On July 3, the California Senate Public Safety Committee passed AB 2058, which makes it a criminal offense to pay registration-drive workers on a per-registration card basis. Because Proposition 14 (the “top-two open primary” law) eliminated the vote test for a party to remain ballot-qualified, the only method for qualified parties to remain on the ballot is to have registration of over 100,000 members. Neither the Libertarian Party nor the Peace and Freedom Party nor Americans Elect have that many registered voters.
AB 2058 makes it very difficult for a party to run an effective drive to increase its registration. The state chair of the Peace and Freedom Party, C. T. Weber, and the state chair of the Libertarian Party, Kevin Takenaga, testified against the bill, but the association of county elections officials, and the Secretary of State, testified for it. It passed on a party-line vote, with all Democrats in support and all Republicans against. UPDATE: this post is in error. AB 2058 did not pass the Committee. See the more recent blog post about this made on July 6. Although the bill received 3 votes, the committee has 7 members and thus needs 4 votes to pass. When this blog post had been written, it had been assumed that one of the two Democratic Senators who had not been present for the testimony would come to the hearing late and vote for the bill. But, neither of them showed up to vote for it.
Also on July 3, the California Assembly Elections Committee passed ACA 10, which makes it more difficult for a constitutional amendment initiative to get on the ballot. Current law requires a petition signed by a number of voters equal to 8% of the last gubernatorial vote. The bill does not alter this percentage, but says the initiative also needs the signatures of 8% of the last gubernatorial vote in each of 27 of the 40 State Senate districts. Paula Lee, from Californians for Electoral Reform, and David Wolf, from the Howard Jarvis Association, testified against the bill. The bill passed with no Republican votes. Also, one Democrat, Assemblyman Sandre Swanson, also refused to vote for the bill.
The bill also says that if a constitutional amendment gets on the ballot (whether by initiative, or by vote of the legislature), it cannot pass unless it receives at least 55% of the vote. If that rule had been in effect in June 2010, Proposition 14, the top-two open primary, would have failed to pass. It only received 53.73% of the vote. UPDATE: the above sentences in this paragraph are incorrect. The measure says that constitutional amendments proposed by the legislature would still need 50% to pass, but initiative constitutional amendments would need 55% to pass. Thanks to Paul Jacob for this correction.
Glad I don’t live in Cali anymore.
That state is going down the tubes in every way possible.
Cody. It is not just California, but many other states as well. Most Democrats and Republicans alike in many – if not all states – are determined that there will be only ballot access for two political parties – Democratic and Republican. Their attitude toward 3rd parties and independents is – find one of the two major parties that best fits your political doctrine and learn to live and achieve your politial objectives within it.
I just hope that someday enough 3rd partians and independents will unite together if only long enough to throw off this yoke of the so-called “two party system” which is really nothing more than one party with two heads.
I share your concerns.
Will every Democracy part of election stuff have to be put into constitutional amendments ???
— since the gerrymander Donkey/Elephant MONSTERS are now TOTALLY EVIL and ANTI-Democracy in all election related stuff
— along with having 5 of 9 APPOINTED robot party hacks on SCOTUS as a backup for their EVIL stuff.
—
P.R. and nonpartisan App.V. — the CRISIS is N-O-W.
California’s restriction on which party a candidate may express a preference for based on the size of the party violates the 1st Amendment of the US Constitution, and Article II, Section 5 of the California Constitution, and the clear intentions of the voters and the Legislature in implementing Proposition 14.
Prior to the June 8, 2010 primary at which Proposition 14 was approved, the California Secretary of State issued CC/ROV Advisory 10032 (March 9, 2010). This advisory to county clerks and registrars clearly recognized the distinction between Declined To State (DTS) voters and voters who had declared their intent to affiliate with a non-qualified party.
Prior to Proposition 14, voters could state their intent to affiliate with a political party at the next primary. DTS voters were literally voters who Declined To State what their intent was. If a sufficient number of voters had stated their intent to affiliate with a political party, then that party was deemed qualified to have a primary to choose nominees for the general election ballot. Voters who had expressed their intent to affiliate with a party could execute that intent by voting in primary of their party.
Voters who had expressed an intent to affiliate with a party that did not have sufficient registrants did not have their party affiliation discarded, they simply did not participate in the primary of their party, since no such primary was held.
In Libertarian Party v Eu, the California Supreme Court did not find that David Bergland or Jim Gallagher were not affiliated with the Libertarian Party, but rather their placement on the general election ballot was by the independent nomination (petition) procedure. That is, they were not nominated by the Libertarian Party, but by signatures from voters who may have had a variety of party registrations who were placing the candidates on the ballot through an extra-party process.
Proposition 14 did away with party nominations and independent nominations. It also recast voter registrations from “statement of intent to affiliate at the next primary” to “declaration of party preference”. Voters who had declared their intent to affiliate with the Democratic, Libertarian, Reform, or We Like Women party at the next primary had their registrations converted to a party preference for their respective parties. Declined To State voters were converted to No Party Preference. In essence, voter registrations were converted from an intent to engage in partisan activity at a future primary; to an ongoing expression of party preference, which could be changed by executing a new affidavit of voter registration.
When a State affords a voter the right to declare their party affiliation or preference on their voter registration, they may not limit that expression to certain “popular” parties, and they may not discriminate on the basis of that party preference.
SB 6 provided that the party preference expressed on a voter registration would be the party preference of a candidate for voter-nominated office. Debra Bowen’s maladministration disregarded the clear language of SB 6, and the intent of the voters in ratifying Proposition 14.
