On December 6, the California Attorney General filed this 16-page brief in the California Supreme Court, urging that Court not to hear Field v Bowen, the case that challenges some of the characteristics of the top-two system. The only issue presently before that Court is whether the implementing legislation is defective because it allows some candidates to show their party on the ballot, but not other candidates.
The state continues to maintain that the new law does not permit members of non-qualified parties to list their party on the ballot. The state also argues this separate treatment is constitutional. The state erroneously says on page two that California has never permitted party labels on the ballot if the parties were not qualified, but this is not accurate. California did permit candidates who used the independent procedure to choose a party label, that was printed on the ballot, between 1891 and 1915.
The state says there is no difference between “independent” and “no party preference” on the ballot, and does not mention the decisions of the Massachusetts Supreme Court and the Minnesota Supreme Court, each of which said the label “independent” is too significant and essential to be banned. The Massachusetts legislature had passed a law requiring independent candidates to be listed as “unenrolled” on the ballot, but the Court struck down that law. The Minnesota Secretary of State had told independent candidates that they couldn’t use the word “independent” on the ballot because, at the time, the Republican Party had changed its name to the Independent Republican Party, and therefore that party had exclusive title to the word “independent.” The Minnesota Supreme Court reversed the decision of the Secretary of State. These cases are relevant because the California top-two system does not permit anyone to describe himself or herself on the ballot as an Independent.
The intervenors who support California’s top-two system filed this longer brief. They argue that they do not know whether the law permits members of unqualified parties to list their party label on the ballot or not. They say that if the law does not permit this, that is constitutional. Alternatively, they say that perhaps the law does permit anyone to list a party label on the ballot, although they argue this would be harmful and would confuse voters.
How can one part of ANY mere law somehow cause a state constitutional amendment to be somehow un-constitutional ???
Your last paragraph is erroneous.
You have asserted that Mackler and Martin were registered members of their respective parties, and yet Gautam Dutta claims that under California law that one can not be registered with an unqualified party. Maybe he doesn’t know whether the law permits such a registration.
SB 6 defines a voter’s political party preference as being what the voter specifies on his voter registration form, which is signed by the voter to indicate that it is truthful and correct. It does not define it as “a preference” for “a (qualified) political party” as you are attempting to interpret it. As long as a voter does not commit perjury, then his party preference is what he specifies on his registration form.
SB 6 also defines a candidate’s party preference to be the same as which he specified on his voter registration, and gives them the choice whether or not to have his party preference, or lack thereof to be denoted on the ballot. If this interpretation is correct, then Mackler and Martin are not harmed by Proposition 14 and SB 6, indeed they are assisted because they would not face the requirement to collect several 1000 signatures.
But it would be constitutional for California to regulate parties. One of the reasons the United Kingdom began registering parties, was because candidates actually did run as “Literal Democrats” in order to confuse voters who might think they were “Liberal Democrats”. So it does not matter whether voters would confuse “Republic” with “Republican”, but whether they could, or whether the State has a legitimate interest in reducing confusion for voters. California already restricts newly qualifying parties from using names similar to existing qualifying parties, or other parties that are attempting to qualify.
California has a legitimate interest to ensure that the political party preferences are indeed for political parties, and the qualification scheme is one way to do so, and would be legitimate and constitutional to so regulate them. I doubt that anyone on the Supreme Court thought that New York’s scheme for election of Supreme Court judges was wise public policy, or even whether elections of judges was a good idea. But Lopez Torres was a 9-0 decision that the New York scheme was constitutional.
California could define a candidate’s party preference as being for a “qualified party”. What would be questionable is whether the current standard of qualification is legitimate for such a purpose. It is inconsistent for California to say you can have your name on the ballot if you have 40 signatures, but can’t express the name of your political party preference – when that preference does not indicate nomination, support, or endorsement of a substantial political party. There is simply no reason for a modicum of support of the magnitude that has been upheld by courts in the past. California has made a policy decision that ballot crowding or resolution of factional disputes prior to the general election are not concerns — or rather that they are outweighed by the desire to have the full opportunity for participation of all voters and all candidates in all elections.
While maintenance of a higher level of support for purposes of holding presidential primaries is legitimate, it is not for purposes for qualifying the object of a candidate’s party preference. This does not make Proposition 14 unconstitutional. Indeed, it is the intrinsic constitutionality of Proposition 14 that makes such a challenge possible.