On December 15, the California Supreme Court declined to hear Field v Bowen, the case that challenges the new California law that says some candidates, but not others, may have a party label on the ballot. The case has not yet received any ruling from the State Court of Appeals, and the next round of briefs in the case will be in the Appeals Court. In the appeals court, another issue (which was not before the Supreme Court) is whether write-in votes should be counted in November for Congress and state office. The new law says that write-ins should not be counted, but leaves write-in space on the ballot and also leaves in place procedures for candidates to file as declared write-in candidates. See this story in the Sacramento Bee.
How come the next step isn’t back in Superior Court? Hasn’t the only thing that has happened is that the Superior Court denied a temporary injunction?
I think you are confused about the California election laws. It was the law prior to SB 6 that said that some candidates, but not others, may have their party label on the ballot.
California has always let voters register with a “non-qualified” party. But under the old law, candidates registered with a “non-qualified” party were required to run as an “Independent” just as if they were a “Declined To State” voter. Moreover, it was very difficult for an “Independent” candidate to qualify for the ballot. The last “independent” gubernatorial candidate was 32 years ago, back when Jerry Brown was governor.
SB 6 did not change the rules with regard to registration, they simply recast “declared an intent to affiliate with Party X at the next primary” to “disclosed a political party preference for Party X”. So a voter registered with a “non-qualified” party, continues that party affiliation.
But SB 6 says that a voter who has expressed a preference for a political party on his voter registration, must have that party preference on the ballot, or have nothing at all. And it will be much easier for such a candidate to qualify for the ballot, beginning on January 1, 2011.
The next step isn’t Superior Court because all sides in the lawsuit agreed that the next step should be the State Court of Appeals.
California has not always allowed voters to register into an unqualified party. Registration by party was created in 1909, but only in 1913 were voters given the freedom to register into an unqualified party.
California independent procedures (pre-Prop. 14) allowed 3 U.S. House independents onto the California general election ballot in November 2010. Under top-two, no such independent candidates for the U.S. House are likely to appear on the November ballot ever again. The statement “It will be much easier for such a candidate to qualify for the ballot, beginning on January 1, 2011” is not a true statement. Congress has said that congressional elections must be in November, so “the ballot” in a congressional race is the November ballot.
Does the plaintiff who plans to run in the special election in Senate District 28 have any recourse now? For example, could he attempt to file with his party label, get told that he can’t do that, and then go to Los Angeles County Superior Court? This might come to a head very soon — if I understand the rule correctly, as soon as next week.
Also, did the state Supreme Court just ignore the urgency of this plaintiff’s situation, or did they offer some kind of explanation for why there’s no immediate problem?
There is no explanation from the California Supreme Court. It’s very similar to when the U.S. Supreme Court denies cert. They don’t generally explain why.
Richard,
There is no point arguing with Jim Riley. He is a supporter of a one-party Soviet-style electoral system where the voter has no choice except the two candidates chosen by a single state-controlled party. He is a small minded, evil little man and does not believe in liberty.
The solution is to organize an initiative to replace the evil “top-two” law. It should be a complete electoral reform making it easier for all third parties and independent parties to appear on the November ballot, enroll voters etc. However, it must be for single member, plurality districts and not include any of the alternative voting systems that some third party supporters advocate. It must give us what we had before, but a bit better. Then we will gain the support of most mainstream Democrats and Republicans who will also hate the new “top-two” law. It will get enough support to gain funding and pass.
As to Jim Riley, he, along with the Soviet Union, belongs in the dustbin of history.
#3 It might be possible that the open primary could be held on March 7 so as to be coincident with Los Angeles and Carson city elections – depending on the interpretation of 10703(a). 44% of the district is in Los Angeles, and with inclusion of Torrance, Carson, or Redondo Beach it would be over 50%. A special election can be delayed in order that the primary special or primary general election can be coincident with a statewide election, or a local election where 50% of district voters are eligible to vote. So it depends on whether “a local election” is “local elections held on the same date”. This would set the initial filing date on January 3, which would ensure the entire election is conducted under terms of the Top 2 Open Primary reform.
Elections Code 8002.5 is quite clear cut.
“8002.5. (a) A candidate for a voter-nominated office may indicate his or her party preference, or lack of party preference, as disclosed upon the candidate’s most recent statement of registration, upon his or her declaration of candidacy. If a candidate indicates his or her party preference on his or her declaration of candidacy, it shall appear on the primary and general election ballot in conjunction with his or her name. The candidate’s designated party preference on the ballot shall not be changed between the primary and general election. A candidate for voter-nominated office may also choose not to have the party preference disclosed upon the candidate’s most recent affidavit of registration indicated upon the ballot.”
