On July 14, U.S. District Court Otis Wright set an oral argument in Chamness v Bowen, cv11-01479. This is the case that challenges the part of California’s top-two system that lets some candidates use their party label on the ballot but does not let certain other candidates use their party label on the ballot. Here is the order, saying that although the judge is still inclined to uphold the ballot label law, he wants to be fair and to listen to oral argument.
On July 18, the scope of the case was potentially expanded, when a write-in candidate for U.S. House in the July 12 special election (36th district in western Los Angeles County) asked to intervene in the case. The candidate voted for himself, because the ballot contained write-in space, but his vote was not counted because the law implementing the top-two system says write-ins can never be counted in the general election for Congress and partisan state office. It will be interesting to see if the judge permits the intervention. Earlier he permitted former Lieutenant Governor Abel Maldonado to intervene in this lawsuit.
Here is commentary about the case from Damon Eris, writing at California Independent Voter Network.
write-in votes — 14th Amdt, Sec. 2 is still part of the nearly dead U.S.A. Constitution.
How many write-in votes in the late 1800s ??? — when there was legible handwriting.
Why doesn’t Gautam Dutta file a claim that the State of California is using a literacy test on its voter registration form?
Dutta repeatedly ignores that Election Code 8002.5 expressly states a candidate may only use the party preference expressed on his voter registration affidavit. This is reinforced by Section 300.5 which defines “party preference” for a candidate or a voter as that expressed on his affidavit of registration, and Section 2151(d) that specifies the conversion of political affiliations to party preferences.
But the ever clever Dutta claims that since only qualified political parties may “participate” in a primary, that voters who don’t express a preference for a (qualified) party don’t really have a party preference.
But voter registration affidavits are legal documents that a voter must sign to certify that they are truthful and correct, subject to prosecution for perjury. So in effect, Dutta is claiming that a voter registration is such a complicated document, that only a lawyer trained at Georgetown could possibly understand, or that the State of California is deliberately trying to trick voters into perjuring themselves. As such it a form of literacy test that is illegal under US law.
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Elections Code 338 does not confer “participation rights” on qualified parties, it simply governs the interpretation of the word “party” when it appears in the election code. Qualified political parties never had any particular participation rights in non-partisan primary other than 1st Amendment rights which everyone else also had.
For partisan offices qualified political parties had enormous participation rights, including denying or granting the right to vote to voters not affiliated with their party, to restricting participation in general elections to only candidates nominated by qualified parties, other than independent candidates who had gathered enormous numbers of signatures (in Richard Winger’s electoral lifetime, there have been only 12 independent congressional candidates in over a 1000 general election contests in California).
But Proposition 14 and SB 6 swept all that away except for presidential elections and party offices. With respect to voter-nominated offices the term “party” is carefully qualified. In Section 8002.5, “party preference” is not for a qualified party, but rather for the party that the candidate declared a preference for on their voter registration affidavit. In Elections 13302(b) “political party” is explicitly modified by “qualified”. The legislature could simply have written “party” here, but they wanted to make it clear that this was a special exception to the rule about qualified parties participating.
A political party that is preferred by a candidate is no more a participant in that preference than is a cow a participant when a 4-year old points out the window and exclaims that they like cows.
Before Top Two passed, a candidate who was registered to vote with a party that was not qualified for the ballot was not allowed to use the name of the party. Why would the court rule any differently now? In this case, a candidate wanted to use the name of a so called party that was not registered with the Secretary of State as a political body attempting to qualify for the ballot. This case may have been stronger if the candidate was registered with a political body that was at least attempting to qualify for the ballot, although I doubt it.
Many states, including California, count qualified write-in candidates votes. In California, a write-in candidate needs to get 40 valid signatures before write-in votes are counted. This want to be candidate failed to go to the registrar of voters office and attempt to file as a write-in candidate. Had he attempted and been rejected the case would have been stronger. To solve this problem, the state legislature will simply remove the line for write-in candidates from the general election ballot. In the direct primary election the registrar of voters office will not count write-in votes for a candidate who fails to obtain the 40 valid signatures. This is just like it use to be.
Election Code section 338 defines Party. “Party” means a political party or organization that has qualified for participation in any primary election. Only six political parties and no organization have qualified for a primary election. Those six parties, American Independent, Democratic, Green, Libertarian, Peace and Freedom, and Republican have all qualified to participate in their partisan presidential primaries. Each party also elects their central committee members in the partisan primary when more people seek those offices in districts or counties where there are more candidates than there are seats to be filled
#3 Before Proposition 14, voters declared which party they intended to affiliate with at a subsequent (partisan) primary. They could also decline to state their intention. Where enough voters had declared their intent to affiliate, or where past nominees of the party had done sufficiently well, the party qualified to have a partisan primary and have its nominees on the general election ballot (for partisan offices).
The Elections Code anticipates that voters will organize a party and register an intent to affiliate before any notification to election officials to count such registrations. Just because affiliations have not been specifically tabulated, does not mean they are illegitimate or invalid. They certainly are not “non-partisan” like Dean Logan has categorized them.
If a voter had declared an intent to affiliate with a party that failed to qualify, it did not void their declaration, it just meant that the voter could not execute their intent at that primary. Unless they changed their voter registration, their intent would remain unchanged.
A voter certainly did not have the permission of the party officials to declare an intent to participate in the primary. Proposition 14 recast the old declaration of intent to affiliate at a primary, to a party preference (see Elections Code 2151(d)). A voter still does not need the permission of a party officials to express a preference for a political party.
A candidate for a voter-nominated office is not the candidate or nominee of any party. He is an individual who has previous expressed a preference for a political party. Voter registration affidavits are signed by the voter to certify that they are truthful and correct subject to perjury charges. If a voter certified that he preferred a particular party. and you believe he committed perjury, you could bring it to the attention of the AG or DA.
Just as a candidate may have their professional or occupational designation appear on the ballot, they now have the right for their party preference to be on the ballot.
There was a write-in candidate in the CD 38 special primary. Write-in candidates are just like on-ballot candidates, other than the filing fee. They are subject to campaign finance laws (though some write-in candidates may be below filing thresholds).