On January 19, the 9th circuit upheld the Washington state “top-two” system. Here is the decision.
The part of the decision about ballot access is very short. It quotes the dicta from the U.S. Supreme Court decision Munro v Socialist Workers Party that says the burden on minor parties is slight as long as their candidates can run in the primary. But it does not mention the holding in Munro v Socialist Workers Party, that there is no constitutional distinction between a petition for ballot access to the November ballot, and a prior vote test.
It says, “We recognize the possibility that I-872 makes it more difficult for minor-party candidates to qualify for the general election ballot than regulations permitting a minor-party candidate to qualify for a general election ballot by filing a required number of petition signatures. This additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See California Democratic Party v Jones, 530 U.S. 567, 585-86 (2000).”
The U.S. Supreme Court did not expressly approve of top-two systems in the 2000 decision that struck down blanket primaries. Justice Scalia wrote the 2000 decision that struck down the California blanket primary, and he added that a non-partisan system with no party labels would be constitutional. It is obvious that Justice Scalia did not mean in his dicta to approve of the type of top-two system used by California and Washington currently, because he dissented in the March 2008 decision Washington State Grange v Washington State Republican Party.
The U.S. Supreme Court didn’t think, in its March 2008 opinion, that the ballot access issue had been settled by the 2000 California blanket primary case. Otherwise, the March 2008 decision would not have included footnote eleven, which says the ballot access issue has not been decided and must be decided by lower courts.
The 9th circuit decision is also factually wrong, in the part of the decision that discusses freedom of association. The decision says, of the experimental evidence about voting confusion, that the ballots in the experiment differed from actual Washington state ballots. The decision is factually mistaken. The experimental ballots were an exact copy of actual Washington state ballots.
Thanks Richard. I will read it. Top-Two means big money wins every time.
That is a terrible ballot access decision. The Central Committees of the major parties, and their campaign finance machines, have won a big victory here. I wonder if the analysis would be different under the Seventeenth Amendment for a US Senate Candidate, who must be “elected by the people.” It seems to me that the sham August primary is not really an election “by the people.”
How soon before SCOTUS can put the anti-top 2 folks OUT of their misery with a FINAL-FINAL opinion ???
Public nominations by ALL electors or SOME electors in faction party hack gangs.
FREE advertising for the party hack gangs in the top 2 primary labels and the general election.
What is SOOOO difficult to understand ???
The top 2 primary is one more sideshow top on the road to —
P.R. and nonpartisan App.V. = NO primaries are needed = REAL reform.
The decision is factually correct. The “ballots” used in the experiment were not exact copies of the actual Washington state ballots.
Justice Scalia writing for the court in California Democratic Party v Jones wrote that the crucial element of a Top-N primary was that the candidates were not the nominees of the political parties.
In his dissent, Justice Stevens said that Justice Scalia was referring to a system like in Louisiana.
Justice Thomas in writing the majority opinion in Washington State Grange said that the previous decision had not considered a Top 2 primary system where a candidate would indicate their party preference on the ballot.
Justice Scalia did not take the opportunity in his Washington dissent to clarify what he had meant.
And he must have read Stevens’ dissent in the California case. If he thought that Stevens was misinterpreting what he wrote, he could have either had Stevens modify his dissent, or added clarification to the majority opinion.
So we really don’t know what Scalia meant. But it doesn’t matter because candidates are not nominated by parties in Washington, California, Louisiana, Nebraska, or special elections in Texas.
#4, Professor Manweller says today, “We went down to the Auditors Office and got an exact copy of the ballot used in 2008. We reprinted it to the letter, including words that were bolded, underlined, spacing, capitalization. Everything. Secondly, we did include the disclaimer language…word for word in the exact place that it appeared on the state ballot.”
And Nebraska has partisan nominations for all statewide executive state office, and county office, and congress. Nebraska has non-partisan elections, without party labels, for legislature. That is not the same as “top-two”.
IGNORANCE of the LAW is NO excuse.
Law 0000001
EVERY Elector KNOWS the LAW — for purposes of ANY election (or any other thing on Mother Earth)
— regardless of ANY reality about *confusion* or anything else — the weather, the economy, atomic physics, etc. etc.
i.e. EVERY Elector KNOWS a party hack label in a top 2 primary means ZERO — i.e. is FREE advertising for the party hack gang mentioned.