I wonder if the 6 qualified parties have set out the procedure by which they will endorse candidates (see Elections Code 13302(b))?
#2 Good catch. I’ll correct my 2nd paragraph:
California has, since 1913, let voters register with a “non-qualified” party. This practice continues unchanged by SB 6.
But under the pre-2011 law, candidates registered with a “non-qualified” party were required to run as an “Independent” just as if they were a “Declined To State” voter. Moreover, it was very difficult for an “Independent” candidate to qualify for the ballot. The last “independent” gubernatorial candidate was 32 years ago, back when Jerry Brown was governor.
#2 Congress nor the Supreme Court has never defined exactly what is meant by the November election date. In Foster v Love, Justice Souter simply noted that an election in which the polling places were locked on election day, and in which a certificate of election had been issued in October was not a November election.
The Supreme Court has upheld electoral procedures in which candidates were excluded from the November election on the basis of a primary election, while simultaneously treating the primary election as part of the congressional election.
Nobody bothered to challenge the date of the congressional primary in Washington until late in appeals process, and the court rejected the timing of that claim. AFAIK, no one has contested a congressional election conducted under the Top 2 Primary system.
BTW, I had a chance to read the transcript of the Superior Court hearing on the temporary injunction.
Margaret Leoni, first indicated that voters might be confused between someone claiming to represent “America’s Independent Party” vs. “American Independent Party”, and then went on to compare “Republic” vs “Republican” party.
While California has a legitimate interest in mitigating such confusion, it so far has not done so.
If someone did register with “America’s Independent Party”, I suspect that the election officials would file it under “American Independent Party”, just as they might for someone who claimed an affiliation with the “Democrat Party” or “Republic” or “GOP” party. It appears that only a few counties such as Santa Cruz and Fresno actively segregate “Independent” from “American Independent Party”.
If some candidate then attempted to file as some variant name, election officials would read 8002.5 and see that it required them to use the registered affiliation. Perhaps that would end up in some skirmish in court, just as sometimes there are disputes about the occupational/professional/office designation.
It certainly isn’t a matter for declaring Proposition 14 facilely unconstitutional.
To: “In memory of lost liberty”:
Well, the two-party oligarchy that we have in this country is not quite as bad as the one-party Stalinist dictatorship that they had in the former Soviet Union, but it is bad enough. The fact that Jim Riley wants to make our current system even worse by having the “top-two” system forced upon us (which actually did happen here in the Golden State) is rather amazing. You are correct in that “there is no point arguing” with him. In regard to California, the debate needs to be done in the courts.
I don’t understand this quote in the story:
“There’s no reason for us to wait for this to go through the courts when there is a proper legislative fix,” attorney Gautam Dutta said.
The lawsuit claims that Proposition 14 is unconstitutional, not that certain aspects of SB 6 can’t be corrected if necessary.
#11 This lawsuit makes no claim whatever that Prop 14 is or is not constitutional. It claims that (1) specific features of SB 6 are unconstitutional, and (2) these features are not severable, so Prop 14 can’t be implemented until these features are fixed by the legislature.
That said, I don’t understand Gautam Dutta’s statement for a different reason, which is also implied in the same Fresno Bee article. Even the Secretary of State, who is a fairly popular member of the majority party, is said to be having trouble finding a legislator to sponsor amendments to SB 6. What makes Dutta think that’s an easier or quicker path than adjudication?
TO: Jim Riley
Who is Margaret Leoni? Please quote what she stated in detail on the subject of American Independent Party vs.America’s Independent Party before the court in brief.
TO: Margaret Leoni through someone that can forward this post.
On June 27, 2008 the State Central Committee of the American Independent Party voted to affliate with the
America’s Independent Party as a national affiliation.
The America’s Independent Party is based in Fenton, Michigan and not in California. I am on its Executive
Committee. Please explain why you raised a “red herring”
with the court in your brief?
Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party
Margaret Leoni is one of the two attorneys for Abel Maldonado. She and Chris Skinnell argued in front of the San Francisco County Superior Court when Field v Bowen had it hearing. Both attorneys are with Neilsen Merksamer, the same law firm that is asking the 9th circuit to overturn San Francisco’s Instant Runoff Voting system.
To: Richard Winger,
Thank you for post # 14. However, we both have the wrong
spelling of the name. It is Marguerite Mary Leoni, viz.,
an “e” is following the “t”. According to a press release
dated December 10, 2010 the law firm of NIELSEN MERKSAMER PARRINELLO MUELKA & NAYLOR, LLP will change its name, effective January 1, 2011, to NIELSEN MERKSAMER PARRINELLO GROSS & LEONI, LLP.
Please tell me where Ms. Leoni stated an California elector might be confused by someone representing the AIP and the A’sIP?
Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party and a California member of the Executive Committee of the America’s Independent Party of Fenton, Michigan
Where does it say in the U.S.A. Constitution that X percent of the PUBLIC electors in PUBLIC nominations have a constitutional right to have nominees for PUBLIC offices on the PUBLIC election ballots — with or without a party hack label ???
Solve for X ??? Good luck.
Citation of ANY part of the U.S.A. Constitution ??? Good luck.
How many NONPARTISAN top 2 primary regimes are there in the U.S.A. — for offices — legislative, executive and/or judicial ???
Are such NONPARTISAN systems somehow UN-constitutional according to such above X percent of the PUBLIC Electors ???
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1962839&doc_no=S188436
Field v. Bowen
12/15/2010 Petition for writ of mandate/prohibition denied
The requests for judicial notice are denied. The motions to intervene are denied. The petition for writ of mandate is denied.
———–
How many *denied* can there be in any court judgment ???
Some sort of Federal court case now ???
#13 Marguerite Leoni (sorry about the misspelling). She includes “Mary” in her signature, but before the court identified herself as “Marguerite Leoni”.
Lines 19-25, Page 27 of transcript for September 14, 2010 hearing preliminary injunction San Francisco Superior Court.
“It’s the State’s ballot, not the voters’ ballot. It avoids confusion. What if somebody wants to use the name ‘America’s Independent Party?’ How do you distinguish that from the ‘American Independent Party? Secretary of State can’t do it because it doesn’t keep election records, registration records for ‘America’s Independent Party’. So there is a risk of voter confusion and also a risk of fraud”.
It was not my brief. I don’t know whether the use of the name of the Fenton-based organization was inadvertent or not. I had read it as incidental. Ms. Leoni had then gone on to contrast “GOP” and “Republic” to “Republican”. I suppose that one could argue that “GOP” and “Republican” were equivalent. I would think that “Republic” might be considered confusing. The exact circumstances surrounding use of “America’s Independent Party” by a candidate for a voter-nominated office might need to be resolved if it actually occurred.
I assume your California voter registration is with the “American Independent Party”, and that were you to run for a voter-nominated office, that you would run as “My Party Preference is American Independent Party” rather than ” “.
Has the American Independent Party defined its procedures for issuing endorsements for the upcoming special election in Senate District 28?
#12 You would have to be goofy to think the write-in provision is not severable. Section 8606 does not make grammatical sense.
“a person whose name has been written on the ballot as a write-in candidate” clearly refers to a person, and not votes cast for that person by having their name written in.
Compare to 8605, where the similar “no person whose name has been written in upon a ballot” is explicitly separate from the votes cast for the person by having their name written it, since it the count of those votes which determines whether or not the candidate advances from the primary or is elected.
And the party designation restriction is not even in SB 6.
# 19 Were the party hacks on drugs at 4 AM in the morning when 8606 was written ???
TO: Jim Riley,
Do you know if any elector in California registered with an “other party” by using the name of the the national affiliate of the “American Independent Party”, viz.,
“America’s Independent Party”? I think not.
In they did, I believe the registrars of voters for each county would make an inquiry as they did in Imperial County of the electors when they have written in other party name “Independent Party”. In every case the reply
was they ment the “American Independent Party” when the
question was asked, viz., Do you mean by writing in the
other space “Independent Party” mean the “American Independent Party”?
Therefore, If someone under other party wrote in “America’s Independent Party”. A county registar of
voters could make an inquiry of that elector by asking
him if writing in “America’s Independent Party” he/she ment to register as the “American Independent Party”?.
It has worked in Imperial County when persons write-in
under party name “Independent Party”, since in all replies
to that question has come back to the Imperial County
election offical thay ment “American Independent Party”.
I note “Paulie” has claimed that thousand of people make
a mistake and registered as “American Independent Party”
on other posts. I have not heard of this claim by any
one other than “Paulie”, “Gary Odom”, “Richard Winger”
or the “Mayor of San Francisco”. Therefore, I place this
claim as just an urban ledgend with no basis in fact.
As for the issue of the Republican Party and GOP, I note
that Don “one way” Dumont ran for President under the party of “G-ds Own Party”, therefore, I can see a voter
being confused with the label GOP.
I was writing about Senate Bill 28 when I used SB 28. It
had nothing to do with Senate Distrit 28, viz., SD 28.
Sincerely, Mark Seidenberg, Vice Chairman, American Independent Party
#21 I would suspect not. IIUC, current registration forms have a check box for DTS, followed by check boxes for the 6 qualified parties, and then a check box for other party and a space for writing in the name of that party. I don’t think many would skip past “[ ] American Independent Party” and then mark “[X] Other America’s Independent Party”
I don’t know what the registrar of a county would do if a voter did do that.
