On May 3, the California Secretary of State released a letter to Americans Elect, which says, “Our office recommends that petition signatures be filed with those (county) officials on or before September 16, 2011.” The letter is referring to the petition to qualify Americans Elect as a new party in California. Furthermore, this part of the letter assumes that AB 80 will pass. AB 80 moves the presidential primary from February 2012 to June 2012. It has already passed the Assembly unanimously.
The letter says that if AB 80 does not pass, “our office recommends that petition signatures be filed with those officials on or before May 25, 2011.”
There are several problems with the Secretary of State’s letter: (1) the letter seems to assume that political parties in California must qualify in time for the presidential primary, as opposed to the primary for other office. But, there is a precedent in California in which a newly qualifying party submitted its petition in time for the direct (non-presidential) primary, but not in time for the presidential primary. That precedent was set by the Liberty Party in 1932, when the California presidential primary was in May but the primary for other office was in August; (2) the California law does not require newly-qualifying parties to submit a petition by any particular date that is earlier than 135 days before the primary. That deadline (assuming AB 80 passes) will be January 22, 2012. There is no authority in California election law for an earlier deadline. When the Secretary of State of Ohio created a deadline for new party petitions by fiat in 2007, a U.S. District Court in Ohio struck down the Ohio Secretary’s deadline on the grounds that the U.S. Constitution’s election clause says only state legislatures may create rules for federal elections; (3) the letter ignores the case law that early petition deadlines for new parties to qualify for the ballot are unconstitutional. Federal and state courts in 15 states have struck down qualifying deadlines for new parties that were earlier than May of the election year. These decision have been based on four U.S. Supreme Court opinions, Williams v Rhodes, Jenness v Fortson, Mandel v Bradley, and Anderson v Celebrezze.
Thanks to Irregular Times for the link to the letter.
Keep suing the moron bureaucrats for $$$ damages – to bankrupt them.
Separate is NOT equal — even in CA.
Each election is NEW — even in CA.
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California seems to really be hating on ballot access for us. sigh.
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You are overlooking Elections Code Section 5100(c):
“… This petition shall be circulated, signed, verified and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions…”
There is clear authority in California statute for the Secretary of State to verify a petition for a new party in the same manner as is done for an initiative petition. The phrasing of the attachments is the same as the guidance given for initiative petitions, and assume the lengthiest process, with a full check of signatures required, and counties taking the fullest amount of time possible to validate the petition.
Initiated ballot measures go on the ballot for the next election that is 131 days from the time the measure qualifies. The Secretary of State is saying that the petitioning party participates in the next primary election that is 135 days after the party petition qualifies.
The State of California does have the authority to make the petition checking process for initiative petitions and party-qualification petitions the same, and it is rational for them to do so, and to delegate to the officer charged with overseeing elections that the petition checking is substantially the same. The Secretary of State is not making any laws, but rather applying the law in a consistent and rational basis.
The March 21, 2011 letter from American Elects to the Secretary of State says that the party does not intend to contest any voter-nominated offices, but only to create a presidential nominating process. The Secretary of State’s office did not assume that political parties must qualify in time for the presidential primary, but rather recognized that it was the apparent intent of American Elects to qualify for the presidential primary. They went out of their way to explain to the party officials that the presidential primary date might changes.
I see no evidence that the Secretary of State “released” their May 3, 2011 letter to Ackerman and Byrd (Americans Elects temporary officers, according to their March 21, 2011 letter). The Irregular Times website appears to have obtained that letter.
I think your headline should be:
California Secretary of State Issues Ordinary, Professional, and Courteous Guidance To Americans Elect Party
Since helpfully sending that letter to Americans Elect to Irregular Times (after a public records request), the California Secretary of State’s office has sent a letter to county elections officials containing similar information. You can read it here:
http://www.sos.ca.gov/elections/ccrov/pdf/2011/may/11034jl.pdf
#5, I did not overlook section 5100(c). No neutral, disinterested person would read that to mean that the deadline for submitting the petition for a new party must be the same as the deadline for submitting an initiative petition. If the Secretary of State believed that, her letter would have said in no uncertain terms that Americans Elect’s petition is due in September 2011 (assuming AB 80 passes).
There is a very large body of court precedent that the US Constitution prohibits early petition deadlines for new parties and independent candidates. Jenness v Fortson said the old Ohio February (of the election year) petition for a new party was “unreasonably early.” When the US Supreme Court says a petition deadline is “unreasonable”, that means it can’t even survive rational basis scrutiny. There is no corresponding protection in the US Constitution telling the states anything at all about deadlines for initiatives. The US Constitution doesn’t even require states to have initiatives.
