2010, ballot, because they are very dissatisfied with the status quo, and they feel that anything that changes the election system must be beneficial.
However, if Proposition 14 is defeated, there is substantial reason to believe that some of California’s ballot access laws can and will be altered in court.
1. The California deadline for qualifying a new party, which is in the first week of January. No reported court decision since 1972 has upheld any deadline for a new party to qualify for the ballot if that deadline was earlier than May. States in which early deadlines for qualifying a new party, or a new party’s nominees, have been invalidated since 1972 are Alabama, Alaska, Arkansas, Indiana, Kentucky, Maine, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, North Dakota, Ohio, Pennsylvania, and South Dakota.
2. The California restriction that does not permit anyone to be nominated by write-ins at a party primary, unless that write-in candidate receives a number of votes equal to 1% of the last general election. The write-in route to a party nomination is potentially very powerful, because anyone can be a write-in candidate in a party primary in California, regardless of that person’s current or prior registration status. Fusion is technically legal in California via write-ins at party primaries. But small qualified parties, and even the two major parties, find it virtually impossible to nominate anyone by write-ins because of the 1% rule. But the 1% rule violates the California Constitution, which says, “A political party that participated in a primary election for a partisan office hs 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.” That was added to the California Constitution in 2004, and ought to be a means to overturn the 1% test.
3. The California restriction that says no one can be on the primary ballot of a party if that person was a member of another qualified party in the entire year before filing. That law is vulnerable because the U.S. Supreme Court in 2008 in New York State Board of Elections v Lopez-Torres said, “A political party has a First Amendment right to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” Also, the Court in 1986 in Tashjian v Republican Party of Connecticut said, “Were the state to restrict by statute that only party members might be selected as the Party’s chosen nominees for public office, such a prohibition would clearly infringe upon the right of the Party’s members under the First Amendment.”
Unfortunately, if Proposition 14 passes and is implemented, none of these three hopeful court challenges to existing ballot access laws can be filed.
1) The California Constitution provides that qualified parties have a presidential preference primary. The current date for the primary is in February. The regular primary is in June.
California does not have any provision for qualifying partisan candidates by petition. So qualification of new parties must occur in time for the primary to be conducted.
Proposition 14 will eliminate the partisan nominating primary in June, and it is too plain for argument that a political party must be qualified prior to the time that it uses the primary to elect its officers.
2) Proposition 14 provides that a declared write-in candidate who finishes in the Top Two will advance to the general election. This will make your claim moot, though an argument could be made that Proposition 60 converted the presidential primary into a direct nominating primary.
3) I think you need to re-read the rest of the paragraph from Lopez Torres.
Under Proposition 14, California will not be “giving certain parties the right to have their candidates appear with party endorsement on the general-election ballot”, so parties will be free to develop their own process for endorsing candidates, a right that Proposition 14 recognizes, even for nonpartisan elections.
Justice Scalia opinion in Lopez Torres goes on to say, “but to say that the State can require this is a far cry from saying that the Constitution demands it. None of our cases establishes an individual’s constitutional right to have a ‘fair shot’ at winning the party’s nomination.”
The State of California simply is not required to provide a nominating procedure for political parties.
In essence, you are arguing that there are certain things broken with California’s nominating procedures that Proposition 14 fixes.
Those lawsuit victories against early petition deadlines for new parties included some states in which all parties were required by law to nominate by primary. That didn’t save the early deadlines from being thrown out.
That is true for the Arkansas, Nebraska, Nevada, North Dakota, Ohio, and South Dakota cases. In response to the court victories, the legislature of Nebraska passed a new law saying a party that submits a petition by February may have its own primary, but a party that submits a petition by August should nominate by convention.
Nevada and Arkansas legislatures simply said new parties nominate by convention, period.
North Dakota and South Dakota responded by keeping the primary for new parties, but shrinking the number of days before the primary the new party petition is due.
Ohio still hasn’t figure out what to do.
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Good. 3 less cases clogging the courts.
P.R. and nonpartisan App.V.
NO primaries are needed.
How many parts of ALL party hack State election systems are UNEQUAL for so-called major parties, old minor parties, new minor parties and independents ???
— combined with the various offices — U.S.A. – State – Local ???
— combined with other stuff — voter write-ins, etc. ???
—- due to the party hack U.S.A. Supremes especially ???
IF Prop 14 passes, then how much more or even less UNEQUAL stuff will there be in the CA election system ???
#1 thanks for the analysis of Prop 14 and Lopez / Torres — I also disagree with Richard on that issue and I may very well use your analysis in oral arguement in three weeks (in June) at the USCA2ndCirc.