Santa Cruz County appears to treat “[X] Other Independent” as registration with an other party rather than DTS. The Santa Cruz website has weekly registration statistics, and there was a sharp drop in DTS registration that was coincident with an increase in Other registration (between May 12, 2008 and May 19, 2008). Santa Cruz continues to lead the state in percentage of Other voters.
Santa Cruz emphasizes that a voter who considers themselves to be an “Independent” should skip the DTS and American Independent Party boxes and should select Other and write in Independent.
The fiancee of the mayor of San Francisco (now Lt.Governor-elect) did register as an “American Independent”. Since that time the registration form has added the DTS check box at the top of the list of party names. SB 6 codified the current practice, by requiring the No Party Preference box at the top of the list. Gautam Dutta somehow thinks this is significant – when all it does is demonstrate that the voter registration and affiliation process is the same as it was before SB 6.
On December 16, the governor issued his proclamation for the SD 28 special election, to be held on April 19. The primary will be February 15, and a filing deadline of January 3.
If the election is conducted under terms of Proposition 14 and SB 6, the candidates will have a choice of using the party preference on their voter registration or having ” “. Voters who are registered as No Party Preference (formerly DTS) will have a choice of “No Party Preference” or ” “.
The SOS is required to display a 10-year party registration history on their website for all candidates. Each qualified party may endorse candidates, regardless of their party preference, and have that endorsement appear on the sample ballot. I don’t know when you have to file those by. Hopefully, after the filing deadline for candidates.
To: Jim Riley,
In Imperial County the practice is that when the
registration is by write-in on the HAVA printed form as “Independent Party” the staff at the Registrar Office contacts the elector an asked them
if they are registering in the “American Independent Party”. I was informed that was the
case all persons replied in the affirmative. Yet,
everyone of these electors in this class gave their
place of birth as “Mexicali” and they are citizens
of the United States. They also asked for a Spainish language ballot.
I went an contacted several of these “Mexicali”
birthers and they told me they are registered in
the IAP and not AIP. My guess they think the
party is know as IAP (not the Nevada Party by the
same letters, because of the translation and not
transliteration of the American Independent Party
name in Spanish.
How does the 10 year party registration work? In the case of the group in SD 28 what is on the LA
County form. Does that mean the Registrars now have to keep records for ten years instead of five
years as it was prior to Prop. 14? Does that also
mean the qualified and former qualified politcal
partys need to retain its records for ten years?
Thank you, I did not know about the ten year issue.
That would help the AIP when we open probate of the
late William Shearer next year for the party records.
Sincerely, Mark Seidenberg, Vice Chairman, American
Independent Party.
P.S. How will they handle electors that were registered in two counties at the same time in two
different parties, viz., American Independent Party
in San Bernadino County and Republican Party in Los Angeles County, as in the case of the wife of
Jim King?
#23 Last spring there was a legislative hearing on implementation of Proposition 14. The Secretary of State (or perhaps it was one of her minions) indicated that eventually the State would have registration records for that length of time, but that in the interim they would depend on the candidates – and suggested that there would be 100s of fact checkers.
The 10-year registration history is provided for in Section 8121. Sections 17000 and 17001 appear to set a minimum retention period of five years. It is possible that the SOS could require longer retention as necessary for implementing California election laws.
The schedule for the SD 28 special does include the date when the SOS will post the registration history of the candidates, so it appears that it is the intent to implement this feature. IIUC, legislative candidates file with the county election official in their county of residence (in this case Los Angeles County). Perhaps part of the declaration of intent will include the 10-year registration history.
The SOS schedule doesn’t say anything about the filing of endorsements under 13302(b). Maybe you could contact the Los Angeles election officials or the SOS office.
When California defends the Top 2 law in court, they will argue that candidate party preference is simply information for the voters, similar to office/profession/occupation designation, and does not imply endorsement by the political party. This is what Washington officials successfully argued before the Supreme Court).
By requiring the candidate party preference to match the voter party preference, they are ensuring that the information is accurate (the voter signs his voter registration affidavit indicating that it is truthful and correct (subject to prosecution) so there is a pretty strong presumption that it is indeed an accurate representation of the candidate’s party preference. The 10-year record could help a voter determine whether the candidate had been consistent in their party preference.
The separate endorsement scheme demonstrates that the candidate party preference is not an endorsement, since any party endorsements were distributed to voters with the sample ballot.
The HAVA voter registration form is entirely write-in with regard to party affiliation. The qualified parties are only listed in the instructions. So it differs from the state forms, which have both a DTS check box, and an AIP check box, with a completely separate Other box with its write-in. Voters might fill out the two forms differently.