On October 8, California Lieutenant Governor Abel Maldonado, one of the leading proponents of the new “top-two” system in California (which is effective in 2011), filed a brief in the California State Court of Appeals, in the lawsuit Field v Bowen. That lawsuit had been filed to challenge the ban on counting write-ins in November elections for Congress and state office, and the discriminatory feature that says members of unqualified parties may not have any party label on ballots. The Maldonado brief seems to say that members of unqualified parties may list their party on ballots. This is a reversal of the position that Maldonado took in the lower court.
Maldonado is in the case as an Intervenor. His October 8 brief says “One plausible interpretation of these provisions is that SB 6 (the implementing language for the top-two system) does not bar candidates registered with non-qualified parties from disclosing their preference for those parties on the ballot. This is an issue that Real Party Secretary of State will likely have to address in connection with future elections.”
To the extent that Maldonado is saying that the label provision is permissive and treats all candidates equally, he is contradicting the Defendants in the case, the Secretary of State and various county election officials. The Defendants continue to maintain that SB 6 does not permit members of unqualified parties to place a party label on the ballot.
Both the Superior Court and the State Court of Appeals have refused to issue a preliminary injunction against any aspect of the “top-two” system, mostly on the grounds that the system doesn’t start until the first special election of 2011, and so far there is no special election set for 2011.
The New Age MORON court judges are unable to detect that 2012 is coming ???
Is M a *plausible* MORON ???
I doubt MP Winger [Libertarian] will ever have any success in reforming the system as long as he promotes the negatives 100 times more than the positives.
The negatives will just keep fighting each other, and MP Winger [Libertarian] will continue to promote their fight, while landing an abstract blow, and a few concrete ones as well, every once in a while.
Meanwhile, the 6th California Parliament’s beachhead becomes steadily more effectice towards 2014, wi9th “Battle of the Bulge” expected in 150,000 years in the future at current pace. At least we’re steadily increasing the numbers in the cabinets and mini-states, regardless of MP Winger’s [Libertarian] friends hanging out offshore. We may be out of ammo and fuel, but 100 beats two, so it’s just a matter of time.
“M” get plenty of free bad PR from MP Winger [Libertarian], and “M” is from Monterey County California. And 2011’s election of ss11-6, consisting of twelve counties, takes place in that county.
Looks like maybe we’ve already lost 2010 due to lack of coordination. A lot of wasted time was spent promoting the negatoids, and no known time was spent where the fuel and ammo is really needed from the negatoid promoters.
In 2010, the 6th California Parliament had about three members firing their “machine guns”; Doyle [Republican], Perry [Boston Tea] and Ogle [Free Parliamentary]. MP Winger [Libertarian] wasn’t one of them. But that doesn’t mean he isn’t still invited to join the fun.
http://www.usparliament.org/ss11-6.htm
The answer brief filed by the intervenors on October 7 with the Superior Court in San Francisco takes the same position.
Where Gautam Dutta is getting messed up is he is trying to show that a voter’s party affiliation is derived from a candidate’s party affiliation; rather than the other way around. He is actually attempting to make the argument that a voter may not affiliate with the Salmon Yoga Party, because if that voter ever wanted to run for office he couldn’t run as preferring the Salmon Yoga Party.
But anyone with a lick of common sense would realize that the vast majority of voters will never run for partisan office. Expressing your party affiliation when registering as a voter is a separate action from running for office.
Applying the definition of “party” in Section 338 in the context of voter registration makes no sense. And therefore Section 4 overrides 338. There would be no way for a new party to qualify, except by petition, which is the same as saying that there would be no practical way. And California law recognizes that there will be voters whose party affiliation will be with non-qualified parties. It requires election officials to count the number of “other” voters, and to check them in case a party attempts to qualify. When a party officially organizes in an attempt to qualify as a political party, they are given an indefinite period of time before which the Secretary of State is notified, during which voters may register as affiliated with a non-qualified party, and even though it it is seeking qualified status, there is no official notice of that attempt.
The only time voters affiliated with non-qualified parties are treated as DTS voters is when a qualified party permits “DTS” voters to vote in their primary. If a political party ever wanted to make a fuss about this agglomeration – saying that they were willing to let DTS voters, but not Donald Duck Party voters participate in their primary, they would likely win.
Proposition 14 said that existing party registrations would simply be recast from “intent to affiliate with the _____ Party at the next primary” to “prefers ______ Party”, and SB 6 implemented this. So it is absolutely the intent of Proposition 14 that existing voter affiliations with non-qualified parties remain so.
One of the goofiest of Dutta’s arguments is that because SB 6 added language requiring a check-off box on the voter registration form for No Party Preference it somehow prevented a voter from expressing a preference for a non-qualified party. But voter registration forms already provide a DTS checkoff box, in addition to a write-in space. So there is no practical difference between existing practice and a statutory requirement that current practice be continued.
