Gautam Dutta, the attorney who is suing California over two particularly repressive aspects of the new “top-two” system that will go into effect next year, has this piece in Huffington Post about his lawsuit.
The two aspects of the California system under attack in the lawsuit are: (1) a provision that write-in votes can never be counted in November; (2) a provision that does not permit candidates to list their party on the ballot unless they are members of a qualified party.
If my memory serves, No. 2 above is what Dart v. Brown was about. Henry Dart was a Libertarian candidate for the New Orleans city council who wanted his party label put next to his name on the “top two” ballot. The Libertarians were not then a qualified party in Louisiana.
Dart lost.
Dart v Brown was decided before Cook v Gralike, a 2001 unanimous US Supreme Court decision that said discriminatory ballot labels violate the US Constitution. That case was from Missouri, and struck down a law that some candidates should have a politically damaging label next to their names on the ballot, whereas others wouldn’t.
(1) BLATANT violation of 14th Amdt, Sec. 2
(2) BLATANT violation of Equal Protection Clause, 14th Amdt, Sec. 1
Separate is NOT equal. Brown v. Bd of Ed 1954.
WHAT ballot access lawyer in the U.S.A. has ANY brains ???
Gautum Dutta’s analysis of the write-in provisions is totally flawed.
Anyone with a lick of common sense would recognize that Elections Code 8606 is (1) gobbledygook; (2) severable.
Perhaps Dutta was so excited about his lawyer fees, he felt that he did not have exercise a lick of common sense. 8606 does not say anything about votes being counted. If someone were to write in the name of Gautum Dutta on the ballot, and Dutta had properly filed as a write-in candidate, then the vote would be counted. There is nothing in the Elections Code that would permit any other interpretation. Who knows what it would mean for Dutta not to be counted? 8606 simply has no valid interpretation. The plaintiffs would have been better off contacting their legislators to have 8606 removed.
Even if 8606 made grammatical sense, no court would uphold it. For example if it said that someone who received the most votes as a write-in candidate for voter-nominated office, could not be elected, it would get laughed out of court given its complete conflict with everything else in the Elections Code with regard to write-in candidates. You can’t require a candidate to file for office, have the SOS disseminate the candidate’s name to the counties, provide a space for writing in the name of the candidate, count the votes, and refuse to declare the person with the most votes the winner. This isn’t Edelstein, where the city and county of San Francisco did not even provide a write-in space, or permit a write-in candidate to file.
Dutta’s analysis of the party label provisions is similarly flawed.
His misinterpretation of Elections Code 338 (Definition of “party”) underlies the rest of his argument. Correct the interpretation, and the whole party label section of the case falls apart.
Elections Code Section 4 says, “Unless the provision or the context otherwise requires, these general provisions, rules of construction, and definitions shall govern the construction of this code.” It the context of party registration, the context requires that the definition of party in elections code 338 does not apply in the manner in which Dutta claims.
Dutta claims that Elections Code Section 338 prevents anyone from disclosing a preference for a “non-qualified” party on his voter registration, because the non-qualified party is not a qualified party and therefore not a party. But 338 is not new to the Elections Code. If Dutta’s interpretation of the effect of 338 were correct, then no voter could declare their intent to affiliate with a non-qualified party at the next primary, because a non-qualified party is not a a qualified party, and therefore not a party.
But the entire scheme (except for the unworkable petition provision) of new party qualification in California is based on voters registering with a non-qualified party, and then the party becoming qualified on the basis of sufficient voters registering with the non-qualified party. There are specific provisions by which voters may register with a non-qualified party for an indefinite period of time before the party officers inform the SOS that the party is attempting to qualify. State law requires the SOS to report an aggregate total of voters registered with parties that are not qualified nor currently attempting to qualify.
So in the context of party registration, “party” does not mean “qualified party”.
It is the express intent of Proposition 14 and SB 6 to not change the party registration and qualification process in California. SB 6 does not change the registration or qualification process for political parties. It changes the effect of that qualification. For example, while qualified parties still hold presidential primaries, they no longer nominate gubernatorial candidates.
It should be noted that a “qualified” party is not qualified to participate in a primary for a voter-nominated office other than in its preparation of a sample ballot, so Elections Code 338 has relatively limited meaning in the context of voter-nominated and non-partisan offices.
Under California law prior to Proposition 14, only qualified parties held primaries, and therefore only qualified parties could nominate candidates which would appear on the general election ballot. Voters registered with non-qualified parties could run for office, but they had to do so as independent candidates. Even though they had declared the intent to affiliate with a non-qualified party, they were treated the same as voters who had declined to state what their intentions were, for purposes of candidacy.
But from 2011 forward, there is no distinction among candidates on the basis of their party preference. Ballot qualification for all candidates is identical.
SB 6 added Elections Code 300.5 which states that, “‘Affiliated with a political party’ as used in reference to a voter or to a candidate for a voter-nominated office means the party preference that the voter or candidate has disclosed on his or her affidavit of registration.”
This is quite simple. A candidate’s party affiliation is the same that he disclosed on his voter registration. Since a voter may affiliate with a non-qualified party, a candidate may do so as well.
The California Constitution now provides that the state may make no distinction on the basis of party preference of voters or candidates may be made with regard to voter nominated offices. Even if SB 6 did attempt to restrict party preferences of voters and candidates (which it does not), any such provision would be unconstitutional. Dutta has got it backwards if he believes that a statute limits the constitution, and not the other way around.
When a candidate files for office he is required to use the same party preference disclosed on his party registration or have nothing at all. Since a voter may disclose a preference for a party that is not qualified to have a presidential primary, when that voter runs for office, he may only have the party designation disclosed on his party registration or nothing at all.
While the State of California could regulate party designations in a manner similar to occupational, professional, or office designations, it has not done so. Such a regulatory scheme might limit length of party names, require some level of participation, and actualization as a “political party” it could not use the same sort of participation standards that it requires for holding a partisan primary (10s of 1000s of registrants). California has no rationale for limiting expression if ideas, which includes party affiliation, to popular ideas.
Communist Prop 14 apologist Jim Riley’s comments on this page exceed the length required for an entire election code, if it’s fair, honest and concise.
Go Gautam Go!