On January 10, at 1:30 p.m., the California Senate Elections Committee will hear AB 1413. The bill abolishes write-in space on general election ballots for Congress and partisan state office. It also makes various other technical changes that will alter the top-two system passed by the voters in June 2010, when they approved Proposition 14 by a 53.7-46.3% margin.
Existing law says the ballot should contain write-in space, but that write-ins cannot be counted. It is wildly irrational for the existing law to leave write-in space on the ballot and yet say they can never be counted. There are two obvious ways to fix this: either repeal the law that says write-ins can’t be counted; or change the law to eliminate write-in space on ballots. The author of AB 1413, Assemblyman Paul Fong, has chosen the more repressive choice.
The California Senate Elections Committee has five members: Democrats Lou Correa of Orange County, Kevin deLeon of Los Angeles County, and Ted Lieu of Los Angeles County; and Republicans Doug LaMalfa of far northern California, and Ted Gaines from the Sacramento suburbs. If you happen to live in the district of any of these five Senators, please communicate to them before January 10 that you favor keeping write-in space on ballots.
The proponents of Proposition 14, despite their high-flown rhetoric about voter choice, are responsible for persuading the bill’s author to act against voter choice. Not all proponents of Proposition 14 favor eliminating write-in space, but the most powerful proponents, including the Nielsen Merksamer law firm, are strongly pushing to eliminate write-in space.
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14TH AMDT, SEC. 2 is still part of the nearly dead U.S.A. Const.
Look for *denied* and *abridged* in such section.
How many write-in votes in 1866-1868 ???
The proposed legislation violates the California Constitution.
In the provisions related to requesting a party ballot for partisan (presidential) primaries, the new language clearly recognizes that a voter may have a preference for a non-qualified political party. This is also true with respect to an application for a place on the primary ballot for a voter-nominated office.
California’s party qualification scheme would be unworkable if voters could not register a preference for a non-qualified party. If the Peace & Freedom Party voter registrations had been wiped out when it lost its qualified status, it is quite unlikely that it would have been able to regain its qualification.
Article V, Section 2 of the California Constitution states: “… All voters may vote at a voter-nominated primary election for any candidate for congressional and state elective office without regard to the political party preference disclosed by the candidate or the voter, …”
By preventing certain candidates from having their party preference appear on the ballot, this restricts voters from freely voting for any candidate. This burden falls particularly on voters who share the party preference of candidates who prefer a non-qualified party. That is to say, the new provision is taking into account, or having regard for, the party preference of both the voter and candidate – which is absolutely in violation of both the letter and intent of Article II, Section 5.
The situation is analogous to that in the residency-duration cases, where the California Supreme Court determined that the burden fell primarily on voters who might vote for a newcomer, more so than the would-be candidate who had somewhat recently moved into a city. The court found there was no rational basis for the regulation (eg that a candidate needed to become familiar with the city before becoming an officer of the city). Instead voters could make their own determination whether the candidate was qualified. While a newcomer might face negative scrutiny, that was something for the voters to decide, and not the state. Similarly, a candidate who prefers a less popular party might have an uphill battle to be elected, but it is not the role of the state to further handicap his election.
AB 1413 also violates the intent of Proposition 14, as expressed in its preamble. It is the intent of Proposition 14 that “all voters shall have the freedom to choose whether or not to disclose their party preference” It is a restriction on that freedom, if, after making a disclosure, a voter who becomes a candidate is unable to have that preference expressed on a ballot in the same manner as candidates who have disclosed a preference for certain other parties.
It is the intent of Proposition 14 that “[n]othing in this act shall restrict the right of individuals to join or organize into political parties …”. It is a restriction on the right to organize into a political party, if candidates who have affiliated with that party can not have their party affiliation (preference) appear on the ballot.