SB 6 added Section 300.5 that defines a candidate’s party preference to be that expressed on his voter’s registration affidavit (form). Since this is a more specific definition than in Section 388 it takes precedence. In particular a candidate may have a party preference for a non-qualified party, since a voter may have a preference for a non-qualified party.
And a candidate may have his party preference appear on the ballot.
Plaintiffs Martin and Mackler have claimed that they seek to run for office in 2012, so a preliminary injunction on their party preference allegations is premature at this time. Since Proposition 14 is not the cause of their claimed injury (inability to have Socialist Action or Reform) appear on the ballot next to their name, they might well be severed from the case.
This leaves you with the Write-in claim, and Dutta is dreaming if he thinks that any court would ever do anything more than simply strip Section 8606.
I don’t think the State defendants have take a position on the actual claims of the Plaintiffs (the brief for Santa Clara county did note that Dutta had inserted some underlining in 8606, that is not present in the law).
So far the court has decided that even if the Plaintiff’s claims were true, that a ban on write-in voting and preventing printing of non-qualified party names on ballots is not unconstitutional (see Edelstein). At best, a court might make a decision based on some sort of due process claim because of the contradictory sections with regard to write-in voting. But there is simply no enjoin California now, particularly before they have made their VRA submission to the USDOJ.
Jim, I assume you haven’t read the transcript of the September 14 hearing and that you weren’t there in the courtroom. I was in the courtroom. It is in the oral argument that any attorney commits to a position. The intervenors’ attorneys were adamant that members of unqualified parties can’t have party labels. Marguerite Leoni said if that were permitted, then candidates could put “Republic Party” or “GOP Party” on the ballot, and she said it in a very strident, even emotional, tone of alarm. She said the ballot is not a public forum. She said any candidate can pay to have a ballot statement in the ballot pamphlet. She said the state has an interest in limiting the names on the ballot to the qualified parties.
There is reality, and then there is the reality inside your brain. There are not the same thing.
PUBLIC nominations for PUBLIC offices by PUBLIC Electors is PUBLIC business — TOTALLY subject to PUBLIC laws.
i.e. — NO subgroup of PUBLIC electors has a constitutional *right* to have the subgroup’s candidate(s) on the ballots with the subgroup’s name.
REALITY – the 2008 WA top 2 primary case in SCOTUS.
The separate is NOT equal mess is a different problem — due to the party hack SCOTUS MORONS — who are brain dead ignorant about BASIC ELECTION points.
#4 I have not read the transcript of the September 14 hearing. It is not available on line, unlike the October 7 answer brief filed by the intervenors, which is. I have read the October 7 brief which was filed with the San Francisco Circuit Court, and not the Court of Appeals. Have you read the October 7 brief?
Correct me if I am wrong, but was not the purpose of the September 14 hearing to decide whether to issue an injunction, rather than to consider the merits of the case? In essence, even if the fevered claims of the plaintiffs that SB 6 bans write-in votes in the general election, and that SB 6 prevents candidates from having the name of an unqualified party appear on the ballot were true, it would not violate the US or California Constitutions. That is my interpretation of Judge Woodward’s October 5 order.
Gautam Dutta claims that the version of Elections Code 2154 amended by SB 6 bans a voter from registering with a non-qualified party. But the amended version simply recasts the existing language. You don’t believe that existing law prevents a voter from registering with a non-qualified party, do you?
Dutta also appears to attach some significance to the fact that Elections Code 2151 under SB 6 requires the voter registration form to have a No Party Preference option in addition to list of qualified parties. But the current practice is to have a Decline To State option. There is no reason to suppose that the registration forms under Proposition 14 will not have a write-in space, just like they do now.
Elections Code Section 4 says that the definitions in the Election Code do not apply when the context requires a different interpretation. The sections of the code dealing with voter registration and party qualification (Divisions 2 and 5) simply do not make any sort of cohesive sense if you interpret there use of “party” to mean “qualified party”. That is why you will find that they specifically refer to “qualified party” when they mean “qualified party”.
Now that we have established that a voter may continue to register with a non-qualified parties, let’s consider candidates.
SB 6 added Section 300.5 that defines party affiliation for a candidate for a voter-nominated office as being that expressed on his _voter_ registration. This expressly overrides the definition of “party” in Section 338 with respect to a candidate for a voter-nominated office.
Note that a candidate could not express a preference for the Republic Party or GOP Party, unless that was the preference expressed on their voter registration. If they had expressed such a preference, then they could not vote in a presidential primary unless the party permitted “declined to state voters” to vote in their primary.
#6 14th Amdt, Sec. 2 is still around — regardless of MORON lawyers and judges.
right to vote — denied, abridged — SOOOO difficult to understand ???
