On January 10, the California Senate Elections Committee unanimously passed AB 1413, which makes several changes to the “top-two” system. The worst change is that write-in space will no longer be printed on general election ballots for Congress and partisan state office.
California will almost certainly join Louisiana as one of only two states that has ever had write-in space on general election ballots, but then eliminated them, and now doesn’t permit them. Assuming the bill passes, there will be six states that ban write-ins in the general election. Four of them, Nevada, Hawaii, South Dakota and Oklahoma, have never permitted write-ins.
The Ohio legislature banned write-ins in 1947, but in 1968 a 3-judge U.S. District Court ruled that the U.S. Constitution protects write-ins, and restored them in Ohio. The Florida legislature banned write-ins in 1977, but in 1979 the Florida Supreme Court ruled that the State Constitution protects them, and restored them.
Former State Senator Steve Peace, a proponent of the top-two system, testified at the hearing that the Committee should amend the bill and restore write-ins. However, the Committee did not accept his advice. Assemblyman Paul Fong, author of AB 1413, has said that he may introduce a separate bill to restore write-in space, but one wonders why, if he supports write-ins, he didn’t just amend AB 1413 to permit write-ins. Charlie Munger, a multi-millionaire who has been paying the legal bills for the defense of the top-two system, testified for the bill.
The California Senate Elections Committee has five members, but only two members were in attendance to hear the testimony. The other three Senators made an appearance after the testimony was over, and voted for the bill without having heard the witnesses. The bill now goes to the Senate Appropriations Committee.
Another change the bill makes is to change ballot labels. Existing law says the ballot should say, after the name of each candidate, “My party preference is the (whichever) party.” The bill shortens labels so that the ballot will say, “Party preference: (whichever) party.”
The second worst part is the elimination of the candidate option to not have their party preference (or lack thereof appear on the ballot).
This is:
(1) Contrary to the explicit language of the California constitution that this is optional;
(2) Contrary to the official ballot summary when Proposition 14 amending the constitution was passed;
(3) Contrary to Gralike decision regarding compelled speech.
Prior to the Top 2 Open Primary, the “party” designated the nominators of the candidate. In a sense, the actual nominee was secondary to who was making the nomination. The nominee of the Democratic Party, might well be a Republican and vice versa.
Under the Open Primary, this is a personal political expression of the candidate. Just as a candidate may choose not to provide an occupation/office/profession designation, he should not need to provide a personal political expression. It is not necessary for identification purposes, nor does it indicate the reason that the candidate appears on the ballot.
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We’re working with all three sides, the “top one” people for IRV, the “top two” people with the NY Independence Party of New York and the “top 1000 consecutively ranked names with plenty of consecutively ranked names as back-ups” people, with the 8th USA Parliament Election of 2012.
Check it out, we’re with the Libertarian Party where everyone has the liberty to self categorize as they wish, and we’re expanding from a 100-member BoD to a 1000-member BoD, where every member is one equal unit with an equal single transferable ranked choice vote (STV) for electing the five executives, the three prime ministers, two secretaries and one set of rules:
http://www.usparliament.org
14th Amdt, Sec. 2 is still a part of the nearly dead U.S.A. Const.
How many write-in votes in 1866-1868 ???
PART – CA Const Art. II, Sec. 5
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(b) Except as otherwise provided by Section 6, a candidate for a congressional or state elective office may have his or her political party preference, or lack of political party preference, indicated upon the ballot for the office [[in the manner provided by statute]].
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Standard loophole language for statutory machinations in the brackets.
WHO has brains in CA regarding the writing of constitutional amendments to STOP statutory machinations ???
The worst part is the attempt to codify Debra Bowen’s misinterpretation of Election Code 8002.5.
Prior to SB 6/Proposition 14, a voter was free to declare their intent to affiliate with a party at the next primary without regard to whether or not that party was qualified to participate in the primary. Since party qualification occurred when sufficient persons affiliated with a party, party qualification is derivative of party affiliation, and not the other way around.
California distinguishes between voters who declined to state a party affiliation; and those who did. The fact that California aggregates the number of voters affiliated with non-qualified parties is irrelevant. That is simply for accounting purposes. If a party attempts to qualify, county elections officials simply examine each voter affidavit of registration to determine how many voters are affiliated with that party.
Proposition 14/SB 6 simply recast party affiliations as party preferences. Voters who had Declined To State a party affiliation were recast a No Party Preference, while voters who had declared a party preference, regardless whether the party was qualified or not, had that converted to a party preference.
SB 6 added Elections Code Section 300.5 that says that the party affiliation of a voter or candidate for a voter-nominated office is the party preference that the voter disclosed on their affidavit of registration.
How can Debra Bowen interpret this to mean anything other than a candidate’s party preference is what they wrote on their affidavit of registration.
Does she think that the voter merely “wrote” their party preference on the form, and didn’t “disclose” it? Or does she think that when running for a voter-nominated office, that a voter is affiliated with a non-qualified party, but does not have a party preference for that party – but does have a preference for that party for every other purpose other than voter-nominated offices?
The simple language of Elections Code 300.5 and 8002.5 is that the party preference of a candidate is what they wrote on their affidavit of voter registration, which they signed to certify that the information is truthful and correct.
Does Debra Bowen think that a voter who wrote “Coffee Party” perjured themselves? Or perhaps she thinks that the voter registration application is so complicated that it is practically like a literacy test – and thus a voter can not commit perjury, but simply made a mistake that she needs to correct when someone runs for office?
And even if Debra Bowen’s interpretation were correct, it would not be constitutional. By treating candidates who have certain party preferences differently, California is having regard for those preferences, which is direct contradiction of the California Constitution. And this also limits the opportunity of a voter who would like to vote for a candidate with that party preference, particularly if it is one that the voter shares.
A party preference is a matter of personal expression and is protected by the 1st Amendment. California may not limit expression to more popular viewpoints. The modicum of support decisions relate to the support to appear on the ballot. All candidates demonstrate their modicum of support by filing a petition and paying a filing fee.
While California might have a regulatory interest in ensuring that the preference is for a “party”, so that, for example, consistent translations are used, less burdensome and intrusive regulations, such as those in Florida could be used. But California need not even do that. The current system where a voter discloses their party preference on their voter affidavit, which they must sign to certify as being truthful and correct may be sufficient, especially when it is done in conjunction with a public registration history of the candidate over the past 10 years.
#5 SB 6 which was passed as the statutory implementation of Proposition 14, defined the party preference of a candidate for a voter-nominated office as the party preference disclosed the voter affidavit of registration.
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