It is the intent of Proposition 14 that it conform with the Supreme Court ruling in Washington State Grange v. Washington State Republican Party. In that case, the State of Washington argued successfully that a political party preference was a personal expression of the candidate, and does not indicate party endorsement. If California were to restrict personal political expression to certain preferences, it would be a violation of the 1st Amendment and (broader) protection recognized by the California Constitution. It could also lead to voter confusion, as voters might confuse the concept of preference for a qualified party, as somehow meaning that a candidate was qualified for the office. It might also lead a voter to believe a candidate was endorsed by a qualified political party if the only party names on the ballot are those that may nominate presidential candidates or appear on the voter registration form.
The declaration of candidacy introduces the Orwellian concept of “declined to disclose a preference for a qualified political party upon your affidavit of
registration”. Disclosure of a party preference is an affirmative action. Declining to disclose a preference is a negative action. One can not be deemed to have made a declination to disclose, by making a disclosure.
Consider a voter who had indicated their affiliation with the Natural Law Party when they were qualified. Since it is illegal for state election officials like Debra Bowen or Dean Logan to involuntarily change the party affiliation (or since 2011, party preference) of a voter, that voter is now considered to have disclosed a party preference for the Natural Law Party, so long as his registration is active or he has not disclosed another party preference.
If that voter were to become a candidate, on his declaration of candidacy (which must be sworn to and notarized), he would first have to certify that he had disclosed a party preference for the Natural Party on his voter affidavit of registration; and that he had been affiliated with the NLP since at least January 2007 (when the party became non-qualified) as part of his voter history.
The candidate must then indicate that he either (1) has a preference for a qualified party disclosed upon his affidavit of registration along with the name of that party; or (2) had declined to disclose a preference for a qualified party on his affidavit of registration.
If our candidate checks the first option, and writes that his preference is for the Natural Law Party, he has made a false statement, because the NLP is not a qualified party. If he knowingly did so in a hope that he might have his preferred party name appear on the ballot, he may be subject to prosecution for perjury.
If our candidate checks the second option, he is also making a false statement. He did not decline to state an affiliation with a qualified party. Since elsewhere on the form he was required to document his voter registration history since 2002, it will be quite evident that he had disclosed a preference for the NLP (or declared an intent to affiliate at the subsequent primaries). Again he risks possible prosecution for perjury.
In her maladministration of Proposition 14, Debra Bowen has gone from suppression of free speech to inducing perjury.
AB 1413 goes even further and prevents a candidate from not having an indication of party preference appear on the ballot. The California Constitution as amended by Proposition 14 states a constitution, “may have his or her political party preference, or lack of political party preference, indicated upon the ballot”
There is no reason to presume that the authors of the amendment, or even the voters in approving the amendment did not understand the use of the permissive “may“. Indeed, opponents of the measure highlighted that “CANDIDATES WILL BE ALLOWED TO CONCEAL THEIR PARTY AFFILIATION FROM VOTERS” (Voters Pamphlet for June 2010 election).
Even if the constitution had not made the appearance of party affiliation optional, it would be. California may not compel speech, and there is no state interest in having additional information appear next to a candidate’s name. “[ ] Richard Winger” is as sufficient for letting a voter cast a vote, as “[ ] Richard Winger, Prefers Libertarian Party, Newsletter Publisher”.
Requiring additional information would be as bizarre as requiring a write-in vote to include the party preference and occupation of the candidate in order to be counted.
Before 2011, when California had partisan elections, the party name displayed on the ballot was not (necessarily) that of the candidate, but rather that of the nominators. It was quite legal, though somewhat difficult, for a Republican to be the nominee of the Democratic party. Further, “Independent” on the ballot indicated that the candidate had been nominated by an ad hoc body of voters, acting independently of any (qualified) party, including the party or parties that the nominating voters are affiliated with.
The concept of “modicum of support” applies to the nominators, not the nominee, to ensure that they are in sufficient numbers or past electoral support to warrant inclusion of their nominee on the ballot.
California has chosen to eliminate such modicum of support tests, replaced with a quite modest number of signatures, and a fee, which is not particularly onerous considering the district sizes.
While there might be a state interest in ensuring that a party preference is indeed a preference for a political party; there is no state interest in ensuring that a preference is for a large established party.