#7 Partisan primaries with their restricted electorates do restrict the right to vote. Proposition 14 removes that restriction.
There is no right to vote in an organization’s elections when one is not a member of that organization. Organizations may or may not let non-members vote in the organization’s elections, but there is no “right”. If anyone disagrees, what is the authority for arguing that there is such a right?
# 9 See the EU case 1989 — PUBLIC nominations versus PRIVATE party hack stuff — clubby officers, clubby platforms, etc.
#9 When the organization is the public electorate, and most citizens over voting members, then we should be careful in granting exclusive control to a small coterie of party insiders.
Proposition 14 permits all voters to fully participate in all public stages of partisan elections. Partisan primaries restrict full participation.
#11: The US Supreme Court has said that political parties have “the freedom to identify the people who constitute the association, and to limit the association to those people only.”
In 21 states, both major parties’ primaries are open to all registered voters. Also, Utah’s Democrats invite all registered voters to participate in their primaries. And Alaska’s Democrats and two minor parties list all of their candidates on the same primary ballot, which is available to any registered voter.
Prop. 14 also limits the voters to just two choices per office in the final, deciding election.
#12 The two candidates which voters choose between in the general election received more votes than any other candidates in the open primary.
In none of those 21 States is a voter free to support all the candidates who he favors at the critical juncture where it is decided by the electorate which candidate’s names shall appear on their general election ballot.
#13: So what? Why should the voters be restricted to two choices in the final election? Those two final candidates may be from the same party, or no party.
As to the 21 states with true open primaries, in which each voter picks a party on primary day: If all of a voter’s favorite candidates are in the same party, he is indeed free to support all of them. The same is true of closed or semi-closed primaries.
Suppose parties nominated by convention. Would you favor letting people serve as delegates to the conventions of multiple parties? After all, all of a citizen’s favorite candidates might not be in the same party.
#13 Are you comfortable with the idea of the candidate with the most votes being elected, even if has no party? So what is the problem with advancing the candidates with the most support to the general election, without regard to their support?
And what if all of a voter’s favorite candidates are not in the same party? What if a voter generally favors Republican candidates, but supports Gene Taylor or Ike Brown despite them being Democrats?
Would you favor letting persons have a yard sign for one candidate; a bumper sticker for another; making a donation for a 3rd; and have a tea, complete with canapes for a 4th, even though they might not be in the same party?
There must be some problem with the “top two open primary,” since only two states have ever used it for all state and congressional elections. Washington state first used it in 2008, and the only other state to adopt it, California, won’t first use it until possible special elections in 2011, assuming that it’s upheld. Both the Washington and California systems are facing litigation.
Haven’t we had this argument before?
What’s Ike Brown running for?
Nebraska has used the system for its legislature elections for most of its time as a State. Louisiana has used a similar system for most of its elections for close to 30 years.
Your friends in Idaho, South Carolina, and Mississippi are likely to dork up the partisan primary system so badly that States will begin to switch to the Open Primary in response.
Governor?
Louisiana and Washington are the only two states that have thus far used the “top two open primary” for all of their state and congressional elections.
I predict that, when a suit against the state-mandated open (or pick-a-party) primary reaches the US Supreme Court, the justices will strike it down; at this point, it looks like that’ll be the Idaho suit. Then each party will be able to determine who is eligible to vote in its primaries.
The Mississippi suit against our open primary law ended in May 2008, and there’s no sign of a new suit. However, if the US Supreme Court strikes down another state’s open primary law, I wouldn’t be surprised if the Mississippi Democrats do bring another such challenge, since it would then be an easy case.
I would think that Alaska would be a possible next victim of the “top two open primary” monstrosity, since it has both the initiative process and a history with the blanket primary.
Ike Brown has always been the kingmaker, not the king.
BTW: The South Carolina Republicans’ suit against the state-mandated open primary has the same infirmity that the Mississippi Democrats’ suit had: the party has not adopted a rule for a closed primary.
#18, The evidence in Idaho is extremely weak. They relied on a survey of primary voters taken a year and half after the 2008 Idaho primary. 10% of the voters contacted claimed that they had not voted in that primary, even though the sample was constructed using records from the Secretary of State.
They asked a question about how voters had voted in the senate primary. Though 33% of actual voters had voted for someone other than the primary winners, LaRocco and Risch, only 2% of those surveyed said they had. Imagine you selected 400 voters at random, and based on actual results would expect 132 of them to have voted for a particular set of candidates. If only 8 of them said they did, you either had a bad sample; a bad question; faulty memory by voters; or voters dissembling about their actual vote.
32% of those in the survey either could not remember who they voted for in the top ballot races in the primary (US Senate race and presidential race), or indicated that they had voted in a way that was impossible in Idaho (voting for a Democratic presidential candidate and a Republican senatorial candidate of vice versa).
