On July 3, the Ninth Circuit upheld California law that requires independent candidates for Congress and partisan state office to have “No party preference” on the ballot instead of the label “independent.” However, the ruling leaves open for a future lawsuit the related issue of whether the law is unconstitutional as applied to members of unqualified parties; the law requires “no party preference” for them as well. The case is Chamness v Bowen, 11-56303.
The 26-page opinion says there is no evidence that “no party preference”, instead of “independent”, injures independent candidates. The decision does not mention the point that California still permits independent presidential candidates to use the word “independent” on the ballot. The opinion suggests that it is rational for California to bar the word “independent”, because otherwise there might be confusion with candidates who are members of the American Independent Party. The decision does not mention the decisions of the Massachusetts Supreme Court and the Minnesota Supreme Court that ruled “independent” is too basic a word to be banned for independent candidates.
Footnotes four and five of the decision both say that this opinion does not express any opinion as to whether or not it is unconstitutional to force a member of an unqualified party to be forced to have “no party preference” on the ballot. Footnote five, on page 18, says that the 1980 California Supreme Court decision Libertarian Party of California v Eu does not control that issue, and ends by saying, “We therefore express no views as to the validity of California’s restriction against stating preferences for non-qualified parties.” The largest and most active non-qualified parties in California are the Reform Party, the Constitution Party, and the Justice Party; all three of them are political bodies, which means the Secretary of State recognizes that they are trying to qualify and instructs county election officials to keep a tally of their registration figures, so the state will know if they ever do qualify or re-qualify.
What about *Independence* Party ??? — as in 4 July 1776 Declaration of Independence.
What part of election law, if any, has NOT yet been in some court ???
The opinion contains some apparent criticism of the Washington top-2 system:
That seems to describe the Washington system, which does allow such self-designations. Yet, the Ninth Circuit has said that the Washington system is just fine.
This court did the right thing. It said that no one should
use part of the name of the AMERICAN INDEPENDENT PARTY without
being an elector in AIP.
Sincerely, Mark Seidenberg, Vice Chairman,
American Independent Party of California
Then how do you explain why the state permits the Americans Elect Party to be on the ballot?
“Nondiscriminatory restrictions that impose a lesser burden on speech rights need only be reasonably related to achieving the state’s “important regulatory interests.”
California and Washington need not have the same regulatory interests, nor seek to achieve them in the same way.
It is pretty high burden for the plaintiffs to establish that the regulatory interests are not important, nor the means used to effect them are not reasonable, since the State can offer all kinds of rationalizations of what legislation any may have been intended to achieve.
The difference between the two States is that Washington had a competent Attorney General and Secretary of State defending its law, while California has an incompetent Secretary of State, who may be actively attempting to sabotage the law.
How better to confuse voters about the nature of a ballot label than to restrict its use to parties that previously had been “qualified” to have a nominee.
I’d like to read the Massachusetts Supreme Court and the Minnesota Supreme Court cases you mention in the article. Does anyone know the names or cites?
Thank you.
The Minnesota decision is Shaw v Johnson, 247 NW 2d 921 (1976). The Massachusetts decision is Bachrach v Secretary of the Commonwealth, 415 NE 2d 832 (1981). Also a lower Maine state court struck down the state’s refusal to print any label at all for independent candidates in 1986. That case isn’t reported but was called Huber v Secretary of State. I’ll postally mail a copy of the decision to anyone who e-mails me and asks for it. richardwinger@yahoo.com.