Proposition 14 amended the California Constitution Article II, Section 5 to state:
“… 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 making a distinction on the basis of party size, California is having regard for the party preference disclosed by the voter or candidate. If a voter who prefers a particular party is denied the opportunity to find a like-minded candidate on the primary ballot, then the State is having regard for his party preference.
#4: All references to the “intent of the legislature” in passing SB 6 (the original implementing language for Prop 14) are nonsense if they claim any intent other than approving a budget deal in February 2009. The bills placing (what became) Prop 14 on the ballot and conditionally (on the passage of the constitutional amendment) adopting implementing legislation were passed in the middle of the night with essentially no debate, in order to buy the vote of Abel Maldonado to get the two-thirds vote then needed to approve a budget.
I won’t argue here for or against the claims that the state and federal constitutions require that candidates who prefer a non-ballot qualified party be able to list that preference on the ballot in California. I will, however, note that if Debra Bowen’s initial interpretation of SB 6 (that only preferences for ballot-qualified parties could be listed on the ballot) was wrong, that is now irrelevant. AB 1413, adopted as an urgency bill and signed into law on February 10, 2012, adopts Bowen’s interpretation into the Elections Code.
#5 The California Constitution is an instrument of the People. The legislature proposed that the People amend their Constitution by adopting Proposition 14. It is irrelevant why individual legislators were motivated to support placing Proposition 14 on the ballot (short of gross malfeasance).
Proposition 14 consists of 3 sections. The 3rd Section is the actual language that was placed in the Constitution. It is of course is the most important, it is what changes the People made. The 2nd Section is a declaration of Why the People were amending the Constitution. It is a statement of their intent in amending the Constitution. If there is a question of how Article II, Section 5 and SB 6 should be interpreted it would be based on the findings and declaration that the People made when they approved Proposition 14.
The People declared that voters have the freedom to disclose their party preference when they register to vote; and that existing party affiliations would be recast as party preferences. SB 6 specified how this was to be done, converting all DTS voters to No Party Preference; and all other party affiliations to party preferences.
Section 2 essentially defines what a “voter party preference”. Any statute that were to attempt to impose a different definition of “voter party preference” that is inconsistent with “what a voter expresses when they register to voter” would violate Article II, Section 5.
California can not restrict voter party preferences to more popular preferences. That would be an unconstitutional attempt to regulate speech content.
Under Article II, Section 5 of the California Constitution a voter may vote for any candidate without regard to the political party preference of a voter or the candidate.
A voter may not be restricted in his ability to vote for certain candidates based on his political party preference. Making it harder to vote for some candidates is not substantively different than denying the right to vote altogether.
The whole purpose of having a candidate’s political party preference on the ballot is to provide information about a candidate’s political viewpoint so as to assist a voter in making a more informed elective choice. If a voter is provided less information about some candidates, particularly those who might share his political viewpoint, then California statutes are in violation of Article II, Section 5, and the Equal Protection Clause of the 14th Amendment.
A voter who prefers a less popular party may not always have a candidate who shares his preference on the ballot. And such candidates my be less likely to be elected. But the State of California may not hide such candidates.
“It has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State’s population.”
San Antonio ISD v Rodriguez
AB 1413 is in violation Article II, Section 5 of the California Constitution and the Equal Protection Clause of the 14th Amendment because it discriminates against voters based on the popularity of their political beliefs.
AB 1413 also requires certain candidates, those with less popular political views, to lie about their political beliefs at the point where they would otherwise be afforded an opportunity to present their beliefs to the electorate. Instead of being able to express the same party preference they were free to do as a voter, they are coerced to say they have no party preference.
A voter is required to sign his affidavit of voter registration to certify, subject to perjury charges, that it is truthful and correct. A declaration of candidacy must be sworn. If a candidate swears that he has no party preference, yet certifies that when he registered to vote that he had a preference, hasn’t he committed an act of perjury.
#6: “If there is a question of how Article II, Section 5 and SB 6 should be interpreted it would be based on the findings and declaration that the People made when they approved Proposition 14.”
The people did not vote on SB 6, so while the “findings and declarations” made as part of Prop 14 (the second of five, not three sections; both the third and fourth sections were changes to constitutional language, and the fifth specified its effective date) may be relevant to interpreting the meaning of the constitutional language in the proposition, they are irrelevant to the intent of the legislature in passing SB 6 (and that is the only relevant legislative intent as to the meaning of SB 6).
In looking through the language of the second section of Prop 14, I find it hard to take its findings as constituting a definition of voters’ or candidates’ “party preference” or of anything else. Thus I’m skeptical that they would serve as a basis for ruling that restricting candidates’ “party preference” to ballot-qualified parties is unconstitutional. The statement that “At the time they file to run for public office, all candidates shall have the choice to declare a party preference” does, however, seem to contradict the requirement of AB 1413 that any candidate listed as affiliated with or preferring a ballot-qualified political party must have that preference listed on the ballot (except that since candidates can change their registration at the time they file, it could be argued they do still have the option to declare a party preference then).
Finally, I’d like to note that under Jim Riley’s interpretation of party preference and perjury, it would seem that a libertarian who prefers the Libertarian Party but registered Republican in order to vote for Ron Paul in the Republican presidential primary would be guilty of perjury. (And, if Prop 14 had been in effect in 2008, a supporter of the Greens who registered as a Democrat in order to vote for Dennis Kucinich in the Democratic presidential primary would have been guilty of perjury.) Luckily, the past affidavits would not make perjurers out of voters who registered in a party other than the one they really prefer in order to vote for a candidate they liked in the primary, because they didn’t contain any statement that a voter actually preferred the party in which he or she registered.