The survey then classified voters based on whether they always voted for Republicans or Democrats; or voted for Republicans more often than Democrats or Democrats more often than Republicans; or voted for independents or for the candidate. Those who were independents, or non-partisan were classified as being non-GOP, while those who more often voted for Republicans than Democrats, were classified as GOP voters. So voters who voted for Republicans like Butch Otter or Ben Ysursa, but not those like Rod Beck would be classified as “Republican” voters, even if that vote was cast based on the candidate; while others who may have voted similarly, but not characterized their voting as partisan were classified as non-GOP.
They then lump independent voters with those who are clearly partisan Democrats to claim that “non-GOP” voters have crossed over into the Republican primary in the past. They asked whether voters had voted in primaries for a mixture of party candidates, which of course is impossible in Idaho, so is actually a question about whether they had voted in Democratic or Republican primaries in previous years. And they asked if voters had ever voted for a Republican legislative candidate in a primary. Many of these voters could not even remember that they had voted in a primary less than 2 years previously, or had an accurate recollection of who they had voted for in the presidential and senatorial primary, and they are somehow expected to remember who they had voted for in some legislative race – perhaps for someone they actually knew. There was no followup to determine whether this vote was in 1948 or 2008.
The fact that it’s possible, in an open (or pick-a-party) primary, for non-members to vote makes it unconstitutional for the state to compel open primaries, in my view.
Where did you get the information on the Idaho evidence? I’d like to read it.
#20 On what constitutional grounds does the Idaho GOP have to compel other parties to restrict their primary to “members” only, to prevent independent voters from participating in the process which determines which candidates appear on the general election ballot, or to deny ballot secrecy?
The only way to resolve these conflicts is (1) maintain the pick-a-party primary; (2) permit political parties to identify individual voters that they are willing to let vote in their primary, and then disable picking of parties which do not permit a voter to vote in their primary; (3) include all candidates in an independent section which any voter may pick, and permit candidates to be nominated for the general election ballot – without party endorsement.
#21: No political party has any such grounds– who said it does? You evidently have not read my post about the Idaho trial on my blog. If the open primary law is struck down, each party will then have the option of inviting independents to vote in its primaries. Unless the state prohibits it, each party will also have the option of inviting members of opposing parties to vote in its primaries– which the Idaho Republicans obviously won’t do.
Interesting that no state uses your formula. Assuming that the open primary law is struck down: If the Idaho legislature still refuses to enact party registration, the state would have to change from “private choice” on primary day to “public declaration.” Then the Republicans could require anyone requesting a Republican ballot to sign an oath of affiliation (or loyalty pledge).
The Idaho Democrats have signalled that they intend to keep their primaries open to all voters.
Your point No. 3 would have party-affiliated candidates running simultaneously as independents– strange. What if a candidate won both a party primary and the “nonpartisan primary”? Would he be listed twice on the general election ballot?
I’m wondering about the constitutionality of the state forcing party-affiliated candidates to also run as independents.
If the open primary law is struck down: the simplest thing would be for the Idaho legislature to enact party registration, deeming all current registrants to be independents. The only voters who would have to re-register would be those who wanted to affiliate with a party.
Where can I find the information on the Idaho evidence?
#22 If a political party wishes to identify or designate which voters may vote in its primary, then it should bear the burden of maintaining its own membership rolls.
Why should the State of Idaho dictate that a voter may not register with more than one political party. If someone registers with both the Democratic and Republican party, then the voter can choose which primary they vote in, in the privacy of the voting booth. The Idaho GOP rule merely requires a voter to register in advance with the Republican Party. It does not require that they register exclusively with that party.
You have yet to explain why Idaho should implement procedures that would (1) violate the secret ballot; (2) require a government bureaucracy to maintain records of the political beliefs of its citizens; and (3) potentially exclude thousands of voters from participating in the election of their state officials.
My plan would (1) maintain the secret ballot; (2) eliminate a need for a government bureaucracy; and (3) include all voters in the election process.
All candidates who qualified for the general election ballot would appear once. Those whom had been endorsed by a political party would also have that endorsement appear on the ballot.
Under my proposal, candidates would apply to run for a particular office. That is certainly constitutional. They could also seek the endorsement of one or more political parties. That is certainly constitutional. I would do like California, and not permit candidates to withdraw. If a candidate died, I’d start the election process over.
These were my proposed rules for qualification for the general election:
(1) Most votes in a party primary, so long as 1% of all votes for that office were cast in that party’s primary.
(2) Most votes in the non-affiliated primary, as long as it was at least 1% of the total votes cast in the primary; as well as any other candidate whose non-affiliated votes were more than 10% of the total votes cast for that office. Candidates qualifying under (2) would have no party affiliation shown, unless they qualified under (1).