This is similar to the state regulation of the office/occupation/profession designation. The state has an interest that the information be correct and accurate, but has no interest in giving preference to Laborers over Lawyers (because it is a more popular occupation), or Lawyers over Laborers (because it requires more education).
California might choose some modest regulation of political parties, such as that in Florida, which gives some surety to voters that a party preference is for a party, but in particular places no size restriction on parties.
But instead California has chosen a less intrusive system of disclosure, as opposed to regulation.
A candidate who wishes to have a party preference appear on the ballot, must first disclose that preference on his voter affidavit of registration.
Any change to an affidavit must be signed to indicate that the information is truthful and correct (the signature is not solely for identification purposes). While a voter is unlikely to be prosecuted for perjury for writing in “Mickey Mouse” party since it would be difficult to prove intent, most voters will provide a sincere answer. And there is no particular harm if some voters do write-in “Mickey Mouse”.
In addition, the 10-year registration history of candidates will be available at the Secretary of State web site, so that voters may evaluate the constancy of affiliation.
Article II, Section 5 provides that a candidate for a voter-nominated may indicate his lack of a party preference on the ballot.
It does not dictate the manner in which that lack of a party preference is indicated. The legislature may thus make statutory provision. It should permit a candidate who lacks a party preference to chose from among:
No Party Preference
Independent
Unaffiliated
The voter registration form is required to list the name of all qualified political parties as well as have a check box for “No Party Preference”. SB 6 added this latter requirement, but this was merely codifying existing practice.
There should also be a requirement for an “Other” option with a blank, so that it is clear and obvious that a voter may specify a non-qualified party.
[ ] American Independent
[ ] Democratic
[ ] Green
[ ] Libertarian
[ ] Peace and Freedom
[ ] Republican
[ ] Other _______________________
[ ] No Party Preference
In addition, a specification of “None”, “Independent” or “Unaffiliated” should be interpreted as “No Party Preference”
Assemblyman Fong should be embarrassed to have included Section 7100 in AB 1413. The state has no business dictating to political parties how they internally conduct their affairs, including designation of presidential elector candidates.
It is not enforceable due to Eu v. San Francisco Democratic Committee; it is contrary to the intent of Proposition 14 “political parties may also adopt such rules as they see fit for the selection of party officials (including central committee members, presidential electors, and party officers)”; and it violates California Democratic Party v Jones since it would effectively permit voters of other parties to participate in the selection of Democratic Party presidential electors.
One wonders if the intent of the inclusion of this provision is intended to sabotage the open primary since it effectively makes certain candidates a state-recognized quasi-nominee.
Barring a complete ripping out of the Division 7 of the Elections Code, Sections 7100, 7300, 7578, and 7843 should be revised to say that the respective parties shall provide by rule for the selection of presidential elector nominees.
I’ve been paying attention to all the litigation and legislation relating to the top-two process (which I absolutely hate. One of the dumbest laws ever). That said, in this circumstance Fong got it right. The proponents of Prop 14 said they intended to eliminate write-ins in the general election and simple screwed up leaving the uncounted space on the ballot. Opponents of top 2 sued. They lost. The court said not only would write-ins not be counted, but that the space should not be printed. So all Fong is doing is fixing a drafting error and codifying the court’s ruling. Sounds like the definition of a technical clean-up to me.
#7, the legislature is free to either save write-ins, or not. The proponents of Prop. 14 never told the public that they intended to get rid of write-ins. They didn’t say a word about it. And the ban on counting write-ins was not approved by the voters; it was not in the text of Prop. 14.
The very beginning of Prop. 14 says, “The Top Two Candidates Open Primary is hereby adopted by the people of California to PROTECT and PRESERVE the RIGHT OF EVERY CALIFORNIAN TO VOTE FOR THE CANDIDATE OF HIS OR HER CHOICE.” That language is in the California Constitution now, and ought to be enough all by itself to strike down any proposed law that removes write-in space from ballots (emphasis added).