#7 I am a neutral, disinterested person.
There are no deadlines for filing initiative petitions with county officials. There are, however certain time periods in which the counties and secretary of state must act (see Elections Code 9030-9033). Pay particular attention to Section 9033:
… A petition shall be deemed to be filed with the Secretary of State upon the date of the receipt by the Secretary of State of a certificate or certificates showing the petition to be signed by the requisite number of voters of the state…
And then check 5100(c):
… If on or before the 135th day before any primary election, there is filed with the Secretary of State a petition signed by voters, equal in number to at least 10 percent of the entire vote of the state at the last preceding gubernatorial election, declaring that they represent a proposed party, the name of which shall be stated in the petition, which proposed party those voters desire to have participate in that primary election. This petition shall be circulated, signed, verified and the signatures of the voters on it shall be certified to and transmitted to the Secretary of State by the county elections officials substantially as provided for initiative petitions.
No reasonable and rational individual can disagree with the following:
The California Constitution provides that an initiative petition be presented to the Secretary of State, and that the initiative will qualify for the next statewide election 131 days or more later.
California statute (Elections Code 9033) deems that the filing date is when it is confirmed by the Secretary of State that there are enough signatures on the petitions submitted to the counties.
The amount of time in which the counties may act is variable. If a petitioner wants to be sure of having the initiative on a particular election, they will submit enough high quality signatures such that an individual count is not necessary, and they will do it it in time for the counties to act.
If they file later that the recommended date (not deadline), then there is a risk that the verification process will not be completed in time to meet the deadline. If it does qualify later than the deadline for one statewide election, it will simply qualify for the next.
California has established two methods by which a party may qualify to participate in a primary (for voter-nominated offices, participation is limited to having endorsements printed in the sample ballot. For presidential elections, a qualified party may have an indirect presidential preference primary, and have its nominee appear on the ballot).
The traditional method is to have voters register an affiliation with a unqualified party. The other method is a petition method, which by statute (Section 5100(c)) the petitions are to be verified in a manner which is substantially the same as for initiative petitions.
5100(c) carefully uses the term “filed with the Secretary of State” to mean “when the Secretary of State determines that there are sufficient signatures for the petition to qualify”
It is not unreasonable nor irrational for party petitions and initiative petitions to be verified in the same way.
As with initiative petition, if a petition is not verified in time for one election, then it takes effect for the next primary. If the presidential preference primary remains in February, and the party is not qualified in time, then it will be qualified for the statewide primary in June. Voters who are affiliated with the party (whether it qualifies or not) will be entitled to have their party preference appear on the ballot if they run for Congress or the legislature. If the party qualifies, then it may have its endorsements appear in the sample ballot. The party may also elect its party officials at the June primary.
The party would also be qualified for any special elections.
It is clear that the Secretary of State is correctly interpreting California law and the intent of the California legislature.
So the questions then is whether California statutes are unconstitutional.
In particular:
a) May California recognize groups of voters affiliated with a party as the embodiment of that party, or must they recognize the dictates of political bosses under the dogma of right of political association? Yes. Those who would want to be dictators are free to organize PACs and freely participate in the political process. The only thing they don’t have is a ballot label.
b) May California require participation of affiliated voters in the process by which a party chooses its presidential nominees? Yes. Those who do not want to participate in the partisan process are free to make independent nominations (incidentally Elections Code 8304 suggests that if only part of a presidential elector slate is pledged to a presidential candidate, the slate is not associated with that candidate, and votes for the slate are not “popular votes for the candidate”. Nixon Wins!)
c) May California set its presidential preference primary as early as February or as late as June. Yes. California is no different than any other State.
d) May California require parties that wish to participate in the presidential primary, to qualify 135 days before the primary. Yes. California requires parties to decide 135 days before the primary whether voters not affiliated with a qualified party, may vote in a primary. Voters who wish to vote in a primary may wish to change their affiliation, candidates need to be designated by the Secretary of State, ballots prepared, and military ballots sent out 45 days before the election.
d) May California require a reasonable amount of time for county officials to verify petitions. Yes.
#7 Do the petitions say (in 18-point bold face)?
“Americans Elect petition to participate in the primary election”
If Americans Elect is not seeking to participate in the presidential preference primary is their solicitation fraudulent, and any signatures void?