How many New Age SUPER-MORON judges and profs are there in 2012 ???
Will the commies complain if a Hitler clone wants *Prefers Commies Party* next to its name on the ballots ???
A MINOR reality check —
Many IGNORANT folks do NOT know how to read (due to whatever — rotted parents, rotted schools, rotted whatever in their past history on Mother Earth) — so do NOT register to vote — and of course do NOT *legally* vote.
There are lots of *marginal* literate folks who can BARELY read — such that ANY voter instructions on the ballots are DIFFICULT and *confusing* for them.
See the many foreign regimes having symbols for parties and candidates on foreign ballos for *illiterate* folks to decipher — dogs, chickens, cats, birds, whatever — to have SOME attempt at Democracy in such regimes.
How about MORE and MORE symbols on U.S.A. ballots — more angry Donkeys and angry Elephants, angry trees, dogs, cats, etc. ???
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Another Court FULL of Jesters!
Friends of the traitorous Banksters, Puppeticians & Presstitutes!
Down with the Court Jesters!
Two questions.
Does this Top Two apply to presidential preference primaries?
What is the process for an independent or 3rd party candidate to have his or her name placed on the Primary Ballot? A petition or a filing fee?
#4 If Manweller did follow the format of the 2008 Kittitas County election ballot, then Kittitas County did not follow state law. The (sample) ballot shown in the Pierce County voter’s pamphlet is different. Since it uses the complete the arrow format, I presume it is accurate other than combining multiple legislative races on one ballot.
There were 18 offices on the ballot in the August 2008 primary (1 Congress, 9 other statewide, 2 legislative, and 6 judicial races). Why does Manweller’s ballot only show two offices?
Have Manweller fax you an image of the Kittitas Ballot, or provide a link to it.
The Manweller ballots violate fundamental principles of ballot design (see the report by the Brennan Center that you blogged about in the last couple of years), in particular placement of the instructions about the meaning of preference below a double line adjacent to a second office (which would have been the 11th office in 2008).
How were the online versions of the ballot presented? People are likely to read online information differently than they are paper, and there is less formatting control unless there is a specialized application that avoids mediation by a browser.
Do the questions in his experiment really demonstrate confusion, or do they indicate different understanding of terminology, in essence a technical vocabulary test. Wouldn’t a more open-ended question have better revealed how the respondents comprehended the ballot and the relationship between the candidates and the parties. Would a typical person offered that “X is the nominee of Party A” or would they have said that “X prefers party A”.
Voters were considered to be “confused” unless they answered NO to 8 consecutively different relationships. Might respondents attempt to establish some agreement with the questioner?
If voters were offered “Does John Smith prefer the Democratic Party?” would their perception of the other questions change?
How did the political parties select the “active voters”? Considering they were litigants, did they just cough up 6000 e-mail addresses to random researcher, or did they give 6000 e-mail addresses to researcher who promised a study they could use in their lawsuit. You must admit several 100 news clippings was pretty weak evidence.
What sort of (self)selection biases were involved. The “new voters” were students at Central Washington who were randomly handed one of 3 ballots, and the number in each group is roughly equal (118, 128, 120).
But among 6000 “active voters” only 1079 completed the survey 13%, and they were wildly varied (351, 266, 462). I’m guessing that much variation is statistically significant. Or did Manweller oversample certain ballots for some reason.
Among “registered voters” only 200 of 1500 (13%) completed the process. Since these voters were voters who had registered online, were they really reflective of “registered voters”? They had either recently moved to Washington or changed residence or name.
Now that the judicial route has been largely exhausted here, it is for patriots to continue the challenge by filing candidacies and articulating a more just political/electoral arrangement. Talking process issues to voters is straight up hill but failure to attempt it and then again and again is why our politics is so anti-voter.
#11 Washington has cancelled their presidential primary for 2012.
In the past, the Washington Democratic Party has refused to use the results from the presidential primary. Washington doesn’t have party registration and for many years used a blanket primary in September where voters could vote for candidate’s of either party for each office.
