On April 22, U.S. District Court Judge Andre Birotte upheld a California law that won’t let candidates show their party label on the ballot unless the candidate is a member of a qualified party. Soltysik v Padilla, c.d. cv-15-7916. The plaintiffs were two candidates who are registered as members of the Socialist Party. Because the Socialist Party is not ballot-qualified in California, their ballot label is “party preference: none.”
The decision says that the burden on a candidate to be denied a partisan ballot label is “not severe.” The decision won’t allow a trial so that the plaintiffs can present evidence that the burden is severe. The decision merely assumes that denial of a party label is “not severe”. The decision makes no mention of the U.S. Supreme Court opinion Bullock v Carter, 405 U.S. 134 (1972), which says it is not reasonable for Texas to force candidates who can’t pay a filing fee to run for office with no party label.
The decision also does not mention the U.S. Supreme Court opinion Cook v Gralike, 531 U.S. 510 (2001), which said that states cannot discriminate against candidates relative to party labels, and which says, “The adverse labels handicap candidates at the most crucial stage in the election process – the instant before the vote is cast…the labels surely place their targets at a political disadvantage.”
The decision depends on Chamness v Bowen, a Ninth Circuit decision that said California could bar independent candidates from being listed as “independent” on the ballot. But the Chamness decision depends on the fact that the plaintiff presented no evidence that denial of the word “independent” does any harm, and said the outcome might have been different if there had been such evidence. In the Soltysik case, the plaintiff was ready to present evidence that the campaigns are injured by denial of the word “Socialist” on the ballot, but Judge Birotte won’t permit such evidence to be submitted.
Every election is NEW.
What lawyers have ANY brain cells ???
Cook v. Gralike was not about party labels. It was about a label that the candidate either refused to take a term limits pledge or took the pledge and then violated it. Also, the decision invalidated the mandatory labels on the basis of the Elections Clause (states cannot impose additional qualifications on candidates for federal office), which would not apply to candidates for state or local office.
Proposition 14 in its preamble set out the intent of the voters in amending their state Constitution:
“(c) Open Voter Registration. At the time they register, all voters shall have the freedom to choose whether or not to disclose their party preference. No voter shall be denied the right to vote for the candidate of his or her choice in either a primary or a general election for statewide constitutional office, the State Legislature, or the Congress of the United States based upon his or her disclosure or nondisclosure of party preference. Existing voter registrations, which specify a political party affiliation, shall be deemed to have disclosed that party as the voter’s political party preference unless a new affidavit of registration is filed.”
Mimi Soltysik when he filled out his affidavit of voter registration did choose to disclose his party preference for Socialist Party USA. He did not choose to not “disclose a preference for a qualified political party.”
Imagine someone goes into Dean Logan’s office and fills out a voter registration form, and states their party preference for the Coffee Party. They sign the card to indicate that the information is truthful and correct. They know that they could be prosecuted for perjury. What would happen?
(1) The registrant would be taken down to the dungeon and constrained. After an hour or two, an interrogator would appear and ask if they were declining to disclose a preference for a qualified political party, slowly listing them: American Independent; Democratic, Green, Libertarian, Peace and Freedom; Republican. The registrant might say that he prefers the Coffee Party. The interrogator would leave, the dungeon door would slam shut, the light bulb would go off, and there would be silence.
This would be repeated several times, until finally after the list of qualified parties was spoke, the registrant would scream, “I prefer none of them, you can make me disclose a preferemce!!!”, and slump over unconscious. The interrogator would say, “Very well, the registrant has chosen not to disclose a preference for a qualified party”, the registration form would be modified, blood would be extracted from the registrant’s finger to make an ‘X’, and he would carted upstairs to a waiting room. When he came to, he would be told that he must have fallen asleep and been dreaming.
OR
(2) Dean Logan, or perhaps a member of his staff, would type in “Coffee” as the voter’s party preference.
Chief Justice Rehnquist, joined by Justice O’Connor did say that it violated the First Amendment.
Proposition 14 said:
“Existing voter registrations, which specify a political party affiliation, shall be deemed to have disclosed that party as the voter’s political party preference unless a new affidavit of registration is filed.” “This act, along with legislation already enacted by the Legislature to implement this act, are intended to implement an open primary system in California as set forth below.”
SB 6 said that existing registrations would be converted in the following manner: (1) Political party affiliations would be converted to political party preference; (2) Decline To State voters were converted to No Party Preference voters. There was no distinction made between registrations for qualified and non-qualified parties.
