California AB 1038 may receive a vote on the Assembly floor on Thursday, May 16. This is the bill to make it illegal to pay registration drive workers according to how many registrants they obtain for any particular political party. If this bill were enacted, it would be much more difficult for either a newly-qualifying party, or an already-qualified party, to get on the ballot or remain on. The only realistic way for parties to be qualified in California is to have approximately 110,000 registered members.
No group formally supports AB 1038, but when the bill was in the Assembly Elections Committee, every Democrat on the committee voted for it. If you live in California, and especially if your Assemblymember is a Democrat, please e-mail or telephone your Assemblymember and ask for a “No” vote. Governor Jerry Brown vetoed very similar bills in both 2011 and 2012, and some federal courts have struck down laws similar to the provisions in this bill.
Why not reduce the qualifying standard to some reasonable number like 100 or 200?
The risk of a high level is that aggressive paid solicitors, some who may not even be Californians, will coerce voters to change their affiliation, or even bribe them to do so.
Since Proposition 14 extirpated the right of political parties to make nominations and have exclusive primaries for themselves, there is simply no reason for a high modicum of support standard.
The only legitimate state interest is to ensure that a party is a party. It should have a defined set of rules, a defined organization, responsible financial reporting, and an opportunity for all registrants to participate in and have ultimate control over the party. Perhaps there could be a requirement for a biennial state convention with a quorum.
California may also set reasonable standards as to party names, such as length, and to avoid confusion.
#1, you’re right, although of course a qualified party gets to ability to put a presidential nominee on the California November ballot.
There is nothing in the California constitution that would deny a party that does not participate in the presidential primary the right to have a candidate appear on the general election ballot.
Libertarian Party v Eu does not say that petition candidates must have “Independent” next to their name. It said that the California statute was not unconstitutional.
Further, the California Constitution says that the state may not deny a political party placement of the primary candidate who receives the most votes among the party candidates. For example, in 2008, California could not have denied the Democratic Party of its ability to have Hillary Clinton on the general election ballot. It could have denied the Democratic Party of its ability to have Barack Obama on the general election ballot.
#3, there were no independent candidate plaintiffs in Libertarian Party v Eu in 1980, so the issue of labels for independent candidates was not before the California Supreme Court. As to your last paragraph, in California presidential primaries, the actual candidates are the candidates for delegate to the national party conventions, so Prop. 60 doesn’t apply to presidential primaries.
#4
“(c) The Legislature shall provide for partisan elections for presidential candidates … an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to
be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.”
This can’t be read any other way than that the candidates on the ballot are the candidates. If the constitution wished to indicate that the candidates were not actually candidates, the constitution would have called them “fake candidates” or “placeholder candidates” or some other designation.
(d) A political party that participated in a primary election for a partisan office pursuant to subdivision (c) has the right to participate in the general election for that office and shall not be
denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party’s candidates.
Since there is only one partisan office, the office of President, the words “that office” must be interpreted as meaning “the office of President”.
And in this instance, the candidate whose name is placed on the general election ballot is the candidate who received the highest vote among the candidates of that party. Under your interpretation, it would be the delegate-candidate whose name would be placed on the general election ballot.
It is irrational that California would hold a beauty contest which the parties might totally ignore, but then have the right to name a candidates because they had “participated” in the primary.
#4 You miss my point with regard to Libertarian Party v Eu.
The court said it was not unconstitutional to deny a petition candidate a party name on the ballot.
This does not mean that it would be unconstitutional for California to permit a petition candidate to have a party name on the ballot.
California could change the standard to be recognized as a “political party”. It already recognizes that a political party is preferred by a voter, merely by the voter completing an affidavit on which he discloses his preference for the party. Disclosure is clearly an option for regulation. But California may have a reasonable concern whether the “Coffee Party” is a party. So voters may have been confused by the affidavit of voter registration. Michael Chamness might have been expressing a beverage preference. Other voters might frivolously put something like “Birthday” or “Wedding”.
California may demand some organizational structure such as is done in Florida. But for purposes of the voter-nominated offices it can not demand a large size. The key argument in the Washington litigation over the Top 2 primary was that a candidate’s party preference was a personal expression of political belief rather than an expression of support or endorsement by a political party.
The issue on remand was whether reasonable voters would be confused. Justice Scalia thought it impossible that they would not be. Justice Roberts was skeptical, but willing to let the determination be made by the district court after trial The district court made the determination that there was not widespread confusion, a decision that was confirmed by the 9th Circuit. Justice Roberts at least must have been satisfied with the lower court rulings.
It would violate the 1st Amendment to limit an expression of political belief to popular viewpoints. So California should make formal recognition of relative small groups of voter-registrants who maintain a recognizable lever of political organization.
They could still restrict presidential primaries to larger parties. But that does not require California to deny smaller parties the opportunity to have a candidate in the general election, based on a petition.
And California could return to the ballot used in 2000 where the ballots had both voter party affiliation and candidate. Since a party would be free to ignore votes cast by non-party members or for non-party members it does not violate California Democratic Party v Jones.
If there were a 1% threshold, then in 2000, Al Gore, Bill Bradley, John McCain, George W. Bush, Alan Keyes, and Ralph Nader would have qualified.
Gore would have been the nominee of the Democratic Party and Natural Law. McCain of American Independent, Libertarians, and Reform. Bush of the Republican party, and Nader of the Green Party.
These results could have been different. For example, the Libertarian Party might have decided to count votes cast by party members for John McCain for its determination of its nominee.
California could limit party indication on the ballot to larger parties. Smaller parties could still endorse candidates who qualified. A 1% threshold in 2000 just short of 79,000.
#4, you are only quoting the California Constitution, but you are not mentioning the statutory provisions in the California election code that are specifically for the Democratic Party and the Republican Party. They specify that the presidential primary elects those parties’ national convention delegates.
#7 The statutory provisions in the California election code are not enforceable by the State of California,
and to the extend they are contrary to the direct presidential primary provision of California Constitution, legally void.
Instead of tinkering with the Top 2 provisions, it would be better to remove the provisions from the constitution that deal with party officers and presidential elections. It is an accident that they are there in the first place.