“#8, I fully agree that the voters don’t know they are voting for half the time. But it wasn’t a state secret what SB 6 did (the original statutory which was adopted by the legislature for all to read BEFORE Prop 14 was voted on). I looked up the floor analysis which said, “Eliminates the ability of voters to write-in candidates for a voter-nominated office at a general election, and eliminates the ability of candidates to run as write-in candidates for a voter-nominated office at a general election.”
As for the Constitution and non-qualified parties (#3) and write-ins (#8), the courts heard those arguments already and rejected them. You can disagree with the judges. But you can’t hold it against Fong. Let’s be honest. It was Prop 14 that screwed things up. It’s fine to say the Legislature should overturn the courts and overrule the voters, but lets be honest about what you are asking for.
Personally I’m glad the bill gets rid of the ability of a candidate to be registered with one party but not have that listed on the ballot. I know compelled speech. But that is information I use as a voter. And as Richard pointed out, voters don’t know what they are doing half the time, so to say they can go look it up on a website is really a false argument. If a candidate wants to be something different on the ballot, they should have the courage to change their registration at the same time. Good for Fong for putting voters needs ahead of politicians for a change.
Several other things. A) #5, there already is an option of “Other: _____”. Pick-up a voter registration card. You’ll see it. AB 1413 doesn’t change that. B) I really hope the Legislature will look at the standards for parties to qualify, which are too high. C) #6, As you point out parties can organize themselves however they want. I’m going to assume that is what the Democratic Party asked for (otherwise why would Dem Fong have included it). If they want to allow the top voter getters registered with their parties to pick Presidential electors, what do I care?
# 8 The folks in the 39th Congress in Dec. 1865-June 1866 spent LOTS of time and effort in producing 14th Amdt, Sec. 2.
— based on about 350,000 DEAD UNION Army and Navy persons in 1865-1866 — the REAL cost to get the 13th-14th-15th Amdts.
How many New Age MORONS have ANY idea (brain cells) that there was a horrific Civil WAR in 1861-1865 in the U.S.A. — due to the rotted to the core New Age *politically correct* Public Skoooools ???
Again – how many write-in votes in ALL States in 1866-1868 ???
1865-1866 >> typo 1861-1865
#8 Where you error is characterizing the other changes as being merely “technical” in nature.
The official ballot summary stated that:
“[Proposition 14] [p]rovides that candidates may choose not to have a political party preference indicated on the primary ballot.”
AB 1413 would eliminate this choice.
#7 Richard Winger writes:
The very beginning of Prop. 14 says, “The Top Two Candidates Open Primary is hereby adopted by the people of California to PROTECT and PRESERVE the RIGHT OF EVERY CALIFORNIAN TO VOTE FOR THE CANDIDATE OF HIS OR HER CHOICE.”
His emphasis overlooks TOP TWO CANDIDATE OPEN PRIMARY
Richard Winger can not seriously argue that Proposition 14 does not protect and preserve the right of every Californian to vote in the primary for the candidate of his or her choice, other than by Debra Bowen’s misinterpretation of the clear language of Section 8002.5.
#3 No plaintiff has ever argued that Debra Bowen is misinterpreting Elections Code 300.5 and 8002.5. Gautam Dutta agreed with her conclusion, though via a quite convoluted logic (I hope Richard Winger was not being billed by Dutta).
If a voter registered a party preference with Americans Elect in December was he really “declining to disclose a party preference for a qualified party”?
Elections Code 300.5 and 8002.5 say that a voter’s and candidate’s party preference is what they indicated on their most recent affidavit of registration.
Any other interpretation of this clear language effectively turns the voter registration form into a literacy test.
#9 Jamie Simms writes:
“Personally I’m glad the bill gets rid of the ability of a candidate to be registered with one party but not have that listed on the ballot.”
Even though this contradicts the official ballot summary and the actual text in the Constitution?
#9 Jamie Simms writes:
“Personally I’m glad the bill gets rid of the ability of a candidate to be registered with one party but not have that listed on the ballot. … But that is information I use as a voter.”