On March 6, 2010, the SOS office, in anticipation of the June 8, 2010 primary at which Proposition 14 was approved, issued CC/ROV memorandum #10086 that stated:
“A question has arisen as to whether this means people who are registered with an unqualified political party can, for the June 8, 2010, Statewide Direct Primary election, request a Democratic Party or Republican Party ballot so they can participate in one of those two parties’ primary elections for partisan office.”
“The answer is yes – voters who decline to state a political party affiliation (DTS voters) and those who are affiliated with an unqualified political party can request a Democratic or a Republican party ballot (excluding central committee races) for the June 8, 2010, Statewide Direct Primary election.
The memorandum then goes on to explain Elections Code 13102(b) which provides for participation in partisan primaries. SB 6 amended 13102(b), replacing “as intending to affiliate” to “disclosing a
preference”.
In June 2010, someone who was affiliated with a nonqualified party could request a Republican or Democratic ballot, and be given that ballot, and after voting on partisan nominations could vote YES on Proposition 14.
In June 2016, someone who has a party preference for a nonqualified party may request an American Independent, Democratic, or Libertarian party ballot. If Mimi Soltysik were running for Assembly (this was the predicate for his lawsuit), and requested a Libertarian Party ballot, an election worker would look at his voter registration, determine that his party preference was Socialist Party USA, double check to make sure that ‘Socialist Party USA’ was not on the list of the 6 parties participating in the presidential primary, and that ‘Libertarian’ was on the list of the 3 parties opening their primary, and hand Soltysik a Libertarian ballot.
After voting for his pick in the Libertarian presidential primary, Soltysik could vote for Assembly, and see that Dean Logan had printed he had “No Party Preference”.
If registration in the Democratic Party declines, and the party is determined to have been abandoned, Alex Padilla’s party preference will be Democratic Party, unless he personally changes it.
We don’t know why Alex Padilla disclosed a party preference of Democratic Party. It might be because it was a qualified party. Perhaps he admires William Jennings Bryan, the party standard bearer in 1908.
We don’t know why Mimi Soltysik disclosed a party preference of Socialist Party USA. It might be because he hopes that the party will become a qualified party. Perhaps he admires Eugene V. Debs, the party standard bearer in 1908.
We simply can not determine the meaning of a party preference on an affidavit of voter registration, other than the voter chose to disclose it.
Proposition 14 said:
“This act conforms to the ruling of the United States Supreme Court in Washington State Grange v. Washington State Republican Party (2008) 128 S.Ct. 1184.”
The 7-2 ruling in ‘Washington State Grange’ was that a candidate’s party preference was personal, 1st Amendment protected expression, and was not an endorsement by the political party that he preferred. While some justices expressed a concern that the candidate preference on the ballot would be misinterpreted as a party endorsement, they left that to be determined on remand, and declared that the preliminary injunction on the facial challenge by the district court in Washington was an “extraordinary and precipitous nullification of the will of the people”
The federal court later determined that the risk of voter confusion was slight. This decision was upheld by the 9th Circuit, and the SCOTUS did not take up the case.
But in California, some candidates are denied the right to express their party preference. A voter is required to sign their affidavit of voter registration to indicate that everything on the information is truthful and correct. If a voter writes that they prefer Socialist Party USA, but as a candidate are forced to state that they have No Party Preference, they are compelled to lie on an official form.
When Debra Bowen and Michael Chamness were running in the special congressional election, Bowen could have run a TV Ad, complete with ominous music, a grainy black and white photo of Chamness in his HS graduation picture fading to a photo of his voter registration. The narrator intones. “Michael Chamness says he has No Party Preference [ballot is shown], but his voter registration says that he prefers the Coffee Party [zoom in on “Coffee”], what else is Michael Chamness hiding? Vote for Debra Bowen, she prefers the Democratic Party, and is not afraid to say so.” Debra Bowen would then state that she approved this message.
But it was Debra Bowen who contrived this idea of party preference for a qualified party. She was the one who compelled Michael Chamness to appear on the ballot as something other than what his voter registration stated.
When candidates are restricted to expressing a preference for a “qualified party” it increases the risk of voter confusion. They may take the preference as representing an endorsement by a party that had before 2011 been qualified to have its nominee appear on general election ballots. Or they may think, I know Michael Chamness has a preference for the Coffee Party, but he says he has “No Party Preference”. The State of California has selectively discriminated against some candidates on the basis of their party preference.
If a voter who has a party preference of Coffee Party, seeks in vain for a candidate with similar values, they are effectively disenfranchised. If someone who has No Party Preference votes for a candidate because the ballot says that they have “No Party Preference” they too are disenfranchised.