Under the Pick-A-Party primary used in 2004 and 2006, voters would be given a primary ballot with candidates from all major parties, but would select the party on the ballot (in secret). So you could tell how many “Democrats” there were, but not who they were.
The national Democratic Party requires voters in primaries to be “Democrats”. In states without party registration, this basically means the party has to know who voted in their primary.
So Washington had a system for presidential primaries that when a voter voted by mail (and most all votes were cast by mail), they would put their name and party on one of the outer envelopes, and then the ballot would be pulled. The party would then get a list of who voted in the primary. For some reason the Washington Democrats didn’t like this system, and simply ignore the primary (but they do accept the list of voters) and use a caucus system.
Since Democrats control the legislature, and didn’t expect a contested presidential primary, they were content to simply get rid of the primary. They can claim that it is a cost saving measure – but they also like the fact that there will be less publicity for the Republican Party.
#13, the judicial struggle against top-two is not over. The Washington state case will almost certainly be appealed to the U.S. Supreme Court. Also, in California, the lawsuits filed in both state and federal court against two particular discriminatory aspects of California’s top-two system are still pending. Those lawsuits challenge the law that says some candidates may provide a clue as to their political beliefs on the ballot whereas other candidates may not; and the California law that says write-in space should be printed on the ballot but write-ins can never be counted. However, the California legislature is likely to pass AB 1413, which removes write-in space from the ballot, so that part of the lawsuit would then be moot.
Jim Riley: You still did not answer my question of how an independent or 3rd party candidate qualifies for this “Top Two” Primary. A petition or a filing fee?
#16 A candidate for statewide office requires a petition with between 65 and 100 signatures, and a filing fee of 2% of the first year’s salary. The only statewide office this year is US Senator, and the filing fee is $3840.
A candidate may also file an in lieu of petition to offset the filing fee. If 10,000 signatures are filed the entire fee is waived. Otherwise it is done on a pro rata basis. If 2400 signatures (24% of 10,000) were filed, then 24% of the filing fee ($921.60) would be waived. In other words, each signature is worth 38.4 cents.
A candidate for district office (congress or the legislature) must have a petition with between 40 and 60 signatures, and a filing fee of 1% of the 1st year salary. There are also in lieu of signatures that may be used to defray some or all of the filing fee.
US Representative: $1740 / 3000 in lieu signatures.
Senator: $952.91 / 3000
Assemblyman: $952.91 / 1500
A write-in candidate does not pay the filing fee, but they do need to collect the signatures (65 for statewide office, or 40 for district).
All candidates are treated equally, regardless of their party affiliation. When a voter registers, they may disclose a party preference. There is no requirement that this preference be for a qualified party. A voter may also disclose they have No Party Preference.
When a candidate files for a Voter-Nominated (Top 2) Office, they specify their party preference which must match their voter registration. They have the option of having that party preference appear on the ballot, or having nothing.
#15 There is NO law in California that says some candidates may have their party preference appear on the ballot, while others may not.
There is a law in California that says the party preference of a candidate must be the same as they had disclosed on their affidavit of voter registration (Elections Code 300.5 and 8002.5).
A candidate has the option of not having his party preference (or lack thereof) not appear on the ballot (just as they are not required to have a occupation-profession-office designation appear on the ballot.
Jim Riley reads the California law differently than the Secretary of State does. His comments above are his interpretation of the law, but it doesn’t matter how he interprets it, because the Secretary of State doesn’t know or care about Jim Riley’s interpretation, and she has her own worse interpretation.
In this matter, Jim Riley would be a better California Secretary of State than the incumbent.
Footnote 11 of the 2008 decisions says: “… we do not consider the ballot access and trademark arguments as they were not addressed below and are not encompassed by the question on which we granted certiorari”.
The Supreme Court avoids addressing issues that they don’t have to. Even if they realized how meritless the ballot access claim was, they would not order it dismissed.
Justice Scalia said that a state might let candidates of established parties along with independents who qualified by petition appear on the nonpartisan primary ballot, with the Top 2 advancing to the general election ballot.