How do you as a voter use that information?
#9 There already is an option of “Other: _____”. Pick-up a voter registration card. You’ll see it. AB 1413 doesn’t change that.
AB 1413 is changing the text that is required to appear on the voter registration card, so it is appropriate to codify this, along with the interpretation when someone writes “none”, “unaffiated”, “independent”. The county registrars do not consistently administer this now, and the legislature should provide guidance.
The Secretary of State does not appear to believe that when someone writes-in a political party preference on their voter affidavit of registration, and then signs it to signify that it is truthful and correct, subject to perjury charges; that it is political party preference.
#9 Jamie Willis writes:
“As you point out parties can organize themselves however they want. I’m going to assume that is what the Democratic Party asked for (otherwise why would Dem Fong have included it). If they want to allow the top voter getters registered with their parties to pick Presidential electors, what do I care?”
If you don’t care how the Democratic Party chooses it presidential electors, why should the State of California care? Why should the legislature bother with adding text that is non-enforceable and is contrary to the intent of the voters in passing Proposition 14?
If John Burton wants the Democratic Party to choose its presidential electors based on votes cast for certain candidates in the primary, he doesn’t need to have Paul Fong write a law to make him do it.
And in this instance the fact that the State of California is requiring it, could lead to a misperception about the nature of party affiliation as it applies to a voter-nominated office.
The only reasons that I can see for changing Elections Code 7100 are:
(1) Sabotage;
(2) Incompetence.
Take your pick.
# 6 ALL stuff connected with elections for PUBLIC officers is PUBLIC stuff —
See the 1928-1932 TX Donkey White Primary cases — trying to stop black voters from voting in the TX Donkey primaries.
i.e. How Prez/VP Electors are chosen (by a party hack gang or an independent) in a sovereign State of the Union is PUBLIC business — Art. II, Sec. 1, 12th Amdt and 14th Amdt, Sec. 2
—
# 7 Preamble [propaganda] stuff means about ZERO when compared to actual constitution TEXT.
How soon before SCOTUS puts ALL of the top 2 case MORONS out of their long suffering misery — using a Bush v. Gore type legal HAMMER on the MORON skulls ???
Have the 2000 FL MORONS yet recovered from the Hammer opinion they deservedly got regarding — NO definition of a legal vote in the 2000 FL regime — result HAMMER.
See the Fed HAVA law section written especially for the MORONS in ALL State regimes regarding such definitions.
P.R. and nonpartisan App.V.
NO MORON caucuses, primaries and conventions.
http://www.leginfo.ca.gov/.const/.article_2
Top 2 related sections –
Sec. 5
Sec. 6.
For clarity for ALL morons (and the MORON courts) – each sentence in Sec. 5 should have been put in a separate subsection — (a), (b) etc. to (zzzzzzz).
NO preamble stuff, NO voter pamphlet info stuff, NO extra whatever — just CONSTITUTION T-E-X-T.
Does it take zillions of Einsteins now to *analyze*, *interpret*, *guesstimate* what ALL election law stuff now *means* — in this horrific New Age of more and more MORONS ???
# 19 more-
http://www.answers.com/topic/white-primaries
http://en.wikipedia.org/wiki/White_primaries
ANY body want to redo the horrific Civil WAR I in 1861-1865 ??? — mass death and destruction.
#20 Proposition 14 that was approved by the People of California includes both the preamble and the actual constitutional text. The preamble documents the legislative intent of the People in making the change to the constitution.
If there is a question or ambiguity in the constitution, legislative intent would be used interpret the constitutional text.
#19 Should the State of California dictate the platforms of political parties? Should the governor appoint, subject to senate confirmation, the officers of political parties?
# 23 As mentioned many times the 1989 Eu cases–
PUBLIC nomination stuff.
Private clubby robot party hack stuff.
———
See also CA Const –
SEC. 2.5. A voter who casts a vote in an election [in accordance with the laws of this State] shall have that vote counted.
LOOPHOLE language in brackets.
How many MORONS are there in CA ???