It doesn’t make sense that if the basis of qualification for the primary ballot was selection by a party, that the ballot could not contain the name of that party. So what makes it a nonpartisan primary is that parties are not choosing nominees by the primary. But according to Scalia it would be constitutional even if a candidate received 32% of the vote and failed to advance to the general election ballot, and happened to be selected by an established party.
Just because Washington made it possible for any candidate to appear on the ballot without selection by the party or a petition with 1000s of signatures doesn’t change anything. You aren’t really going to argue that the presence of a candidate who prefers the Salmon Yoga Party on the primary ballot should mean that a candidate who happens to have received an endorsement by the Libertarian Party should advance to the general election ballot even though he finished 9th.
#19 The statute in question (Elections Code 8002.5) contains the following language:
“party preference, or lack of party preference, as
disclosed upon the candidate’s most recent [affidavit] of registration”
The Secretary of State apparently thinks that “party preference” in this usage has to be interpreted as “qualified party preference”, even though in other parts of the Election Code “party preference” means what the voter disclosed on their affidavit of registration.
A voter when registering is required to “certify the content of the affidavit as to its truth and correctness, under penalty of perjury” by signing and dating it. While the signature can also be used for identification purposes, its primary purpose is to certify that all the content (eg name, address, age, party preference) is truthful and correct.
Just prior to the June 2010 election at which Proposition 14 was approved, she sent a directive to county registrars emphasizing that voters who had declared their affiliation with a non-qualified party were eligible to vote in the Republican and Democratic primaries (CC/ROV #10086, 9 March 2010).
The whole party qualification scheme in California is unworkable if voters could not affiliate/express a party preference for an unqualified party when they registered.
The SOS interpretation of 8002.5 requires “as disclosed upon the candidate’s most recent affidavit of registration” to mean not what the voter actually wrote and signed to certify that it was truthful and correct, under penalty of perjury; but rather some interpretation by the SOS of what the voter meant. In effect, the SOS has transformed a voter registration application into some literacy test.
The text of the constitutional amendment that was ratified by Proposition 14 does not define “party preference”, but the proposition itself said that it was the legislative intent of the People in approving the amendment that SB 6 implement the amendment. It is absolutely clear from SB 6 that existing party affiliations, for qualified or non-qualified parties alike, were to be converted to party preferences; and that where previously a voter would declare their affiliation with a party it would be recast as a disclosure of a party preference, but would be functionally equivalent for partisan offices; and that further, “Declined To State” voters would be recast as “No Party Preference” voters.
Secondly, SB 6 required that the party preference for a candidate be identical to that which the candidate had disclosed on their voter registration; and that it not change between the primary and general election. Further, candidates were required to have their 10-year party preference history appear on the SOS web site. So not only were voters assured that a voter who said he preferred the Democratic Party could not say that as a candidate he preferred the Republican Party, voters could check his recent preference history.
Now imagine Joe Smith had registered with the Natural Law Party at the time the party was qualified, and had never changed his registration. In 2007 the party became non-qualified, but his registration did not change. The State began tabulating his registration as Miscellaneous Other Party, but did not change his registration. On January 1, 2011 his registration was recast as a party preference for the Natural Law Party.
Now imagine that the NLP was attempting to requalify. His county’s registrar would pull out Joe’s affidavit and see that his preference was for the Natural Law Party and add one to his count. He would continue to also be tabulated among Miscellaneous Other Parties.
We’ll assume the NLP failed to requalify, and under state law is presumed to have abandoned its immediate
effort to qualify. But Joe’s registration did not change, and he would be counted if the NLP made another attempt to requalify.
Now then Joe decides to run for Senator. He fills out the declaration and says that his party preference is the Natural Law Party, just as it is on his affidavit of voter registration; fills out that he was affiliated with the NLP since (at least) 2002; gathers 60 signatures, pays the $4000 filing fee, finds a notary, and swears that his declaration of candidacy is correct.
The SOS would determine that his party preference was not really for the Natural Law Party, and must have “No Party Preference” appear on the ballot; even though a few months earlier she had counted Joe as having a preference for the party.
Who knows what the SOS will put on the SOS website about Joe’s previous registration history. He might have even been an NLP candidate during that period, but will she say that he had No Party Preference. Or will she change it after 2007. Will she claim that she declined his party preference on his behalf?